OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 4 September 2008 1( )

Case C‑375/07

Staatssecretaris van Financiën

v

Heuschen & Schrouff Oriëntal Foods Trading BV

(Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands))

(Regulation (EEC) No 2913/92 – Community Customs Code – Articles 220 and 239 – Post-clearance recovery of duties – Subsequent entry in the accounts – Remission of import duties – Grounds of fairness – Parallel proceedings before national courts and Community Courts – Common Customs Tariff – Tariff classification – Combined Nomenclature – Interpretation and validity of Regulation (EC) No 1196/97 – Rice paper)

I – Introduction

1. This reference for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) has been made in proceedings between the Staatssecretaris van Financiën (State Secretary for Finance) and Heuschen & Schrouff Oriëntal Foods Trading BV (‘Heuschen & Schrouff’) concerning post-clearance recovery of import duties.

2. The reference concerns, on the one hand, the tariff classification of a product described as ‘rice paper’ and the validity of a Commission regulation laying down rules for the customs classification of that product.

3. On the other hand, concurrently with this reference for a preliminary ruling, a second case is pending before the Court of Justice which concerns the same imports of rice paper by Heuschen & Schrouff and their treatment for customs purposes. Heuschen & Schrouff is seeking to have Commission Decision REM 19/2002 of 17 June 2004 annulled. The judgment of the Court of First Instance in that case, delivered on 30 November 2006, ( ) is at present the subject of an appeal under case number C‑38/07 P. ( )

4. In connection with those proceedings concurrently pending between Heuschen & Schrouff and the Commission, the Hoge Raad der Nederlanden submits a number of questions concerning the jurisdiction of national courts in parallel proceedings concurrently pending at national level and Community level, and as to what arrangements guarantee the uniform application of Community law in such a situation.

II – Legal framework

A – Community law

1. Provisions on customs classification

5. The Combined Nomenclature (‘the CN’), established in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, ( ) is based on the international Harmonised Commodity Description and Coding System (‘the HS’) drawn up by the Customs Cooperation Council, now the World Customs Organisation, established by the International Convention concluded at Brussels on 14 June 1983 and approved on behalf of the Community by Council Decision 87/369/EEC of 7 April 1987. ( ) The CN reproduces the headings and subheadings of the HS to six digits, with the seventh and eighth figures creating subheadings which are unique to it. ( )

6. Article 9(1) of Regulation No 2658/87 authorises the Commission of the European Communities, assisted by a committee of representatives of the Member States, to adopt measures relating to the classification of goods in the CN in accordance with the procedure defined in Article 10 of Regulation No 2658/87.

7. The general rules for the interpretation of the CN, which are found in Part One, Section I(A), of Annex I to Regulation No 2658/87, state, inter alia:

‘Classification of goods in the Combined Nomenclature shall be governed by the following principles:

1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.

…

3. When ... goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(a) the heading which provides the most specific description shall be preferred to headings providing a more general description. ...

…’

8. Part Two, Section IV, Chapter 19, of Annex I to Regulation No 2658/87 covers the CN codes for ‘Preparations of cereals, flour, starch or milk; pastrycooks’ products’.

9. CN heading 1901 covers ‘Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than … of cocoa …; food preparations of goods of headings 0401 to 0404 [( )] …’, including CN subheading 1901 90 99, with the description ‘Other’.

10. CN heading 1905 relates to ‘Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa; communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products: ...’, including, in CN subheading 1905 90 (‘Other’), the further CN subheading 1905 90 20 (‘Communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products’).

11. According to point 1 of the annex to Commission Regulation (EC) No 1196/97 of 27 June 1997 concerning the classification of certain goods in the Combined Nomenclature ( ) (that regulation is based on the abovementioned Article 9 of Regulation No 2658/87), goods of the following description are to be classified under CN subheading 1905 90 20:

‘Food preparation, in the form of dry, translucent sheets, of different sizes, made from rice flour, salt and water.

These sheets are, after being soaked in water to make them pliable, generally used to make the “wrappers” for spring rolls and similar products.’

12. Point 1 of the annex to Regulation No 1196/97 contains the following reasons for that classification:

‘Classification is determined by General Rules 1 and 6 for the interpretation of the Combined Nomenclature and by the wording of CN codes 1905, 1905 90 and 1905 90 20.’

2. Provisions on waiver of entry in the accounts and/or remission/repayment on grounds of fairness, and on the relevant procedural powers of national authorities and Community authorities

13. Article 220 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code ( ) (‘the Customs Code’) contains provisions on subsequent entry in the accounts of the amount of a customs debt for cases where the amount of duty resulting from a customs debt has either not been entered in the accounts or has been entered in the accounts at a level lower than the amount legally owed.

14. In that regard, Article 220(2) of the Customs Code provides, inter alia, as follows:

‘… subsequent entry in the accounts shall not occur where:

…

(b) the amount of duty legally owed failed to be entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration;

…’

15. With regard to a possible remission of import duties or export duties in special situations, the second indent of Article 239(1) of the Customs Code states:

‘Import duties or export duties may be … remitted in situations … resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. …’

16. The administrative procedure in relation to decisions applying Article 220(2)(b) and the second indent of Article 239(1) of the Customs Code is laid down in the chapter headed ‘Recovery of the amount of the customs debt’ of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92, ( ) which has been amended many times. In its third question submitted for a preliminary ruling, ( ) the national court refers to Regulation No 2454/93, as amended by Commission Regulation (EC) No 1677/98 of 29 July 1998; ( )( ) it made changes to the division of competence between the national customs authorities and the Commission with regard to the administrative procedures concerned here. A major redrafting of the provisions on the division of competence between the national customs authorities and the Commission took place later, with effect from 1 August 2003, with the amendment of Regulation No 2454/93 by Commission Regulation (EC) No 1335/2003 of 25 July 2003. ( ) Since both the version before and the version after the 2003 legislative amendment may be of relevance in this case, both will be examined here, depending on whose decision is involved and at what point in time.

17. In relation to decisions applying Article 220(2)(b) of the Customs Code, the administrative procedure is laid down in Articles 869 to 876(a) of Regulation No 2454/93 and, in relation to decisions applying the second indent of Article 239(1) of the Customs Code, in Articles 899 and 905 et seq. of Regulation No 2454/93.

18. It is true both of the legal situation up to 31 July 2003 and of the legal situation after 1 August 2003 ( ) that, in the case of decisions applying Article 220(2)(b) of the Customs Code and decisions applying the second indent of Article 239(1) of that code, the national customs authorities themselves always decide in any event when they do not consider that the conditions laid down in those provisions are fulfilled. ( )

19. In so far as the national customs authorities wish to take a decision favourable to the debtor, certain rules on the division of competence between the national customs authorities and the Commission apply both to the administrative procedure in relation to decisions applying Article 220(2)(b) of the Customs Code and to the administrative procedure in relation to decisions applying the second indent of Article 239(1) of the Customs Code. The version of Regulation No 2454/93 referred to by the national court in the third question referred for a preliminary ruling, that is, that governing the legal situation up to 31 July 2003, was at the time characterised by a threshold amount of EUR 50 000, above which the case had to be transmitted to the Commission for a decision if a favourable decision was to be expected. Below that threshold value, there were possibilities of transmission, for example, in cases of doubt. By contrast, in respect of the legal situation as from 1 August 2003, a threshold value of EUR 500 000 applies and there is also, in other respects, a significant transfer of the decision-making practice to the national customs authorities. ( ) Transmission to the Commission is now possible for only a few categories of cases.

20. Article 869 of Regulation No 2454/93, which is referred to by the national court, provided, in the version in force up to 31 July 2003:

‘The customs authorities shall themselves decide not to enter uncollected duties in the accounts:

…

(b) in cases in which they consider that the conditions laid down in Article 220(2)(b) of the Code are fulfilled, provided that the amount not collected from the operator concerned in respect of one or more import or export operations but in consequence of a single error is less than [EUR] 50 000;

…’

21. The first paragraph of Article 871 of Regulation No 2454/93, to which the national court also refers, provided, in the version in force up to 31 July 2003:

‘In cases other than those referred to in Article 869, where the customs authorities either consider that the conditions laid down in Article 220(2)(b) of the Code are fulfilled or are in doubt as to the precise scope of the criteria of that provision with regard to a particular case, those authorities shall submit the case to the Commission, so that a decision may be taken in accordance with the procedure laid down in Articles 872 to 876. …’

B – National law

22. Article 8:72(4) of the Algemene Wet Bestuursrecht (General Law on Administrative Law) provides:

‘If the court declares the appeal well founded, it may order the administrative authority to adopt a new decision or carry out a different measure in compliance with its judgment, or it may rule that its judgment takes the place of the annulled decision or the annulled part thereof.’

III – Facts in the main proceedings and questions referred for a preliminary ruling

23. Heuschen & Schrouff, an importer of foodstuffs and food ingredients, has imported rice paper from Vietnam for many years.

24. In 1996 and the following years, the customs agent acting on behalf of Heuschen & Schrouff declared imported rice paper under CN subheading 1901 90 99 for purposes of release into free circulation. The competent national customs authorities accepted the declarations each time, even after a random sample taken on the occasion of one declaration, with a view to its customs classification, had been analysed. ( )

25. On 16 March 1998, in connection with a declaration for release into free circulation of 14 January 1998, the competent customs authority in Rotterdam classified the rice paper, after inspection, under CN subheading 1905 90 20. ( )

26. By assessment notices of 22 November 2000, Heuschen & Schrouff was requested to pay customs duties amounting in total to NLG 645 399.50 (EUR 292 869.52 ( )) on all imports of rice paper effected over the period from 13 November 1997 to 31 December 1998. Referring to Regulation No 1196/97, the customs authority stated by way of explanation that the CN subheading 1901 90 99 indicated on the declarations was incorrect and that a revision of the assessment notices concerned would for that reason be necessary.

27. In response to the objection lodged by Heuschen & Schrouff, the demands for payment were confirmed by ruling of the Customs and Excise Inspector of 9 March 2001, with the exception of a demand for payment in the amount of NLG 13 650.30 (EUR 6 194.24 ( )) relating to a customs declaration of 16 March 1998, which was annulled. ( )

28. On 29 March 2001, Heuschen & Schrouff appealed to the Tariefcommissie (Customs and Excise Tribunal), now the Douanekamer (Customs Chamber) of the Gerechtshof te Amsterdam (Amsterdam Regional Court of Appeal; ‘the Gerechtshof te Amsterdam’) against the ruling by which the Inspector had rejected its objection.

29. The hearing before the Gerechtshof te Amsterdam was held on 17 December 2002.

30. In the judgment delivered on 7 December 2004, the Gerechtshof te Amsterdam found, as regards the characteristics of rice paper, that the product in question consists of the ingredients rice flour, water and salt. Those three ingredients are blended and kneaded to make a dough, from which small pats are formed. These pats are rolled out into circular, transparent sheets, which are then dried. As such, the product is not suitable for direct consumption but must first be subjected to heat treatment in order to render it edible.

31. The Gerechtshof te Amsterdam held that, for purposes of customs tariff classification, the product in question had to be classified under CN subheading 1905 90 20. Pursuant to Article 220(2)(b) of the Customs Code, subsequent entry of the import duties in the accounts should be waived, because Heuschen & Schrouff had acted in good faith and complied with all the provisions applicable to the customs declaration. The Gerechtshof te Amsterdam ruled that the appeal was well founded and set aside both the Inspector’s ruling and the demands for payment.

32. In parallel with the proceedings brought before the Gerechtshof te Amsterdam, Heuschen & Schrouff applied to the national customs authority, on 13 September 2002, ( ) for remission of the customs debt in question pursuant to Article 239(1) of the Customs Code. That application was transmitted on 19 September 2002 to the Commission of the European Communities, which rejected it by decision of 17 June 2004 on the ground that, although a special situation as referred to in Article 239 of the Customs Code existed, Heuschen & Schrouff had nevertheless acted with obvious negligence.

33. At the time when the judgment of the Gerechtshof te Amsterdam was delivered on 7 December 2004, an action brought on 23 September 2004 against that Commission decision was pending before the Court of First Instance. That action was dismissed by judgment of 30 November 2006, against which an appeal was lodged before the Court of Justice. ( )

34. In the course of the proceedings in cassation against the judgment of the Gerechtshof te Amsterdam, the Hoge Raad der Nederlanden, by order of 13 July 2007, referred to the Court of Justice the questions to be examined here:

‘(1) Do sheets as described in the annex to Commission Regulation (EC) No 1196/97 come under heading 1905 of the Combined Nomenclature if they are prepared from rice flour, salt and water and then dried, but do not undergo any heat treatment?

(2) In the light of the answer to Question 1, is Regulation No 1196/97 valid?

(3) Must Article 871 of Regulation No 2454/93, as amended by Commission Regulation (EC) No 1677/98 of 29 July 1998 …, be construed as meaning that if, under the first paragraph of Article 871 thereof, there is an obligation on the customs authority to transmit a case to the Commission before it can decide to dispense with post-clearance recovery in that case, a national court ruling on an appeal by a tax debtor against the decision of the customs authority to proceed (in fact) with post-clearance recovery does not have the power to set aside that post-clearance recovery on the ground of its finding that the conditions laid down in Article 220(2)(b) [of the Customs Code] for (mandatorily) setting aside post-clearance recovery are satisfied, where that finding is not supported by the Commission?

(4) If the answer to Question 3 should be that the fact that the Commission has the power to take a decision in regard to demands for post-clearance recovery of customs duties does not involve any limitation on the jurisdiction of national courts which are called on to rule in an appeal concerning a demand for post-clearance recovery of customs duties, does Community law contain any separate provision which guarantees uniform application of Community law in the specific case where there is a discrepancy between the views of the Commission and those of the national court concerning the criteria to be applied in the context of Article 220 of the Customs Code for the purpose of determining whether a mistake on the part of the customs authority could have been detected by a tax debtor?’

35. Referring to the findings of the Gerechtshof te Amsterdam concerning the characteristics of rice paper, the Hoge Raad der Nederlanden points out, with regard to both its first and second questions, that there are two very different interpretations as to which characteristic of a product such as rice paper is determinant for the purpose of classification under CN codes 1901 and 1905. Doubts as regards classification under CN heading 1905 have arisen, in particular, by reason of the judgment in Uelzena Milchwerke. ( ) If CN heading 1905 is incorrect, the question arises as to whether Regulation No 1196/97 is valid.

36. The Hoge Raad der Nederlanden asks the third and fourth questions with a view to uniform application of Community law, in this instance Article 220(2) and the second indent of Article 239(1) of the Customs Code, and in view of the danger posed by divergent decisions in parallel proceedings before the Commission and the Community Courts, on the one hand, and the national customs authorities and the national courts, on the other.

37. That is because, according to the case-law of the Court of Justice, ( ) in assessing whether the person liable for payment has shown obvious negligence within the meaning of the second indent of Article 239(1) of the Customs Code, the same criteria apply as are applicable in the context of Article 220 of the Customs Code in determining whether there has been an error on the part of the customs authorities which could not have been detected by the person liable for payment.

38. In this connection, the third question specifically seeks to ascertain whether a court whose judgment is open to challenge by appeal or appeal in cassation and which makes no reference for a preliminary ruling to the Court of Justice is entitled to deliver a judgment which, bypassing the Commission, overrules the demand for post-clearance recovery, or whether it is at best entitled to deliver a judgment which sets aside the national customs authority’s decision, which is inherent in the decision to demand post-clearance recovery, not to transmit the case to the Commission.

39. On 22 May 2008, after the conclusion of the written procedure, a hearing was held, in which Heuschen & Schrouff, the Commission, the Netherlands Government, the Greek Government and the Italian Government took part. No new aspects arose at the hearing.

IV – Legal assessment

A – Customs classification of rice paper

40. The national court’s first question concerns the criteria ( ) for the correct classification of rice paper in the CN. With regard to CN codes 1901 and 1905, the question arises as to the relevant product characteristic for purposes of classification. In formulating its question, the national court particularly emphasises the aspect of the lack of heat treatment with regard to CN heading 1905. The second question, regarding the validity of Regulation No 1196/97, follows on from the answer to the first question.

41. Before dealing with the classification principles relating to the CN, the product to be classified must first be considered in more detail: Asian rice paper in edible form ( ) is used as (edible) packaging for foodstuffs. As the Gerechtshof te Amsterdam established, the product in question is prepared from the ingredients rice flour, water and salt. After those ingredients have been blended and kneaded, small pats are made, which are rolled out into circular, translucent sheets which are then dried. The Gerechtshof te Amsterdam further pointed out that, as such, the product is not suitable for direct consumption, but must first be subjected to heat treatment. It should be added that, before any further use, including heat treatment, the wafer-thin sheets of rice paper must be soaked in water. Together with their filling they are baked, fried or deep-fried (as spring rolls, for example), although, depending on the recipe, they can obviously also be consumed unbaked as small filled rolls with their contents.

42. On the basis of point 1 of the general rules for the interpretation of the CN, ( ) classification is governed in particular by the wording of the headings and subheadings of the CN. ( ) It is settled case-law of the Court that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the notes to the sections or chapters. ( )

43. The national court is correct in observing that it cannot be expressly inferred as a characteristic from the wording of CN heading 1905 that the products listed there are baked. It is true that, as the first group of products, ‘Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa’ come under that heading. However, they are followed, separated clearly by a semicolon, by a further group of products, the list of which contains no verbatim reference to the characteristic of ‘having been baked’: ‘communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products’. This group of products is expressly assigned to CN subheading 1905 90 20 with precisely that wording. There is no literal mention whatsoever of ‘having been baked’. Common features which frequently occur in that subheading are, rather, the fact that the products are in the form of sheets and their dry state, which results from a variety of methods (drying with or without heat treatment).

44. That is, moreover, confirmed by various language versions of the provision. ( ) Some versions, although not the Dutch, ( ) expressly mention ‘dried’ products and in fact even ‘dried sheets of dough prepared from flour’. ( ) That applies to the product to be classified in the present case. Some versions, such as the English and Slovenian, for example, even use explicitly the term ‘rice paper’. ( )

45. The previous finding of classification under CN subheading 1905 90 20 is not precluded by the judgment in Uelzena Milchwerke. ( ) It is true that, in its observations in the present proceedings, Heuschen & Schrouff has emphasised, with reference to that judgment, that the aspect of ‘having been baked’ is a condition which must necessarily be fulfilled with regard to CN heading 1905. However, that view can be countered by pointing out that the judgment in Uelzena Milchwerke concerns only the first group of products of CN heading 1905, the characteristics and properties of which are given as ‘Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa’. Uelzena Milchwerke specifically concerns CN subheading 1905 30, ‘… biscuits …’. Since, therefore, that judgment does not concern the group of products ‘communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products’, it cannot contribute to the interpretation sought in the present context.

46. A comparative glance at the descriptions of goods coming under CN heading 1901 shows, moreover, that their wording and, in particular, that of CN subheading 1901 90 99 (‘Other’), regarded by Heuschen & Schrouff as being correct, contain no indications whatsoever which could constitute a more specific description for the purposes of point 3(a) of the general rules for the interpretation of the CN. ( )

47. In my view, in this clear-cut situation of classification according to the wording of the CN code, it is no longer of decisive importance to refer to the World Customs Organisation’s Explanatory Notes ( ) mentioned by Heuschen & Schrouff. ( )

48. Consequently, the national court’s first question must be answered in the affirmative, as is also proposed, moreover, by the Governments of the Netherlands, Greece and Italy as well as the Commission. Accordingly, sheets of the type described in the annex to Regulation No 1196/97 should be classified under CN heading 1905, and specifically under CN subheading 1905 90 20, if they are sheets prepared from rice flour, salt and water, which have been dried but have not undergone any heat treatment.

49. Since, in the light of the above, the classification of rice paper according to Regulation No 1196/97 corresponds to how that product should be classified according to the wording of the CN, there can be no doubt as to the validity of Regulation No 1196/97.

B – Waiver of entry in the accounts and/or remission/repayment on grounds of fairness and the relevant procedural powers of national authorities and Community authorities

50. By the third and fourth questions, the national court seeks to ascertain what arrangements can be made to ensure that Article 220(2) and the second indent of Article 239(1) of the Customs Code are applied uniformly where, in a situation such as the present, the decision is taken by a court whose judgment is open to challenge by an appeal or an appeal in cassation.

51. In order to be able to answer those questions, it is first necessary to clarify whether, in regard to Article 220(2) and the second indent of Article 239(1) of the Customs Code, both of which contain provisions applicable on grounds of fairness, there is a need for uniform interpretation and application. The answer to that should be in the affirmative if the criteria to be applied in each case are fully or at least partly identical.

52. To that end, it must first be observed, with regard to the positioning of the two provisions concerned here, that they apply at different points in time. Both form part of Title VII of the Customs Code, ‘Customs debt’, but are in different chapters within it. Article 220(2) forms part of Chapter 3, ‘Recovery of the amount of the customs debt’. That chapter covers the principle of entry in the accounts, that is, the calculation and entry ‘in the accounting records’ of amounts of duty, ( ) and questions of detail touching on that process, such as, for example, with Article 220, subsequent entry in the accounts, that is, cases in which no entry has been made initially. At that point in time, there is a question, in the context of Article 220(2) of the Customs Code, of possible waiver, on grounds of fairness, of subsequent entry in the accounts. The second indent of Article 239(1) of the Customs Code, on the other hand, forms part of Chapter 5, ‘Repayment and remission of duty’. The point in time for this lies after entry or subsequent entry. The second indent of Article 239(1) of the Customs Code contains one of several options for the adjustment, by way of repayment or remission, of amounts of duty already entered in the accounts. The provision contains a general equitable clause ( ) intended to cover the exceptional situation in which a declarant might find himself in comparison with other operators engaged in the same business. ( ) That general clause applies, in particular, where, in view of the relationship between a declarant and the administration, it would be unfair to require the declarant to bear a loss which, in the proper course of events, he would not have incurred. ( )

53. Like Article 220(2) of the Customs Code, Article 239(1) of the same Code thus makes provision for grounds of equity. Both provisions pursue the same aim, ( ) namely to limit the post-clearance payment of import and export duties to cases where such payment is justified and is compatible with a fundamental principle such as that of the protection of legitimate expectations. ( ) They are thus bound up with considerations of fairness and, in particular, with the principle of the protection of legitimate expectations. They overlap in part (as will be explained below) but are not entirely coextensive, ( ) resulting in a wider scope for Article 239(1) of the Customs Code as compared with Article 220(2) of the Customs Code.

54. The case-law has already ruled on the question of the identity of certain criteria of Article 220(2) and the second indent of Article 239(1) of the Customs Code. ( ) In Hewlett Packard France, ( )Söhl & Söhlke ( ) and Netherlands v Commission, ( ) the Court expressly stated that the criteria used in the context of Article 220 of the Customs Code to ascertain whether an error made by the customs authority was detectable by a trader are to be applied by analogy to the concept of ‘obvious negligence’ within the meaning of the second indent of Article 239(1) of the Customs Code, to which the present case relates.

55. Since, therefore, the criteria concerned here display a high degree of identity, but the relevant decisions are not in any case in the same hands, the uniform application of Community law may be jeopardised in cases of parallel proceedings such as those at issue here.

56. To ensure the uniform application of the common elements of the two provisions concerned here and avoid the danger of divergent decisions which lies in parallel proceedings before the Commission and the Community Courts, on the one hand, and the national customs authorities and courts, on the other, the existing case-law of the Court of Justice already provides substantial guidelines. Like the Greek Government, I would cite in that regard the judgments concerning customs law in Deutsche Fernsprecher, ( )Mecanarte, ( )Faroe Seafood and Others ( ) and Conseil général de la Vienne, ( ) which, although not delivered in regard to situations involving parallel proceedings, nevertheless concern the division of competence between the national authorities and the Commission in relation to the post-clearance recovery of duties. Based on the guidelines laid down by those judgments, some transferable principles can be derived from the competition law judgment in Masterfoods and HB, ( ) which concerned parallel proceedings before national courts and the Community Courts; indeed, the Netherlands Government has also drawn attention to this. In my view, the abovementioned strands of case-law point in the same direction.

57. In paragraph 33 of the Mecanarte judgment, as it had already done previously in Deutsche Fernsprecher, the Court emphasised in clear terms, in regard to the division of competence between the national authorities and the Commission in relation to the post-clearance recovery of import duties and export duties, that, in a situation such as this, it is possible for ‘the uniformity of Community law to be ensured by the Court of Justice through the preliminary ruling procedure’. If, therefore, the person concerned challenges the post-clearance recovery decision before the national courts, regard must then be had to the need to ensure the uniform application of Community law, at least by way of a reference for a preliminary ruling.

58. In the situation which formed the basis of the Mecanarte judgment, there was no need, in the light of the questions referred in that case, to consider in more detail the aspects of those issues which arise here.

59. With regard to the situation to be examined in the present proceedings, in which it is also relevant, for example, whether a court which is not obliged to make a reference under the third paragraph of Article 234 EC and which does not wish to stay its corresponding proceedings and await a ruling may nevertheless, by way of exception, be under a duty to make a reference, ( ) the Masterfoodsand HB judgment offers a continuation of the approach evident from the abovementioned judgments in Deutsche Fernsprecher, Mecanarte, Faroe Seafood and Others and Conseil général de la Vienne.

60. The situation underlying the Masterfoods and HB judgment ( ) also concerned parallel proceedings before national courts and the Community Courts, albeit with regard to Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC). A further contrast with the present situation, moreover, lies in the fact that, in Masterfoods and HB, the decision in the proceedings pending before the national court hinged on the validity of the Commission decision, whereas the point at issue in the present case is the identity of the assessment criteria.

61. In paragraph 51 of the Masterfoods and HB judgment, the Court held, with reference to paragraph 47 of the judgment in Delimitis, ( ) regarding the application of Articles 85(1) and 86 and Article 85(3) of the EC Treaty, that national courts must, when ruling on agreements or practices which may subsequently be the subject of a decision by the Commission, avoid giving decisions which would conflict with a decision contemplated by the Commission.

62. The Court further held, in paragraph 52 of the Masterfoods and HB judgment, that, when national courts rule on agreements or practices which are already the subject of a Commission decision, they cannot take decisions running counter to that of the Commission, even if the latter’s decision conflicts with a decision given by a national court of first instance.

63. In Masterfoods and HB, those findings of the Court were formulated in very general terms and not tailored specifically to situations governed by competition law. I can see no obstacles whatsoever to the transferability of those principles to the sphere of customs law, in which, as is the case here, there is a danger of non-uniform application and divergent decisions on identical points of law in parallel proceedings.

64. The answer given in Masterfoods and HB to the question of what a national court is to do in the event of a situation such as the present, which is characterised by parallelism, runs along two different lines: in order to avoid reaching a decision that runs counter to that of the Commission, it should stay its proceedings pending final judgment in the action for annulment by the Community Courts, unless it takes the view that, in the circumstances of the case, a reference to the Court of Justice for a preliminary ruling on the validity of the Commission decision is warranted. ( )

65. That answer contains a clear preference for staying the proceedings pending final judgment in the action for annulment, but without precluding the preliminary ruling procedure. That preference for the overriding judgment in the action for annulment is very understandable with respect to situations such as this one, if the extremely different approaches which characterise the procedure in an action for annulment and the preliminary ruling procedure are borne in mind. ( )

66. On the other hand, it may also be very useful, where there are special reasons, as, for example, in a situation such as the present, not to wait, but to make a reference to the Court. That is because, in a situation such as here, the Commission decision concerns what is really the secondary question of the remission of import duties, which really ought to take second place to clarification of the fundamental question (post-clearance recovery of the import duties). To clarify that fundamental question, it was necessary, in the dispute concerned in this case, to analyse the correct customs classification of rice paper. ( ) That may be a special reason for making a reference, although it is also conceivable that a ruling solely on that aspect could then be given at national level by means of an interlocutory judgment.

67. The finding that the Masterfoods and HB case-law is transferable is not precluded by judgments such as Sportgoods ( ) and Sommer, ( ) since they concern a different situation from that in the present case. In both those cases, the Court’s ruling, unlike in this case, concerned a situation in which the Commission decision did not contain any factual or legal indications relating to the legal basis for effecting post-clearance recovery of the import duties concerned under the regulation in issue; in that respect, the Commission decision was not such as to bind all the authorities, including the courts, of the State to which it was addressed. ( )

68. In the light of the above, there is, in my view, a need in situations, such as the present, which are characterised by parallel proceedings, for the national courts to have regard to the Commission’s decision-making competence, which finds its particular expression in the procedures laid down by Regulation No 2454/93.

69. In the case of a Commission decision which already exists, annulment of which has been sought in other proceedings, that respect can be ensured primarily by staying the proceedings before the national court pending final judgment in the action for annulment, which should be done right at the outset of the prescribed judicial sequence. As a further option in this situation, although more as a second resort, where special reasons preclude the primary option, there remains that of the reference for a preliminary ruling under Article 234 EC. ( )

70. In so far as the Commission’s decision is still pending, a special situation exists, as the Commission also emphasised in its observations. That aspect is now of a hypothetical nature, since it goes beyond the scope of the questions referred by the national court. However, since it is of advantage in reaching a decision also to bear in mind potential situations and to review the contemplated solution in the light of them, I propose to examine it briefly. I share the Commission’s view that respect for the Commission’s decision-making competence in such a situation would probably dictate that the national court should stay the proceedings pending adoption of that decision. ( ) Otherwise there would be a danger that the judicial decision would anticipate the Commission’s decision, thus taking its place.

71. In order to safeguard in practice the type of cooperation between national and Community courts described above, it is necessary, in my view, for any national court dealing with such concurrent points of Community law to ascertain, by seeking information of its own motion, whether an application to be regarded as parallel has been submitted or may still timeously be submitted, ( ) on which the Commission must decide, and what stage (decision, legal finality), if any, it has reached. ( )

72. One specific aspect of the third question referred by the Hoge Raad der Nederlanden still remains to be examined. That question specifically seeks the interpretation of Article 871(1) of Regulation No 2454/93, which contains procedural requirements applicable to the national customs authorities. The background to that question, as may be gathered from the submissions of the Netherlands Government with reference to Article 8:72(4) of the Algemene Wet Bestuursrecht, is that, under that provision, the annulling judgment may give the Netherlands customs authorities directions and set them conditions for proceeding further. Such a condition could, for example, consist in the national customs authorities now being required to transmit the debtor’s application to the Commission, since a decision favourable to the debtor is considered a possibility.

73. That raises a further possible way for the national court to ensure a uniform interpretation of Article 220(2) and the second indent of Article 239(1) of the Customs Code, namely, by annulling the national customs authority’s decision without thereby taking a decision in the matter itself. It should be noted in that regard that, in so far as national procedural law contains such a possibility of annulling the national authority’s decision and referring the matter back to it on certain conditions, that also may be a manner of proceeding which is consistent with Community law, ( ) so long as the Commission’s decision-making competence is respected.

V – Conclusion

74. On the basis of the foregoing considerations, I propose that the Court answer as follows the questions referred by the Hoge Raad der Nederlanden:

(1) Sheets as described in the annex to Regulation No 1196/97 come under heading 1905 of the Combined Nomenclature if they are prepared from rice flour, salt and water and then dried, but do not undergo any heat treatment.

(2) In the light of the answer to the first question, Regulation No 1196/97 is valid.

(3) With a view to a uniform interpretation of Community law, national courts, irrespective of their position in the judicial hierarchy, must respect the Commission’s decision-making competence where criteria in the Customs Code are identical in substance. In order to avoid giving a decision which runs counter to the Commission’s decision in parallel proceedings concerning (partly) identical provisions, the national court should stay the proceedings pending final judgment by the Community Courts in the action for annulment, unless it forms the view that, in the circumstances of the case, a reference to the Court of Justice for a preliminary ruling on the validity of the Commission decision is warranted. A further possibility would be to refer the matter back to the national customs authorities on condition that they transmit the case to the Commission by means of the procedure for administrative cooperation between the customs authorities and the Commission.