Keywords

Summary



Keywords

1. Acts of the institutions - Temporal scope - Immediate application of a new procedural rule - Retroactive effect of a substantive rule - Conditions - Rules concerning remission of import duties

(Council Regulations No 1430/79, Art. 13, and No 2913/92, Art. 239)

2. Own resources of the European Communities - Repayment or remission of import or export duties - Article 13 of Regulation No 1430/79 - Commission's power to adopt decisions - Right of the trader concerned to be heard - Scope

(Council Regulation No 1430/79, Art. 13)

3. Own resources of the European Communities - Repayment or remission of import or export duties - Article 13 of Regulation No 1430/79 - Scope - Commission's power to adopt decisions - Detailed rules concerning its exercise - `Special situation' - Definition - Commission seriously in default

(Council Regulation No 1430/79, Art. 13)

4. Own resources of the European Communities - Repayment or remission of import or export duties - Person liable satisfying conditions laid down in Article 13 of Regulation No 1430/79 - Competent authorities' obligation to repay or remit duties - Satisfaction of conditions laid down in Article 5(2) of Regulation No 1697/79 - Non-essential condition

(Council Regulations No 1430/79, Art. 13, and No 1697/79, Art. 5(2))

Summary

1. Although procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, this is not the case with substantive rules. On the contrary, the latter are usually interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, objectives or general scheme that such an effect must be given to them.

That is not true of the rule relating to the remission of import duties contained in Article 239 of Regulation No 2913/92 establishing the Community Customs Code which replaced, with effect from 1 January 1994, the rules set out in Article 13 of Regulation No 1430/79 on the repayment or remission of import or export duties, meaning that an application for remission of duties must be examined in the light of the latter provision in the event that it was in force at the time when the importations of the goods at issue were made and the entry of the goods for free circulation accepted.

2. Respect for the rights of the defence in all proceedings which are initiated against a person and are liable to culminate in a measure adversely affecting that person is a fundamental principle of Community law which must be guaranteed, even in the absence of any rules governing the procedure in question. In view of the margin of assessment enjoyed by the Commission in adopting a decision pursuant to the general equitable provision contained in Article 13 of Regulation No 1430/79 on the repayment or remission of import or export duties, it is all the more important that respect for the right to be heard is guaranteed in procedures initiated pursuant to that regulation.

That principle requires, in that context, not only that the person concerned should be placed in a position in which he may effectively make known his views on the relevant circumstances, but also that he should at least be able to put his own case on the documents taken into account by the Commission or even, when the latter is accused of having committed serious breaches of its obligations, that he should have access to all non-confidential official documents concerning the decision in question.

More specifically, when the Commission contemplates diverging from the position taken by the competent national authorities on whether the person concerned was guilty of obvious negligence, within the meaning of Article 13, it has a duty to arrange for that person to be heard, since such a decision involves a complex legal appraisal which can be effected only on the basis of all the relevant facts.

3. Article 13 of Regulation No 1430/79, which provides that import duties may be repaid or remitted in special situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned, constitutes a general equitable provision designed to cover situations other than those which arose most often in practice and for which special provision could be made when Regulation No 1430/79 was adopted. It is intended to apply, inter alia, where the circumstances characterising the relationship between a trader and the administration are such that it would be inequitable to require the trader to bear a loss which it normally would not have incurred.

The Commission must assess all the facts in order to determine whether they constitute a special situation within the meaning of that provision. Although it enjoys a margin of assessment in that respect, it is required to exercise that power by actually balancing, on the one hand, the Community interest in ensuring that the customs provisions are respected and, on the other, the interest of the importer acting in good faith not to suffer harm beyond normal commercial risk. Consequently, when examining whether an application for remission is justified, the Commission cannot simply take account of the conduct of importers but must also assess the impact of its own conduct on the resulting situation even if it is at fault.

Therefore, although it is true that the presentation, for the purpose of obtaining preferential tariff treatment of goods declared for free circulation, of documents subsequently found to be falsified does not in itself constitute a special situation justifying remission of import duties even where such documents were presented in good faith, that rule does not preclude such remission when, by failing effectively to monitor use of a tariff quota exempt from import duties, the Commission committed a serious breach of its duty to ensure that the quota was properly applied and was not exceeded by means of falsified certificates.

4. Article 13 of Regulation No 1430/79 provides that the competent authorities may repay or remit import duties in special situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned. Provided that those two conditions are satisfied, the person liable is entitled to reimbursement or remission of the duties, since to hold otherwise would deprive that provision of its effectiveness.

It follows that remission of import duties cannot be conditional upon the three cumulative conditions laid down in Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of the duties in question being satisfied, namely that the duties must not have been collected as a result of an error made by the competent authorities, that the person liable must have acted in good faith - that is to say, he could not reasonably have detected the error made by the competent authorities - and that he must have observed all the provisions laid down by the rules in force as far as his customs declaration is concerned. Although the two provisions referred to above pursue the same aim, namely to limit the post-clearance payment of import or export duties to cases where such payment is justified and is compatible with a fundamental principle such as the protection of legitimate expectations, they can none the less not be equated. Whilst Article 5(2) of Regulation No 1697/79 is intended to protect the legitimate expectation of the person liable that all the information and criteria on which the decision whether or not to proceed with recovery of customs duties is based are correct, Article 13 of Regulation No 1430/79 constitutes a general equitable provision and would cease to be such if the conditions laid down in Article 5(2) had to be satisfied in every case.