Keywords

Summary



Keywords

1 Customs union - Customs debts incurred through non-fulfilment of one of the obligations arising from the temporary storage of goods - Exception - Failures which `have no significant effect on the correct operation of the temporary storage or customs procedure in question' - Categories of failure probably covered - Exhaustive set of rules established by the Commission under a power conferred by the Council - Whether lawful

(Council Regulation No 2913/92, Arts 204 and 249; Commission Regulation No 2454/93, Art. 859)

2 Customs union - Customs debts incurred through non-fulfilment of one of the obligations arising from the temporary storage of goods - Exception - Failures not entailing `obvious negligence' - Same meaning to be attributed to the terms qualifying negligence in Articles 204, 212a and 239 of Regulation No 2913/92 and in Article 859 of Regulation No 2454/93 - Existence of obvious negligence - Criteria of assessment

(Council Regulation No 2913/92, Arts 204(1)(a), 212a and 239; Commission Regulation No 2454/93, Art. 859)

3 Customs union - Customs debts incurred where the time-limit allowed for customs clearance of goods in temporary storage has been exceeded - Exception - National authority required to extend the period allowed where this is requested in good time - For the national court to determine in cases where such a request is refused by a decision which has become unappealable

(Council Regulation No 2913/92; Commission Regulation No 2454/93, Art. 859(1))

4 Customs union - Customs-approved use of goods entered for clearance - Extension of the time-limit allowed for assignment of the goods to a customs-approved use - Condition - Only possible in circumstances liable to place the applicant in an exceptional situation - Criteria of assessment - Whether a single application for extension may be lodged in respect of goods covered by several summary declarations - Permissible - Limits

(Council Regulation No 2913/92, Art. 49(1))

5 Own resources of the European Communities - Repayment or remission of import duties - Conditions - Circumstances contemplated by Articles 900 to 903 of Regulation No 2454/93 - Where no obvious negligence may be attributed to the trader - Customs authorities under an obligation to examine merits - Scope

(Commission Regulation No 2454/93, Arts 899 and 900 to 905)

6 Own resources of the European Communities - Repayment or remission of import duties - Conditions - Situation contemplated by Article 900(1)(o) of Regulation No 2454/93 - Where no obvious negligence may be attributed to the trader - Cumulative conditions

(Commission Regulation No 2454/93, Art. 900(1)(o))

Summary

1 Article 859 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code contains a validly constituted and exhaustive set of rules on failures, within the meaning of Article 204(1)(a) of Regulation No 2913/92, which `have no significant effect on the correct operation of the temporary storage or customs procedure in question' and which, being an exception to the rule that a customs debt is incurred through the non-fulfilment of one of the obligations arising from the temporary storage of goods, do not give rise to a customs debt.

The Council did not, in Article 204, reserve the right to list exhaustively the categories of failures referred to in that provision. Secondly, by Article 249 of the Customs Code, it conferred on the Commission the task of adopting the provisions required for implementation of the Customs Code, with the exception of certain specific provisions which do not include Article 204. Furthermore, since the Council has laid down in its basic regulation the essential rules governing the matter in question, it may delegate to the Commission general implementing power without having to specify the essential components of the delegated power; for that purpose, a provision drafted in general terms provides a sufficient basis for the authority to act. Moreover, the exhaustive set of rules laid down by Article 859 of the implementing Regulation is necessary and appropriate for the implementation of the Customs Code and it is not contrary to that Code.

2 According to the second indent of Article 859 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, a customs debt is not incurred through failure to fulfil obligations arising from the temporary storage of goods, where that failure has no significant effect on the correct operation of the temporary storage or customs procedure in question, provided that it does not imply obvious negligence (`grobe Fahrlässigkeit' in the German version) on the part of the person concerned. Secondly, according to the second indent of Article 239(1) of the Customs Code, and the first indent of Article 899 and Article 905(1) of the implementing Regulation, repayment or remission of customs duties is conditional primarily on there being no deception or obvious negligence (`offensichtliche Fahrlässigkeit' in the German version) attributable to the person concerned.

A comparison of all the language versions of the abovementioned provisions indicates that the terms qualifying negligence are not used consistently. It must therefore be concluded that the legislature was not pursuing a particular objective by using different terms in the German version. Accordingly, it must be considered that the terms which qualify negligence in the abovementioned rules - including the term `offenkundige Fahrlässigkeit' (manifest negligence) in Article 212a of the Customs Code - all have one and the same meaning and must be understood as referring to obvious negligence (`offensichtliche Fahrlässigkeit' in the German version).

It is not possible, therefore, to conclude that there was no obvious negligence within the meaning of the second indent of Article 239(1) of the Customs Code where the customs debt was incurred pursuant to Article 204(1)(a) of the Customs Code because of conduct constituting obvious negligence within the meaning of the second indent of Article 859 of the implementing Regulation.

In order to determine, specifically, whether or not there is `obvious negligence' within the meaning of the second indent of Article 239(1) of the Customs Code, account must be taken in particular of the complexity of the provisions non-compliance with which has resulted in the customs debt being incurred and the professional experience of, and the care taken by, the trader. It is for the national court to determine, on the basis of those criteria, whether there is obvious negligence on the part of the trader.

3 Community law does not preclude a national court from determining independently whether the criterion laid down in Article 859(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code - namely that the time-limit allowed for assignment of the goods to one of the customs-approved treatments or uses provided for under the temporary storage or customs procedure in question ought to have been extended - is fulfilled where an application for an extension made in time has been refused by a now unappealable decision of the customs authority.

4 Only circumstances liable to put the applicant in an exceptional situation in relation to other traders carrying on the same activity can justify an extension of the time-limit allowed for assignment of the goods entered for clearance under Article 49(1) of Regulation No 2913/92 establishing the Community Customs Code. Exceptional circumstances which, although not unknown to the trader, are not events which would normally confront any trader in the exercise of his occupation may constitute such circumstances. It is for the customs authorities and the national courts to determine in each case whether such circumstances exist.

Community law does not preclude a trader from lodging a single application for an extension of the prescribed time-limit for assigning to goods covered by several summary declarations a customs-approved treatment or use. However, even in the case of a single application, the time-limit may be extended only in respect of goods in relation to which the prescribed time-limit for assigning a customs-approved treatment or use has not yet expired.

5 The customs authority or national court to which an application is submitted for repayment of customs duties on the basis of Article 900(1)(o) of Regulation No 2454/93, as amended by Article 1(29) of Regulation No 3254/94 - a provision which applies to cases in which the goods would have been eligible for Community treatment or preferential tariff treatment, but not to cases in which the goods would have been eligible for other forms of favourable treatment - is required, where it is unable to grant the repayment applied for pursuant to that provision, to examine of its own motion the merits of that application in the light of the other provisions of Article 900 and Articles 901 to 904 of Regulation No 2454/93 listing the circumstances justifying repayment.

Where the decision-making authority is not in a position, on the basis of the grounds adduced, to take a decision to repay or remit duties, it is required to examine of its own motion whether there is any evidence `which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned' within the meaning of Article 905(1) of Regulation No 2454/93 which would necessitate examination of the file by the Commission.

6 Where an application is submitted for the repayment or remission of import or export duties, the customs authority or national court cannot assume that the person concerned has not acted with any fraudulent intent or in a manner which is obviously negligent on the sole ground that he is in a situation referred to in Article 900(1)(o) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, as amended by Article 1(29) of Regulation No 3254/94.