Opinion of Mr Advocate General Tesauro delivered on 12 February 1992. - Beirafrio - Indùstria de Produtos Alimentares Ldª v Chefe do Serviço da Conferência final da Alfandega do Porto. - Reference for a preliminary ruling: Tribunal Fiscal Aduaneiro do Porto - Portugal. - Post-clearance recovery of customs duties. - Case C-371/90.



European Court reports 1992 Page I-02715



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. The questions on which a preliminary ruling is sought in these proceedings concern the interpretation of Article 5(1) 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 or a customs procedure involving the obligation to pay such duties. (1)

Referring to the Report for the Hearing for matters of detail, I shall briefly summarize the facts of the dispute before the national court.

2. Beirafrio - Indústria de Produtos Alimentares, Lda ("Beirafrio") sought to import several consignments of frozen hake from Chile and applied to the Customs Tariff Nomenclature and Policy Division of the Directorate General for Customs for information as to the rates of customs duties in force under the generalized preference scheme in respect of that product. That division gave notice by telex that the rate applicable to frozen hake from Chile was 6%.

Relying on that information, Beirafrio imported seven consignments of frozen hake from Chile which, after payment of customs duties at the rate of 6%, were cleared through customs and released for consumption.

Subsequently, the Portuguese customs authorities, having established that frozen hake from Chile did not qualify for the generalized preference scheme and therefore that the applicable rate was considerably higher (13.5% by way of import duty and 15% under the Common Customs Tariff), proceeded to effect post-clearance recovery of the duty payable on the goods in question.

Beirafrio, invoking Community law, contested the legality of the decisions to undertake post-clearance recovery before the Tribunal Fiscal Aduaneiro (Customs Court), Oporto. That court referred to the Court of Justice for a preliminary ruling four questions on the interpretation of the first indent of Article 5(1) of Regulation No 1697/79, pursuant to which the customs authorities may not recover uncollected duties where the amount paid was based on "information given by the competent authorities themselves which is binding on them".

3. The national court' s first question seeks to establish whether such information includes details of the rates of customs duties in force.

Let me say first of all that that provision merely prohibits the post-clearance recovery of duties ° which are in fact due ° where the calculation was based on information that was binding on the authorities which gave it; however, no details are given as to what information should be regarded as binding on the authorities which gave it.

As is apparent from the second recital in the preamble to Regulation No 1697/79, the aim of Article 5(1) is not to bring about harmonization but rather to guarantee the "certainty which persons liable for payment have the right to expect from official acts having financial consequences". That fact, in my opinion, is a sufficient basis for concluding that, at the material time, determination of the consequences of the information provided by their authorities was a matter for the Member States alone.

It must be pointed out that, in the meantime, Council Regulation (EEC) No 1715/90 of 20 June 1990 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature (2) has been adopted. That regulation in fact lays down uniform rules on the matter, indicating that the only information which is to be treated as binding is that concerning tariff classification; the same regulation also lays down common procedures for obtaining such information and specifies the authorities competent to give it.

It is thus confirmed that, before the entry into force of Regulation No 1715/90, the binding nature or otherwise of the information given by customs authorities was a matter for national legislation, in so far as only the latter could determine whether information, and what type of information, was to be regarded as binding, with the result that no action could be brought for recovery of duty that was legally due but had not been collected.

4. The relevant Portuguese legislation at the material time provided that the customs authorities were bound only by answers given in response to prior inquiries concerning the tariff classification of goods. In view of the wide discretion enjoyed by the Member States in that regard, there is no basis for the plaintiff' s view that, since the determination of the applicable rate of customs duties can often prove to be a very complex matter, not only information concerning tariff classification but also information concerning rates of duty may come within the category of "binding information".

For the purposes of the present case, it need merely be observed that the relevant Portuguese provisions do not conflict with the aim pursued by Article 5(1), as is, moreover, confirmed by Regulation No 1715/90, which confirmed the binding nature of information only as regards tariff classification. Thus, with respect to Beirafrio' s objections concerning the Portuguese legislation in question and more particularly the claim that the exclusion of information concerning rates of customs duties from the category of information that is binding is incompatible with the (Portuguese) law applicable to information provided by public administrative authorities, there is no need to labour the point that it is not within the purview of this Court to give a ruling in that regard.

In the light of the foregoing considerations, it must be concluded that, at the material time, information on rates of customs duties was binding on the authorities that supplied it only if it was recognized as binding by the relevant national legislation.

5. The second question asks who, for the purposes of the same provision, are the "competent authorities" and, in particular, whether the central customs authorities are to be regarded as such or only the national body entrusted by internal law with the task of giving binding information. The third question raises the issue whether the legislation of a Member State may limit the type of information that is to be treated as binding and whether such information must be given in writing.

In the absence of Community legislation ° in force at the material time ° expressly governing such matters, the answer can only be in similar terms to that given to the first question, namely that it is for the national legislature alone to establish who are the authorities competent to provide binding information and to lay down the procedures by which such information is to be obtained.

6. Finally, the fourth question asks the Court to rule whether the only information to be regarded as binding information which precludes recovery of duties is information containing an error that could not reasonably have been detected by the person liable.

Let me say first of all that Article 5(2) of Regulation No 1697/79 makes the decision of the competent authorities not to take action for post-clearance recovery of duties payable subject to three cumulative conditions, namely, that the duties "were not collected as a result of an error made by the competent authorities themselves which could not reasonably have been detected by the person liable, the latter for his part having acted in good faith and observed all the provisions laid down by the rules in force as far as his customs declaration is concerned".

The fact that the error could not reasonably have been detected by the person liable is therefore one of the conditions that must be fulfilled for the application of Article 5(2), which covers a different situation from that envisaged in Article 5(1). In the circumstances covered by Article 5(1), the customs authorities have absolutely no possibility of undertaking recovery where the error arose from binding information given by the competent authorities; cases covered by Article 5(2), however, may involve information that is not binding on the authorities which gave it and yet does not give rise to recovery where is it found, in particular, that the error could not reasonably have been detected by the person liable.

It follows that the fact that non-binding information was supplied, which may well have led the person liable into error, may come within the scope of Article 5(2) where the conditions laid down therein are satisfied. In particular, I would point out, with respect to the requirement of an error that could not reasonably have been discovered by the person liable, that, as the Court has held, it is for the national court to decide whether that condition has been satisfied, having regard to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised. (3) I would add that, as also held by the Court of Justice, (4) errors concerning determination of rates of customs duties can be detected by the person liable, where the rate in question is expressly indicated in a Community regulation, simply by consulting the Official Journal of the European Communities: what is involved is a normal duty of care, which should be discharged at least by economic agents who have some experience of their trade.

In the light of the foregoing considerations, I am of the opinion that the Court should reply as follows to the questions submitted to it by the Tribunal Fiscal Aduaneiro do Porto:

1. The first indent of Article 5(1) of Regulation No 1697/79 must be interpreted as meaning that, in the absence of specific Community legislation at the material time, identification of the information that is to be regarded as binding for the purposes of non-recovery of amounts that are legally due, the authorities empowered to give such information and the procedure to be followed for obtaining it is a matter exclusively for the applicable national legislation.

2. For the application of the first indent of Article 5(1) of Regulation No 1697/79, no importance may be attached to whether or not the error concerned could reasonably have been detected by the person liable; that is one of the preconditions for the application of Article 5(2) of that regulation, on which provision a trader may rely, provided that all the conditions laid down therein are satisfied, where the error resulted from non-binding information.

(*) Original language: Italian.

( 1) ° OJ 1979 L 197, p. 1.

( 2) ° OJ 1990 L 160, p. 1.

( 3) ° Judgment in Case C-64/89 Hauptzollamt Giessen v Deutsche Fernsprecher [1990] ECR 2535, paragraph 24.

( 4) ° See for example its judgments in Case 161/88 Binder [1989] ECR 2415 and Case C-80/89 Erwin Behn [1990] ECR I-2659.