Opinion of the Advocate General — ECLI:EU:C:2008:470
Date: 2008-09-04
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Common Customs Tariff – Tariff headings – Sheets prepared from rice flour, salt and water (Council Regulation No 2658/87, Annex I; Commission Regulations No 1196/97 and No 1624/97) 2. Own resources of the European Communities – Repayment or remission of import duties (Arts 230, fifth para., 234 EC and 249 EC; European Parliament and Council Regulation No 82/97; Council Regulation No 2913/92, Arts 220 and 239) 1. Sheets prepared from rice flour, salt and water which are then dried, but do not undergo any heat treatment, are covered by subheading 1905 90 20 of the Combined Nomenclature in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the version resulting from Regulation No 1624/97. In that regard, first, the reference to ‘rice paper’ or to ‘dried’ goods is included expressly in the wording of several language versions of subheading 1905 90 20 of the Combined Nomenclature, whereas heading 1901 is merely residual and covers only goods which are not mentioned or included elsewhere in the Combined Nomenclature. Secondly, as is apparent from reading various language versions of the Combined Nomenclature and in the light of the Explanatory Notes of the Commission, which refer to the Explanatory Notes of the International Convention on the Harmonised Commodity Description and Coding System, the fact of being baked is not a characteristic which is necessary in order for a product to be classified under subheading 1905 90 20. It is therefore apparent from all those factors that the validity of Regulation No 1196/97 concerning the classification of certain goods in the combined nomenclature is not affected. (see paras 47-53, operative part1-2) 2. Where an application for remission of import duties has been submitted to the Commission by a Member State under Article 239 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 82/97, and the Commission has already adopted a decision containing assessments of fact and law in a particular case concerning import transactions, such assessments bind all the authorities of the Member State to which that decision was addressed, in accordance with Article 249 EC, including the courts which have to assess that case under Article 220 of that regulation. The requirements connected with the uniform application of Community law to ensure which a power of decision was conferred on the Commission in regard to the post-clearance recovery of customs duties demand that, in respect of the same import transactions carried out by a trader, a Commission decision on the existence of ‘obvious negligence’ on the part of that trader cannot be deprived of effect by a subsequent decision of a national court ruling on whether or not the error committed by the national customs authorities was ‘detectable’ by that same trader. A national court, ruling on an appeal against a notice for recovery of import duties, must therefore, when it becomes aware in the course of the proceedings before it that the matter has been referred to the Commission pursuant to Article 220 or Article 239 of the Customs Code, avoid giving decisions which would conflict with a decision contemplated by the Commission in the implementation of those articles. If the importer has, within the period prescribed in the fifth paragraph of Article 230 EC, brought an action for annulment of a decision of the Commission of the European Communities in respect of an application for remission of import duties pursuant to Article 239 of that regulation, it is for the national court to decide whether to stay the proceedings until a definitive decision has been given in the action for annulment or to refer itself a question to the Court of Justice of the European Communities for a preliminary ruling as to validity. (see paras 62, 64-66, 68, operative part 3)