4.

In the present case, the applicants sought information from the competent authorities on the law applicable and the procedures to be followed. Even in the light of the evidence taken from the witnesses, the Court still has no knowledge of the exact tenor of the conversations conducted at the Ministry of Agriculture in this case. What is certain is that the applicants' representative was required to fill in an application form. The title of that form is as follows: ‘Import licence or advance fixing certificate.’ Box 15 of that form reads as follows: ‘Advance fixing requested: YES [] NO [].’ The applicants stated that the difference between an advance fixing certificate and an import licence was not clear from the clumsy and badly-translated text of the application form. The expression ‘advance fixing requested’ was translated into Greek as ‘προκαθορισμός ζητηθείς’ whereas, according to the applicants, it should have been ‘προκαθορισμός αιτούμενος’. The linguists whom I have consulted consider that the use of the term ‘αιτούμενος’ would have been preferable, although ‘ζητηθείς’ is in no way incorrect. However, the most important expression, namely ‘advance fixing’, was certainly correctly translated by ‘προκαθορισμός’. It seems to me that the real problem is whether the expression ‘advance fixing’, in Greek, or in any other Community language, permits a person who encounters it for the first time to obtain a sufficiently clear idea of what is meant. In my view, it does not. An individual reading the text of the form must certainly realize that he is being asked to make a choice, perhaps an important one, but what choice? Does advance fixing concern the quantity of the product which he proposes to import or the levy? If it concerns the levy, is it the levy applicable on the day of the application or that applicable at a future date which must be definitively chosen? If it is the levy applicable on the day of the application, for how long is the choice valid? When they were faced with that form, it may well be that the applicants said to themselves: ‘We do not want to fix in advance, we want to import’ and did not linger any further over the question. They may also have asked the official to explain the meaning of the expression ‘advance fixing’. At that point, there are two possibilities. Either, the official explained to them the difference between the two systems and also pointed out to them that if they opted for advance fixing, the security required was five times the amount which would have to be put up in the case of an ordinary importation. That being so, it is possible that the applicants would decide not to tie up such a large amount and to take the risk that the levy would not change before the goods arrived. If that was the case, then they took a commercial risk and ought to bear the consequences of it. However, that hypothesis seems rather improbable, since even for advance fixing the security required was only DR 223000 and would be reimbursed once the goods had been imported. Alternatively — and this is the claim made by the applicants and the Greek administration — the official with whom they dealt was unable to reply to their question. In that case, there was a failure on the part of the administration. The memorandum sent by the Greek Ministry of Finance addressed to the Commission on 30 November 1983 states that ‘the officials of the competent section clearly did not grasp the difference between an ordinary import licence and an advance fixing certificate’ and that ‘the competent section of the Ministry of Agriculture did not inform the undertakings of the difference between ordinary import licences and advance fixing certificates’. Furthermore, it can be seen from the sworn testimony of Mr Blånas, who, at the material time, was head of the Licensing department of the Foreign Trade Section in the Ministry of Agriculture, that the official who dealt with the applicants was new and inexperienced. The head of section himself was absent. The same witness's evidence, as well as that of Mrs Georgopoulou, shows that no circular or other document had been distributed to the officials of the Ministry of Agriculture explaining the meaning of the expression ‘advance fixing’. Finally, it is common ground that the competent section of the Ministry of Agriculture had never before issued an advance fixing certificate in respect of imports even though it had already dealt with exports in which the the amount to be reimbursed had been fixed in advance. It appears logical to conclude therefore that at the time at which the representatives of the two companies visited the competent section they were not received by an official capable of informing them as to the difference between an ordinary import licence and an advance fixing certificate. However, this was the first occasion on which the applicants themselves had imported goods since Greece's accession to the Community. According to their own statements, the representatives of the two companies did not put ‘yes’ or ‘no’ against the line marked ‘advance fixing requested’. It was in fact the official himself who put a cross in the ‘no’ box. The evidence taken from witnesses did not provide any clarification on that point. That aspect of the problem must therefore be disregarded and consideration must be given to whether the applicants were negligent in not giving up their plans to import the goods until such time as they had succeeded, by one means or another, in obtaining an explanation as to the meaning of the expression ‘advance fixing’. However, could traders who were obliged to make a special trip from Kavala to Athens for the purpose of carrying out those formalities reasonably be expected to do so? (It was not until afterwards that the Greek administration made provision for applications for import licences to be lodged in Kavala itself.) In his commentary on Regulation No 1430/79, Manfred Muller expresses the view that ‘in order to arrive at practical results, only grossly negligent conduct (das grob fahrlässige Verhalten) on the part of the person liable to pay the levy should be regarded as “negligence’within the meaning of Article 13’. ( 2 ) In this case, it seems to me that, in the light of all the circumstances set out above, the fact that the applicant companies made enquiries solely with the competent administration and, when they failed to obtain a reply to their question, did not make systematic efforts to obtain information from other sources does not constitute negligence within the meaning of Article 13 of Regulation No 1430/79, interpreted in such a way. After all, the applicants should normally have been able to obtain an immediate reply from the administration to the question which they had asked. What is at issue here is not so much the applicants' lack of knowledge as the administration's lack of knowledge, which compounded that of the applicants. If it was only in the applicants' statements that the inability of the official concerned to provide a proper answer was alleged, it obviously could not be accepted. However, the Court in fact has before it a written statement from a government department of the Member State in question as well as the sworn statements made by officials. If the Court accepted the conclusion suggested above, would it create a dangerous precedent? I do not think so. It would certainly be quite unacceptable to permit Member States generally to enable their nationals to avoid payment of levies by admitting that they had not provided them with correct information. That would result in an inconsistent application of the relevant Community rules and, consequently, in discrimination between undertakings. However, administrations are generally very reluctant to admit, let alone certify, a lack of knowledge on the part of their officials, especially as they then run the risk that actions for damages will be brought against them. (The two Kavala companies have already initiated such proceedings before the competent Greek court.) It seems to me that once the administrations of the new Member States become aware of the present case, they will be encouraged to give clear and detailed instructions to their officials rather than relying on the possibility of pleading that their officials were not sufficiently prepared. It remains to be considered whether the applicants are to be criticized for not having placed the rice in free circulation as soon as it arrived, even if that involved making immediate application for reimbursement of part of the levy. They would thus have been able to sell the rice while it was still of good quality, pay a levy which was only one-third of that which they finally paid in 1983 when the rice was removed from the warehouse and, in my opinion, avoid incurring a loss. The applicants state that they chose not to adopt that solution because they were convinced that they would be able to reach an agreement rapidly with the administration which would permit them to pay only the rate of levy applicable on the day on which they submitted their application for a licence. It must be admitted that they could not have had any interest in seeking to gain time. The trend of the levies was clearly upward, interest on the money borrowed in order to purchase the goods (USD 480000) was building up and the quality of the rice was deteriorating. Should allowance be made for their inexperience in regard to the Community machinery or, on the contrary, should they be regarded as not having acted like careful traders? For its part, the Court has a fairly exacting standard as regards the care which is required of professional traders. Thus, in its judgment of 13 November 1984 in Joined Cases 98 and 230/83 (Van Gend en Loos and Bosman v Commission [1984] ECR 3763) the Court decided that the fact that a customs agent was misled by invalid certificates of origin, even where they were issued by the customs authorities of the countries named in them, did not constitute a ‘special circumstance’ within the meaning of Article 13 of Regulation No 1430/79 because that fact was one of the professional risks which such a trader ran. Should the Court decide to declare the Commission's decision void, it would normally be up to the Commission to consider whether or not it would be justified in finding the applicants guilty of a certain lack of care and in remitting only the difference between the levy of DR 381 per tonne applicable on the day on which the application for a licence was submitted and that of DR 3811 per tonne applicable on the day on which the goods arrived. However, in the present case it seems to me that that would not be equitable because the Commission can confirm, by checking with the Office for Official Publications which is subject to its authority, that at the time at which the applicants decided not to put the rice into free circulation (27 September 1981), none of the regulations applicable to the case had been published in the Greek language version of the Official Journal. Lastly, it is necessary to consider whether there are ‘special circumstances’ in this case.