Opinion of the Advocate General — ECLI:EU:C:1999:135
Date: 1999-03-11
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Netherlands

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 
2. Free movement of goods — Community transit — Community external transit — 
Offences or irregularities — Incurrence of a customs debt — Whether obligatory to 
warn the person liable of risks posed by a fraud — No such obligation — Customs debt 
incurred whether or not the person liable is at fault 
(Council Regulation No 2726/90, Art. 11(1)(c)) 
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SUMMARY — CASE C-61/98 
3. Own resources of the European Communities — Post-clearance recovery of import or 
export duties — Time-limits for recovery 
(Council Regulations No 1697/79, Art. 2(1) and No 1854/89, Arts 3, 5 and 6(1)) 
4. 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' — 
Meaning — Deliberate omission to warn a person liable acting in good faith of a 
possible fraud — Not covered 
(Council Regulation No 1697/79, Art. 5(2)) 
5. Own resources of the European Communities — Repayment or remission of import or 
export duties — Article 13(1) of Regulation No 1430/79 — 'Special situations' — 
Meaning — Assessment by the customs authorities and by the Commission — Where 
the national authorities have deliberately, in the interests of an investigation, allowed 
offences or irregularities to be committed, thus causing a person acting in good faith to 
incur a customs debt — Where the person liable is placed in an exceptional situation as 
compared with other economic operators 
(Council Regulation No 1430/79, Art. 13(1); Commission Regulations No 3799/86, 
Art. 4, and No 2454/93, Arts 905 to 909) 
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 situa­
tions existing before their entry into 
force. 
2. Community law does not impose on 
customs authorities who have been 
informed of a possible fraud in con­
nection with external transit arrange­
ments any obligation to warn a princi­
pal that he may incur liability for 
customs duty as a result of the fraud, 
even where he has acted in good faith. 
Article l l ( l ) ( c ) of Regula t ion 
No 2726/90 on Community transit 
provides that a principal is, as a rule, 
responsible for payment of duties due 
'as a result of an offence or irregularity 
committed in the course of or in 
connection with a Community transit 
operation' and does not require, in 
order for the customs debt to arise, that 
the principal be shown to be at fault or 
that the customs authorities be obliged 
in any way to inform the principal that 
an investigation has been carried out 
and has led to the discovery of an 
offence or irregularity. 
3. Failure on the part of the customs 
authorities, when taking action for the 
post-clearance recovery of customs 
duties, to observe the time-limits laid 
down in Articles 3, 5 and 6(1) of 
Regulation No 1854/89 on the entry 
in the accounts and terms of payment 
of the amounts of the import duties or 
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DE HAAN V INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN TE ROTTERDAM 
export duties resulting from a customs 
debt does not nullify the right of those 
authorities to proceed with such recov­
ery, provided that it is carried out 
within the time-limit laid down in 
A r t i c l e 2 ( 1 ) of R e g u l a t i o n 
No 1697/79. 
4. A deliberate omission on the part of the 
customs authorities — acting in the 
interests of an investigation aimed at 
identifying and apprehending the per­
sons who have carried out or are 
planning a fraud, or the accomplices 
of those persons — to inform a princi­
pal of a possible fraud in which the 
principal is not implicated cannot, in 
any event, be classified as an error on 
the part of the competent authorities 
within the meaning of 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 pay­
ment on goods entered for a customs 
procedure involving the obligation to 
pay such duties. 
5. A r t i c l e 13 (1 ) of R e g u l a t i o n 
No 1430/79 on the repayment or 
remission of import or export duties, 
as a m e n d e d by R e g u l a t i o n 
No 3069/86, makes repayment or 
remission subject to two cumulative 
conditions, namely the existence of a 
special situation and the absence of 
deception or obvious negligence on the 
part of the economic operator. In this 
connection, the list, set out in Article 4 
of Regulation No 3799/86, of special 
situations within the meaning of Arti­
cle 13(1) is not exhaustive. It is there­
fore for the customs authorities to 
determine on a case by case basis 
whether a situation which is not men­
tioned in that list none the less consti­
tutes a situation which is special within 
the meaning of the applicable Commu­
nity legislation. 
Where the customs authority has been 
unable to take a decision on the 
remission of duties, the Member State 
to which the authority belongs trans­
mits the case to the Commission to be 
settled under the procedure laid down 
in Articles 905 to 909 of Regulation 
No 2454/93. In that context, Arti­
cle 905 — pursuant to which the Com­
mission is asked by the customs autho­
rity to determine, on the basis of the 
information placed before it, whether a 
special situation exists such as to justify 
the remission of duties — includes a 
general fairness clause intended to 
cover the exceptional situation in 
which a declarant might find himself 
in comparison with other operators 
engaged in the same business. In that 
connection, the demands of an investi­
gation conducted by the national 
authorities may, in the absence of any 
deception or negligence on the part of 
the person liable, and where that 
person has not been informed that the 
investigation is being carried out, con­
stitute a special situation within the 
meaning of Article 13(1) of Regulation 
No 1430/79 where the fact that the 
national authorities have, in the inter­
ests of the investigation, deliberately 
allowed offences or irregularities to be 
committed, thus causing the principal 
to incur a customs debt, places the 
principal in an exceptional situation in 
comparison with other operators 
engaged in the same business. 
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