CELEX: C1996/197/10
Language: en
Date: 1996-07-06 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 14 May 1996 in Joined Cases C-153/94 and C-204/94 (references for a preliminary ruling from the High Court of Justice, Queen's Bench Division): The Queen v. Commissioners of Customs and Excise, ex parte Faroe Seafood Co. Ltd and Førøya Fiskasøla L/F (Case C-153/94); ex parte John Smith and Celia Smith trading as Arthur Smith (a firm) (Case C-204/94) (Customs procedure applicable to certain products originating in the Faroe Islands - Concept of originating products - Post-clearance recovery of customs duties)

6 . 7 . 96              EN |                 Official Journal of the European Communities                                   No C 197/5
Maxhùtte Stahlwerke GmbH ( represented by Rainer M.                     products ' and methods of administrative cooperation for
Bierwagen ) v. Commission of the European Communities                   the application of the customs procedure applicable to
(Agents : Paul F. Nemitz and Klaus-Dieter Borchardt) —                  certain products originating in and coming from the Faroe
application for the suspension of the operation of                      Islands ( OJ L 344, 1974, p . 1 ), Council Regulation ( EEC )
Commission Decision 96/178/ECSC of 18 October 1995 on                   No 1697/79 of 24 July 1979 on the post-clearance recovery
State aid that Bavaria granted to the ECSC steel undertaking            of import duties or export duties which have not been
Neue Maxhutte Stahlwerke GmbH , Sulzbach-Rosenberg                      required of the person liable for payment on goods entered
( OJ L 53 , 1996 , p . 41 ) — the President of the Court made an        for a customs procedure involving the obligation to pay such
order on 3 May 1996 , the operative part of which is as                 duties ( OJ L 197, 1979 , p . 1 ) and Commission Regulation
follows :                                                               ( EEC ) No 2164/91 of 23 July 1991 laying down provisions
                                                                        for the implementation of Article 5 ( 2 ) of Council
                                                                        Regulation ( EEC ) No 1697/79 ( OJ L 201 , 1991 , p. 16 ), the
1 , the application for interim measures is dismissed;                  Court ( Fifth Chamber ), composed of D. A. O. Edward,
                                                                        President of the Chamber, J. C. Moitinho de Almeida , C.
                                                                        Gulmann ( Rapporteur ), P. Jann and L. Sevon, Judges ; P.
2 , tbe costs are reserved.                                             Léger, Advocate-General; L. Hewlett, Administrator, for
                                                                        the Registrar, has given a judgment on 14 May 1996 , in
                                                                        which it rules :
(') OJ No C 77, 16 . 3 . 1996 .
                                                                           1 , Council Regulation (EEC) No 2051 /74 of 1 August
                                                                                1974 on the customs procedure applicable to certain
                                                                                products originating in and coming from the Faroe
                                                                                Islands, definition of the concept of 'originating
                                                                                products ' and methods of administrative cooperation
                                                                                for the application ofthe customs procedure applicable
                                                                                to certain products originating in and coming from the
                                                                                Faroe Islands, and Council Regulation (EEC)
               JUDGMENT OF THE COURT                                            No 1697/79 of 24 July 1979 on the post-clearance
                                                                                recovery of import duties or export duties which have
                           (Fifth Chamber)                                      not been required of the person liable for payment on
                           of 14 May 1996                                       goods entered for a customs procedure involving the
                                                                                obligation to pay such duties, are to be interpreted as
 in Joined Cases C-153/94 and C-204/94 ( references for a
                                                                                meaning that the customs authorities of a Member
 preliminary ruling from the High Court of Justice, Queen's
                                                                                State may, on the basis of the conclusions of a
 Bench Division ): The Queen v. Commissioners of Customs
                                                                                Community mission of enquiry, proceed with the
 and Excise, ex parte Faroe Seafood Co. Ltd and Foraya
                                                                                post-clearance recovery of customs duties on goods
 Fiskasela L/F (Case C-153/94 ); ex parte John Smith and
                                                                                imported from the Faroe Islands, even if, in reliance on
 Celia Smith trading as Arthur Smith (a firm ) ( Case
                              C-204/94 ) C )                                    EUR. 1 certificates issued in good faith by the
                                                                                competent Faroese authorities, they did not levy
  (Customs procedure applicable to certain products                             customs duties at the time of importation; even if the
 originating in the Faroe Islands — Concept of originating                      Faroese authorities dispute the conclusions of the
    products — Post-clearance recovery of customs duties)                       mission of enquiry in so far as they relate to the
                             ( 96/C 197/ 10                                     interpretation of the relevant Community customs
                                                                                 legislation and maintain that the certificates are in
                                                                                force; and even if the issues disputed were not referred
                                                                                 to the Committee on Origin established pursuant to
                (Language of the case: English)                                  Council Regulation (EEC) No 802/68 of27 June 1 968
                                                                                 on the common definition of the concept of the origin
                                                                                 of goods ;
  In Joined Cases C-153/94 and C-204/94 : reference to the
  Court under Article 177 of the EC Treaty by the High Court
  of Justice, Queen's Bench Division (United Kingdom ), for a               2 , the criteria for defining 'Faroe Island vessels ' set out in
  preliminary ruling in the proceedings pending before that                      Annex IV to Regulation (EEC) No 2051 /74 and
  court between The Queen and Commissioners of Customs                           explanatory note 4 of Annex I to Regulation (EEC)
  and Excise, ex parte Faroe Seafood Co . Ltd . and Foroya                       No 3184/74 are to be applied conjunctively;
  Fiskasola L/F ( Case C-153/94 ); ex parte John Smith and
  Celia Smith trading as Arthur Smith (a firm ) ( Case
  C-204/94 ) on the interpretation of Council Regulation                    3 , the word 'crew' in Annex IV to Regulation (EEC)
  ( EEC ) No 2051 /74 of 1 August 1974 on the customs                            No 2051 /74 and explanatory note 4 of Annex I to
  procedure applicable to certain products originating in and                     Regulation (EEC) (EEC) No 3 1 84/74 does not include
  coming from the Faroe Islands ( OJ L 212 , 1974, p . 33 ),                     persons not forming part of the vessel's normal
  Commission Regulation ( EEC ) No 3184/74 of 6 December                          complement who are engaged in addition thereto on a
   1 974 concerning the definition of the concept of 'originating                 particular voyage or part of a voyage to work as
 ---pagebreak--- No C 197/6            EN                  Official Journal of the European Communities                                       6 . 7. 96
     trainees or as unskilled hands below decks, particularly              for the implementation of Article 5 (2) of Council
     for training purposes, in order to comply with a joint                 Regulation (EEC) No 1697/79 is to be interpreted as
     venture agreement entered into with an undertaking in                  meaning that the competent authorities of the
     a non-member country for the purpose of enabling the                   importing Member State are not required to refer a
     vessel to fish inside the exclusive economic zone of that              matter to the Commission for a decision as to the
     country, whether those persons are paid either by the                 possibility of refraining from taking action for
     operator of the vessel or by the undertaking in the                   post-clearance recovery of customs duties if they do
     non-member country;                                                    not consider that the conditions laid down in Article 5
                                                                            (2) of Regulation (EEC) No 1697179 are satisfied;
 4 , in order to enjoy preferential customs treatment
     pursuant to Regulation (EEC) No 2051 /74, raw
     materials of Faroese origin within the meaning of                 9 , the fact that the competent Faroese authorities certified
     Regulation (EEC) No 3 1 84/74 must be kept physically                 in the EUR. 1 certificates that the goods originated
     separate during their processing in a Faroese factory                 there or the fact that the competent authorities of the
     from products coming from non-member countries. In                    importing Member State initially accepted that the
     the absence of such separation, however, the customs                  origin ofthe goods was as declared on those certificates
     authorities of the importing Member State may, with                   does not constitute an 'error made by the competent
     the agreement of the Commission, decide in the                        authorities ' within the meaning of Article 5 (2) of
     interests of fairness to levy duty on imports derived                 Regulation (EEC) No 1697/79. It is otherwise,
     from the factory in question only in an amount equal to               however, where the exporter has declared that the
     that which would have been payable if the origins of                  goods are of Faroese origin in reliance on the actual
     the goods in the consignment in question had been                     knowledge by the competent Faroese authorities of all
     proportionally correspondent to the origins of the raw                the facts necessary for applying the customs rules in
     materials brought into the factory in the year in which               question, and where, notwithstanding such
     the import occurred;                                                  knowledge, those authorities have raised no objection
                                                                           concerning the statements made in the exporter's
 5 , it follows from Regulations (EEC) Nos 2051 /74 and                    declarations, thereby basing their certification of the
     3184/74 that, where shrimps and prawns of Faroese                     Faroese origin of the goods on a misinterpretation of
     origin have been processed in a Faroese factory which                 the rules on origin;
     also processes shrimps and prawns coming from
     non-member countries, it is for the exporter to show
     proof, by producing all appropriate supporting                  10 . in order to determine whether the error which may
     documents, that the shrimps and prawns of Faroese                     have been made by the Faroese authorities could not
     origin were physically separated from those of other                  reasonably have been detected by the persons liable
     origins. In the absence of such proof, the shrimps and                within the meaning of Article 5 (2) of Regulation
     prawns can no longer be regarded as being of Faroese                  (EEC) No 1697/79, account must be taken, in
     origin, with the result that the EUR . 1 certificate and              particular, of the nature of the error, the professional
     the preferential tariff must be regarded as having been               experience of the traders concerned and the degree of
     wrongly granted;                                                      care which they exercised. It is for the national court to
                                                                           establish whether, on the basis of that interpretation,
 6 , under Community law as it now stands, it is for                       the criteria for determining the extent to which a
     national law to determine in what circumstances a                     possible error by the competent Faroese authorities
                                                                           was capable of being detected by the persons liable are
     post-clearance demand for payment of a global sum,
                                                                           satisfied in the particular circumstances of this case;
     part of which is irrecoverable for exceeding the
     three-year time-limit laid down by Article 2 (1 ) of
     Regulation (EEC) No 1697/79, must be considered
     void in its entirety, subject, however, to the limits           11 . Article 5 (2) of Regulation (EEC) No 1697/79 applies
     imposed by Community law, namely that the                             to a situation in which the person liable has complied
     application of national law may not render the system                 with all the requirements laid down by the Community
     for collecting Community charges and dues less                        rules, and by any national rules supplementing or
     effective than that for collecting national charges and               transposing them, so far as his customs declaration is
     dues of the same kind, or render virtually impossible or              concerned, even if he has, in good faith, supplied the
                                                                           competent authorities with inaccurate or incomplete
     excessively difficult the implementation of Community
     legislation;
                                                                           information, where that was the only information
                                                                           which he might reasonably be expected to possess or
                                                                           obtain.
 1. the competent authorities of the importing Member
     State are not required, before issuing post-clearance
     demands for payment of customs duties, to determine
                                                                     0 ) OJ No C 233 , 20 . 8 . 1994 .
     whether it is possible to refrain from taking action for             OJ No C 254, 10 . 9 . 1994 .
     recovery pursuant to Article 5 (2) of Regulation (EEC)
     No 1697/79;
 8 . Article 4 of Commission Regulation (EEC)
     No 2164/91 of 23 July 1991 laying down provisions