Case C-499/03 P

Peter Biegi Nahrungsmittel GmbH

and

Commonfood Handelsgesellschaft für Agrar-Produkte mbH

v

Commission of the European Communities

(Appeal – Common Customs Tariff – Subsequent recovery of import duties – Waiver of duties to be recovered – Conditions – Article 220(2)(b) of Regulation (EEC) No 2913/92 – Error of the customs authorities – Detectable error – Combined nomenclature – Remarks – Scope)

Opinion of Advocate General Geelhoed delivered on 14 October 2004

Judgment of the Court (Sixth Chamber), 3 March 2005.

Summary of the Judgment

1. Appeals – Grounds – Incorrect assessment of the facts – Inadmissibility – Dismissal –Definition of the legal nature of the facts – Admissibility

(Art. 225 EC; Statute of the Court of Justice, Art. 58)

2. Own resources of the European Communities – Subsequent recovery of import or export duties – Conditions of non-entry in the accounts of import duties set out in Article 220(2)(b) of Regulation No 2913/92 – Error of the authorities which could not ‘reasonably have been detected by the person liable for payment’ – Criteria of assessment – Regulation No 1359/95 containing provisions capable of being described as complex

(Council Regulations Nos 2913/92, Art. 220(2)(b), and 1359/95)

1. It follows from Article 225 EC and Article 58 of the Statute of the Court of Justice that an appeal is limited to points of law. The Court of First Instance therefore has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in an appeal. However, where the Court of First Instance has found or appraised the facts, the Court of Justice has jurisdiction, pursuant to Article 225 EC, to carry out a review of the legal classification of those facts and the legal inferences drawn from them by the Court of First Instance. Such a classification is a question of law which, as such, may be subject to review by the Court of Justice in an appeal.

(see paras 40-41)

2. Under Article 220(2)(b) of Regulation No 2913/92 establishing the Community Customs Code, for the competent authorities to be able not to make subsequent entry in the accounts of import duties, three cumulative conditions must be satisfied: the failure to collect the duties must have been due to an error by the competent authorities themselves; their error must be of such a kind that it could not reasonably have been detected by a person liable for payment acting in good faith; and that person must have complied with all the provisions laid down by the legislation in force as regards his customs declaration.

Whether an error of the competent customs authorities was detectable must be assessed having regard to the nature of the error, the professional experience of the operators concerned and the care which they exercised. The nature of the error must be assessed in the light of the complexity or sufficient simplicity of the rules concerned and the period of time during which the authorities persisted in their error.

In this respect, certain provisions of Regulation No 1359/95 amending Annexes I and II to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and repealing Regulation No 802/80 create a situation which is not sufficiently simple for it to be easily detectable from an examination of them that, from 1 July 1995, use of the tariff quotas relating to certain goods remains subject to the condition, laid down by Regulation No 1431/94 laying down detailed rules for the application in the poultrymeat sector of the import arrangements provided for in Regulation No 774/94, of producing an import licence. In those circumstances, those rules may objectively be described as complex and the errors committed by the customs authorities, in amending their working tariff while omitting to state that the importation of those goods was subject to production of such a licence, are of such a kind that they could not reasonably be detected by the economic operators.

(see paras 46-48, 54-56)