Keywords

Summary



Keywords

1. Own resources of the European Communities – Repayment or remission of import or export duties – Fairness clause established by Article 905 of Regulation No 2454/93 – Scope – Commission’s power of decision – Procedures for exercising – ‘Special situation’ – Meaning – Failure by the national authorities, on account of the demands of an investigation, to alert a person liable for import duties acting in good faith that an investigation is being carried out – Included

(Council Regulation No 2913/92, Art. 239; Commission Regulation No 2454/93, Art. 905)

2. Own resources of the European Communities – Repayment or remission of import or export duties – Fairness clause established by Article 905 of Regulation No 2454/93 – Scope – Commission’s power of decision – Procedures for exercising – ‘No obvious negligence’ – Meaning – Failure to take out insurance – Not included

(Council Regulation No 2913/92, Art. 239; Commission Regulation No 2454/93, Art. 905)

Summary

1. Article 905 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, a provision which explains and develops the rule relating to the repayment or remission of import or export duties contained in Article 239 of the Customs Code, constitutes a general fairness clause, intended, in particular, to cover exceptional situations which, in themselves, do not fall within any of the cases provided for in Articles 900 to 904 of the implementing regulation. It follows from the wording of that article that repayment of import duties is subject to two cumulative conditions, namely, first, the existence of a special situation and, second, the absence of deception or obvious negligence on the part of the operator concerned.

Factors which might constitute a special situation exist, where, in view of the objective of fairness underlying Article 239 of the Customs Code, factors liable to place the applicant in an exceptional situation as compared with other operators engaged in the same business are found to exist with the result that it would be inequitable to require the trader to bear a loss which he normally would not have incurred.

In order to determine whether certain circumstances constitute a special situation, the Commission must assess all the relevant facts. Although the Commission has some discretion in applying a fairness clause, it is required to exercise that power by genuinely balancing, on the one hand, the Community interest in ensuring that the customs provisions are respected and, on the other, the interest of the bona fide importer in not suffering loss which goes beyond normal commercial risk.

In that regard, although the exercise by the customs or police authorities of their investigative powers is legitimate, the failure, on account of the demands of an investigation, to inform the person liable that the investigation is being carried out and that a fraud has been detected constitutes, in the absence of any deception or negligence on the part of the person liable, a special situation.

(see paras 34-35, 39-40, 54, 59-60)

2. In order to determine whether or not there is obvious negligence, within the meaning of Article 239 of Regulation No 2913/92 establishing the Community Customs Code and Article 905 of Regulation No 2454/93 laying down provisions for the implementation 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 relevant experience of, and care taken by, the trader. However, those three factors are merely criteria, on the basis of which the Commission must ascertain whether in a specific case there was obvious negligence on the part of the trader. The Commission must, as part of its assessment, identify the specific acts or omissions of the person applying for remission which, taken separately or as a whole, amount to obvious negligence, and it must do so in the light of, inter alia, the criteria mentioned.

In that regard, although it is the responsibility of traders to guard against ordinary commercial risks and although, consequently, the mere fact of having suffered financial loss does not constitute a special situation within the meaning of the Community customs legislation, it cannot be accepted that as a general rule the failure to take out insurance amounts, on its own, to obviously negligent conduct on the part of the trader. What is more, it is clear from Article 239 of Regulation No 2913/92 and Article 905 of Regulation No 2454/93 that there must be a link between the trader’s alleged negligence and the special situation. In the absence of such a link, it would be inequitable to refuse the application for remission or repayment.

(see paras 75, 77, 83-84)