4.

The wording of the preliminary question is clear. First, it asks the meaning of the term ‘a given action for recovery’, contained in Article 8 of Regulation No 1697/79. It is then necessary to determine the legality, again on the basis of that provision, of the practice by which (a) several import or export transactions effected by one person are combined in one general recovery order and (b) payment is required of the total amount obtained by adding together all the underpayments, that is to say the difference between the duty paid and the duty legally due for each transaction. Let us first ascertain what is meant by ‘action for recovery’ by referring to Article 2 (1) of Regulation No 1697/79, which lays down the conditions governing such action. That provision states as follows: ‘Where the competent authorities find that all or part of the amount of import duties or export duties legally due on goods entered for a customs procedure involving the obligation to pay such duties has not been required of the person liable for payment, they shall take action to recover the duties not collected. However, such action may not be taken after the expiry of a period of three years from the date of entry in the accounts of the amount originally required... or, where there is no entry in the account, from the date on which the customs debt relating to the said goods was incurred.’ (emphasis added). That wording seems to me clear. The action for recovery is ‘taken’: it therefore extends over a period of time. Thus it can be nothing other than the administrative procedure which culminates in the final entry of the debt in the accounts or, in other words, in the notice determining the duties owed by the trader. From that it follows that it is certianly wrong to identify the ‘action’ with the notice, as the Commission has sought to do; the procedure by which a measure is adopted and the measure itself are two different things. Up to this point there is no difficulty. In the first paragraph of Article 8, however, the legislature has qualified the words ‘action for recovery’ with the adjective ‘given’. What does that word mean ? Are we to infer that that rule requires the taking of as many actions as there are transactions necessitating post-clearance recovery? That question must, in my view, be answered in the negative. The practice whereby several transactions effected by one person over a given period are combined in a single action has been adopted by the authorities in all the Member States and its purpose is consistent with a general principle, namely that the procedure should be as brief as possible and administrative action as simple as possible. It is therefore inconceivable that the legislature intended to prohibit that practice. Moreover, Stinnes is wrong in asserting that Regulation No 1697/79 prevents the authorities from choosing when to take action for recovery. There is no trace of any such rule in the regulation. The three-year time-limit for actions to recover duty may even be evidence of a contrary intention on the part of the legislature. However, the fact that it is lawful to combine several transactions in one single action for recovery does not imply that it is lawful to include in it amounts of less than 10 European units of account. According to the Commission, the correctness of including even those amounts follows from the purpose of the regulation, namely to protect the interests of the Community by collecting the maximum amount of duty by means of a minimum of administrative work. It is in view of that requirement that the Commission considers that the authorities should apply the method of calculation defined by the Committee on Duty-Free Arrangements with reference to the interpretation of Article 20 of Regulation No 1430/79, which is similar to Article 8. However, I do not find that argument persuasive. Its premise as to the general purpose of the regulation is correct; however, the conclusions which it draws with regard to Article 8 in particular are incorrect. What is in fact the purpose of that rule? It cannot be that put forward by Stinnes (since it is inconceivable that a set of rules which is entirely devoted to preventing loss of customs revenue should be intended in a particular respect to benefit the persons liable for payment); in my view it is to be found instead in the reasons given for the regulation. The fourth recital in the preamble states as follows: ‘The post-clearance recovery of amounts of 10 European units of account or less would not appear to be worthwhile’ (emphasis added). In other words, the legislature considered that there would be no advantage in the authority's going to great length to recover such small amounts. However, it thereby gave traders reason to believe that such amounts would not be recovered, whether they were due as a result of an error of calculation or some other reason. Article 8 therefore cannot be interpreted as authorizing their recovery. Furthermore, such an interpretation would in practice deprive Article 8 of all effect, since it is apparent that the sum of all the underpayments will only rarely be less than 10 European units of account. So far as the decision of the Committee on Duty-Free Arrangements is concerned, I would merely point out that that decision was applied to the present case not directly but by analogy. In any event, as we know, the decisions of that Committee do not restrict the power conferred upon the Court by Article 177 of the EEC Treaty to interpret Community law (see in that connection, with reference to the opinions of the Committee on the Common Customs Tariff Nomenclature — which has functions similar to those of the committee concerned here — the judgments of the Court of 15 February 1977 in Cases 69 and 70/76 Dittmeyer v Hauptzollamt Hamburg-Waltershof, [1977] ECR 231, and of 11 July 1980 in Case 798/79 Hauptzollamt Kóln-Rheinauv Chem-Tec [1980] ECR 2639).