Opinion of the Advocate General — ECLI:EU:C:2002:52
Date: 2002-01-24
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Association Agreement;External relations;Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary of the Judgment 
1. Acts of the institutions — Application ratione temporis — Procedural rules — 
Application to proceedings pending at the time when such rules enter into force 
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SUMMARY — CASE C-251/00 
2. Own resources of the European Communities — Post-clearance recovery of import 
and export duties — Conditions for non-recovery laid down in Article 5(2) of 
Regulation No 1697/79 — 'Error made by the competent authorities themselves' — 
Error which 'could not reasonably have been detected by the person liable' — Criteria 
for assessment 
(Council Regulation No 1697/79, Art. 5(2)) 
3. Customs union — Customs debt — Determination of the debtor — Conduct of the 
authorities of the exporting country — Not relevant 
(Council Regulation No 1031/88, Art. 2(1)) 
4. International agreements — EEC-Turkey Association Agreement — Dispute relating 
to the application of the Association Agreement — Submission to the Association 
Council — Optional 
(EEC-Turkey Association Agreement, Arts 22 and 25) 
1. Procedural rules are generally held to 
apply to all proceedings pending at the 
time when those rules enter into force, 
whereas substantive rules are usually 
interpreted as not applying to situ­
ations existing before their entry into 
force. 
(see para. 29) 
2. Article 5(2) of Regulation No 1697/79 
on the post-clearance recovery of 
import duties or export duties which 
have not been required of the person 
liable for payment on goods entered for 
a customs procedure involving the 
obligation to pay such duties makes 
waiver of post-clearance recovery by 
the national authorities subject to three 
cumulative conditions, namely that 
non-collection of the duties must have 
been due to an error made by the 
competent authorities themselves, that 
the error must be such that the person 
liable, acting in good faith, could not 
reasonably have been able to detect it 
and that he must have complied with 
all the provisions laid down by the 
legislation in force so far as his customs 
declaration is concerned. The first two 
of those conditions must be interpreted 
as meaning that: 
— in order to determine whether there 
is an 'error made by the competent 
authorities themselves', account 
must be taken both of the conduct 
of the customs authorities which 
issued the certificate permitting the 
application of preferential treatment 
and of that of the central customs 
authorities; 
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ILUMITRÓNICA 
— the routine issuing by the authorities 
of the exporting country of certifi­
cates permitting the application of 
preferential treatment under associ­
ation rules constitutes evidence of 
such an error when those authorities 
must have been aware, on the one 
hand, of the existence in the expor­
ting country of a policy of encour­
aging exports, involving the duty­
free importation of components 
originating in third countries for 
incorporation in goods intended for 
export to the Community and, on 
the other hand, of the absence in the 
exporting country of provisions 
enabling collection of the compen­
satory levy to which the application 
of preferential treatment to exports 
to the Community of goods thus 
obtained was subject; 
— the fact that some of the relevant 
provisions of the association rules 
were not published in the Official 
Journal of the European Commu­
nities and the circumstance that 
those provisions were not imple­
mented, or were implemented incor­
rectly, in the exporting country over­
a period of more than 20 years 
constitute evidence that such an 
error could not reasonably have 
been detected by the person liable. 
(see paras 37-38, 63, operative part 1) 
3. The conduct of the authorities of the 
exporting country cannot affect the 
determination of the person by whom 
the customs debt is payable or the right 
of the authorities of the importing 
country to take action for post-clear­
ance recovery of the duties owed. The 
person liable for a customs debt is the 
declarant or the person on whose 
behalf the declaration was made, the 
person liable being determined exclus­
ively on the basis of the formality of 
declaration. 
(see paras 65, 67, operative part 2) 
4. Articles 22 and 25 of the Agreement 
establishing an association between the 
European Economic Community and 
Turkey, under which the Contracting 
Parties may submit to the latter any 
dispute relating to the application or 
interpretation of the agreement, do not 
require the national customs auth­
orities of a Member State, acting on 
the Commission's advice, to have 
recourse to the procedure provided 
for by those articles before taking 
action for post-clearance recovery of 
import duties. It follows from the 
wording of Article 25 that it provides 
for a possibility and not an obligation 
of submission. 
(see paras 72-73, 75, operative part 3) 
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