Opinion of the Advocate-General



Opinion of the Advocate-General

1. By its appeal, Heuschen & Schrouff Oriëntal Foods Trading BV (‘Heuschen & Schrouff’) claims that the Court should set aside the judgment delivered by the Court of First Instance of the European Communities on 30 November 2006 in Heuschen & Schrouff Oriëntal Foods v Commission (2) (‘the judgment under appeal’), by which the Court of First Instance dismissed its action for annulment of Commission Decision REM 19/2002 of 17 June 2004 finding the remission of import duties requested by Heuschen & Schrouff to be unjustified.

2. This appeal is linked to a reference for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) in proceedings between the Staatssecretaris van Financiën (State Secretary for Finance) and Heuschen & Schrouff concerning the post‑clearance recovery of import duties, (3) the requested remission of which is in issue in the present proceedings.

I – Legal framework

A – Provisions on customs classification

3. The ‘Combined Nomenclature’ (‘the CN’), established in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, (4) is based on the international Harmonised Commodity Description and Coding System (‘the HS’) drawn up by the Customs Cooperation Council, now the World Customs Organisation, established by the International Convention concluded at Brussels on 14 June 1983 and approved on behalf of the Community by Council Decision 87/369/EEC of 7 April 1987. (5) The CN reproduces the headings and subheadings of the HS to six digits, with the seventh and eighth figures creating subheadings which are unique to it. (6)

4. Article 9(1) of Regulation No 2658/87 authorises the Commission of the European Communities, assisted by a committee of representatives of the Member States, to adopt measures relating to the classification of goods in the CN in accordance with the procedure laid down in Article 10 of Regulation No 2658/87.

5. Part Two, Section IV, Chapter 19, of Annex I to Regulation No 2658/87 covers the CN codes for ‘Preparations of cereals, flour, starch or milk; pastrycooks’ products’.

6. CN heading 1901 covers ‘Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than … of cocoa …; food preparations of goods of headings 0401 to 0404 [(7) ] …’, including CN subheading 1901 90 99, with the description ‘Other’.

7. CN heading 1905 relates to ‘Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa; communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products: ...’, including, in CN subheading 1905 90 (‘Other’), the further CN subheading 1905 90 20 (‘Communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products’).

8. Some language versions of CN heading 1905 refer to ‘dried’ products, in some instances ‘dried sheets of dough made from flour’, (8) but not the Dutch version. (9) Some versions, such as the English and Slovenian, explicitly use the term ‘rice paper’. (10)

9. Pursuant to point 1 of the Annex to Commission Regulation (EC) No 1196/97 of 27 June 1997 concerning the classification of certain goods in the combined nomenclature (11) (that regulation is based on the abovementioned Article 9 of Regulation No 2658/87), goods of the following description are to be classified under CN subheading 1905 90 20:

‘Food preparation, in the form of dry, translucent sheets, of different sizes, made from rice flour, salt and water.

These sheets are, after being soaked in water to make them pliable, generally used to make the “wrappers” for spring rolls and similar products.’ (12)

10. Point 1 of the Annex to Regulation No 1196/97 contains the following reasons for that classification:

‘Classification is determined by General Rules 1 and 6 for the interpretation of the combined nomenclature and by the wording of CN codes 1905, 1905 90 and 1905 90 20.’

B – Remission of import duties on grounds of fairness

11. Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (13) (‘the Customs Code’) lays down provisions for possible remission of import duties or export duties in special situations. The second indent of Article 239(1) of the Customs Code provides:

‘Import duties or export duties may be … remitted in situations resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. …’

II – Facts

12. Heuschen & Schrouff, an importer of foodstuffs and food ingredients, has imported rice paper (14) from Vietnam for many years.

13. In 1996 and the following years, the customs agent acting on behalf of Heuschen & Schrouff declared imported rice paper under CN subheading 1901 90 99 for the purpose of release into free circulation. By letter of 21 March 1996, the Netherlands customs authority notified Heuschen & Schrouff that the rice paper should indeed be classified under CN subheading 1901 90 99.

14. On 27 June 1997 the Commission adopted Regulation No 1196/97, (15) which was published in the Official Journal of the European Communities on 28 June 1997 and entered into force on 19 July 1997.

15. Heuschen & Schrouff continued to import rice paper from Vietnam under CN subheading 1901 90 99 after the adoption of that regulation, a practice which was accepted by the Netherlands customs authority in respect of 29 declarations in six months (with documentary inspection and, in one instance, physical inspection). On 16 March 1998, the Netherlands customs authority pointed out that the declarations should be made with reference to CN subheading 1905 90 20. Later on the same day, however, the correctness of a declaration using CN subheading 1901 90 99 was confirmed by the same customs authority. As from 17 March 1998, Heuschen & Schrouff used CN subheading 1905 90 20 for the importation of rice paper.

16. By letter of 22 November 2000, Heuschen & Schrouff was requested to pay customs duties amounting in total to NLG 645 399.50 (EUR 292 869.52) on all imports of rice paper effected over the period from 13 November 1997 to 31 December 1998. Referring to Regulation No 1196/97, the customs authority stated by way of explanation that the CN subheading 1901 90 99 specified on the declarations was incorrect and that a revision of the relevant assessment notices would therefore be necessary.

17. In response to the objection lodged by Heuschen & Schrouff, the requests for payment were confirmed by ruling of the Customs and Excise Inspector of 9 March 2001, with the exception of a request for payment in the amount of NLG 13 650.30 (EUR 6 194.24) relating to a customs declaration of 16 March 1998, which was annulled. After adjustment, the amount payable was assessed at NLG 636 518.40 (EUR 282 645.21) for the period from 25 November 1997 to 2 February 1998.

18. On 13 September 2002, Heuschen & Schrouff applied to the national customs authority for remission of the customs debt in question pursuant to Article 239(1) of the Customs Code. That application was submitted to the Commission on 19 September 2002.

19. By Decision REM 19/2002 of 17 June 2004, the Commission rejected the application on the ground that, although a special situation as referred to in Article 239 of the Customs Code did exist, Heuschen & Schrouff had nevertheless acted with obvious negligence. The Commission pointed out in that regard that, following publication of Regulation No 1196/97 on 28 June 1997, the tariff situation was no longer complex and confused. Heuschen & Schrouff, the Commission held, should at that time have at least ascertained the position by making enquiries.

20. Heuschen & Schrouff brought the present action against that Commission decision on 23 September 2004.

III – Proceedings before the Court of First Instance and judgment under appeal

21. Heuschen & Schrouff based its action on three pleas in law:

– infringement of Article 239 of the Customs Code, incorrect assessment of the facts and failure to state reasons;

– breach of the principles of sound administration and equal treatment;

– breach of the principle of proportionality.

22. By the judgment under appeal, the Court of First Instance dismissed the action and ordered the present appellant to pay the costs.

23. In the passages of that judgment which are relevant to the present proceedings, the Court of First Instance held that, because of the error made by the Netherlands customs authority, a special situation as referred to in Article 239 of the Customs Code did indeed exist, but that Heuschen & Schrouff had nevertheless acted with obvious negligence. The publication of Regulation No 1196/97 brought an end to the situation obtaining hitherto, which may have been complex so far as the Dutch-language version was concerned. In any case, from that time onwards, any discrepancies between the previous declaration and Regulation No 1196/97 were obvious. An enquiry addressed to the customs authority regarding those discrepancies would have been necessary in any event. The customs agent’s mistakes were attributable to Heuschen & Schrouff. Accordingly, the Commission was correct in its decision and there was, the Court of First Instance ruled, no infringement of Article 239 of the Customs Code.

IV – Forms of order sought in the proceedings before the Court of Justice

24. Heuschen & Schrouff claims that the Court should:

– set aside the judgment delivered on 30 November 2006 by the Court of First Instance in Case T-382/04;

– annul the decision of the European Commission of 17 June 2004 (REM 19/2002), in which the Commission found that remission of import duties was not justified in the present case;

– order the Commission to pay the costs.

25. The Commission contends that the Court should:

– dismiss the appeal as unfounded;

– order Heuschen & Schrouff to pay the costs.

26. On 22 May 2008, at the conclusion of the written procedure, a hearing was held, in which Heuschen & Schrouff, the Commission, the Netherlands Government, the Greek Government and the Italian Government took part. No new aspects arose at the hearing.

V – The appeal

A – Arguments of the parties

27. In the appeal proceedings, Heuschen & Schrouff alleges, in a single ground of appeal, that the Court of First Instance infringed Article 239 of the Customs Code. (16) The Court of First Instance, it continues, also provided an inadequate statement of grounds for its conclusions; in any event, the grounds of the judgment are incapable of supporting the conclusions.

28. It is still not at all clear how unbaked rice paper is to be correctly classified. The Court of First Instance, Heuschen & Schrouff argues, wrongly assumed that classification in CN heading 1905 90 20 is beyond doubt. Heuschen & Schrouff challenges that classification as incorrect and points out that, at the same time, there is an action pending before the Hoge Raad der Nederlanden on the question of the correct classification. (17)

29. The assessment under Article 239 of the Customs Code, that is, applying the criteria of the nature of the error (or the complexity of the legislation), the professional experience of the party concerned and the degree of care exercised by that party, ought, when viewed as a whole, to lead to remission of the import duties.

30. With regard to the criterion of the complexity of the legislation, errors were made both by the Commission and by the Netherlands customs authority. In Regulation No 1196/97, the Commission adopted what was patently an incorrect, or at least ambiguous, measure which is at variance with the case‑law of the Court of Justice. (18) At most, baked rice paper may come within its scope, but not the unbaked rice paper imported by Heuschen & Schrouff. In addition, the wording of CN heading 1905 in the Dutch-language version contains no reference to rice paper. That, it is argued, gives rise to confusion. The Netherlands customs authority also made an error, since, over the course of the six months following publication of Regulation No 1196/97, it accepted and confirmed 29 further declarations indicating classification under CN heading 1901. In the light of the above, the legislation in question is a complex set of classification rules which, contrary to the view of the Court of First Instance, was not brought to an end by the publication of Regulation No 1196/97. In the light of the judgment in Biegi Nahrungsmittel , (19) account must also be taken of the period of time over which the authorities persisted in their error. Contrary to the view of the Court of First Instance, account must therefore also be taken of the fact that, for a further six months, the Netherlands authorities expressed, not doubt, but consent with regard to the classification made.

31. As regards the criterion of professional experience, the Court of First Instance, Heuschen & Schrouff contends, erred in assuming that the latter had extensive profession experience in relation to imports and exports. It thus incorrectly viewed it as an experienced trader and therefore as being an expert in the field of import and export formalities. However, Heuschen & Schrouff does not deal with the customs declarations itself, but employs for that purpose the appropriate services of third parties which act in its name, in accordance with Article 5 of the Customs Code. Their actions cannot be attributed to Heuschen & Schrouff under Article 239 of the Customs Code. Moreover, in the present case, in view of the particular complexity of the rules, it was not possible to avoid the allegedly erroneous classification, even with extensive professional experience.

32. As regards the criterion of the duty of care, the Court of First Instance applied unduly stringent requirements in the judgment under appeal, even if Heuschen & Schrouff were an experienced trader. The Court of First Instance also wrongly equated Heuschen & Schrouff with the direct representative whom it had appointed. It is not comprehensible why Heuschen & Schrouff should have had any doubts as to the previous classification under the CN. It had sufficient indications that CN heading 1901 was correct, as already observed in regard to the criterion of the complexity of the rules, in particular the point that Regulation No 1196/97 does not refer at all to the unbaked rice paper which it imports. The fact that it did not apply that regulation is therefore not connected with the fact that it had not read that regulation, but with the fact that that regulation did not apply to the goods imported by it and that the Netherlands customs authority had confirmed this. It should also be borne in mind that, from 1996 to 1998, the CN was not amended in accordance with the wording of Regulation No 1196/97. For those reasons, the situation in the judgment in Covita (20) referred to by the Court of First Instance is not comparable. By contrast, the Netherlands customs authority, which over a period of six months accepted 29 declarations which are now regarded as being incorrect, should be held responsible for a breach of the duty of care. After that, two years and eight months elapsed before the application for remission of the duties was processed. Those circumstances should be taken into account when assessing whether there was negligence on the part of Heuschen & Schrouff, possibly limited in nature and confined to the distant past, which is of no consequence in the light of the serious negligence demonstrated by the Netherlands customs authority. This is also confirmed by the Netherlands customs authority’s so‑called working document of September 2002, annexed to the appeal, which preceded the submission to the Commission of Heuschen & Schrouff’s application for remission of the import duties. Taking into account the judgment in Sommer , (21) the Netherlands customs authority assumed in that document that Heuschen & Schrouff was entitled, in the given circumstances, to trust that the customs authority had acted correctly.

33. The Commission first points out that the appeal repeats a great deal of what has already been submitted before the Court of First Instance. However, it does not seek by that observation to argue that the appeal is inadmissible.

34. The Commission further contends that Heuschen & Schrouff’s arguments are not capable of calling into question the judgment of the Court of First Instance. It is true that a special situation as referred to in Article 239 of the Customs Code exists, inasmuch as the Netherlands customs authority erroneously failed to take issue with Heuschen & Schrouff’s incorrect declarations following the publication of Regulation No 1196/97. There was also no deception involved. However, the further requirement contained in Article 239 of the Customs Code, namely, that there must be no obvious negligence attributable to the person concerned, was not satisfied. In the assessment of the three criteria developed by the case‑law (complexity of the provisions non‑compliance with which has resulted in the customs debt being incurred, as well as the experience of, and care exercised by, the trader) which is to be carried out in this regard, only the conduct of the trader in question is relevant. Contrary to the arguments of Heuschen & Schrouff, the conduct of the national customs authorities is irrelevant at this point in the assessment.

B – Legal appraisal

35. It must first be observed that, in my view, there are no objections in regard to the repetition of submissions alleged by the Commission. It is true that an appeal which merely repeats or reproduces verbatim the pleas in law or arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, fails to satisfy the requirements to state reasons arising from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice. (22) However, provided that, as in this case, the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of the appeal. (23)

36. It must be pointed out in this connection that, in principle, findings of fact and appraisals of fact made by the Court of First Instance cannot be the subject‑matter of the present proceedings. An assessment of such findings is permissible only in so far as it involves a review of their legal classification and the legal inferences which the Court of First Instance has drawn from them in order to conclude that the conditions for the application of the second indent of Article 239(1) of the Customs Code, which are relevant here, have not been met. (24)

37. Next, the question raised by Heuschen & Schrouff concerning the correct customs classification (25) of rice paper must be examined. Heuschen & Schrouff appears to assume that, if the classification under CN subheading 1905 90 20 challenged by it is incorrect, the question of remission of duties will no longer be relevant. On the one hand, it should be pointed out in that regard that that question, as the Commission has also observed, is not the subject‑matter of the present proceedings, but of the parallel proceedings before the national court. (26) On the other hand, it would certainly be more appropriate from a systematic point of view to determine the question of remission of the duties at issue here only once the question of entry in the accounts has actually been resolved. (27) However, such a systematic sequence of determinations has not so far been required by the case‑law. (28)

38. As regards the question of the remission of the (in this case, subsequently entered) import duties on grounds of fairness, the second indent of Article 239(1) of the Customs Code provides that the import duties may be remitted in special situations (29) in which no deception or obvious negligence may be attributed to the person concerned. In answering the question whether 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 care taken by, the trader. (30) The Court of First Instance also correctly took those criteria as its starting point in the judgment under appeal. (31)

39. The Court of First Instance was equally correct in holding that these proceedings hinge solely on the question of obvious negligence, and accordingly on the appraisal of the three abovementioned criteria. That is because all the parties are in agreement – as is also reflected in the Commission’s decision – that a special situation as referred to in Article 239 of the Customs Code exists, inasmuch as the Netherlands customs authority wrongly failed to take issue with incorrect declarations made by Heuschen & Schrouff after Regulation No 1196/97 had been published. There is also agreement that no deception was involved.

40. With regard to the question of the complexity of the rules, the Court of First Instance’s interpretation and application of Community law is, in my view, correct. In this respect, that Court, which proceeded throughout on the basis that the situation existing prior to the adoption of Regulation No 1196/97 was characterised by complexity, correctly assumed, with reference to the judgment in Hewlett Packard France , (32) that the situation after the adoption of that regulation was to be regarded as having been clarified. Contrary to the submissions of Heuschen & Schrouff, I do not see in the reference in the judgment in Biegi Nahrungsmittel (33) to the ‘period of time during which the authorities persisted in their error’ any factor which could lead to any other assessment. The situation to which the Biegi Nahrungsmittel judgment related, and in which that period of time may possibly have been a factor, (34) is not comparable to the situation in the present case. That is because, unlike in that case, the present case is characterised by the fact that the publication of Regulation No 1196/97 has created a clear situation. The fact that not only Heuschen & Schrouff but also the customs authorities did not keep themselves informed by consulting the Official Journal cannot be relevant in such circumstances, since the conduct of the customs authorities in failing to keep themselves informed still cannot relieve the person concerned of the duty to take steps on his own account. That is because the assessment of negligence on the part of the person concerned generally and regularly hinges on the subjective sphere, in which the focus must be on the person concerned himself. In my view, only in exceptional circumstances can there be grounds for taking into account the conduct of the customs authorities in that regard.

41. Similarly, with regard to the criterion of professional experience, I see no problems in the Court of First Instance’s interpretation and application of Community law. That Court correctly applied the criteria developed in Söhl & Söhlke . (35)(36) The Court of First Instance also explained in a comprehensible manner that the person concerned was not itself inexperienced and that, in addition, the conduct of the customs agent was attributable to it. (37) As regards the aspect concerning the experience of the person concerned, the Co urt of First Instance carried out an appraisal of the facts, which can be challenged on appeal only under strict conditions which do appear to be met here. (38) As regards the aspect concerning attribution of the customs agent’s conduct, it should be noted that, according to the case‑law, a limit should be placed on such attribution only if the agent acts fraudulently and the person liable for the customs debt is also affected by that fraud. (39) With regard to the argument that, in this case, in view of the particular complexity of the rules, the allegedly incorrect classification was not avoidable even with extensive professional experience, it must be stated that this can apply only to the situation prior to the adoption of Regulation No 1196/97 and has already been appraised elsewhere. (40)

42. Finally, with regard to the criterion of the care taken by the trader, in this respect also the judgment under appeal stands up to scrutiny. The Court of First Instance was correct in referring to, in particular, the judgments in Deutsche Fernsprecher , (41) Covita (42) and Binder (43) and in holding that knowledge of publications in the Official Journal in cases such as this must be assumed and that an exception can be allowed only if the relevant language version is not available. (44) Contrary to Heuschen & Schrouff’s arguments, those are not under any circumstances unduly onerous requirements. As from the date of publication of Regulation No 1196/97, a person liable for payment of duty in the situation of Heuschen & Schrouff would, if acting with care, (45) have acquainted himself with that regulation and reported for appropriate clarification the doubts inevitably arising from it with regard to the previous classification. The Court of First Instance then addressed Heuschen & Schrouff’s argument that the conduct of the Netherlands customs authority should be taken into account here, and specifically its lack of care. The Court of First Instance rightly rejected that argument. It should be reiterated in this regard that, as already observed by the Commission, the conduct of the customs authorities is irrelevant at this point in the assessment. Heuschen & Schrouff is essentially claiming that the error made by the Netherlands customs authority, which has been established beyond dispute in this case and was acknowledged both by the Commission in its decision and by the Court of First Instance in the judgment under appeal, should be assessed twice: on the one hand, in relation to the ‘special situation’ and, on the other hand, in relation to the ‘negligence of the person liable’. The latter assessment, however, can involve only that person’s own conduct; the conduct of the customs authority has already been assessed in the context of the ‘special situation’.

43. In the light of all of the foregoing, I am of the opinion that the Court of First Instance correctly established and assessed, with a sufficient statement of reasons, that Heuschen & Schrouff had acted negligently within the terms of the second indent of Article 239(1) of the Customs Code.

44. The appeal should therefore be dismissed as being unfounded.

VI – Costs

45. Under Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Heuschen & Schrouff has been unsuccessful and the Commission has applied for costs, Heuschen & Schrouff must be ordered to pay the costs.

VII – Conclusion

46. In the light of those considerations, I propose that the Court should:

(1) dismiss the appeal;

(2) order Heuschen & Schrouff to pay the costs.

(1) .

(2) – Judgment of 30 November 2006 in Case T‑382/04 Heuschen & Schrouff Oriëntal Foods v Commission , not published in the ECR.

(3) – See, in that regard, my Opinion of 4 September 2008 in Case C‑375/07 Heuschen & Schrouff Oriëntal Foods Trading .

(4) – OJ 1987 L 256, p. 1.

(5) – OJ 1987 L 198, p. 1.

(6) – See the recitals in the preamble to Regulation No 2658/87 (in particular the third recital), Articles 1 and 3 of that regulation and Joined Cases C‑208/06 and C‑209/06 Medion and Canon Deutschland [2007] ECR I‑7963, paragraph 3.

(7) – Headings 0401 to 0404 cover goods such as milk, cream, whey and products obtained therefrom.

(8) – This is the case with regard to, inter alia, the German (‘getrocknete Teigblätter aus Mehl oder Stärke’), the French (‘pâtes séchées de farine, d’amidon ou de fécule en feuilles’), the Spanish (‘pastas secas de harina, almidón o fécula, en hojas’) and the Portuguese (‘pastas secas de farinha, amido ou fécula’) versions.

(9) – The Dutch (‘dergelijke producten van meel of van zetmeel’), the Danish (‘lignende varer af mel eller stivelse’) and the Swedish (‘liknande produkter’) versions are worded less fully at the end of the list – with a more or less detailed reference to ‘similar products’ – than some of the other versions, which are also provided, between the reference to ‘sealing wafers’ and ‘similar products’, with the terms listed in the next footnote.

(10) – ‘Rice paper’ in the English version and ‘rižev papir’ in the Slovenian version.

(11) – OJ 1997 L 170, p. 13.

(12) – In the Dutch version: ‘Voedselbereiding in de vorm van droge, doorschijnende vellen, met verschillende afmetingen, vervaardigd van rijstmeel, zout en water. De vellen worden, na weken in water om ze plooibaarte te maken, meestal gebruikt om daarvan de „wikkels” voor loempia’s en dergelijke te vervaardigen.’

(13) – OJ 1992 L 302, p. 1.

(14) – Also known [in German] as ‘Reisblätter’ (‘rice sheets’).

(15) – See above, points 9 and 10 of this Opinion.

(16) – At the beginning of the appeal, Heuschen & Schrouff mentions in the same breath an infringement of Articles 899 to 909 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation (EEC) No 2913/92 (OJ 1993 L 253, p. 1). However, since no specific reference is made in the course of the appeal to those provisions as regards the administrative procedure for decisions concerning Article 239 of the Customs Code, I presume that this is a single ground of appeal which relates essentially to Article 239 of the Customs Code.

(17) – In that regard, see above, point 2 of this Opinion.

(18) – Heuschen & Schrouff refers in this regard to Case C‑12/94 Uelzena Milchwerke [1995] ECR I‑2397.

(19) – Case C‑499/03 P Biegi Nahrungsmittel and Commonfood v Commission [2005] ECR I‑1751, paragraph 48.

(20) – Case C‑370/96 Covita [1998] ECR I‑7711.

(21) – Case C‑15/99 Sommer [2000] I‑8989.

(22) – Case C‑41/00 P Interporc v Commission [2003] ECR I‑2125, paragraph 16.

(23) – See, inter alia, Case C‑210/98 P Salzgitter v Commission [2000] ECR I‑5843, paragraph 43, and Interporc v Commission , already cited in footnote 22, paragraph 17.

(24) – 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 ( Biegi Nahrungsmittel and Commonfood v Commission , already cited in footnote 19, paragraph 41; to that effect, see Lenaerts, K./Arts, D./Maselis, I., Procedural Law of the European Union , 2nd edition, London 2006, p. 457, paragraph 16-007). As the Court of Justice has held on several occasions, 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 Biegi Nahrungsmittel and Commonfood v Commission , already cited in footnote 19, paragraph 41; Case C‑19/93 P Rendo and Others v Commission [1995] ECR I‑3319, paragraph 26; and Case C‑470/00 P Parliament v Ripa di Meana and Others [2004] ECR I‑4167, paragraph 41).

(25) – See above, point 28 of this Opinion.

(26) – For the detailed answer to the question of the customs classification of rice paper, I refer to my Opinion in Case C‑375/07 (see above, point 2 of this Opinion), from which it is apparent that it must be classified under CN subheading 1905 90 20.

(27) – That is because, from a systematic point of view, only an amount of duty that has already been entered can be remitted or repaid. Consequently, until the proceedings concerning the subsequent entry in the accounts have been definitively concluded, it is not clear whether there is in fact any amount of duty subsequently entered in accordance with Article 220 of the Customs Code and which could be remitted or repaid.

(28) – However, in some cases, practice at national level appears to execute the sequence for the scrutiny of applications in such a way that, for reasons of procedural economy, the question of remission is determined only after entry in the accounts has been established (Alexander, ‘Vorbemerkungen zu Art. 220, 221’, in: Witte, Zollkodex, Kommentar , 4th edition, 2006, paragraph 2). For the future, the ‘Modernised Customs Code’, Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (OJ 2008 L 145, p. 1), provides for a positive change in terms of retaining a systematic sequence of decisions inasmuch as it provides, in Article 84(2), that, where an appeal has been lodged against the notification of the customs debt, the period for making an application for repayment or remission is to be suspended, on grounds of fairness, for the duration of the appeal proceedings.

(29) – This general fairness clause allows the particular circumstances of an individual case to be assessed; see, in that regard, Berr/Trémeau, Le droit douanier, Communautaire et national , 7th edition, 2006, p. 241, and Huchatz, ‘Art. 239 – Erstattung oder Erlass in Sonderfällen’, in: Witte, Zollkodex, Kommentar , 4th edition, 2006, paragraphs 1 and 28.

(30) – Case C‑48/98 Söhl & Söhlke [1999] ECR I‑7877, paragraphs 56 and 60. See also Lyons, EC Customs Law , 2nd Edition, 2008, p. 489. See my Opinion of 4 September 2008 in Case C‑375/07 Heuschen & Schrouff Oriëntal Foods Trading as regards the identity of those criteria with certain criteria of Article 220(2) and the case‑law on that provision.

(31) – Paragraph 44 of the judgment under appeal.

(32) – Case C‑250/91 Hewlett Packard France [1993] ECR I‑1819, paragraph 28.

(33) – Already cited above in footnote 19, paragraph 48.

(34) – See, in that regard, paragraph 55 of the judgment in Biegi Nahrungsmittel . On the background to that judgment, Harings, ‘Nacherhebung von Einfuhrabgaben, Nichterkennbarkeit eines Irrtums der Zollbehörden’, in Zeitschrift für Zölle und Verbrauchsteuern 2005, p. 230 et seq., p. 321, explains that, previously, the customs authorities frequently assumed that an error was not detectable only if it was based on a long‑standing administrative practice. The Biegi Nahrungsmittel judgment rejected that practice. Harings also points out that an erroneous administrative practice can only be an indication of the undetectable nature of an error.

(35) – Already cited above in footnote 30 to this Opinion.

(36) – See paragraph 59 of the judgment under appeal.

(37) – See paragraphs 65 and 66 of the judgment under appeal and the subsequent group of paragraphs on the same aspect, up to paragraph 70.

(38) – In principle, under Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal to the Court of Justice is limited to points of law. A fresh examination of the facts is therefore ruled out in principle. The Court of Justice can consider points of fact only to a strictly limited extent, in particular in regard to a distortion of the evidence.

(39) – This is supported by the judgment in Case C‑61/98 De Haan [1999] ECR I‑5003, paragraph 53.

(40) – See above, point 40 of this Opinion.

(41) – Case C‑64/89 Deutsche Fernsprecher [1990] ECR I‑2535.

(42) – Already cited above in footnote 20.

(43) – Case 161/88 Binder [1989] ECR 2415.

(44) – See paragraph 75 et seq. of the judgment under appeal.

(45) – Harings, already cited above (footnote 34 to this Opinion), p. 231, concludes from the case‑law of the Court of Justice that the relevant yardstick here is the ‘informed importer’. This means a prudent trader carefully reading the Official Journal. By contrast, someone who has expert knowledge of customs law, and is therefore familiar with all the legislative provisions in that field of law and their combined effects, is unsuitable as a yardstick. For critical comments on this point, see Berr, ‘Droit douanier’, La semaine juridique – édition entreprise 1990 II 15876, p. 589 et seq., p. 592.