Opinion of the Advocate General — ECLI:EU:C:2001:60
Date: 2001-01-25
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Own resources of the European Communities — Repayment or remission of import 
or export duties •— Post-clearance presentation of a certificate of authenticity which 
could have made the goods released into free circulation eligible for favourable tariff 
treatment — No repayment of duty 
(Council Regulation No 2913/92, Art. 236(1); Commission Regulation No 2454/93, 
Art. 890) 
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SUMMARY — CASE C-253/99 
2. Own resources of the European Communities — Repayment or remission of import 
or export duties — Repayment or remission precluded by Article 236 of the 
Community Customs Code — Repayment or remission by virtue of Article 239 of 
that Code and Article 905 of Regulation No 2454/93 — Whether permissible — 
Conditions 
(Council Regulation No 2913/92, Arts 236(1) and 239(1); Commission Regulation 
No 2454/93, Art. 905(1)) 
3. Own resources of the European Communities — Repayment or remission of import 
or export duties — Existence of a special situation, within the meaning of Article 905 
of Regulation No 2454/93, making it obligatory for the national customs authorities to 
forward the file to the Commission — Criteria •— Assessment by the national court 
(Council Regulation No 2913/92, Art 239; Commission Regulation No 2454/93, 
Art. 905(1) 
1. Art ic le 236(1) of R e g u l a t i o n 
No 2913/92 establishing the Commu­
nity Customs Code does not permit the 
repayment of import duties where, 
after a complete customs declaration 
has been accepted by the customs 
authorities and the goods covered by 
it have been released into free circula­
tion, the declarant presents a certificate 
of authenticity by virtue of which the 
goods would, supposing the certificate 
to have been produced with the goods, 
have been eligible for favourable tariff 
treatment. 
If, because the certificate of authenti­
city has not been presented together 
with the goods to which it relates, 
import duties are levied but it is 
impossible to take into consideration 
any favourable tariff treatment, those 
duties are legally owed within the 
meaning of Article 236(1) of the Cus­
toms Code and so may not in principle 
be repaid pursuant to that provision. 
Moreover, Article 890 of Regulation 
No 2454/93 laying down provisions 
for the implementation of Regulation 
No 2913/92, which is a provision 
implementing Article 236(1) of the 
Customs Code, and which provides 
that repayment or remission may be 
allowed where a certificate of origin is 
produced after acceptance of the 
declaration of the goods for free circu­
lation, is not apt to be applied where 
the tariff treatment sought is favour­
able tariff treatment within the mean­
ing of Article 21 of the Customs Code. 
Application by analogy of Article 890 
to requests for repayment of import 
duties based on the fact that the goods 
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BACARDI 
imported could have been eligible for 
favourable tariff treatment is also 
excluded. While it is unarguable that 
a certificate of authenticity possesses 
features similar to those of a certificate 
of origin, the fact nevertheless remains 
that the roles played by a certificate of 
origin and a certificate of authenticity 
in the procedures for obtaining prefer­
ential tariff treatment and favourable 
tariff treatment respectively are quite 
different and the regime governing 
certificates of authenticity is much 
stricter than that governing certificates 
of origin. Accordingly, in contrast to 
the situation with regard to certificates 
of authenticity, the production of a 
certificate of origin before the goods to 
which it relates are released into free 
circulation is not required in order to 
be entitled to preferential tariff treat­
ment and the duties levied before such 
a certificate is presented cannot be 
regarded as being legally owed within 
the meaning of Article 236(1) of the 
Customs Code. Having regard to the 
fact that the consequences connected to 
the moment at which the certificates in 
question are presented vary consider­
ably from one of the two regimes to the 
other, Article 890 cannot be applied by 
analogy in such a situation. 
(see paras 38-39,46-49, 51, 
and operative part 1) 
2. The fact that repayment or remission of 
duties pursuant to Article 236(1) of 
Regulation No 2913/92 establishing 
the Community Customs Code is 
excluded because one of the legal 
conditions laid down for that repay­
ment or remission has not been satis­
fied does not, of itself, exclude repay­
ment or remission of those duties on 
the basis of Article 239(1) of that 
regulation, by virtue of which duties 
may be repaid or remitted in situations 
other than those referred to in Arti­
cles 236, 237, and 238, and of Arti­
cle 905(1) of Regulation No 2454/93 
laying down provisions for the imple­
mentation of Regulation No 2913/92, 
provided that the legal conditions for 
the application of those provisions are 
satisfied. 
(see paras 53, 61, 
and operative part 2) 
3. Factors 'which might constitute a spe­
cial situation resulting from circum­
stances in which no deception or 
obvious negligence may be attributed 
to the person concerned' for the pur­
poses of Article 905( 1 ) of Regulation 
No 2454/93 laying down provisions 
for the implementation of Regulation 
No 2913/92 establishing the Commu­
nity Customs Code exist where, having 
regard to the objective of fairness 
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SUMMARY — CASE C-253/99 
underlying Article 239 of Regulation 
No 2913/92, factors liable to place the 
applicant in an exceptional situation as 
compared with other operators 
engaged in the same business are found 
to exist. It is for the national court to 
assess, on the basis of that criterion, 
whether factors which might constitute 
such a special situation do exist, neces­
sitating examination of the file by the 
Commission. 
(see para. 61, and operative part 2) 
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