61984CJ0214_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 214/84
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE SEVENTH CHAMBER OF THE HESSISCHES FINANZGERICHT ( FINANCE COURT, HESSE ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
STINNES AG
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) KASSEL
Subject of the case
ON THE INTERPRETATION OF ARTICLE 8 OF COUNCIL REGULATION NO 1697/79 OF 24 JULY 1979 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 ( OFFICIAL JOURNAL 1979, L 197, P . 1 ),
Grounds
1 BY AN ORDER DATED 10 AUGUST 1984, WHICH WAS RECEIVED AT THE COURT ON 17 AUGUST 1984, THE HESSISCHES FINANZGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 8 OF REGULATION NO 1697/79 OF 24 JULY 1979 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 .
2 THAT QUESTION AROSE IN THE COURSE OF PROCEEDINGS IN WHICH STINNES AG SEEKS THE CANCELLATION OF FOUR ORDERS FOR THE POST-CLEARANCE RECOVERY OF IMPORT DUTIES ISSUED BY THE HAUPTZOLLAMT KASSEL PURSUANT TO THE AFORESAID REGULATION .
3 DURING 1981 STINNES IMPORTED 502 CONSIGNMENTS OF WOODEN PALLETS FROM CZECKOSLOVAKIA . IT IS NOT DISPUTED THAT, AS A RESULT OF AN ERROR IN THE CALCULATION OF THE IMPORT DUTIES PAYABLE ON THOSE TRANSACTIONS, THE AMOUNTS PAID WERE INSUFFICIENT . ON THE BASIS OF REGULATION NO 1697/79 THE HAUPTZOLLAMT KASSEL ISSUED FOUR POST-CLEARANCE RECOVERY ORDERS, EACH OF WHICH RELATES TO THE IMPORTS EFFECTED BY STINNES DURING ONE QUARTER OF 1981 . THUS STINNES WAS REQUIRED TO PAY DM 728.30 FOR THE FIRST QUARTER OF 1981, DM 1 802.40 FOR THE SECOND QUARTER, DM 2 059.80 FOR THE THIRD QUARTER AND DM 695.30 FOR THE FOURTH QUARTER .
4 STINNES BROUGHT AN ACTION BEFORE THE HESSISCHES FINANZGERICHT CONTESTING THE FOUR RECOVERY ORDERS ON THE GROUND THAT THEY WERE CONTRARY TO THE FIRST PARAGRAPH OF ARTICLE 8 OF REGULATION NO 1697/79, WHICH PROVIDES THAT NO ACTION IS TO BE TAKEN FOR THE POST-CLEARANCE RECOVERY OF IMPORT DUTIES WHERE THE AMOUNT INVOLVED ' FOR A GIVEN ACTION FOR RECOVERY '
IS LESS THAN A SPECIFIED MINIMUM . IT CLAIMED THAT, IF THE HAUPTZOLLAMT KASSEL HAD NOT COMBINED THE 502 IMPORT TRANSACTIONS IN FOUR POST-CLEARANCE RECOVERY ORDERS, ONLY FIVE OF THOSE TRANSACTIONS WOULD HAVE GIVEN RISE TO THE PAYMENT OF SUPPLEMENTARY DUTY ATTAINING THE MINIMUM AMOUNT FIXED IN THE FIRST PARAGRAPH OF ARTICLE 8 . IT CLAIMED THAT IT WAS CONTRARY TO THAT PROVISION TO COMBINE SEPARATE TRANSACTIONS IN THAT WAY AND THAT THE RECOVERY ORDERS IN QUESTION SHOULD THEREFORE BE CANCELLED .
5 BEFORE THE NATIONAL COURT THE HAUPTZOLLAMT KASSEL CONTENDED THAT THE TERM ' A GIVEN ACTION FOR RECOVERY '
IN THE FIRST PARAGRAPH OF ARTICLE 8 REFERRED NOT TO THE RECOVERY OF DUTIES PAYABLE IN RESPECT OF EACH INDIVIDUAL IMPORT OR EXPORT TRANSACTION BUT TO THE RECOVERY ORDER, WHICH MIGHT - AS WAS USUAL - COMBINE SEVERAL IMPORT OR EXPORT TRANSACTIONS . BY ADDING TOGETHER THE AMOUNTS TO BE RECOVERED IN RESPECT OF SUCH TRANSACTIONS IT WAS POSSIBLE TO RECOVER SUBSTANTIAL SUMS AND AT THE SAME TIME TO RESPECT THE PURPOSE OF THE FIRST PARAGRAPH OF ARTICLE 8, NAMELY TO PREVENT THE AUTHORITIES FROM INCURRING EXPENDITURE DISPROPORTIONATE TO THE AMOUNTS TO BE RECOVERED . IN SUPPORT OF ITS VIEW, THE HAUPTZOLLAMT KASSEL REFERRED TO INTERNAL ADMINISTRATIVE INSTRUCTIONS CONCERNING COUNCIL REGULATION NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES ( OFFICIAL JOURNAL 1979, L 175, P . 1 ). THOSE INSTRUCTIONS ALLOW SEVERAL TRANSACTIONS TO BE COMBINED SO THAT THE MINIMUM AMOUNT PRESCRIBED FOR THE REPAYMENT OF DUTY MAY BE ATTAINED . THE HAUPTZOLLAMT CONSIDERED THAT THAT PRINCIPLE SHOULD BE APPLIED BY ANALOGY IN THE CASE OF POST-CLEARANCE RECOVERY .
6 THE HESSISCHES FINANZGERICHT CONSIDERED THAT THE SOLUTION TO THE DISPUTE DEPENDED ON THE INTERPRETATION OF A RULE OF COMMUNITY LAW AND BY AN ORDER OF 10 AUGUST 1984 REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
' IS THE TERM ' A GIVEN ACTION FOR RECOVERY '
IN ARTICLE 8 OF COUNCIL REGULATION ( EEC ) NO 1697/79 TO BE TAKEN TO REFER TO POST-CLEARANCE RECOVERY FOR EACH INDIVIDUAL IMPORT OR EXPORT TRANSACTION OR IS THAT TERM TO BE TAKEN TO REFER TO A SINGLE POST-CLEARANCE RECOVERY ORDER, EVEN IF IT COMBINES SEVERAL IMPORT OR EXPORT TRANSACTIONS EFFECTED BY A PERSON LIABLE FOR PAYMENT IN A SINGLE ACTION FOR RECOVERY?
'
7 STINNES AG, THE PLAINTIFF IN THE MAIN PROCEEDINGS, AND THE COMMISSION SUBMITTED THE FOLLOWING OBSERVATIONS ON THAT QUESION .
8 STINNES DENIES THAT THE INTERPRETATION OF THE REGULATION ON REPAYMENT OF DUTIES SET OUT IN THE INTERNAL ADMINISTRATIVE INSTRUCTIONS MAY BE EXTENDED BY ANALOGY TO THE RECOVERY OF DUTIES, BECAUSE IN THE FIRST CASE SUCH AN INTERPRETATION IS FAVOURABLE TO THE PERSON LIABLE FOR PAYMENT WHEREAS IN THE SECOND CASE IT WORKS AGAINST HIM . NEXT, STINNES CLAIMS THAT, IF SEPARATE TRANSACTIONS COULD BE COMBINED SO AS TO ATTAIN THE SPECIFIED MINIMUM, THE AUTHORITIES WOULD BE GIVEN A DISCRETION WHICH, ACCORDING TO THE WORDING OF ARTICLE 8, THEY DO NOT HAVE . THUS, IN STINNES '
VIEW, ' A GIVEN ACTION FOR RECOVERY '
MEANS THE RECOVERY ORDER RELATING TO ONE PARTICULAR IMPORT TRANSACTION .
9 THE COMMISSION CONSIDERS THAT, ALTHOUGH THE GERMAN AND DUTCH VERSIONS OF THE CONTESTED PROVISION MAY BE INTERPRETED AS REFERRING EITHER TO THE ACTION FOR RECOVERY OR TO THE TRANSACTIONS TO WHICH IT RELATES, THE FRENCH, ITALIAN, ENGLISH AND DANISH VERSIONS CAN ONLY REFER TO THE ACTION FOR RECOVERY BY THE COMPETENT AUTHORITIES . SECONDLY, THE COMMISSION CONSIDERS THAT THAT INTERPRETATION ACCORDS BOTH WITH THE GENERAL OBJECTIVE OF THE REGULATION, WHICH IS TO PROTECT THE ECONOMIC AND FINANCIAL INTERESTS OF THE COMMUNITY, AND WITH THE SPECIFIC OBJECTIVE OF ARTICLE 8 OF THE REGULATION, WHICH LAYS DOWN A DE MINIMIS RULE JUSTIFIED ON GROUNDS OF EFFICIENCY . THIRDLY, THE COMMISSION REFERS TO A DECISION ADOPTED ON 27 MAY 1984 BY THE COMMITTEE ON DUTY-FREE ARRANGEMENTS PURSUANT TO ARTICLE 25 OF THE REGULATION ON THE REPAYMENT OF DUTIES . LIKE THE GERMAN ADMINISTRATIVE INSTRUCTIONS, THAT DECISION PERMITS SEVERAL SEPARATE TRANSACTIONS TO BE COMBINED IN ORDER TO ATTAIN THE MINIMUM AMOUNT PRESCRIBED FOR THE REPAYMENT OF DUTY . THE COMMISSION MAINTAINS THAT THAT INTERPRETATION SHOULD BE APPLIED BY ANALOGY TO THE REGULATION ON POST-CLEARANCE RECOVERY . THE COMMISSION THEREFORE SUGGESTS THAT THE FIRST PARAGRAPH OF ARTICLE 8 OF REGULATION NO 1697/79 SHOULD BE INTERPRETED AS MEANING THAT ' NO ACTION SHOULD BE TAKEN FOR THE RECOVERY OF IMPORT DUTIES OR EXPORT DUTIES WHERE FOR A GIVEN ACTION FOR RECOVERY THE AMOUNT REQUIRED OF THE PERSON LIABLE FOR PAYMENT IS LESS THAN 10 EUROPEAN UNITS OF ACCOUNT ' .
10 THE COURT FIRST OF ALL DRAWS ATTENTION TO THE WORDING OF THE FIRST PARAGRAPH OF REGULATION NO 1697/79, WHICH PROVIDES AS FOLLOWS : ' NO ACTION SHALL BE TAKEN FOR THE POST-CLEARANCE RECOVERY OF IMPORT DUTIES OR EXPORT DUTIES WHERE THE AMOUNT INVOLVED FOR A GIVEN ACTION FOR RECOVERY IS LESS THAN 10 EUROPEAN UNITS OF ACCOUNT ' .
11 IT SHOULD BE NOTED THAT ACCORDING TO THE PREAMBLE TO THE REGULATION THAT PROVISION WAS INSERTED BECAUSE ' THE POST-CLEARANCE RECOVERY OF AMOUNTS OF 10 EUROPEAN UNITS OF ACCOUNT OR LESS WOULD NOT APPEAR TO BE WORTHWHILE ' .
12 IF THE AUTHORITIES WERE ABLE BY A SINGLE ACTION FOR RECOVERY TO RECOVER DUTIES WHERE THE INDIVIDUAL AMOUNTS INVOLVED WERE LESS THAN 10 EUROPEAN UNITS OF ACCONT, THE FIRST PARAGRAPH OF ARTICLE 8 WOULD BE DEPRIVED OF ALL EFFECT, SINCE THE MINIMUM AMOUNT COULD ALMOST ALWAYS BE ATTAINED BY ADDING THE INDIVIDUAL DUTIES TOGETHER .
13 CONSEQUENTLY THE TERM ' A GIVEN ACTION FOR RECOVERY '
IN THE FIRST PARARAPH OF ARTICLE 8 OF REGULATION NO 1697/79 MUST REFER TO EACH INDIVIDUAL IMPORT OR EXPORT TRANSACTION .
14 HOWEVER, THAT INTERPRETATION DOES NOT PRECLUDE THE PRACTICE OF COMBINING SEVERAL SEPARATE ACTIONS FOR RECOVERY IN A SINGLE RECOVERY ORDER, PROVIDED THAT THE AMOUNT CONCERNED IN EACH ACTION EXCEEDS THE AMOUNT SPECIFIED IN THE FIRST PARAGRAPH OF ARTICLE 8 . THAT PRACTICE IS INDEED JUSTIFIED ON GROUNDS OF EFFICIENCY .
15 IN VIEW OF THE FOREGOING CONSIDERATIONS, THE ANSWER TO THE QUESTION ASKED BY THE HESSISCHES FINANZGERICHT SHOULD BE THAT THE TERM ' A GIVEN ACTION FOR RECOVERY '
IN ARTICLE 8 OF REGULATION NO 1697/79 MUST BE INTERPRETED AS REFERRING TO EACH INDIVIDUAL IMPORT OR EXPORT TRANSACTION, ALTHOUGH THAT INTERPRETATION DOES NOT PRECLUDE THE PRACTICE OF COMBINING SEVERAL SEPARATE ACTIONS FOR RECOVERY IN A SINGLE RECOVERY ORDER, PROVIDED THAT THE AMOUNT CONCERNED IN EACH ACTION EXCEEDS THE AMOUNT SPECIFIED IN THE FIRST PARAGRAPH OF THE AFORESAID ARTICLE 8 .
Decision on costs
COSTS
16 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE HESSISCHES FINANZGERICHT BY AN ORDER DATED 10 AUGUST 1984, HEREBY RULES :
THE TERM ' A GIVEN ACTION FOR RECOVERY '
IN ARTICLE 8 OF REGULATION NO 1697/79 OF THE COUNCIL OF 24 JULY 1979 MUST BE INTERPRETED AS REFERRING TO EACH INDIVIDUAL IMPORT OR EXPORT TRANSACTION . THAT INTERPRETATION DOES NOT PRECLUDE THE PRACTICE OF COMBINING SEVERAL SEPARATE ACTIONS FOR RECOVERY IN A SINGLE RECOVERY ORDER, PROVIDED THAT THE AMOUNT CONCERNED IN EACH ACTION EXCEEDS THE AMOUNT SPECIFIED IN THE FIRST PARAGRAPH OF THE AFORESAID ARTICLE 8 .