CELEX: 62007CJ0375
Language: en
Date: 2008-11-20 00:00:00
Title: Judgment of the Court (Second Chamber) of 20 November 2008.#Staatssecretaris van Financiën v Heuschen & Schrouff Oriëntal Foods Trading BV.#Reference for a preliminary ruling: Hoge Raad der Nederlanden - Netherlands.#Reference for a preliminary ruling - Validity of a classification regulation - Interpretation of the Annex to Regulation (EC) No 1196/97 - Articles 220 and 239 of the Customs Code - Articles 871 and 905 of Regulation (EEC) No 2454/93 - Dried sheets consisting of rice flour, salt and water - Tariff classification - Post-clearance recovery of import duties - Procedure for remission - Detectable error on the part of the customs authorities - Obvious negligence on the part of the importer.#Case C-375/07.

Case C-375/07
      Staatssecretaris van Financiën
      v
      Heuschen & Schrouff Oriëntal Foods Trading BV
      (Reference for a preliminary ruling from the Hoge Raad der Nederlanden)
      (Reference for a preliminary ruling – Validity of a classification regulation – Interpretation of the Annex to Regulation (EC) No 1196/97 – Articles 220 and 239 of the Customs Code – Articles 871 and 905 of Regulation (EEC) No 2454/93 – Dried sheets consisting of rice flour, salt and water – Tariff classification – Post-clearance recovery of import duties – Procedure for remission – Detectable error on the part of the customs authorities – Obvious negligence on the part of the importer)
      Summary of the Judgment
      1.        Common Customs Tariff – Tariff headings – Sheets prepared from rice flour, salt and water
      (Council Regulation No 2658/87, Annex I; Commission Regulations No 1196/97 and No 1624/97)
      2.        Own resources of the European Communities – Repayment or remission of import duties
      (Arts 230, fifth para., 234 EC and 249 EC; European Parliament and Council Regulation No 82/97; Council Regulation No 2913/92,
            Arts 220 and 239)
      1.        Sheets prepared from rice flour, salt and water which are then dried, but do not undergo any heat treatment, are covered by
         subheading 1905 90 20 of the Combined Nomenclature in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature
         and on the Common Customs Tariff, in the version resulting from Regulation No 1624/97.
      
      In that regard, first, the reference to ‘rice paper’ or to ‘dried’ goods is included expressly in the wording of several language
         versions of subheading 1905 90 20 of the Combined Nomenclature, whereas heading 1901 is merely residual and covers only goods
         which are not mentioned or included elsewhere in the Combined Nomenclature. Secondly, as is apparent from reading various
         language versions of the Combined Nomenclature and in the light of the Explanatory Notes of the Commission, which refer to
         the Explanatory Notes of the International Convention on the Harmonised Commodity Description and Coding System, the fact
         of being baked is not a characteristic which is necessary in order for a product to be classified under subheading 1905 90
         20.
      
      It is therefore apparent from all those factors that the validity of Regulation No 1196/97 concerning the classification of
         certain goods in the combined nomenclature is not affected.
      
      (see paras 47-53, operative part1-2)
      2.        Where an application for remission of import duties has been submitted to the Commission by a Member State under Article 239
         of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 82/97, and the Commission has
         already adopted a decision containing assessments of fact and law in a particular case concerning import transactions, such
         assessments bind all the authorities of the Member State to which that decision was addressed, in accordance with Article
         249 EC, including the courts which have to assess that case under Article 220 of that regulation. 
      
      The requirements connected with the uniform application of Community law to ensure which a power of decision was conferred
         on the Commission in regard to the post-clearance recovery of customs duties demand that, in respect of the same import transactions
         carried out by a trader, a Commission decision on the existence of ‘obvious negligence’ on the part of that trader cannot
         be deprived of effect by a subsequent decision of a national court ruling on whether or not the error committed by the national
         customs authorities was ‘detectable’ by that same trader. A national court, ruling on an appeal against a notice for recovery
         of import duties, must therefore, when it becomes aware in the course of the proceedings before it that the matter has been
         referred to the Commission pursuant to Article 220 or Article 239 of the Customs Code, avoid giving decisions which would
         conflict with a decision contemplated by the Commission in the implementation of those articles. If the importer has, within
         the period prescribed in the fifth paragraph of Article 230 EC, brought an action for annulment of a decision of the Commission
         of the European Communities in respect of an application for remission of import duties pursuant to Article 239 of that regulation,
         it is for the national court to decide whether to stay the proceedings until a definitive decision has been given in the action
         for annulment or to refer itself a question to the Court of Justice of the European Communities for a preliminary ruling as
         to validity.
      
      (see paras 62, 64-66, 68, operative part 3)
JUDGMENT OF THE COURT (Second Chamber)
      20 November 2008 (*)
      
      (Reference for a preliminary ruling – Validity of a classification regulation – Interpretation of the Annex to Regulation (EC) No 1196/97 – Articles 220 and 239 of the Customs Code – Articles 871 and 905 of Regulation (EEC) No 2454/93 – Dried sheets consisting of rice flour, salt and water – Tariff classification – Post-clearance recovery of import duties – Procedure for remission – Detectable error on the part of the customs authorities – Obvious negligence on the part of the importer)
      In Case C‑375/07,
      REFERENCE for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision
         of 13 July 2007, received at the Court on 3 August 2007, in the proceedings
      
      Staatssecretaris van Financiën,
      v
      Heuschen & Schrouff Oriëntal Foods Trading BV,
      THE COURT (Second Chamber),
      composed of C.W.A. Timmermans, President of the Chamber, J.‑C. Bonichot, J. Makarczyk, P. Kūris and C. Toader (Rapporteur),
         Judges,
      
      Advocate General: V. Trstenjak,
      Registrar: C. Strömholm, Administrator,
      having regard to the written procedure and further to the hearing on 22 May 2008,
      after considering the observations submitted on behalf of:
      –        Heuschen & Schrouff Oriëntal Foods Trading BV, by H. de Bie, advocaat,
      –        the Netherlands Government, by C. Wissels, C. ten Dam and M. Mol, acting as Agents,
      –        the Greek Government, by K. Georgiadis, Z. Chatzipavlou and I. Pouli, acting as Agents,
      –        the Italian Government, by I.M. Braguglia, acting as Agent, assisted by G. Albenzio, avvocato dello Stato,
      –        the Commission of the European Communities, by M. Patakia, assisted by F. Tuytschaever, advocaat,
      after hearing the Opinion of the Advocate General at the sitting on 4 September 2008,
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns, first, the tariff heading applicable to the importation of rice paper and
         the possible invalidity of Commission Regulation (EC) No 1196/97 of 27 June 1997 concerning the classification of certain
         goods in the combined nomenclature (OJ 1997 L 170, p. 13) (‘the Classification Regulation’) and, secondly, the rights and
         powers of a national court before which an appeal against a decision concerning post-clearance recovery of import duties is
         brought, when the Commission of the European Communities has already made certain factual or legal assessments in respect
         of the import transactions in question.
      
      2        The reference has been made in the course of proceedings between the Staatssecretaris van Financiën (State Secretary for Finance)
         and Heuschen & Schrouff Oriëntal Foods Trading BV (‘H & S’) regarding the tariff classification of rice sheets, also called
         ‘rice paper’.
      
       Legal context
       Community law
       Legislation relating to the tariff classification of rice paper
      3        Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff
         (OJ 1987 L 256, p. 1) established a complete nomenclature of goods being imported and exported in the European Community (‘the
         CN’). That nomenclature is set out in Annex I to Regulation No 2658/87.
      
      4        Subheadings 1901 90 99 and 1905 90 20 of the CN, in the version resulting from Commission Regulation (EC) No 1624/97 of 13
         August 1997 amending Annex I to Regulation No 2658/87 (OJ 1997 L 224, p. 16), were potentially applicable in the present case.
      
      5        Headings 1901 and 1905 of the CN and the corresponding subheadings are as follows:
      
      
               ‘1901
            
            
               Malt extract; food preparations of flour, meal, starch or malt extract, not containing cocoa …, not elsewhere specified or
                  included; food preparations of goods of headings Nos 0401 to 0404, not containing cocoa …, not elsewhere specified or included:
               
            
         
               …
            
            
               
               
            
         
               1901 90 99
            
            
               – – – Other:
            
         
      …
      
               1905
            
            
               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:
               
            
         
               …
            
            
               
               
            
         
               1905 90
            
            
               – Other:
            
         
               …
            
            
               
               
            
         
               1905 90 20
            
            
               – – Communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products.’
            
         
      6        The Dutch version of the CN describes heading 1905 and the corresponding subheadings as follows:
      
      
               ‘1905 
            
            
               Brood, gebak, biscuits en andere bakkerswaren, ook indien deze producten cacao bevatten; ouwel in bladen, hosties, ouwels
                  voor geneesmiddelen, plakouwels en dergelijke producten van meel of van zetmeel
               
            
            
         
               …
            
             
             
             
             
         
               1905 90 
            
            
               – andere:
            
            
         
               …
            
             
             
             
             
         
               1905 90 20
            
            
               – – ouwel in bladen, hosties, ouwels voor geneesmiddelen, plakouwels en dergelijke producten, van meel of van zetmeel.’
            
            
         
      7        In order to ensure uniform application of the CN within the Community, the Commission may, under the first indent of Article
         9(1)(a) of Regulation No 2658/87, adopt regulations for the classification of specific goods in the CN.
      
      8        According to the Annex to the Classification Regulation, ‘Food preparation[s], in the form of dry, translucent sheets, of
         different sizes, made from rice flour, salt and water’ are covered by subheading 1905 90 20. It is also stated in that annex
         that ‘[t]hese sheets are, after being soaked in water …, generally used to make the “wrappers” for spring rolls and similar
         products’.
      
      9        The International Convention on the Harmonised Commodity Description and Coding System (‘the HS’), concluded in Brussels on
         14 June 1983, and the Protocol of Amendment thereto of 24 June 1986 (‘the HS Convention’) were approved on behalf of the European
         Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).
      
      10      Under Article 3(1) of the HS Convention, each Contracting Party undertakes to ensure that its customs tariff and statistical
         nomenclatures will be in conformity with the HS, to use all the headings and subheadings of the HS without addition or modification,
         together with their related codes, and to follow the numerical sequence of that system. The same provision provides that each
         Contracting Party must also undertake to apply the general rules for the interpretation of the HS and all the section, chapter
         and subheading notes of the HS, and not to modify their scope.
      
      11      The Customs Cooperation Council, now the World Customs Organisation, established by the International Convention establishing
         that council, concluded at Brussels on 15 December 1950, is to approve, under the conditions laid down in Article 8 of the
         HS Convention, the Explanatory Notes and the Classification Opinions adopted by the HS Committee. 
      
      12      The explanatory note of the Commission relating to subheading 1905 90 20 of the CN refers to the ‘HS Explanatory Notes to
         heading 1905, paragraph (B)’.
      
      13      The HS explanatory note relating to heading 1905 reads as follows:
      
      ‘…
      (A)      Bread, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa.
      …
      (B)      Communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products.
      This heading covers a number of products made from flour or starch pastes, generally baked in the form of discs or sheets.
         They are used for various purposes.
      
      …
      Rice paper consists of thin sheets of baked and dried flour or starch paste. It is used for coating certain confectionary
         articles, particularly nougat. …’
      
       Legislation relating to waiver of post-clearance entry in the accounts and to the remission of import duties
      –       Waiver of post-clearance entry of customs duties in the accounts
      14      Article 220(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992
         L 302, p. 1), as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 (OJ
         1997 L 17, p. 1), (‘the Customs Code’) provides:
      
      ‘2.      … subsequent entry in the accounts shall not occur where:
      …
      (b)      the amount of duty legally owed was not entered in the accounts as a result of an error on the part of the customs authorities
         which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good
         faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration;
      
      …’
      15      Article 869 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92
         (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 1677/98 of 29 July 1998 (OJ 1998 L 212, p. 18), (‘the Implementing
         Regulation’) provides:
      
      ‘The customs authorities shall themselves decide not to enter uncollected duties in the accounts:
      …
      (b) in cases in which they consider that the conditions laid down in Article 220(2)(b) of the [Customs] Code are fulfilled,
         provided that the amount not collected from the operator concerned in respect of one or more import or export operations but
         in consequence of a single error is less than [EUR] 50 000;
      
      …’
      16      Article 871 of the Implementing Regulation is worded as follows:
      
      ‘In cases other than those referred to in Article 869, where the customs authorities either consider that the conditions laid
         down in Article 220(2)(b) of the Code are fulfilled or are in doubt as to the precise scope of the criteria of that provision
         with regard to a particular case, those authorities shall submit the case to the Commission, so that a decision may be taken
         in accordance with the procedure laid down in Articles 872 to 876. The case submitted to the Commission shall contain all
         the information required for a full examination. It must also contain a signed statement from the person concerned with the
         case to be brought before the Commission certifying that he has read the case and stating, either that he has nothing to add,
         or listing all the additional information which he considers should be included.
      
      As soon as it receives the case the Commission shall inform the Member State concerned accordingly. 
      Should it be found that the information supplied by the Member State is not sufficient to enable a decision to be taken on
         the case concerned in full knowledge of the facts, the Commission may request that additional information be supplied.’
      
      17      The first paragraph of Article 873 of the Implementing Regulation states:
      
      ‘After consulting a group of experts composed of representatives of all Member States, meeting within the framework of the
         Committee to consider the case in question, the Commission shall decide whether the circumstances under consideration are
         or are not such that the duties in question need not be entered in the accounts.’
      
      –       Repayment or remission of customs duties
      18      Under Article 239 of the Customs Code:
      
      ‘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 …’
      
      19      Article 905 of the Implementing Regulation provides:
      
      ‘1.      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.
      
      However, except if the decision-making customs authority is in doubt, it can decide itself to grant repayment or remission
         of the duties in cases in which it considers that the conditions laid down in Article 239(1) of the Code are fulfilled, provided
         that the amount concerned per operator in respect of one or more import or export operations, but arising from one and the
         same special situation, is less than [EUR] 50 000.
      
      The term “the person concerned” shall be interpreted in the same way as in Article 899.
      In all other cases, the decision-making customs authority shall refuse the application.
      2.      The case sent to the Commission shall include all the facts necessary for a full examination of the case presented. It shall
         also include a statement, signed by the applicant for repayment or remission, certifying that he has read the case and stating
         either that he has nothing to add or listing all the additional information that he considers should be included.
      
      As soon as it receives the case the Commission shall inform the Member State concerned accordingly.
      Should it be found that the information supplied by the Member State is not sufficient to enable a decision to be taken on
         the case concerned in full knowledge of the facts, the Commission may ask for additional information to be supplied.
      
      …’
      20      The first paragraph of Article 907 of the Implementing Regulation provides:
      
      ‘After consulting a group of experts composed of representatives of all Member States, meeting within the framework of the
         Committee to consider the case in question, the Commission shall decide whether or not the special situation which has been
         considered justifies repayment or remission.’
      
       National law
      21      Article 8:72(4) of the Algemene Wet Bestuursrecht (General Law on administrative law) provides:
      
      ‘If the court declares the appeal well founded, it may order the administrative authority to adopt a new decision or carry
         out a different measure in compliance with its judgment, or it may rule that its judgment takes the place of the annulled
         decision or the annulled part thereof.’
      
       The dispute in the main proceedings and the questions referred for a preliminary ruling
      22      H & S is a Netherlands undertaking engaged in production and trade which supplies, among others, restaurant owners with Asian
         foodstuffs. It has been importing rice paper from Vietnam for that purpose for many years.
      
      23      H & S was already importing that product in 1996 under subheading 1901 90 99 of the CN. That tariff classification was accepted
         on numerous occasions by the Netherlands customs authorities (‘the customs authorities’), even after inspections and analyses
         carried out on samples of the imported consignments.
      
      24      On 27 June 1997, the Commission adopted the Classification Regulation, which provides that the goods in question in fact come
         under subheading 1905 90 20 of the CN. That regulation was published in the Official Journal of the European Communities on 28 June 1997 and entered into force on 19 July 1997.
      
      25      H & S, however, continued to classify the rice paper which it imported under subheading 1901 90 99. The customs authorities
         also continued to accept its declarations, on the last occasions on 14 July 1997 and 16 March 1998. Then, on 16 March 1998,
         the customs authorities became aware of the incorrect classification and informed H & S that the goods were covered by the
         heading laid down by the Classification Regulation, namely subheading 1905 90 20 of the CN. Thereafter, H & S declared its
         foodstuffs under that heading.
      
      26      In the course of 2000, the customs authorities informed H & S that they intended to proceed with post-clearance recovery of
         the duties which ought to have been paid under subheading 1905 90 20 of the CN in respect of the period from 25 November 1997
         to 2 February 1998.
      
      27      H & S thereupon applied for remission of those duties. The Commission, to which an application was submitted in accordance
         with Article 905 of the Implementing Regulation on 19 September 2002, adopted Decision REM 19/2002 on 17 June 2004 finding
         that remission of import duties was not justified in that particular case (‘the decision of 17 June 2004’). That decision
         was disputed by H & S in an action for annulment brought on 23 September 2004 before the Court of First Instance of the European
         Communities. H & S appealed against the Court of First Instance’s judgment of 30 November 2006 in Case T‑382/04 Heuschen & Schrouff Oriëntal Foods v Commission, not published in the ECR, which dismissed that action, the appeal being registered at the Registry of the Court as Case
         C-38/07 P.
      
      28      On 22 November 2000, the customs authorities sent H & S a notice for recovery of NLG 645 399.50 (EUR 292 869.52). In response
         to an objection lodged by H & S, the Inspector confirmed the demands for payment, with the exception of a sum of NLG 13 650.30,
         following the annulment of a customs declaration.
      
      29      On 29 March 2001, H & S appealed to the Tariefcommissie (Customs and Excise Tribunal), which was replaced, in the course of
         the proceedings, by the Gerechtshof te Amsterdam (Amsterdam Regional Court of Appeal). On 7 December 2004, the Gerechtshof
         te Amsterdam ruled that the appeal was well founded and set aside the Inspector’s decision and the demands for payment. Although
         the Gerechtshof confirmed that the rice sheets were covered by subheading 1905 90 20 of the CN, it found that the erroneous
         application of subheading 1901 90 99 of the CN stemmed from an error on the part of the customs authorities which could not
         reasonably have been detected by H & S and which made possible, pursuant to Article 220 of the Customs Code, waiver of the
         post-clearance recovery of the duties thereby avoided.
      
      30      The Staatssecretaris van Financiën appealed in cassation to the Hoge Raad against the application by the Gerechtshof te Amsterdam
         of Article 220 of the Customs Code, whilst H & S lodged a cross-appeal for a declaration that its goods were in fact covered
         by subheading 1901 90 99 of the CN.
      
      31      According to the order for reference, it is common ground that the imported goods consist of rice flour, water and salt, which
         are blended and kneaded and then pressed and dried. Those goods are not intended for consumption without first being heat-treated.
      
      32      As regards the cross-appeal, the referring court states that, according to the Explanatory Notes to the HS, heading 1905 of
         the CN is characterised less by the fact that it relates to baked goods than by the fact that it concerns goods which are
         thin in form.
      
      33      However, it states, it is also possible to maintain, on the basis of the Court’s case-law, that headings 1901 and 1905 of
         the CN are distinguishable on the ground that the former heading relates to unbaked goods whereas the latter concerns baked
         goods.
      
      34      As the Classification Regulation places rice sheets unreservedly under heading 1905 of the CN, the Hoge Raad der Nederlanden
         takes the view that the Court of Justice must be asked to rule on the validity of that regulation.
      
      35      As regards the main appeal, the Hoge Raad states that the Gerechtshof te Amsterdam accepted, in its decision of 7 December
         2004, that the three criteria relating to the detectability of the error on the part of the customs authorities and necessary
         for the application of Article 220 of the Customs Code had been met, even though the Commission had decided, on 17 June 2004,
         that those same criteria had not been met as regards the assessment of the trader’s diligence for the purposes of the application
         of Article 239 of the Customs Code and that decision was upheld by the Court of First Instance in its judgment in Heuschen & Schrouff Oriëntal Foods v Commission, which rejected H & S’s action brought against the decision of 17 June 2004.
      
      36      According to the Hoge Raad, the question is that of which decision a national customs authority must follow when the Commission
         and the national court adopt two divergent positions as regards the assessment of the abovementioned three criteria. More
         specifically, the matter in issue is that of defining the powers of the national court in relation to those of the Commission
         with respect to the application of those criteria.
      
      37      The Hoge Raad observes that, if the customs authorities take the view that the conditions laid down by the Customs Code may
         be satisfied, they are required to transmit the case to the Commission, which is then to decide whether or not it is necessary
         to proceed to post-clearance recovery of the import duties (Article 220 of the Customs Code) or whether remission of those
         duties is justified (Article 239 of the Customs Code). If that it is done, the uniform application of Community law is ensured.
      
      38      However, the position will be otherwise where the customs authorities decide that the conditions for the application of Article
         220 of the Customs Code have not been satisfied. In those circumstances, they do not refer the matter to the Commission and,
         if the party concerned appeals against the decision of those authorities, it will then be for the national court to decide
         whether the conditions for dispensing with post-clearance recovery have or have not been met. The uniform application of Community
         law may then be ensured by the preliminary reference procedure. However, when the decision given by the national court may
         be subject to appeal, there will be no obligation on that court to stay the proceedings in order to refer a question to the
         Court of Justice for a preliminary ruling.
      
      39      In those circumstances, the Hoge Raad der Nederlanden decided to stay the proceedings and to refer the following questions
         to the Court for a preliminary ruling:
      
      ‘(1)      Do sheets as described in the Annex to [the Classification Regulation] come under heading 1905 of the [CN] if they are prepared
         from rice flour, salt and water and then dried, but do not undergo any heat treatment?
      
      (2)      In the light of the answer to Question 1, is [the Classification Regulation] valid?
      (3)      Must Article 871 of [the Implementing Regulation] be construed as meaning that if, under the first paragraph of Article 871(1)
         thereof, there is an obligation on the customs authority to transmit a case to the Commission before it can decide to dispense
         with post-clearance recovery in that case, a national court ruling on an appeal by a tax debtor against the decision of the
         customs authority to proceed (in fact) with post-clearance recovery does not have the power to set aside that post-clearance
         recovery on the ground of its finding that the conditions laid down in Article 220(2)(b) [of the Customs Code] for (mandatorily)
         setting aside post-clearance recovery are satisfied, where that finding is not supported by the Commission?
      
      (4)      If the answer to Question 3 should be that the fact that the Commission has the power to take a decision in regard to demands
         for post-clearance recovery of customs duties does not involve any limitation on the jurisdiction of national courts which
         are called on to rule in an appeal concerning a demand for post-clearance recovery of customs duties, does Community law contain
         any separate provision which guarantees uniform application of Community law in the specific case where there is a discrepancy
         between the views of the Commission and those of the national court concerning the criteria to be applied in the context of
         Article 220 of the Customs Code for the purpose of determining whether a mistake on the part of the customs authority could
         have been detected by a tax debtor?’
      
       The questions referred for a preliminary ruling
       The first and second questions
      40      By its first two questions, which it is appropriate to examine together, the Hoge Raad seeks to ascertain, in essence, whether
         sheets prepared from rice flour, salt and water, which are then dried, but do not undergo any heat treatment, are covered
         by subheading 1905 90 20 of the CN and, if necessary, whether the Classification Regulation is valid.
      
      –       Observations submitted to the Court
      41      H & S takes the view that heading 1905 of the CN relates only to baked goods which may be consumed straight away, as the Court
         suggested in paragraph 12 of the judgment in Case C-12/94 Uelzena Milchwerke [1995] ECR I-2397. Consequently, it argues, the Classification Regulation should be declared invalid.
      
      42      The Netherlands, Greek and Italian Governments and the Commission are of the opinion that heading 1905 of the CN does not
         relate specifically to goods which are baked or may be consumed immediately and that the classification of rice sheets under
         subheading 1905 90 20 is not contrary to the Combined Nomenclature. They therefore consider that the Classification Regulation
         is valid.
      
      –       The Court’s reply
      43      First of all, it must be borne in mind that the decisive criterion for the classification of goods for customs purposes is
         in general to be sought in their objective characteristics and properties as defined in, inter alia, the wording of the relevant
         tariff heading and in the section or chapter notes (Case C-142/06 Olicom [2007] ECR I-6675, paragraph 16 and the case-law cited).
      
      44      In that regard, both the notes which head the chapters of the Common Customs Tariff and the Explanatory Notes to the HS are
         important means of ensuring the uniform application of the Tariff and as such may be regarded as useful aids to its interpretation
         (Olicom, paragraph 17, and the case-law cited).
      
      45      It is true, as submitted by the appellant in the main proceedings, that the Dutch version of the wording of heading 1905 of
         the CN, unlike a number of other language versions, does not expressly refer to sheets of flour or starch pastes and other
         similar products, which must be ‘dried’. The Dutch version refers only to goods in the form of sheets.
      
      46      However, according to settled case-law, the need for a uniform interpretation of Community regulations makes it impossible
         for the text of a provision to be considered in isolation but requires, on the contrary, that it should be interpreted and
         applied in the light of the versions existing in the other official languages (Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 46).
      
      47      As regards heading 1901 of the CN on which H & S relies, that heading, as its wording expressly states, clearly relates only
         to food preparations of flour, meal, starch or malt extract not specified or included elsewhere in the CN. That heading is
         thus residual in nature and cannot cover goods the description of which corresponds to other headings of the relevant chapter
         of the CN. Furthermore, subheading 1901 90 99 of the CN, under which the goods at issue in the main proceedings were declared,
         corresponds to ‘other’ goods, that is to say, goods which cannot be classified under any other subheading of the residual
         heading 1901.
      
      48      As the Advocate General stated at points 43 and 44 of her Opinion, the reference to ‘rice paper’ or to ‘dried’ goods is included
         expressly in the wording of several language versions of subheading 1905 90 20 of the CN.
      
      49      Secondly, contrary to what H & S maintains in its written observations before the Court, none of the language versions refers
         to the requirement that the goods covered by that subheading must necessarily be baked. The only reference to the state of
         the goods covered by heading 1905 of the CN and, more particularly, by subheading 1905 90 20 thereof, concerns the fact that
         they must be in ‘dried’ form.
      
      50      The Commission’s explanatory note relating to subheading 1905 90 20 of the CN refers to the ‘HS Explanatory Notes to heading
         1905, paragraph (B)’. As the Netherlands Government has pointed out, those notes refer to a number of products made from flour
         or starch which are generally baked in the form of discs or sheets and are used for various purposes. Thus, according to the
         Commission’s and the HS Explanatory Notes, the fact of being baked is not a characteristic which is necessary in order for
         a product to be classified under subheading 1905 90 20 of the CN.
      
      51      Lastly, it cannot be inferred from paragraph 12 of Uelzena Milchwerke that the Court intended to restrict the application of heading 1905 of the CN to ‘baked’ goods alone. It is true that in
         paragraph 12 of that judgment the Court held that the classification of ‘[b]read, pastry, cakes, biscuits and other bakers’
         wares...’ under heading 1905 and of ‘[s]weet biscuits; waffles and wafers’ under subheading 1905 30 presupposed that the goods
         concerned had been cooked at least once. However, it is clear that that assessment related only to the first category of products
         in the wording of heading 1905, namely that of ‘[b]read, pastry, cakes, biscuits and other bakers’ wares, whether or not containing
         cocoa’, which is covered by paragraph A of the HS explanatory note relating to heading 1905.
      
      52      Having regard to the foregoing, the classification under subheading 1905 90 20 of the CN of foodstuffs prepared from rice
         flour, salt and water in the form of dried, translucent sheets or discs of various sizes is in accordance with the wording
         of that subheading.
      
      53      The answer to the first two questions must therefore be that:
      
      –        sheets prepared from rice flour, salt and water which are then dried, but do not undergo any heat treatment, are covered by
         subheading 1905 90 20 of the CN;
      
      –        examination of the question referred has disclosed no factor of such a kind as to affect the validity of the Classification
         Regulation.
      
       The third and fourth questions
      54      By its third and fourth questions, which it is appropriate to deal with together, the Hoge Raad essentially asks whether,
         when the Commission has already decided in a particular case on the conditions for the application of the second indent of
         Article 239(1) of the Customs Code, a national court ruling on an appeal against a notice for recovery of import duties relating
         to the case is bound by that Commission decision when it assesses that case under Article 220 of the Customs Code.
      
      –       Observations submitted to the Court
      55      H & S is of the opinion that a national court, ruling on the conditions for the application of Article 220 of the Customs
         Code to a particular case, cannot be bound by a Commission decision on that case under Article 239 of the Customs Code since
         the preliminary reference procedure ensures that Community law is applied uniformly.
      
      56      The Netherlands, Greek and Italian Governments and the Commission take the view that such a Commission decision is binding
         on the national court and that, if it wishes to deviate from it, it must either stay the proceedings until a final judgment
         has been given by the Community Courts before which an action for the annulment of that decision has been brought or seek
         a preliminary ruling from the Court of Justice as to its validity.
      
      –       The Court’s reply
      57      It must be stated at the outset that the procedures provided for in Articles 220 and 239 of the Customs Code pursue the same
         aim, namely to limit the post-clearance payment of import and export duties to cases where such payment is justified and is
         compatible with a fundamental principle such as that of the protection of legitimate expectations (see Case C- 250/91 Hewlett Packard France [1993] ECR I-1819, paragraph 46, and Söhl & Söhlke, paragraph 54).
      
      58      It follows that the conditions to which the application of those articles is made subject, that is to say, in particular,
         that no obvious negligence may be attributed to the person concerned in the case of the second indent of Article 239(1) of
         the Customs Code and that no error has been made by the customs authorities which could reasonably have been detected by the
         person liable in the case of Article 220 of the Customs Code, must be interpreted in the same manner (see, to that effect,
         Söhl & Söhlke, paragraph 54).
      
      59      Consequently, as the Court has previously held, in order to determine whether or not a trader has demonstrated ‘obvious negligence’,
         within the meaning of the second indent of Article 239(1) of the Customs Code, it is appropriate to apply by analogy the criteria
         used in the context of Article 220 of the Customs Code to ascertain whether or not an error committed by the customs authorities
         was detectable by a trader (see Söhl and Söhlke, paragraphs 55 and 56, and Case C‑156/00 Netherlands v Commission [2003] ECR I-2527, paragraph 92). 
      
      60      Under the procedures provided for in Articles 871 and 905 of the Implementing Regulation, in cases other than those referred
         to in Articles 869 and 899 of that regulation, where the customs authorities consider that the conditions laid down respectively
         in Article 220(2)(b) and the second indent of Article 239(1) of the Customs Code have been satisfied, those authorities or
         the Member State to which they belong must submit the case to the Commission in order for it to determine whether those conditions
         have in fact been satisfied.
      
      61      In that regard, it appears that, with the exception of the specific cases provided for by the legislation, the Community legislature
         intended to entrust to the assessment of the Commission those cases in which budgetary revenue payable as a matter of course
         ought to be waived, on the basis that customs duties levied on the importation of goods into Community territory constitute
         own resources of the budget of the European Communities. Such a finding is borne out by the powers conferred on the Commission
         by Articles 875 and 908(3) of the Implementing Regulation, pursuant to which the Commission may, under conditions which it
         is to determine, authorise one or more Member States to refrain from post-clearance entry of duties in the accounts and repay
         or remit duties in cases involving issues of fact and law comparable to those which the Commission has already examined in
         previous decisions.
      
      62      As the Court has already stated, the objective of conferring on the Commission a power of decision in regard to the post-clearance
         recovery of customs duties is to ensure the uniform application of Community law. That is likely to be jeopardised in cases
         where an application to waive post-clearance recovery is allowed, since the assessment which a Member State may make in taking
         a favourable decision is likely, in actual fact, owing to the probable absence of any appeal, to escape any review by means
         of which the uniform application of the conditions laid down in the Community legislation may be ensured. On the other hand,
         that is not the case where the national authorities proceed to effect recovery, whatever the amount in issue, because, in
         those circumstances, it is still open to the person concerned to challenge such a decision before the national courts (Case
         C‑419/04 Conseil général de la Vienne [2006] ECR I-5645, paragraph 42 and the case-law cited).
      
      63      In such cases, it is thus for the national court to assess whether, having regard to the circumstances of the case, those
         conditions have been satisfied and, as a result, it will then be possible for the uniformity of Community law to be ensured
         by the Court of Justice through the preliminary ruling procedure (see, to that effect, Case C‑64/89 Deutsche Fernsprecher [1990] ECR I‑2535, paragraph 13, and Conseil général de la Vienne, paragraph 42 and the case-law cited).
      
      64      However, where an application for remission of import duties has been submitted to the Commission by a Member State for the
         purposes of Article 239 of the Customs Code and the Commission has already adopted a decision containing assessments of fact
         and law in a particular case concerning import operations, such assessments bind all the authorities of the Member State to
         which it was addressed, in accordance with Article 249 EC, including the courts which have to assess the same case under Article
         220 of the Customs Code (see, to that effect, Case C‑413/96 Sportgoods [1998] ECR I-5285, paragraph 41). 
      
      65      Therefore, the requirements connected with the uniform application of Community law demand that, in respect of the same import
         transactions carried out by a trader, a Commission decision on the existence of ‘obvious negligence’ on the part of that trader
         cannot be deprived of effect by a subsequent decision of a national court ruling on whether or not the error committed by
         the national customs authorities was ‘detectable’ by that same trader.
      
      66      A national court, such as the Gerechtshof te Amsterdam in the present case, ruling on an appeal against a notice for recovery
         of import duties, must therefore, when it becomes aware in the course of the proceedings before it that the matter has been
         referred to the Commission pursuant to Article 220 or Article 239 of the Customs Code, avoid giving decisions which would
         conflict with a decision contemplated by the Commission in the implementation of those articles (see, by analogy, Case C-234/89
         Delimitis [1991] ECR I‑935, paragraph 47, and Case C‑344/98 Masterfoods and HB [2000] ECR I‑11369, paragraph 51). That means that the referring court, which may not substitute its own determination for
         that of the Commission, can stay proceedings pending the Commission’s decision (see, to that effect, Case C-61/98 De Haan [1999] ECR I-5003, paragraph 48).
      
      67      In any event, as the Court has pointed out in, inter alia, proceedings relating to Articles 81 EC and 82 EC, if a national
         court has doubts as to the validity or interpretation of an act of a Community institution it may, or must, in accordance
         with the second and third paragraphs of Article 234 EC, refer a question to the Court of Justice for a preliminary ruling
         (see Masterfoods and HB, paragraph 54).
      
      68      If, as here in the main proceedings, the importer has, within the period prescribed in the fifth paragraph of Article 230
         EC, brought an action for annulment of a Commission decision in respect of an application for remission of duties pursuant
         to Article 239 of the Customs Code, it is for the national court to decide whether to stay the proceedings until a definitive
         decision has been given in the action for annulment or to refer a question to the Court of Justice for a preliminary ruling
         as to validity (see, by analogy, Masterfoods and HB, paragraph 55).
      
      69      By contrast, if the Commission takes a decision on a particular case under Article 239 of the Customs Code, it cannot be bound
         by a decision given previously by a national court ruling on the conditions for the application to that same case of Article
         220 of the Customs Code (see, by analogy, Masterfoods and HB, paragraph 48).
      
      70      Having regard to the foregoing, the answer to the third and fourth questions must be that:
      
      –        where an application for remission of import duties has been submitted to the Commission by a Member State under Article 239
         of the Customs Code and the Commission has already adopted a decision containing assessments of fact and law in a particular
         case concerning import transactions, such assessments bind all the authorities of the Member State to which that decision
         was addressed, in accordance with Article 249 EC, including the courts which have to assess that case under Article 220 of
         the Customs Code;
      
      –        if the importer has, within the period prescribed in the fifth paragraph of Article 230 EC, brought an action for annulment
         of a Commission decision in respect of an application for remission of import duties pursuant to Article 239 of the Customs
         Code, it is for the national court to decide whether to stay the proceedings until a definitive decision has been given in
         the action for annulment or to refer itself a question to the Court for a preliminary ruling as to validity.
      
       Costs
      71      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (Second Chamber) hereby rules:
      1.      Sheets prepared from rice flour, salt and water which are then dried, but do not undergo any heat treatment, are covered by
            subheading 1905 90 20 of the Combined Nomenclature 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, in the version resulting from Commission Regulation
            (EC) No 1624/97 of 13 August 1997.
      2.      Examination of the question referred has disclosed no factor of such a kind as to affect the validity of Commission Regulation
            (EC) No 1196/97 of 27 June 1997 concerning the classification of certain goods in the combined nomenclature.
      3.      Where an application for remission of import duties has been submitted to the Commission of the European Communities by a
            Member State under Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs
            Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, and the Commission
            has already adopted a decision containing assessments of fact and law in a particular case concerning import transactions,
            such assessments bind all the authorities of the Member State to which that decision was addressed, in accordance with Article
            249 EC, including the courts which have to assess that case under Article 220 of that regulation.
      If the importer has, within the period prescribed in the fifth paragraph of Article 230 EC, brought an action for annulment
            of a decision of the Commission of the European Communities in respect of an application for remission of import duties pursuant
            to Article 239 of that regulation, it is for the national court to decide whether to stay the proceedings until a definitive
            decision has been given in the action for annulment or to refer itself a question to the Court of Justice of the European
            Communities for a preliminary ruling as to validity.
      [Signatures]
      * Language of the case: Dutch.