Opinion of the Advocate General — ECLI:EU:C:2008:465
Date: 2008-09-04
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union
Procedure: Action for annulment;Appeal - unfounded
Origin: Netherlands

Summary of the Judgment 1. Appeals – Grounds – Mere repetition of the pleas and arguments put forward before the Court of First Instance – Inadmissible (Art. 225 EC; Statute of the Court, Art. 58, first para.; Rules of Procedure of the Court, Art. 112(1)(c)) 2. Own resources of the European Communities – Repayment or remission of import duties (Council Regulations No 2658/87, Annex I, and No 2913/92, Art. 239; Annex to Commission Regulation No 1196/97) 1. It follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance does not satisfy the requirements to state reasons under those provisions. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. It follows that an appeal by which an appellant, although relying on arguments which it has already submitted in support of its action for annulment before the Court of First Instance, none the less challenges the latter’s interpretation, is admissible. (see paras 33-36) 2. In order to assess whether there is obvious negligence within the meaning of Article 239 of the Community Customs Code, account must be taken in particular of the complexity of the provisions non-compliance with which resulted in the customs debt being incurred, and the professional experience of, and care taken by, the trader. In that regard, first, there is no particular complexity where, as regards a trader who has applied for remission of duties in respect of import transactions which were subsequent to the entry into force of Regulation No 1196/97 concerning the classification of certain goods in the combined nomenclature, the publication of that regulation had put an end to any possible legislative complexity relating to the classification of rice paper created by the absence of certain words in the wording of the Dutch version of subheading 1905 90 20 of the combined nomenclature. Although the wording of the Dutch version of that subheading may have appeared less precise than that of other language versions, the fact remains that that classification regulation, which is directly applicable and binding in its entirety, explicitly and unequivocally describes the goods that have to be classified under that subheading and the goods imported by the trader in question correspond thereto. Secondly, as regards professional experience, an operator who uses the services of a customs agent cannot avoid post-clearance recovery of customs duties by relying on his inexperience with regard to customs formalities. Operators might in some cases be able to circumvent the condition relating to professional experience by using the services of customs specialists as a matter of course and thus it would be operators carrying out their customs operations on their own who would be placed at a disadvantage with regard to the procedure set out in Article 239 of the Community Customs Code. It follows that, in so far as the agent acts in the name of and on behalf of the importer, information concerning possible negligence on the part of the agent, including the level of its professional experience, has to be taken into account for the purposes of assessing the negligence of that importer. Thirdly, as regards the care taken by the trader, it must be pointed out that a careful operator, who has acquainted himself with a classification regulation published in the Official Journal of the European Communities, cannot simply continue to import his goods under a combined nomenclature heading on the sole ground that that classification has been accepted by those authorities. To allow such negligence would be tantamount to encouraging operators to benefit from the errors of their customs authorities. Furthermore, the error on the part of the customs authorities, which had already been taken into account in the present case in the examination as to whether a special situation existed, cannot, as a rule, release an operator from the consequences of its own negligence. (see paras 40, 42-43, 46, 53-54, 64-65)