Opinion of Mr Advocate General Jacobs delivered on 25 January 2001. - Bacardi GmbH v Hauptzollamt Bremerhaven. - Reference for a preliminary ruling: Finanzgericht Bremen - Germany. - Community Customs Code and implementing regulation - Repayment of import duties - Favourable tariff treatment - Post-clearance production of certificate of authenticity - Alteration of the tariff classification stated in the customs declaration - Concept of "special situation". - Case C-253/99.



European Court reports 2001 Page I-06493



Opinion of the Advocate-General

1. In the present case an importer of a consignment of Jack Daniel's Whiskey entered in the customs declaration the Combined Nomenclature subheading 2208 30 82 which refers to whisky other than Bourbon whiskey or Scotch whisky. After the consignment had been released for free circulation, he submitted a valid certificate of authenticity and applied for classification under subheading 2208 30 11 referring to Bourbon whiskey which he claims should result in application of a lower rate of customs duty. The Finanzgericht (Finance Court) Bremen asks in essence whether in such a situation Article 236 of the Customs Code requires the import duties paid on the basis of the initial declaration to be repaid on the ground that they were not legally owed. In the alternative it asks whether the circumstances of the main proceedings constitute a special situation which may lead to repayment of the import duties under Article 239(1) of the Customs Code in conjunction with Article 905(1) of the regulation implementing the Code.

The relevant Community legislation

2. The following provisions on the repayment and remission of duties, on the favourable tariff treatment of goods by reason of their nature, on preferential tariff measures in respect of certain countries, on customs declarations and on the incurring and the determination of a customs debt are of relevance. References in the Customs Code to conditions to be determined in accordance with the committee procedure in fact refer principally to the implementing regulation, which was adopted under that procedure.

Provisions on the repayment and remission of duties

- Repayment or remission where the duties were not legally owed

3. Article 236 provides:

1. Import duties or export duties shall be repaid in so far as it is established that when they were paid the amount of such duties was not legally owed ...

...

2. Import duties or export duties shall be repaid or remitted upon submission of an application to the appropriate customs office within a period of three years from the date on which the amount of those duties was communicated to the debtor.

...

4. Article 890 of the implementing regulation which concerns a particular case falling under Article 236(1) of the Code provides:

Where a certificate of origin, movement certificate, internal Community transit document or other appropriate document is produced in support of an application for repayment or remission, indicating that the imported goods were eligible, at the time of acceptance of the declaration for free circulation, for Community treatment or preferential tariff treatment, the decision-making customs authority shall grant such application only where it is duly established:

- that the document thus produced refers specifically to the goods in question and that all the conditions relating to acceptance of the said document are fulfilled,

- that all the other conditions for the granting of the preferential tariff treatment are fulfilled.

Repayment or remission shall take place upon presentation of the goods. Where the goods cannot be presented to the implementing customs office, the latter shall grant repayment or remission only where it has information indicating unequivocally that the certificate or document produced post-clearance applies to the said goods.

- Repayment where a customs declaration is invalidated

5. Article 237 of the Customs Code provides:

Import duties or export duties shall be repaid where a customs declaration is invalidated and the duties have been paid. Repayment shall be granted upon submission of an application by the person concerned within the periods laid down for submission of the application for invalidation of the customs declaration.

- Repayment or remission in other situations

6. Article 239 provides:

1. Import duties or export duties may be repaid or remitted in situations other than those referred to in Articles 236, 237, and 238:

- to be determined in accordance with the procedure of the committee;

- resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the Committee procedure. Repayment or remission may be made subject to special conditions.

2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which the amount of the duties was communicated to the debtor ...

7. The provisions relating to the application of Article 239 of the Code are to be found in Articles 899 to 909 of the implementing regulation.

8. Article 899 thereof provides:

Without prejudice to other situations to be considered case by case in accordance with the procedure laid down in Articles 905 to 909, where the decision-making customs authority establishes that an application for repayment or remission submitted to it under Article 239(2) of the Code:

- is based on grounds corresponding to one of the circumstances referred to in Articles 900 to 903, and that these do not result from deception or obvious negligence on the part of the person concerned, it shall repay or remit the amount of import duties concerned.

...

- is based on grounds corresponding to one of the circumstances referred to in Article 904, it shall not repay or remit the amount of import duties concerned.

9. Article 900(1)(o) provides:

1. Import duties shall be repaid or remitted where:

...

(o) the customs debt has been incurred otherwise than under Article 201 of the Code and the person concerned is able to produce a certificate of origin, a movement certificate, an internal Community transit document or other appropriate document showing that if the imported goods had been entered for free circulation they would have been eligible for Community treatment or preferential tariff treatment, provided the other conditions referred to in Article 890 were satisfied.

10. Article 905(1) of the implementing regulation in the version in force at the material time provided:

Where the decision-making customs authority to which an application for repayment or remission under Article 239(2) of the Code has been submitted cannot take a decision on the basis of Article 899, but the application is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the Member State to which this authority belongs shall transmit the case to the Commission to be settled under the procedure laid down in Articles 906 to 909.

...

In all other cases, the decision-making customs authority shall refuse the application.

Provisions on the favourable tariff treatment of goods by reason of their nature

11. The tariff treatment of imported Bourbon whiskey is regulated in a set of provisions concerning the favourable tariff treatment from which certain goods may benefit by reason of their nature. The basic provision in that field, Article 21 of the Customs Code, provides:

1. The favourable tariff treatment from which certain goods may benefit by reason of their nature ... shall be subject to conditions laid down in accordance with the Committee procedure. ...

2. For the purposes of paragraph 1, the expression "favourable tariff treatment" means a reduction in or suspension of an import duty ..., even within the framework of a tariff quota.

12. The provisions implementing Article 21 of the Customs Code are to be found in Title III (Articles 16 to 34) of the implementing regulation, which is entitled Favourable tariff treatment by reason of the nature of goods. The provisions relating to Bourbon whiskey are to be found in Chapter 4 (Articles 26 to 34) which is entitled goods for which a certificate of authenticity or quality, or other certificate, must be presented.

13. Article 26(1) of the implementing regulation provides:

Classification under the tariff subheadings listed in column 2 of the table below of the goods listed against each subheading in column 3, imported from the countries shown in column 5, shall be subject to the presentation of certificates meeting the requirements specified in Articles 27 to 34.

...

Certificates of authenticity apply to grapes, whisky, vodka and tobacco, certificates of designation of origin to wine, and certificates of quality to sodium nitrate.

14. The table annexed to Article 26 has seven columns. Column 1 shows the order numbers. Column 2 contains the tariff subheadings of the goods listed in Column 3. Column 5 lists the countries from which the goods in question must be imported. Column 6 indicates the bodies in those countries which must have issued and endorsed the required certificate.

15. It follows from Article 26(1) in conjunction with the table (order number 4) that Bourbon whiskey, in containers holding 2 litres or less, imported from the United States of America may be classified under Combined Nomenclature subheading 2208 30 11 (the classification sought by the applicant in the main proceedings) if the importer presents a valid certificate of authenticity issued by the United States Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms. As a consequence of that arrangement a footnote to subheading 2208 30 11 of the Combined Nomenclature (Bourbon whiskey, in containers holding 2 litres or less) states: Entry under this subheading is subject to conditions laid down in the relevant Community provisions.

16. The other goods listed in the table annexed to Article 26 of the implementing regulation which are subject to a similar regime are grapes from the United States, cheese fondues from Switzerland, Tokay wine from Hungary, certain tobacco preparations and varieties from countries such as the United States, Brazil and Cuba and sodium nitrate from Chile.

17. Articles 27 and 28 of the implementing regulation lay down detailed and strict formal requirements for the required certificates.

18. Article 29(1) of the implementing regulation provides:

The certificate ... shall be presented to the customs authorities of the importing Member State, together with the goods to which it relates, within the following time-limits, running from the date of issue of the certificate:

...

- three months, in the case of the goods listed under Order Nos 1, 3 and 4 in the table,

...

19. Article 30 regulates the endorsement of certificates, Article 31 the requirements for the bodies issuing the different certificates, Article 34 the splitting of consignments of grapes, tobacco and sodium nitrate.

Provisions on preferential tariff measures in respect of certain countries

20. All of those submitting observations discuss the possibility of applying in the present case, either by analogy or even directly, a number of provisions - formally distinct from those concerning favourable tariff treatment by reason of the nature of goods - concerning preferential tariff measures in respect of certain countries and the certificates of origin which must be presented in order to benefit from those preferential measures.

21. Article 20 of the Customs Code provides:

1. Duties legally owed where a customs debt is incurred shall be based on the Customs Tariff of the European Communities.

...

3. The Customs Tariff of the European Communities shall comprise:

(a) the Combined Nomenclature of goods;

...

(c) the rates ... normally applicable to goods covered by the Combined Nomenclature ...

(d) the preferential tariff measures contained in agreements which the Community has concluded with certain countries or groups of countries and which provide for the granting of preferential tariff treatment;

(e) preferential tariff measures adopted unilaterally by the Community in respect of certain countries, groups of countries or territories;

(f) autonomous suspensive measures providing for a reduction in or relief from import duties chargeable on certain goods;

...

4. Without prejudice to the rules on flat-rate charges the measures referred to in paragraph 3(d), (e) and (f) shall apply at the declarant's request instead of those provided for in subparagraph (c) where the goods concerned fulfil the conditions laid down by those first-mentioned measures. An application may be made after the event provided that the relevant conditions are fulfilled.

...

22. Article 27 provides:

The rules on preferential origin shall lay down the conditions governing acquisition of origin which goods must fulfil in order to benefit from the measures referred to in Article 20(3)(d) or (e). Those rules shall:

(a) in the case of goods covered by the agreements referred to in Article 20(3)(d), be determined in those agreements;

(b) in the case of goods benefitting from the preferential tariff measures referred to in Article 20(3)(e), be determined in accordance with the Committee procedure.

23. The provisions implementing Article 27(b) of the Customs Code are to be found in Title IV Origin of goods, Chapter 2 Preferential origin of the implementing regulation. Section 1 of that Chapter which is entitled Generalised system of preferences contains in Subsection 2 special provisions on the proof of preferential origin for the purposes of the Generalised system of preferences. The relevant rules in force at the material time were the following.

24. Article 77 provided:

1. Originating products within the meaning of this Section shall be eligible, on importation into the Community, to benefit from the tariff preference ... on production of a certificate of origin Form A ... issued either by the customs authorities, or by other competent governmental authorities of the exporting beneficiary country ...

5. The certificate shall be issued by the competent governmental authority of the beneficiary country if the products to be exported can be considered products originating within the meaning of Subsection 1. The certificate shall be made available to the exporter as soon as the export has taken place or is ensured.

25. Article 84 provided:

1. In exceptional cases a certificate of origin Form A may be issued after the actual exportation of the products to which it relates, if it was not issued at the time of exportation as a result of errors or omissions involuntarily made or other special circumstances, and provided that the goods were not exported before the communication to the Commission of the information required by Article 92.

2. The competent governmental authority may issue a certificate retrospectively only after verifying that the particulars contained in the exporter's application agree with those contained in the corresponding export documents and that no valid certificate of origin Form A was issued when the products in question were exported.

...

26. Article 82 provided:

"1. A certificate of origin Form A must be submitted, within 10 months of the date of issue by the competent governmental authority of the exporting beneficiary country, to the customs authorities of the importing Member State where the products are presented.

2. Certificates of origin Form A submitted to the customs authorities in the Community after expiry of the period of validity stipulated in paragraph 1 may be accepted ... where the failure to observe the time-limit is due to force majeure or to exceptional circumstances.

3. In other cases of belated presentation, the customs authorities of the importing Member State may accept the certificates where the products have been presented to them within the period laid down in paragraph 1.

Provisions on customs declarations

27. Under Article 59(1) of the Customs Code all goods intended to be placed under a customs procedure shall be covered by a declaration for that customs procedure.

- The normal procedure

28. The normal procedure to be followed for customs declarations in writing is laid down in Article 62 et seq. of the Customs Code. Article 62 provides:

1. Declarations in writing shall be made on a form corresponding to the official specimen prescribed for that purpose. They shall ... contain all the particulars necessary for implementation of the provisions governing the customs procedure for which the goods are declared.

2. The declaration shall be accompanied by all the documents required for implementation of the provisions governing the customs procedure for which the goods are declared.

29. Article 218(1) of the implementing regulation provides in respect of declarations for release for free circulation:

1. The following documents shall accompany the customs declaration for release for free circulation:

...

(c) the documents required for the application of preferential tariff arrangements or other measures derogating from the legal rules applicable to the goods declared.

(d) all other documents required for the application of the provisions governing the release for free circulation of the goods declared.

30. Article 63 of the Customs Code provides:

Declarations which comply with the conditions laid down in Article 62 shall be accepted by the customs authorities immediately, provided that the goods to which they refer are presented to customs.

31. Article 67 of the Code provides:

Save as otherwise expressly provided, the date to be used for the purposes of all the provisions governing the customs procedure for which the goods are declared shall be the date of acceptance of the declaration by the customs authorities.

32. After a customs declaration has been accepted by customs it may be invalidated. Article 66 of the Code provides:

1. The customs authorities shall, at the request of the declarant, invalidate a declaration already accepted where the declarant furnishes proof that goods were declared in error for the customs procedure covered by that declaration or that, as a result of special circumstances, the placing of the goods under the customs procedure for which they were declared is no longer justified. ...

2. The declaration shall not be invalidated after the goods have been released, expect in cases defined in accordance with the committee procedure.

...

33. Article 251 of the implementing regulation defines the cases in which a customs declaration may be invalidated after the goods have been released.

- The procedure for incomplete declarations

34. The parties also discuss whether the situation at issue (could have) involved an incomplete customs declaration.

35. Article 76(1) of the Customs Code provides:

In order to simplify completion of formalities and procedures as far as possible while ensuring that operations are conducted in a proper manner, the customs authorities shall, under conditions laid down in accordance with the committee procedure, grant permission for:

(a) the declaration referred to in Article 62 to omit certain of the particulars referred to in paragraph 1 of that Article or some of the documents referred to in paragraph 2 of that Article not to be attached thereto;

...

The simplified declaration ... must contain at least the particulars necessary for identification of the goods. ...

36. Article 253(1) of the implementing regulation provides:

1. The procedure for incomplete declarations shall allow the customs authorities to accept, in a duly justified case, a declaration which does not contain all the particulars required, or which is not accompanied by all documents necessary for the customs procedure in question.

37. Article 255 provides:

1. Declarations for release for free circulation which the customs authorities may accept at the declarant's request without their being accompanied by certain of the necessary supporting documents shall be accompanied at least by those documents which must be produced before the goods declared can be released for free circulation.

2. By way of derogation from paragraph 1, a declaration not accompanied by one or more of the documents required before the goods can be released for free circulation may be accepted once it is established to the satisfaction of the customs authorities that:

(a) the document concerned exists and is valid;

(b) it could not be annexed to the declaration for reasons beyond the declarant's control;

(c) any delay in accepting the declaration would prevent the release of the goods for free circulation or make them liable to a higher rate of duty.

Data relating to missing documents shall in all cases be indicated in the declaration.

Provisions on the incurring and the determination of a customs debt

38. Article 201 of the Customs Code provides:

1. A customs debt on importation shall be incurred through:

(a) the release for free circulation of goods liable to import duties,

...

2. A customs debt shall be incurred at the time of acceptance of the customs declaration in question. ...

39. Article 214(1) provides:

1. Save as otherwise expressly provided by this Code and without prejudice to paragraph 2, the amount of the import duty or export duty applicable to goods shall be determined on the basis of the rules of assessment appropriate to those goods at the time when the customs debt in respect of them is incurred.

The facts and the main proceedings

40. On 10 September 1996 the plaintiff Bacardi GmbH (hereinafter Bacardi), represented by a transport company, declared to the defendant Hauptzollamt (principal customs office) Bremerhaven 2 160 cases of Jack Daniel's Whiskey for release into free circulation. Each case contained six 0.7 litre bottles making a total of 9 072 litres.

41. The transport company entered in the relevant box 33 of the Single Administrative Document the Combined Nomenclature subheading 2208 30 82. That heading refers to whisky other than Bourbon whiskey or Scotch whisky in containers holding 2 litres or less.

42. The customs office accepted the customs declaration and, by decision of 11 September 1996, set the import duties at DEM 2 786.92 customs duty and DEM 25 117.88 import turnover tax, making a total of DEM 27 904.80.

43. By letter of 2 October 1996 Bacardi submitted a certificate of authenticity relating to the consignment in question and applied for the goods to be reclassified under tariff heading 2208 30 11. That heading refers to Bourbon whiskey, in containers holding 2 litres or less. It appears from the order for reference and the written and oral submissions of the parties that Bacardi had applied for the certificate of authenticity in question in July or August 1996, but that the US authorities had issued the said certificate only on 17 September 1996 and thus after acceptance of the customs declaration. The reclassification requested by Bacardi would lead to a repayment of DEM 1 045.10 customs duty.

44. By decision of 19 September 1997 the Hauptzollamt rejected Bacardi's application for repayment. It stated (presumably on the basis of Article 29(1) of the implementing regulation) that certificates of authenticity had to be presented together with the goods to which they related. Belated presentation was not permitted.

45. Bacardi lodged an objection against that decision which the Hauptzollamt dismissed as unfounded.

46. On 23 December 1997 Bacardi instituted the main proceedings before the referring court. Bacardi contends that the Finanzgericht should set aside the decisions of the defendant Hauptzollamt and order it to repay to Bacardi DEM 1 045.10 customs duty. The defendant Hauptzollamt contends that the Finanzgericht should dismiss the action.

47. Bacardi's line of argument in the course of the administrative procedure and before the referring court may be summarised as follows:

48. Contrary to the Hauptzollamt's view, Community customs legislation does not preclude the possibility of belated presentation of certificates of authenticity for the purpose of obtaining favourable tariff treatment. It is obvious that an error has crept into the wording of Article 29(1) of the implementing regulation. The requirement to present (in the German version vorlegen) the goods to the customs authorities of the importing Member State is not consistent with the wording of the Customs Code and its implementing regulation, nor is it practically feasible. Belated presentation of certificates of authenticity must therefore be treated in the same way as belated presentation of certificates of origin form A. That is because certificates of authenticity serve essentially the same purpose and objective as certificates of origin form A: both record that the goods in question were produced in specific countries in accordance with precise criteria and both give rise to favourable tariff treatment in the Community. Under Article 82(1) and (3) of the implementing regulation a certificate of origin form A does not have to be presented to the customs authorities of the importing Member State together with the goods to which it relates.

49. Moreover, the customs declaration submitted on 10 September 1996 on behalf of and for the account of Bacardi must be seen as an incomplete customs declaration, which was validly completed on 2 October 1996. Under Articles 59 and 62(1) and (2) of the Customs Code and Article 218(1)(c) of the implementing regulation a certificate of authenticity must in principle accompany the customs declaration for release for free circulation. But under Article 76(1)(a) of the Customs Code and Article 253(1) of the implementing regulation it is possible to submit an incomplete declaration. Article 255(1) of the implementing regulation did not preclude acceptance of Bacardi's incomplete customs declaration since (by analogy with the rules on certificate of origin form A) a certificate of authenticity need not be produced before the goods declared can be released for free circulation.

50. Bacardi goes on to argue that the import duties in question must be repaid under Article 236(1) of the Customs Code and Article 890 of the implementing regulation, since they were not legally owed. The certificate of authenticity is a belatedly submitted other appropriate document within the meaning of Article 890 of the implementing regulation. Consequently, repayment of import duties is not precluded if the requisite certificate of authenticity can be produced within the three-year application period from the date on which the amount of those duties was communicated.

51. In the alternative, Bacardi seeks repayment of the import duties under Article 239(1), second indent, of the Customs Code, in conjunction with Article 905(1) of the implementing regulation, on the ground that this case constitutes a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the plaintiff.

52. The Hauptzollamt's line of argument in the course of the administrative procedure and before the referring court may be summarised as follows:

53. Bacardi is not entitled to claim repayment under Article 236(1) of the Customs Code. According to Article 26(1) of the implementing regulation whiskey imported from the USA may be classified under subheading 2208 30 11 only if a certificate is produced which meets the conditions set out in Articles 27 to 34 of the implementing regulation. Article 29(1) of the implementing regulation provides that certificates of authenticity must be presented to the customs authorities together with the goods to which they relate. Had the Community legislature intended to allow exceptions to this, it would - as in the case of certificates of origin form A - have adopted appropriate rules. Consequently, favourable tariff treatment could not have been granted at the time when the customs debt was incurred at the moment of acceptance of the declaration and the duty in question was thus legally owed within the meaning of Article 236(1) of the Customs Code.

54. The arguments based on the rules concerning incomplete declarations are, according to the Hauptzollamt, misconceived. Only if the goods had been declared as Bourbon whiskey without presentation of a certificate of authenticity would the customs declaration have been incomplete.

55. As regards Article 239(1) of the Customs Code it is unnecessary to refer the matter to the Commission for a decision under Article 905(1) of the implementing regulation, because the grounds of Bacardi's application fail to justify the conclusion that this constitutes a special situation.

56. In the order for reference the referring court makes the following statements:

57. In the first place, the Hauptzollamt is right when it contends that Bacardi did not submit an incomplete customs declaration, but that the case rather involves, pursuant to Article 62 of the Code, a complete written declaration on the Single Administrative Document form. The customs debt which Bacardi incurred under Articles 67 and 201 of the Customs Code was the direct consequence of Bacardi's own classification of the goods under subheading No 2208 30 82. Moreover, the assumption that there was an incomplete customs declaration already fails on the ground that Bacardi omitted to mention the certificate which was still outstanding (Article 255(2), second sentence, of the implementing regulation). It is thus not necessary to deal with the issue whether there can be any incomplete declaration although the certificate of authenticity had not even been issued when the goods were released into free circulation (Article 255(2)(a) of the implementing regulation).

58. Secondly, the Hauptzollamt is also right that on a literal interpretation Bacardi cannot derive any entitlement to a repayment under Article 236 of the Customs Code. The question does, however, arise whether the late submission of the certificate here required can lead to a refund under that article on the basis of an application by analogy of Article 890 of the implementing regulation (or other provisions thereof). That presupposes that the certificate of authenticity is an other appropriate document within the meaning of Article 890 of the implementing regulation. According to the referring court it is common ground that the certificate of authenticity submitted by Bacardi was issued by the authority entitled to do so and that the information contained in it makes it possible to refer back unequivocally to the imported consignment of whisky. The three-year period for submission of the application under Article 236(2) of the Customs Code was also complied with. On the other hand, account must be taken of the fact that the document was not presented together with the goods. Furthermore in the event of belated submission of a certificate of authenticity not only the rate of duty but the classification in the Combined Nomenclature would have to be changed. Finally, the certificate of authenticity was in fact not issued until after the imported goods had been released into free circulation.

59. Thirdly, the question arises whether Article 239(1) of the Customs Code read in conjunction with Article 905(1) of the implementing regulation applies. The requirements established by Article 239(1), first indent, of the Customs Code in conjunction with Articles 899 to 904 of the implementing regulation are not satisfied. But there may be a possibility of a refund under Article 239(1), second indent, of the Customs Code in conjunction with Article 905(1) of the implementing regulation where there has been no deception or obvious negligence and the grounds of the application point to a special situation. Since the referring court has requested the Court to clarify the term obvious negligence in the context of another case, it refrains for the time being from examining the issue further in the context of the present reference. Supposing, in Bacardi's favour, that there was no obvious negligence, the crucial question will then be whether a special situation can be assumed within the meaning of Article 905(1) of the implementing regulation.

60. In the light of those considerations the Finanzgericht referred the following questions for a preliminary ruling:

1. Can import duties be repaid under Article 236 of the Customs Code in the case where the importer of Bourbon whiskey imported from the USA entered the code number 2208 30 82 in the customs declaration of 10 September 1996, and only on 2 October 1996, on submission of a certificate of authenticity corresponding to Annex 5 to the regulation implementing the Customs Code, applied for classification under subheading 2208 30 11 of the Combined Nomenclature, which would result in application of a lower rate of customs duty?

2. If the answer to Question 1 is in the negative:

Can it be concluded that these circumstances constitute a "special situation" which - if the other legislative conditions are satisfied - may lead to repayment of the import duties under Article 239 of the Customs Code in conjunction with Article 905(1) of the regulation implementing the Customs Code?

61. Written observations were submitted by Bacardi and the Commission which were also represented at the oral hearing.

Question 1: Repayment under Articles 236(1) of the Code and 890 of the implementing regulation

62. By its first question the referring court wishes essentially to know whether in situations such as that in the main proceedings import duties must be repaid under Article 236(1) of the Customs Code read on its own or in conjunction with Article 890 of the implementing regulation.

Arguments submitted to the Court

63. According to Bacardi, it follows from those provisions that the duties in issue have to be repaid.

64. In its view, nothing in Community customs legislation prevents a certificate of authenticity from being regarded as an other appropriate document within the meaning of the first paragraph of Article 890 of the implementing regulation. Moreover, the certificate presented by Bacardi indicates clearly that the consignment of Jack Daniel's Whiskey in issue was eligible, at the time of acceptance of the declaration for free circulation for preferential tariff treatment within the meaning of that provision. It follows, in particular from the German version of the implementing regulation, that the crucial and only question is whether the goods in question would have been eligible (Anspruch gehabt hätten) for preferential tariff treatment if the certificate of authenticity in issue had been presented in time.

65. Furthermore, Article 29(1) of the implementing regulation does not preclude the application of Article 890 thereof. In the first place, the presentation of the certificate of authenticity together with the goods to which it relates cannot be a precondition for the application of Article 890. That provision was adopted precisely to provide a solution where a document is presented some time after the customs declaration has been accepted. Secondly, the three-month time-limit in Article 29(1), second indent, does not affect the applicability of Article 890. The question whether that time-limit applies at all in the context of Article 890 can be left open, since it was in any event complied with. The certificate in question was issued on 17 September 1996 and submitted to the German authorities on 2 October 1996. Thirdly, the fact that the certificate was issued only after the goods were released for free circulation is not relevant either. It is true that Article 86 of the implementing regulation permits in certain circumstances the issue of a certificate of origin form A after the exportation of the products to which it relates and that Article 29(1) thereof does not expressly provide for a similar possibility with regard to certificates of authenticity. But Article 890 of the implementing regulation must be interpreted in the light of Article 86 thereof and the objective of the rules on repayment and remission to introduce an element of fairness into Community customs law.

66. Finally, the analogy with certificates of origin form A and therefore the application of Article 890 of the implementing regulation is not precluded by the fact that as a consequence of Bacardi's presentation of the certificate of authenticity the classification of the goods under a Combined Nomenclature subheading (and not only the rate of duty) would have to change. The decisive requirement in both cases (belatedly submitted certificates of origin form A and belatedly submitted certificates of authenticity) is merely that the goods referred to in the document are the ones presented to the customs authorities of the importing Member State. It must be borne in mind that reclassification on the basis of newly issued binding tariff information also leads to repayment of duties.

67. According to the Commission the first question must be reformulated. Since it implicitly presupposes that Article 890 of the implementing regulation applies, the question must be whether a certificate of authenticity as provided for in Article 26(1) of the implementing regulation may be regarded as an other appropriate document within the meaning of Article 890 of the implementing regulation for the purposes of an application for repayment under Article 236(1) of the Customs Code.

68. In the Commission's view, that question must be answered in the affirmative. The concept of preferential tariff treatment in the first paragraph of Article 890 of the implementing regulation must be interpreted in the light of the purpose of the provision as encompassing the type of favourable tariff treatment granted according to Article 26 et seq. of the implementing regulation. The latter set of rules pursues the same objectives and has the same function as the rules on preferential origin under Articles 20(3)(d) and (e) and 27 of the Customs Code. Neither the necessity to reclassify the imported goods under another heading nor the requirement under Article 29(1) of the implementing regulation to present the certificate together with the goods to which it relates can affect that finding. The initial classification was wrong and must be corrected. Article 890(1) is precisely designed for situations in which the appropriate document is submitted belatedly.

Analysis

69. I would note as a preliminary point that the US authorities have apparently been issuing the certificates confirming that Jack Daniel's Whiskey is a Bourbon whiskey only since 1996. Neither Bacardi nor the Commission was able to explain the background to the initial certification policy and its change.

- Incomplete declaration

70. I agree with the Hauptzollamt and the referring court that the rules on incomplete declarations do not seem to be relevant in order to reply to the first question. It appears from the order for reference that Bacardi submitted a complete written declaration on the Single Administrative Document form in which it declared the goods in question as whisky other than Scotch or Bourbon. Only if the goods had been declared as Bourbon whiskey without immediate presentation of the necessary certificate of authenticity would the customs declaration have been incomplete within the meaning of Article 76(1)(a) of the Code and Articles 253 et seq. of the implementing regulation.

- Favourable tariff treatment of goods by reason of their nature and preferential tariff treatment

71. The first step in the analysis whether the duties in issue must be repaid under Article 236(1) of the Code is to decide whether under its wording and the system of Community customs legislation Article 890 of the implementing regulation is intended to apply to measures based on Article 21 of the Code such as the favourable tariff treatment of Bourbon whiskey.

72. Article 890, it may be recalled, provides, in so far as is relevant:

Where a certificate of origin, movement certificate, internal Community transit document or other appropriate document is produced in support of an application for repayment or remission, indicating that the imported goods were eligible, at the time of acceptance of the declaration for free circulation, for Community treatment or preferential tariff treatment, the decision-making customs authority shall grant such application only where it is duly established:

- that the document thus produced refers specifically to the goods in question and that all the conditions relating to acceptance of the said document are fulfilled,

- that all the other conditions for the granting of the preferential tariff treatment are fulfilled.

...

73. According to its wording Article 890 thus refers to measures under which certain goods are eligible for Community treatment or preferential tariff treatment. The latter term is repeated where Article 890 requires that all the other conditions for the preferential tariff treatment must be fulfilled. All other language versions of Article 890 (with the exception of the German version) use a wording which corresponds to the English preferential tariff treatment and the French traitement tarifaire préférentiel.

74. Article 20(3)(d) and (e) of the Code refer to preferential tariff measures and Article 21 to favourable tariff treatment from which certain goods may benefit by reason of their nature. All the language versions make the same distinction.

75. Moreover, under the system established by the Code and its implementing regulation the measures based on Article 20(3)(d) and (e) and on Article 21 of the Code are governed by two distinct sets of rules. Preferential tariff measures are governed inter alia by Article 27 of the Code and Article 66 et seq. of the implementing regulation. The favourable tariff treatment of goods by reason of their nature is governed by a special title (Articles 16 to 34) of the implementing regulation.

76. The wording of Article 890 of the implementing regulation and the system of Community Customs legislation suggest therefore that only the preferential tariff measures referred to in Article 20(3)(d) and (e) of the Code and the corresponding implementing provisions fall within the scope Article 890. That finding is not affected by the German version of that article which refers more vaguely to Anwendung eines ermässigten Zollsatzes oder der Zollfreiheit (application of a reduction in or a relief of duties). That imprecisely translated passage must be read in the light of the other language versions and the remainder of the German text of Article 890 which correctly refers to Zollpräferenzbehandlung (preferential tariff treatment).

77. The documents enumerated by way of example in Article 890 also suggest that only preferential tariff measures within the meaning of Article 20(3)(d) and (e) of the Code fall within its scope. That is because certificates of origin and movement certificates are documents which are typically required to prove the preferential origin of goods (an internal Community transit document proves that goods are Community goods). By contrast none of the documents required under Article 26(1) of the implementing regulation in order to benefit from favourable tariff treatment of goods by reason of their nature, namely certificates of authenticity, certificates of designation of origin and certificates of quality, is mentioned in Article 890.

78. That Article 890 does not directly apply to measures based on Article 21 of the Customs Code is confirmed by the judgment in Söhl & Söhlke. That judgment concerned inter alia Article 900(1)(o) of the implementing regulation which is, so far as relevant, identical with Article 890. Under Article 900(1)(o) import duties shall be repaid in situations where the importer is able to produce one of the documents mentioned in Article 890, but where the customs debt has been incurred for reasons other than release for free circulation. The Court held as follows:

Since that provision refers clearly to "Community treatment" and "preferential tariff treatment", it cannot apply to other forms of favourable treatment ...

and ruled that

Article 900(1)(o) of the implementing Regulation 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.

79. In the German version of that passage of the judgment the imprecise term Zollbehandlung mit Abgabenbegünstigung (favourable customs treatment with regard to duties) is used. The reason for that is a further translation error in the implementing regulation. Whilst all other language versions of Article 900(1)(o) use a term which corresponds to the English preferential tariff treatment and the French traitement tarifaire préférentiel, the German version refers to Zollbehandlung mit Abgabenbegünstigung. That mistake is surprising since the term used in the German version corresponds neither to the other language versions nor to the (also erroneous) wording of the German version of the parallel Article 890.

- Application of Article 890 by analogy

80. It follows from the foregoing considerations that Article 890 of the implementing regulation does not apply directly to measures based on Article 21 of the Code. The further question therefore arises whether the principles embodied in Article 890 may at least, as suggested by the referring court, be applied by analogy.

81. In that respect I accept Bacardi's argument that certificates of authenticity for Bourbon whiskey have similar features to certificates of origin form A: both record that certain goods were produced in a specific country in accordance with certain criteria and both give rise to a certain form of favourable customs treatment in the Community.

82. I also consider that an application of Article 890 by analogy is not precluded merely by the fact that in the case of a belated submission of a certificate of authenticity not only the rate of duty but the classification under the Combined Nomenclature would have to be changed. As Bacardi rightly states, reclassification on the basis of, for example, a judgment of the Court may also lead to repayment of duties.

83. None the less I consider that an application of Article 890 by analogy to measures based on Article 21 of the Code and Article 26 et seq. of the implementing regulation is not possible. That is because the roles of certificates of origin and certificates of authenticity within the respective procedures for obtaining preferential and favourable tariff treatment are different.

84. A certificate of origin may in principle be submitted within 10 months of the date of issue. In some cases it may even be submitted after expiry of that period of validity. Moreover, such a certificate does not always have to be presented to the customs authorities of the importing Member State together with the goods to which it relates. Furthermore, certificates of origin form A may in certain circumstances be issued by the authorities of the exporting State retroactively after the actual exportation. Finally, even the application for preferential tariff treatment may be made after the event provided that the relevant conditions are fulfilled. A certificate of origin is the normal means of proof of preferential origin, but it follows from the Court's case-law that in exceptional circumstances it is permissible to dispense with its production, where the origin of the goods in issue has been established beyond doubt on the basis of other objective evidence.

85. Consequently the presentation of a certificate of origin before release for free circulation does not appear to be a necessary precondition for the substantive entitlement to preferential tariff treatment. Even before a certificate of origin is presented, import duties levied without taking account of a preferential tariff arrangement do not thus seem to be legally owed within the meaning of Article 236(1) of the Code. That is why Article 890 of the implementing regulation provides for a mechanism for repayment and remission where a certificate of origin is produced after acceptance of the declaration for free circulation.

86. By contrast a certificate of authenticity for Bourbon whiskey has a period of validity of only three months after being issued and a presentation after the expiry of that period is not provided for. Article 29(1) of the implementing regulation provides unequivocally that a certificate of authenticity must be presented together with the goods to which it relates. It is true that the German version uses for the presentation of the goods to the customs authorities the verb vorlegen instead of the technically correct gestellen. That does not however affect the fact that under the system established by Articles 26 et seq. of the implementing regulation a separate presentation of the certificate and of the goods to which it relates is neither provided for nor possible. With regard to Bourbon whiskey not even the splitting of consignments combined with the use of a photocopy of the certificate is allowed. No rule allows a certificate of authenticity to be issued after the exportation.

87. It follows from that much stricter regime that a certificate of authenticity is not just a means of proof, but that its presentation together with the goods is a necessary precondition for the substantive entitlement to the favourable tariff treatment provided for by Article 26 et seq. of the implementing regulation. The same follows from the title of the relevant Chapter of the implementing regulation which states: Goods for which a certificate of authenticity ... must be presented and from Article 26(1) itself which states: Classification under the [favourable] tariff heading ... shall be subject to the presentation of certificates .... Consequently, where the necessary certificate is not presented together with the goods to which it relates and import duties are therefore levied without taking account of a favourable tariff arrangement, those duties are legally owed within the meaning of Article 236(1) of the Code. They may not therefore be repaid on the basis of Article 890 of the implementing regulation applied by analogy or of Article 236(1) of the Code.

88. That finding is confirmed by the legislative history of Article 890 of the implementing regulation. Its almost identically worded predecessor was Article 1(3) of Commission Regulation (EEC) No 3040/83 of 28 October 1983 laying down provisions on the implementation of Articles 2 and 14 of Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties. The preamble to that regulation stated:

Whereas the provisions on the repayment or remission of import duties may not be relied upon in order to frustrate the specific rules in force in respect of the release for free circulation of goods, ...; whereas they may not inter alia permit the post-clearance production of documents which are required to be produced under the rules in question at the time of acceptance of the entry for release for free circulation; ...

89. Since Article 890 of the implementing regulation may not be applied to measures based on Article 21 of the Code either directly or by analogy, the further question raised by the Commission whether a certificate of authenticity may be regarded as an other appropriate document within the meaning of Article 890 does not arise.

- Conclusion

90. I accordingly conclude that in situations such as that in the main proceedings import duties may not be repaid under Article 236(1) of the Customs Code read on its own or in conjunction with Article 890 of the implementing regulation.

Question 2: Special situation within the meaning of Article 905(1) of the implementing regulation

91. If the Court answers the first question in the negative the referring court wishes to know whether the circumstances of the main proceedings constitute a special situation within the meaning of Article 905(1) of the implementing regulation which - if the other legal requirements are satisfied - may lead to repayment of the import duties under Article 239(1) of the Customs Code.

Arguments submitted to the Court

92. According to the referring court that question also raises the general problem of the relationship between Article 239(1) of the Code in conjunction with Article 905 et seq. of the implementing regulation and Article 236(1) of the Code: in its view it might be argued that once repayment under Article 236(1) has been refused because a particular legal requirement under that rule was not satisfied, that also automatically rules out any refund under Article 239(1) of the Code in conjunction with Article 905(1) of the implementing regulation, on the ground that the substantive requirements contained in Article 236(1) would otherwise be called in question.

93. Bacardi considers that the applicability of Article 905(1) of the implementing regulation is not precluded by the fact that the case may partly be analysed under Article 236(1) thereof. Furthermore, the circumstances in the main proceedings constitute in its view a special situation. Bacardi could not submit an incomplete declaration since it was not sure that the US authorities would issue the necessary certificate of authenticity. Bacardi could also not wait for the certificate since it did not know that the US authorities would issue it so soon after the goods were released for free circulation. If it wished to dispose of the whiskey as early as possible it had to declare the consignment as whiskey other than Bourbon or Scotch.

94. The Commission submits, first, that there was no deception or obvious negligence on Bacardi's side. Bacardi had no lawful alternative, if it wished to dispose of the goods as early as possible. Secondly, the Commission quotes from the Court's case-law and states that a special situation arises where the circumstances relied on are liable to place the applicant in an exceptional situation as compared with other operators engaged in the same business.

95. In its written observations the Commission considered that the circumstances in the present case may be seen as exceptional within the meaning of that formula and therefore proposed that the second question should be answered in the affirmative. At the oral hearing the Commission appeared to modify its position and to consider that Bacardi could have asked for an invalidation of its initial customs declaration under Article 66 of the Code, which would have led to the extinction of the customs debt under Article 233 of the Code and a right to repayment under Article 237 of the Code. Replying to questions put by the Court, however, the Commission then again changed its view and stated that Bacardi could not in fact have asked for the invalidation of its customs declaration.

Analysis

96. At the outset I would mention that I do not share the referring court's concerns as regards the relationship between on the one hand Article 239(1) of the Code in conjunction with Article 905(1) of the implementing regulation and on the other hand Article 236(1) of the Code. Under Article 239(1) of the Code import duties may be repaid in situations other than those referred to in Articles 236, 237 and 238. As regards Article 905(1) of the implementing regulation it follows from Article 899 thereof that the procedure provided for in Articles 905 to 909 must be followed whenever the national customs authority is not in a position, on the basis of Articles 899 to 904, to grant or refuse the repayment or remission of customs duties. It follows that Article 239(1) of the Code read in combination with Article 905(1) of the implementing regulation introduces into Community customs law a general fairness clause intended to cover exceptional situations. Such exceptional circumstances which may justify the repayment of duties for general reasons of fairness might also be encountered where just one of the legal requirements for repayment or remission under Article 236(1) is not satisfied. I consider therefore that where the customs authority is not in a position, on the basis of the grounds adduced, to take a decision to repay or remit duties on the basis of Article 236(1) of the Code, it remains none the less obliged to verify whether there is any evidence of the existence of a special situation within the meaning of Article 905(1) of the implementing regulation.

97. As regards the role of Article 905(1) of the implementing regulation in the present case, the referring court has expressly refrained from requesting an interpretation of the concept of circumstances in which no ... obvious negligence may be attributed to the person concerned. As rightly anticipated by the referring court, the Court has in the meantime clarified that concept in its judgment in Söhl & Söhlke. The Court held at paragraph 56 of its judgment that in order to determine whether or not there is obvious negligence 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. It will be for the national court to determine on the basis of those criteria whether there was obvious negligence of the part of Bacardi. In that regard the factual background to the delay in presenting the certificate of authenticity will be of particular relevance.

98. As regards the interpretation of the concept of special situation the Court has held that under the procedure established by Article 905 et seq. as in force at the material time the national customs authority must make an initial assessment as to whether there is any evidence of the existence of a special situation. If need be it must forward the file to the Commission which will on the basis of the information placed before it make the definitive assessment whether a special situation exists such as to justify the repayment or remission of duties. In undertaking its preliminary assessment the customs authority must verify in the light of the objective of fairness underlying Article 239 of the Code whether the circumstances relied on are liable to place the applicant in an exceptional situation as compared with other operators engaged in the same business.

99. I consider, first, that in the present case there is no special situation on the grounds invoked by the Commission. In its written observations the Commission argued that Bacardi imported its products in the same circumstances as other traders. In my view that is the opposite of an exceptional situation. The Commission's argument at the oral hearing about the alternative possibility of asking for an invalidation of the customs declaration appears also to be misconceived. Bacardi's situation does not in my view correspond to any of the situations envisaged by Article 66 of the Code (in conjunction with Article 251 of the implementing regulation). The goods in question were not declared for the wrong customs procedure, but for the correct release for free circulation procedure.

100. Secondly, as regards the grounds adduced by Bacardi, the national court is in my view better placed than this Court to decide whether Bacardi was placed in an exceptional situation as compared with other operators engaged in the same business. The national court may need to consider, in that connection, for example, why the US authorities issued the certificate only on 17 September 1996 although Bacardi had applied for it in July or August, and whether other traders had similar problems or whether Bacardi's situation was exceptional. The national court may also need to examine why Bacardi did not submit an incomplete customs declaration under Article 76(1) of the Code in conjunction with Articles 253(1) and 255 of the implementing regulation and whether that would have been a viable alternative in view of the fact that the certificate did not exist at the material time.

101. It has also to be borne in mind that, under Article 234 EC, the Court may only provide information on the interpretation of Community law, whilst the application of Community law to the case before it is for the national court.

102. It will therefore normally fall to the national court to decide whether, in the light of all the facts, a special situation exists. In the present case that question was referred by the national court only as a subsidiary question, its primary question being a question of interpretation of the Customs Code. Moreover, in the framework of the procedure under Articles 905 et seq. of the implementing regulation the national authorities share with the Commission, as explained above, the responsibility for deciding whether a special situation exists. In the context of the present preliminary ruling procedure the Commission has not had the full facts before it, but it will normally be in the best position, by virtue of its knowledge of the situation in the Community as a whole, to assess whether a special situation exists.

103. In the light of the foregoing considerations I conclude that a special situation within the meaning of Article 905(1) of the implementing regulation exists where, having regard to the objective of fairness underlying Article 239 of the Customs Code, there are circumstances liable to place the applicant in an exceptional situation as compared with other operators engaged in the same business. It is for the national authorities to make the necessary findings and, if need be, to forward the file to the Commission which will on the basis of the information placed before it make the definitive assessment whether a special situation exists such as to justify the repayment of the import duties paid.

Conclusion

104. For the above reasons the questions referred should in my view be answered as follows:

(1) In situations such as that in the main proceedings, import duties may not be repaid under Article 236 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code read on its own or in conjunction with Article 890 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92;

(2) A special situation within the meaning of Article 905(1) of the implementing regulation exists where, having regard to the objective of fairness underlying Article 239 of the Customs Code, there are circumstances liable to place the applicant in an exceptional situation as compared with other operators engaged in the same business. It is for the national authorities to make the necessary findings and, if need be, to forward the file to the Commission which will on the basis of the information placed before it make the definitive assessment whether a special situation exists such as to justify the repayment of the import duties paid.