CELEX: 62005CJ0100
Language: en
Date: 2006-10-05
Title: Judgment of the Court (Third Chamber) of 5 October 2006. # ASM Lithography BV v Inspecteur van de Belastingdienst-Douane Zuid/kantoor Roermond. # Reference for a preliminary ruling: Gerechtshof te Amsterdam - Netherlands. # Customs Code - Determination of the customs debt - Import duties on compensating products determined by the person concerned and confirmed by the customs authorities under Article 121 of the Customs Code - Duties which can be calculated in accordance with Article 122(c) of the Customs Code - Repayment of the amount levied in excess on the basis of Article 236 of the Customs Code. # Case C-100/05.

Case C-100/05
      ASM Lithography BV
      v
      Inspecteur van de Belastingdienst-Douane Zuid/kantoor Roermond
      (Reference for a preliminary ruling from the Gerechtshof te Amsterdam)
      (Customs Code – Determination of the customs debt – Import duties on compensating products determined by the person concerned and confirmed by the customs authorities under
         Article 121 of the Customs Code – Duties which can be calculated in accordance with Article 122(c) of the Customs Code – Repayment of the amount levied in excess on the basis of Article 236 of the Customs Code)
      
      Summary of the Judgment
      1.        Free movement of goods – Trade with non-member countries – Inward processing system 
      (Council Regulation No 2913/92, Arts 121, 122(c), and 236)
      2.        Own resources of the European Communities – Repayment or remission of import or export duties 
      (Council Regulation No 2913/92, Arts 121, 122(c) and 236)
      1.        Article 122(c) of Regulation No 2913/92 establishing the Community Customs Code is to be interpreted as meaning that, at the
         time of determining the amount of the customs debt resulting from the release for free circulation of compensating products,
         unless the person concerned has expressly made a request to that effect, the national customs authorities are not bound to
         apply the rules of assessment relating to the procedure for processing under customs control where the import goods could
         have been placed under that procedure. 
      
      It is not apparent from the provisions of the Customs Code that the Community legislature intended to impose upon the national
         authorities a duty of care as regards persons owing payment of duty, in accordance with which those authorities must look
         after the interests of the latter by applying the most favourable rules governing assessment of duty. 
      
      (see paras 32, 34, operative part 1)
      2.        Article 236 of Regulation No 2913/92 establishing the Community Customs Code is to be interpreted as meaning that the national
         customs authorities must allow a request for repayment of import duties where it transpires that, following an error by the
         person concerned and not through the exercise of a choice, the amount of the customs debt has been determined by applying
         Article 121 of that Code and has already been the subject of a communication to the person concerned, even if that request
         entails a recalculation by those authorities of the amount of the debt by applying Article 122(c) of the Customs Code.
      
      (see para. 43, operative part 2)
JUDGMENT OF THE COURT (Third Chamber)
      5 October 2006 (*)
      
      (Customs Code – Determination of the customs debt – Import duties on compensating products determined by the person concerned and confirmed by the customs authorities under
         Article 121 of the Customs Code – Duties which can be calculated in accordance with Article 122(c) of the Customs Code – Repayment of the amount levied in excess on the basis of Article 236 of the Customs Code)
      
      In Case C-100/05,
      REFERENCE for a preliminary ruling under Article 234 EC by the Gerechtshof te Amsterdam (Netherlands), made by decision of
         18 February 2005, received at the Court on 28 February 2005, in the proceedings
      
      ASM Lithography BV
      v
      Inspecteur van de Belastingdienst-Douane Zuid/kantoor Roermond,
      THE COURT (Third Chamber),
      composed of A. Rosas, President of the Chamber, J. Malenovský, J.‑P. Puissochet, U. Lõhmus (Rapporteur) and A. Ó Caoimh, Judges,
      Advocate General: M. Poiares Maduro,
      Registrar: K. Sztranc, Administrator,
      having regard to the written procedure and further to the hearing on 12 January 2006,
      after considering the observations submitted on behalf of:
      –        ASM Lithography BV, by E.H. Mennes and L.E.C. Kanters, belastingadviseurs,
      –        the Netherlands Government, by H.G. Sevenster, M. de Mol and M. de Grave, acting as Agents,
      –        the Commission of the European Communities, by J. Hottiaux, acting as Agent, and F. Tuytschaever, advocaat,
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        The reference for a preliminary ruling concerns the interpretation of Articles 121(1), 122(c) and 236 of Council Regulation
         (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the Customs Code’).
      
      2        This reference was made in the course of proceedings between ASM Lithography BV (‘ASM Lithography’) and the Inspecteur van
         de Belastingdienst-Douane Zuid/kantoor Roermond (the head of the Tax Inspectorate-Customs South/Roermond office) (‘the Inspector’)
         regarding an application for repayment of customs duties concerning goods released for free circulation between October 1998
         and July 2000.
      
       Legal context
      3        Article 114 of the Customs Code provides:
      
      ‘1. Without prejudice to Article 115, the inward processing procedure shall allow the following goods to be used in the customs
         territory of the Community in one or more processing operations:
      
      (a)       non-Community goods intended for re-export from the customs territory of the Community in the form of compensating products,
         without such goods being subject to import duties or commercial policy measures;
      
      (b)      …
      2. The following expressions shall have the following meanings:
      (a)       suspension system: the inward processing relief arrangements as provided for in paragraph 1(a);
      …
      (d)       compensating products: all products resulting from processing operations;
      …’
      4        As set out in Article 121(1) of the Customs Code:
      
      ‘Subject to Article 122, where a customs debt is incurred, the amount of such debt shall be determined on the basis of the
         taxation elements appropriate to the import goods at the time of acceptance of the declaration of placing of these goods under
         the inward processing procedure.’
      
      5        Article 122 of the Customs Code provides:
      
      ‘By way of derogation from Article 121, compensating products:
      (a)       shall be subject to the import duties appropriate to them where:
      –        they are released for free circulation and appear on the list adopted in accordance with the committee procedure, to the extent
         that they are in proportion to the exported part of the compensating products not included in that list. However, the holder
         of the authorisation may ask for the duty on those products to be assessed in the manner referred to in Article 121;
      
      –        they are subject to charges established under the common agricultural policy, and provisions adopted in accordance with the
         committee procedure so provide;
      
      (b)       shall be subject to import duties calculated in accordance with the rules applicable to the customs procedure in question
         or to free zones or free warehouses where they have been placed under a suspensive arrangement or in a free zone or free warehouse.
      
      However,
      –        the person concerned may request that duty be assessed in accordance with Article 121;
      –        in cases where the compensating products have been assigned a customs-approved treatment or use referred to above other than
         processing under customs control, the amount of the import duty levied shall be at least equal to the amount calculated in
         accordance with Article 121;
      
      (c)       may be made subject to the rules governing assessment of duty laid down under the procedure for processing under customs control
         where the import goods could have been placed under that procedure;
      
      …’
      6        Article 130 of the Customs Code provides:
      
      ‘The procedure for processing under customs control shall allow non-Community goods to be used in the customs territory of
         the Community in operations which alter their nature or state, without their being subject to import duties or commercial
         policy measures, and shall allow the products resulting from such operations to be released for free circulation at the rate
         of import duty appropriate to them. Such products shall be termed processed products.’
      
      7        As set out in Article 236 of the Customs Code:
      
      ‘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 or that the amount has been entered in the accounts contrary to Article 220(2).
      
      …
      No repayment or remission shall be granted when the facts which led to the payment or entry in the accounts of an amount which
         was not legally owed are the result of deliberate action by the person concerned.
      
      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.
      
      …’
      8        Council Decision 97/359/EC of 24 March 1997 concerning the elimination of duties on information technology products (OJ 1997
         L 155, p. 1) approved, on behalf of the Community, the Agreement on trade in information technology products and the Communication
         on its implementation. That agreement, made up of the Ministerial Declaration of 13 December 1996, adopted at the first Conference
         of the World Trade Organisation in Singapore, and its annexes and attachments sought to consolidate and eliminate, at the
         latest as of 1 January 2000, the customs duties relating to certain information technology products.
      
      9        Following that Ministerial Declaration which, in its annex, encouraged participants to eliminate unilaterally the customs
         duties before 1 January 2000, the Council of the European Union adopted Council Regulation (EC) No 2216/97 of 3 November 1997
         amending Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and autonomously
         suspending collection of Common Customs Tariff duties in respect of certain information technology products (OJ 1997 L 305,
         p. 1).
      
      10      Article 3 of Regulation No 2216/97 inserted a footnote (z) in the third column of Annex I, Part Two, to Regulation No 2658/87
         for certain CN codes which reads as follows:
      
      ‘(z): Autonomous suspension for an indefinite period.’
      11      Commission Regulation (EC) No 1677/98 of 29 July 1998 amending Regulation (EEC) No 2454/93 laying down provisions for the
         implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1998 L 212, p. 18) added
         to the list of goods eligible for the procedure for processing under customs control appearing in the first column of Annex
         87 to Commission Regulation (EEC) No 2454/93 of 2 July 1993 (OJ 1993 L 253, p. 1) certain electronic components which may
         be subject to the processing into information technology products which is mentioned in the second column of that annex.
      
      12      Under Annex III to Regulation No 1677/98 ‘[t]he following point is added to Annex 87:
      
       
            
               Column 1
            
            
               Column 2
            
         
               Order No
            
            
               Goods for which processing under customs control is authorised
            
            
               Processing which may be carried out
            
         
               “18
            
            
               Any electronic type of components, parts, assemblies (including sub‑assemblies), or materials (whether or not electronic),
                  which are vital to the electronic working performance of the processed product
               
            
            
               Processing into information technology products falling within:
               1. …
               2. a CN subheading provided for in Articles 1, 2 or 3 of Council Regulation (EC) No 2216/97 … where an autonomous suspension
                  of duty operates on the date of authorisation
               
               …”‘
            
          The main proceedings and the questions referred for a preliminary ruling
      13      ASM Lithography develops and manufactures devices (wafer steppers) which are used for the production of chips in the information
         technology industry. In the context of its activities it buys, outside the Community, parts and partially assembled elements
         which are used in the manufacture of wafer steppers and step and scan systems or as sub-assemblies, or are supplied to purchasers
         as spare parts.
      
      14      With effect from 1 January 1988 and on the basis of Council Regulation (EEC) No 1999/85 of 16 July 1985 on inward processing
         relief arrangements (OJ 1985 L 188, p. 1), repealed by the Customs Code, ASM Lithography received an authorisation for inward
         processing, applying the suspension system, of unlimited duration.
      
      15      ASM Lithography sells some of the compensating products outside the Community. It is required to submit periodically to the
         customs authorities an application for discharge of the procedure in respect of the goods in the unaltered state and of the
         compensating products exported.
      
      16      As for the other compensating products and the goods imported into the State, they are released for free circulation. In so
         far as they were products relating to information technology, the majority of them were eligible for the system suspending
         the collection of customs duties pursuant to Regulation No 2216/97. As from August 1998, Regulation No 1677/98 added electronic
         components to the goods eligible for the procedure for processing under customs control.
      
      17      For the period from October 1998 to July 2000, ASM Lithography provided a monthly statement of the compensating products which
         had been released for free circulation setting out, inter alia, the invoice relating to the import goods, the tariff applicable,
         the administrative codes for the country of destination, origin and consignment, the customs value and also the customs duty
         owed.
      
      18      ASM Lithography calculated the amount of duty owed in accordance with Article 121 of the Customs Code, on the basis of the
         taxation elements appropriate to the goods concerned at the time when they were placed under the inward processing procedure.
         It is apparent from the information submitted during the preliminary ruling procedure that, if that company had relied, on
         the basis of Article 122(c) of the Customs Code, on the application of Regulation No 2216/97 in conjunction with Regulation
         No 1677/98, the calculation of that duty would have been based on the taxation elements of the compensating products and customs
         duty would have been chargeable on only 2% to 3% of the components concerned, whilst 97% to 98% of the imported goods would
         have been subject to a zero tariff.
      
      19      On the basis of the statements provided by ASM Lithography, the Inspector drew up demands for payment stating that ‘the duty
         is owed under Article 204(1)(a) of the [Customs Code] on account of waiver of the exemption in respect of the authorisation
         [for inward processing]’ and that ‘this demand for payment is provisional’. The customs debt had been determined by application
         of Article 121(1) of the Customs Code and corresponded to the amount calculated by ASM Lithography in its monthly statements.
      
      20      After having paid the amount of its debt, ASM Lithography submitted to the Inspector, on 26 April 2001, pursuant to Article
         236 of the Customs Code, an application for repayment of a total of NLG 2 105 393.20 (EUR 955 385.78) in respect of import
         duties – an application which was rejected. The objection made at a later stage was declared unfounded by decision of 2 May
         2002.
      
      21      ASM Lithography subsequently brought an action before the Gerechtshof te Amsterdam (Amsterdam Regional Court of Appeal). That
         court observes that when the compensating products in question were released into free circulation, ASM Lithography did not
         specifically request that they be made subject to the rules laid down in connection with the procedure for processing under
         customs control pursuant to Article 122(c) of the Customs Code and that it was only after a demand for payment, against which
         the applicant lodged no objection, had been drawn up pursuant to Article 121(1) of that code that the applicant submitted
         a request that those rules be applied.
      
      22      The Gerechtshof te Amsterdam is uncertain, however, whether, in such a case, the calculation of the amount of the customs
         debt is to be made pursuant to Article 121(1) of the Customs Code or by application of Article 122(c) thereof, and for that
         reason has decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
      
      ‘1.      With regard to compensating products such as those here in issue, which are considered to have been released for free circulation,
         must the customs debt be determined on the basis of the taxation elements referred to in Article 122(c) of the Community Customs
         Code even where the person concerned has made no prior and express request in that regard?
      
      2.      If the answer to Question 1 is in the negative, is it necessary to grant a subsequent application – after notification of
         the amount by way of duty arising from the customs debt which is determined on the basis of the taxation elements referred
         to in Article 121(1) of the Community Customs Code – for (re)calculation of the amount of customs debt on the basis of the
         taxation elements referred to in Article 122(c) of the Community Customs Code which is made in connection with an application
         for repayment pursuant to Article 236 of the Community Customs Code?’
      
       The questions referred for a preliminary ruling
       The first question
      23      By that question, the national court asks whether Article 122(c) of the Customs Code is to be interpreted as meaning that,
         at the time of determining the amount of the customs debt resulting from the release for free circulation of compensating
         products, the national customs authorities are bound to apply the rules of assessment relating to the procedure for processing
         under customs control where the import goods could have been placed under that procedure although the company concerned made
         no express request in that regard.
      
      24      Articles 121 and 122 of the Customs Code set out two different bases of calculation of the customs debt for goods imported
         under the inward processing procedure.
      
      25      Article 121 of the Customs Code contains a general rule applicable to all the goods imported under such a procedure according
         to which, when a customs debt arises, the amount of that debt is determined on the basis of the taxation elements appropriate
         to the import goods at the time of acceptance of the declaration of placing of those goods under the inward processing procedure.
      
      26      By contrast, Article 122 of the Customs Code contains derogations from that rule in so far as it sets out a list of specific
         cases in which the amount of the customs debt is determined, as regards compensating products, according to different criteria
         from that laid down in Article 121.
      
      27      It follows from the wording of Articles 121 and 122 of the Customs Code that, as the latter of those articles applies by way
         of derogation from the former, the customs authorities are bound, as a rule, when import goods placed under the inward processing
         procedure are released for free circulation, to determine the customs debt in accordance with Article 121. As the Netherlands
         Government correctly points out in its observations, there can be derogation from that obligation only in one of the cases
         provided for in Article 122 of that code.
      
      28      At the hearing, ASM Lithography submitted that, for the purposes of the application of Article 122 of the Customs Code and,
         in particular, of the rule set out in Article 122(c), no prior request by the person concerned is necessary. The rules set
         out in Article 122 are applicable only to specific cases, unlike that laid down in Article 121 of the Customs Code, the former
         being a lex specialis the application of which should take precedence over the latter.
      
      29      That argument cannot be accepted.
      
      30      Article 122(a) to (c) of the Customs Code mentions several situations which may apply to compensating products for the purposes
         of determining the amount of import customs duty owed. It is apparent from the very wording of the provisions of Article 122(a)
         and (b) that, when one of the situations referred to in those provisions applies to the compensating products, the application
         by the national customs authorities of the rules set out in those provisions is mandatory, although the person concerned may,
         in certain circumstances, request that duty be assessed in accordance with Article 121 of the Customs Code.
      
      31      By contrast, that is not true of the rule in Article 122(c) of the Customs Code. As it is worded, that provision does not
         impose any obligation on the national customs authorities but merely lays down a rule the application of which is optional
         in so far as it provides that, by way of derogation from Article 121, compensating products may be made subject to the rules
         governing assessment of duty laid down under the procedure for processing under customs control where the import goods could
         have been placed under that procedure.
      
      32      It follows that, for the purposes of determining the amount of a customs debt when compensating products are released for
         free circulation, Article 122(c) of the Customs Code does not compel the national customs authorities to apply automatically
         the rules governing assessment of duty laid down under the procedure for processing under customs control as that provision
         applies, even when those rules are more favourable for the person concerned, only if he expressly requests it. It is not apparent
         from the provisions of the Customs Code that the Community legislature intended to impose upon the national authorities a
         duty of care as regards persons owing payment of duty, in accordance with which those authorities must look after the interests
         of the latter by applying the most favourable rules governing assessment of duty.
      
      33      That interpretation is borne out by the wording of Article 62(1) of the Customs Code, according to which, as regards the declaration
         for the goods to be placed under a customs procedure, it is for the declarant to indicate on his declaration ‘all the particulars
         necessary for implementation of the provisions governing the customs procedure for which the goods are declared’. A similar
         obligation to provide the customs authorities with all the necessary information is incumbent on any declarant within the
         meaning of Article 4(18) of the Customs Code.
      
      34      The answer to the first question must therefore be that Article 122(c) of the Customs Code is to be interpreted as meaning
         that, at the time of determining the amount of the customs debt resulting from the release for free circulation of compensating
         products, unless the person concerned has expressly made a request to that effect, the national customs authorities are not
         bound to apply the rules of assessment relating to the procedure for processing under customs control where the import goods
         could have been placed under that procedure.
      
       The second question
      35      By that question, the national court asks, in essence, whether Article 236 of the Customs Code is to be interpreted as meaning
         that the national customs authorities must allow an application for repayment of import duties entailing a recalculation on
         their part of the amount of a customs debt by applying Article 122(c) of that code, although the amount of that debt has already
         been calculated by applying Article 121 of the code and has been communicated to the person concerned.
      
      36      In its observations, the Netherlands Government submits, in that regard, that, as the customs authorities correctly applied
         Article 121 of the Customs Code, the customs debt was legally owed when it was paid and that, in any event, where a choice
         is left to the person concerned with regard to the method of calculation of that debt, that person should not be able to rely
         on Article 236 of the Customs Code to request subsequently the application of another method of calculation resulting in an
         outcome more favourable for him.
      
      37      That argument cannot be accepted.
      
      38      It is apparent from the wording of Article 236 of the Customs Code that the national customs authorities have to repay duties
         in so far as it is established that, inter alia, when they were paid they were not legally owed.
      
      39      It is true that, as is apparent from the answer given to the first question, the national customs authorities are entitled
         to determine the amount of the customs debt in accordance with Article 121 of the Customs Code where the person concerned
         does not expressly request that the compensating products be made subject to the rules governing assessment of duty laid down
         under the procedure for processing under customs control where the import goods could have been placed under that procedure.
      
      40      It follows from this that, in such circumstances, the imported goods may legitimately be considered as being subject to import
         duties and accordingly those duties have been lawfully collected. That applies even more so in the present case where, when
         it provided the monthly statements of the compensating products which had been released for free circulation, ASM Lithography
         calculated the amount of the duties owed on the basis of Article 121 of the Customs Code and the Netherlands customs authorities
         drew up the demand for payment, for the same amount as that calculated by that undertaking, by applying the same provision.
      
      41      However, the fact that in the present case the customs duties were, when they were paid, lawfully collected on account of
         the absence of a request by ASM Lithography for application of Article 122(c) of the Customs Code cannot have the consequence
         that those duties must subsequently be assimilated, despite a later request being made to that effect, to duties legally owed
         for the purposes of Article 236(1) of the Customs Code since, firstly, the absence of a request at the time when the customs
         duties were paid is the result of an error consisting in an involuntary omission which cannot be regarded as the definitive
         exercise of a choice, which is by definition voluntary, and, secondly, it is common ground that the duties legally owed following
         such a request would have been lower than the amount paid or even zero (see, to that effect, Case C-468/03 Overland Footwear [2005] ECR I-8937, paragraphs 68 and 69). 
      
      42      Accordingly, if the conditions laid down by Article 236 of the Customs Code are fulfilled, namely, in particular, that there
         has been no manipulation by the declarant and that the application for repayment has been submitted within the time-limit
         of three years, that provision is applicable if a request for repayment of import duties is submitted following a declaration
         of release for free circulation made by an undertaking in which it has, in error, calculated the amount of the debt on the
         basis of Article 121 of that code instead of requesting that, under Article 122(c) of the code, the amount be determined according
         to the rules governing assessment of duty laid down under the procedure for processing under customs control. It is for the
         national court to verify whether those conditions have been fulfilled. 
      
      43      It is clear from the above that Article 236 of the Customs Code is to be interpreted as meaning that the national customs
         authorities must allow a request for repayment of import duties where it transpires that, following an error by the person
         concerned and not through the exercise of a choice, the amount of the customs debt has been determined by applying Article
         121 of that code and has already been the subject of a communication to the person concerned, even if that request entails
         a recalculation by those authorities of the amount of the debt by applying Article 122(c) of the Customs Code.
      
       Costs
      44      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 (Third Chamber) hereby rules:
      1.      Article 122(c) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code is to be
            interpreted as meaning that, at the time of determining the amount of the customs debt resulting from the release for free
            circulation of compensating products, unless the person concerned has expressly made a request to that effect, the national
            customs authorities are not bound to apply the rules of assessment relating to the procedure for processing under customs
            control where the import goods could have been placed under that procedure.
      2.      Article 236 of Regulation No 2913/92 is to be interpreted as meaning that the national customs authorities must allow a request
            for repayment of import duties where it transpires that, following an error by the person concerned and not through the exercise
            of a choice, the amount of the customs debt has been determined by applying Article 121 of that regulation and has already
            been the subject of a communication to the person concerned, even if that request entails a recalculation by those authorities
            of the amount of the debt by applying Article 122(c) of that regulation.
      [Signatures]
      * Language of the case: Dutch.