Keywords

Summary



Keywords

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1. Actions for annulment of measures ° Competence of the Community Court ° Commission decision finding no justification for a remission of import duties ° Party seeking an order requiring the Commission to adopt a new decision ° Inadmissible

(EC Treaty, Arts 173 and 176)

2. Own resources of the European Communities ° Post-clearance recovery of import or export duties ° Conditions for waiver of recovery laid down in Article 5(2) of Regulation No 1697/79 ° Error made by the administration "which could not reasonably have been detected by the person liable" ° Criteria for assessment ° Individual case

(Council Regulation No 1697/79, Art. 5(2))

3. Actions for annulment of measures ° Pleas in law ° Error in law ° Commission decision applying rules governing remission of import or export duties instead of those governing post-clearance recovery of such duties ° Error in legal basis not influencing the substantive assessment of the trader' s rights ° Annulment not justified

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

Summary

1. In an action for annulment, the Community Court cannot, without encroaching on the prerogatives of the administrative authority, order a Community institution to take the necessary measures to comply, as required by Article 176 of the Treaty, with a judgment by which a decision is annulled. In an action for annulment of a Commission decision finding that remission of import duties is not justified, it is therefore inadmissible to seek an order requiring the Commission to adopt a new decision on the matter.

2. Article 5(2) of Regulation No 1697/79 lays down three conditions which must be met concurrently to enable the competent customs authorities to refrain from taking action for the post-clearance recovery of import duties: the duties must not have been collected as a result of an error made by the competent authorities, the person liable must have acted in good faith ° that is to say that he could not reasonably have detected the error made by the competent authorities ° and he must have observed all the provisions laid down by the rules in force as far as his customs declaration is concerned.

In order to determine, more particularly, whether or not the error could have been detected by the trader concerned, all the circumstances of the individual case must be assessed objectively, taking into account, in particular, the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised. A trader does not exercise sufficient care if, by paying the exporter' s invoice before receiving the assessment notice, which contained an error, he took a financial risk which was not unavoidable by virtue of his contractual obligations and so cannot claim to have entertained a legitimate expectation, subsequently frustrated, as to the absence of any customs debt, and if the error could have been detected by an attentive trader by reading the Official Journal in which the relevant provisions had been published several days before the import transactions in question took place. In that regard, the duty to consult the Official Journal does not apply only to commercial traders whose activities essentially consist of import-export operations but also to those who have gained some experience of importing the goods in question.

3. Although the Commission is wrong in law if it applies Regulation No 1430/79 on the repayment or remission of import or export duties in a case submitted to it by national authorities where the duty had not been paid and where it should therefore have applied Regulation No 1697/79 on the post-clearance recovery of such duties, such an error does not justify annulling the Commission' s decision where obvious negligence on the part of the trader, which the Commission considers precludes him from benefiting from the provisions of Article 13 of Regulation No 1430/79, is linked to the fact that the error is capable of being detected, which can preclude him from benefiting from the provisions of Article 5(2) of Regulation No 1697/79, and where the Commission' s confusion of the two legal bases was of a purely formal nature and did not have any decisive influence as to the outcome of its substantive examination.