Opinion of Mr Advocate General Darmon delivered on 6 March 1990. - Erwin Behn Verpackungsbedarf GmbH v Hauptzollamt Itzehoe. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Validity of a Commission decision on the post-clearance recovery of import duties. - Case C-80/89.



European Court reports 1990 Page I-02659



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The impact on traders acting in good faith of an error committed by a national customs administration is again the subject of questions submitted by the Finanzgericht Hamburg ( Federal Republic of Germany ) for a preliminary ruling by the Court . The Court has already been called on to give a ruling on similar problems in its judgment in Binder . ( 1 )

2 . The Court is acquainted with the facts of the present case . Between January and September 1983, Erwin Behn Verpackungsbedarf GmbH (" Behn ") imported into the Federal Republic of Germany from the Kingdom of Spain, which had not yet acceded to the Community, and from other non-member countries, unbleached paper for large-capacity sacks falling under Common Customs Tariff subheading 48.01 C II ( a ). The goods were declared monthly under the collective declaration system . The Hauptzollamt ( Principal Customs Office ) Itzehoe assessed the customs duty as 3 and 7.5% respectively on the basis of Behn' s declarations and the information then contained in the German Gebrauchszolltarif ( customs tariff manual ). The rate applicable to imports from non-member countries of kraft paper for large-capacity sacks was 8% for 1983 . Moreover, the same figure applied in 1982 . For imports of the same product from the Kingdom of Spain, a reduction coefficient of 60% was applied, and it was decreased to 3.2% after the adoption of Regulation ( EEC ) No 1524/70 of the Council of 20 July 1970 on the conclusion of an Agreement between the European Community and Spain and on the provisions for its implementation . ( 2 ) The Hauptzollamt, relying on the German customs tariff manual, erroneously applied the rate of 7.5%, and therefore the reduced rate of 3%, which covered, since the adoption of Council Regulation ( EEC ) No 3000/82 of 19 October 1982, ( 3 ) kraft papers and board not otherwise described . The German Customs tariff manual was rectified by Federal Ministry of Finance Order No 153/83 of 17 August 1983 .

3 . By three notices of 19 and 26 October and 2 November 1983, the Hauptzollamt effected post-clearance recovery of a total of DM 4 886.40 in respect of uncollected customs duty . Behn lodged an objection to those notices . Under the procedure provided for in Commission Regulation ( EEC ) No 1573/80 of 20 June 1980, ( 4 ) in particular Article 4 thereof, the Federal Republic of Germany requested the Commission to give a decision . On 4 November 1985 the Commission decided that post-clearance recovery was appropriate .

4 . The Finanzgericht ( Finance Court ) Hamburg, before which an action was brought, referred two questions to the Court for a preliminary ruling concerning the validity of the Commission decision of 4 November 1985 and the interpretation of Article 5(1 ) and ( 2 ) of Regulation ( EEC ) No 1697/79 of 24 July 1979 . ( 5 )

5 . Article 5 of that regulation imposes three limitations on the right of recovery :

( i ) no action may be taken for recovery where the amount collected, being lower than the amount legally due, was calculated on the basis of information given by the competent authorities themselves which is binding on them ( paragraph 1, first indent );

( ii ) similarly, no action may be taken where that amount was calculated on the basis of provisions of a general nature subsequently invalidated by a court decision ( paragraph 1, second indent );

( iii ) the competent authorities may refrain from effecting recovery in view of an error which could not have reasonably been detected by the person liable ( paragraph 2 ).

6 . It does not seem that Article 5(1 ) has given rise to any case-law . On the other hand, the Court has had occasion to find that Article 5(2 )

"must be interpreted as meaning that if all those requirements are fulfilled the person liable is entitled to waiver of the recovery of the duty in question ". ( 6 )

It also analysed the provisions of that paragraph in Binder .

7 . The first question concerns Article 5(2 ) and the second Article 5(1 ). However, I shall consider the second question first since, as I stressed in my Opinion in Binder, ( 7 ) if the error in question fulfils all the conditions laid down in Article 5(1 ), post-clearance recovery is absolutely impossible . It is only if that is not the case that it is incumbent on the Commission to decide whether or not recovery should take place under Article 5(2 ).

8 . Persons liable to pay customs duty are entitled to ask the national customs administration for its opinion on certain aspects of the rules concerning the goods that they wish to declare . But academic writers have expressed the view that the opinion given by customs authorities has no legal value and is mere information not binding on the administration . ( 8 ) By referring to "information given by the competent authorities themselves which is binding on them", Article 5(1 ) sought to take account of the German system of "binding customs tariff notices" (" verbindliche Zolltarifauskuenfte ") issued under paragraph 23 of the German Customs Law of 14 June 1961, ( 9 ) of which this Court recognized the compatibility with the Common Customs Tariff in its judgment in Siemers . ( 10 ) It is therefore necessary to determine whether the German customs tariff manual, which is a document of a general nature, can be deemed to constitute "information given by the competent authorities themselves" or whether that term must be limited to information given on a case-by-case basis by the administration to a particular trader with respect to the import of specific goods .

9 . It seems to me that only the second hypothesis is correct . Article 5(1 ) envisages two cases where post-clearance recovery is possible : where the error derives from "information" given by the competent authorities themselves ( first indent ) or where it derives from "provisions of a general nature subsequently invalidated by a court decision" ( second indent ). If the Community legislature had wished to bring within the ill-defined concept of "information" provisions of a general nature such as administrative directives or regulations it would have included in the first indent the expression "provisions of a general nature" which appears in the second indent . It must therefore be concluded that Article 5(1 ), which merely applies the principle of the protection of legitimate expectations, means that such expectations may be based on particular information given by the customs authorities to a person declaring goods or to any trader concerned, or on a document of a general nature subsequently invalidated by a court decision . On the other hand, in the absence of such a court decision, legitimate expectations cannot be based on a document of a general nature which conflicts with provisions having legal force . To decide otherwise would be to reverse the hierarchy of legal rules . Moreover, that course was followed in German law since a judgment of the Bundesfinanzhof ( 11 ) expresses the view that the person liable cannot rely on the validity which he accorded to an order of the Federal Ministry of Finance that conflicted with certain legislative provisions . According to that court, a decision to the contrary would enable legislative provisions to be overridden by an administrative order of a general nature . Legitimate expectations can thus only be protected within a specific legal relationship between the competent administrative authority and the person liable to make payment .

10 . In view of the fact that it is general and indicative in character, it brings together the rules of national law and Community law and it does apply to the particular situation of a given trader, the German customs tariff manual cannot be classified as constituting information given by a competent authority or raise an absolute bar to post-clearance recovery . I propose that the Court answer the second question to that effect .

11 . I think, however, that there is a point which ought to be clarified . In its written observations, ( 12 ) the Commission expresses the view that the first indent of Article 5(1 ) is concerned only with the German system of "binding customs tariff notices ". I must point out that there is nothing either in the first indent of Article 5(1 ) or in the preamble to Regulation No 1697/79 to indicate that that was the intention of the Community legislature . The Commission states in its written observations ( 13 ) that a similar system exists under Spanish law . It seems to me to be wholly contrary to the principle of equality between Member States and to the principle of legal certainty to accept, solely on the basis of assertions as to the Commission' s intentions, that a provision of a Council regulation, expressed in general terms, without any particular qualification in the preamble to it, should be applicable only to a system established in a particular Member State .

12 . In its first question, the national court raises doubts as to the validity of the Commission decision ordering post-clearance recovery . It states that the Official Journal of the European Communities cannot be consulted at the premises of the Hauptzollamt or, no doubt, at the offices of Behn; that the rate of import duty for goods from Spain was not easy to determine in view of the reduction coefficient which had to be applied to the figure given in the Common Customs Tariff; and finally that the German customs tariff manual could be a lawful basis for legitimate expectations on the part of Behn . It appears to that court, therefore, that that error could not reasonably have been detected by Behn and that the Commission' s decision is therefore contrary to Article 5(2 ) of Regulation No 1697/79 .

13 . In that regard the Commission points out that to allow the principle of the protection of legitimate expectations to be invoked on the basis of the German customs tariff manual is inimical to the primacy of Community law . I do not consider that to be the case and I refer the Court to my views on that difficulty set out in my Opinion in Binder ( 14 ) - it will be recalled that the Court confirmed my analysis when considering, in its judgment, whether the trader in question might found legitimate expectations on the inclusion of an incorrect rate in the German customs tariff manual . In so doing, the Court, as I advocated, drew a distinction between persons who import goods as a business activity and those who do not . After stating that the company concerned in the Binder case was

"a commercial trader whose activities essentially consist of import-export operations",

the Court inferred that :

"such a company cannot derive a legitimate expectation as to the applicable rate of duty from the fact that a Commission proposal exists in which that rate appears and from the fact that it was incorporated in a national tariff manual"

and concluded that :

"it does not, therefore, appear unreasonable to expect that trader to ascertain by reading the relevant Official Journals, the Community duty applicable to the operations which he carries out, even if in the present case the rate in question applied only to products originating in Yugoslavia and had been laid down in an international trade agreement concluded by the Community with Yugoslavia ". ( 15 )

14 . Those dicta must also be applied to the present case . Behn imports by way of business activity, being a specialist dealer in packaging materials, and moreover, for its customs declarations it is entitled to use the system of collective declarations, which is made available only to competent and experienced importers . ( 16 )

15 . I consider therefore that it must be stated in reply to the first question that consideration of it has disclosed no factor of such a kind as to affect the validity of the Commission' s decision of 4 November 1985 .

16 . I therefore suggest the following answers to the questions submitted :

"( 1 ) Article 5(1 ), first indent, of Council Regulation ( EEC ) 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 must be interpreted as not referring to a tariff manual for national use which sets out the rules of national law and Community law, including those on the Common Customs Tariff .

( 2 ) Examination of the question submitted to the Court has disclosed no factor of such a kind as to affect the validity of the Commission' s decision of 4 November 1985 - COM(85 ) 1709 final - addressed to the Federal Republic of Germany ."

(*) Original language : French .

( 1 ) Judgment of 12 July 1989 in Case 161/88 (( 1989 )) ECR 2415 .

( 2 ) OJ, English Special Edition, Second Series I, External Relations ( 1 ), p . 269 .

( 3 ) Amending Regulation ( EEC ) No 950/68 on the Common Customs Tariff ( OJ L 318, 15.11.1982, p . 1 ).

( 4 ) Laying down provisions for the implementation of Article 5(2 ) of Council Regulation ( EEC ) No 1697/79 on the post-clearance recovery of import or export duties ( OJ L 161, 26.6.1980, p . 1 ).

( 5 ) 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 ( OJ L 197, 3.8.1979, p . 1 ).

( 6 ) Judgment of 22 October 1987 in Case 314/85 Foto-Frost v Hauptzollamt Luebeck-Ost (( 1987 )) ECR 4199, paragraph 22 .

( 7 ) Paragraph 22 .

( 8 ) Claude J . Berr and Henri Tremeau, "Le droit douanier", Régime des opérations de commerce international en France et dans la CEE, 2nd edition, No 252, p . 177 .

( 9 ) Paragraph 23, Bundesgesetzblatt I, p . 737; Paragraphs 28 to 31 of the German General Customs Code of 29 November 1961, Bundesgesetzblatt I, p . 1937 .

( 10 ) Judgment of 24 November 1971 in Case 30/71 Siemers v Hauptzollamt Bad Reichenhall (( 1971 )) ECR 919, paragraphs 10 to 13 .

( 11 ) Judgment of 18 March 1986, VII R 55/83 BFHE 146, 294 .

( 12 ) At p . 8 of the French translation .

( 13 ) At p . 9 of the French translation .

( 14 ) Paragraphs 10 to 16 .

( 15 ) Case 161/88, supra, paragraph 22 .

( 16 ) Article 20(1 ) of Council Directive 79/695/EEC of 24 July 1979 on harmonization of the procedures for the release of goods for free circulation ( OJ L 205, 13.8.1979, p . 19 ).