CELEX: 61984CC0214
Language: en
Date: 1985-10-24 00:00:00
Title: Opinion of Mr Advocate General Mancini delivered on 24 October 1985. # Stinnes AG v Hauptzollamt Kassel. # Reference for a preliminary ruling: Hessisches Finanzgericht - Germany. # Post-clearance recovery of import or export duties. # Case 214/84.

OPINION OF MR ADVOCATE GENERAL MANCINI
      delivered on 24 October 1985 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               In connection with a dispute between Stinnes AG, of Mühlheim-Ruhr, and the Hauptzollamt [Principal Customs Office], Kassel, the Hessisches Finanzgericht [Finance Court, Hesse] has requested the Court for an interpretation of Article 8 of Council Regulation No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (Official Journal 1979, L 197, p. 1). The first paragraph of Article 8 provides as follows: ‘Ño action shall be taken for the post-clearance recovery of import duties or export duties where the amount involved for a given action for recovery is less than 10 European units of account’. In particular the Finanzgericht asks about the meaning of the phrase ‘a given action for recovery’ and the method of calculating the amounts to be recovered.
            
         
               2. 
            
            
               In 1981 Stinnes imported from Czechoslovakia into the Federal Republic of Germany a total of 502 consignments of wooden pallets. Owing to an error in the calculation of the transport costs, the import duty determined by the Hauptzollamt Kassel was lower than the amount which was legally due. On discovering the mistake (which is not contested by Stinnes), the Hauptzollamt issued four recovery orders in which the 502 transactions effected in 1981 were grouped together by quarter and the total import duty outstanding was assessed at DM 5285.80.
               Stinnes brought an action before the Hessisches Finanzgericht claiming that the four recovery orders should be cancelled. It claimed that they infringed Article 8 of Regulation No 1697/79 and denied that that provision entitled the customs authorities to combine all the transactions, including those where the difference between the duty paid and the amount due was less than 10 European units of account. According to Stinnes, the phrase ‘a given action for recovery’ contained in Article 8 had to be interpreted as a reference to each individual import (or export) transaction. If the Hauptzollamt had applied Article 8 correctly, only five of the 502 transactions could have given rise to action for recovery, because only in five cases did the difference between the duty paid and the amount due exceed the threshold fixed by that provision.
               Before the Finanzgericht, the Haputzollamt contended that according to Regulation No 1697/79 ‘action for recovery’ did not refer to each individual import (or export) but to the order for recovery, even if — as was normal — it covered a number of transactions. Moreover, it argued that the practice of combining all the amounts due was consistent with the aim of the regulation, which sought to simplify the administrative work involved and as far as possible to recover the duties legally.
               Considering that the solution to the dispute depended upon the interpretation of a provision of Community law, the Seventh Chamber of the Hessisches Finanzgericht stayed the proceedings by an order of 10 August 1984 and asked the Court under Article 177 of the EEC Treaty whether the term ‘a given action for recovery’ in Article 8 of Regulation No 1697/79 should be taken to refer to post-clearance recovery for each individual import or export transaction or whether it was to be taken to refer to a recovery order, even if it combined several import or export transactions effected by the person liable for payment in a single action for recovery.
            
         
               3. 
            
            
               In the procedure before the Court of Justice written observations were submitted by the Commission of the European Communities and Stinnes AG.
               The Commission shares the view adopted by the Hauptzollamt. First, it compares the different versions of Article 8 in six Community languages and concludes that, although the German and Dutch versions admit of both the interpretations proposed by the parties, the English, French, Italian and Danish versions admit only of the interpretation put forward by the Hauptzollamt Kassel, inasmuch as they use the word ‘action’ (‘action’, ‘azione’, ‘opkraevening’), which clearly refers to the administrative order issued on completion of the recovery procedure. Furthermore, the Commission considers that that interpretation corresponds to the purpose of the regulation of which Article 8 forms part. Indeed, as is clear from the first recital in its preamble, Regulation No 1697/79 was not adopted to prevent the persons liable from being required to pay the duty which they owe, but rather to protect the economic and financial interests of the Community which would be prejudiced by a failure to collect the correct duties.
               According to the Commission, the provision at issue was included in the regulation with a view to simplifyting the work of the authorities. It follows that it makes it possible not only for all import transactions to be grouped together but also for the amounts due to be added together, even if they are less than 10 European units of account. Indeed, when the customs authorities combine several transactions in one general order, they are achieving the principal purpose of the regulation, which is to recover all the amounts due without wasting the time of the authorities.
               The Commission argues that that view is also confirmed by the interpretation given by the Committee on Duty-Free Arrangements to Article 20 of Council Regulation No 1430/79 of 2 July 1979 on the repayment or remission of export duties (Official Journal 1979, L 175, p. 1). Article 20 provides that ‘import or export duties shall not be repaid or remitted ... unless the amount to be repaid or remitted exceeds 10 European units of account’. At its meeting on 27 May 1984, the Committee decided that Article 20 did not preclude an application for repayment or remission of duty in which the threshold of 10 European units of account was reached by combining several transactions and adding together the amounts unlawfully collected. Since Article 8 of Regulation No 1697/79 contains a similar rule, the same method of calculation should in the Commission's view apply in the case of post-clearance recovery.
               For its part, Stinnes repeats and expands the view which it put forward before the Hessisches Finanzgericht. In its opinion, the term ‘a given action for recovery’ can only refer to one particular import or export transaction. Thus it is impossible to combine several transactions and to add together all the underpayments. According to Stinnes, that is demonstrated not only by the use of the adjective ‘given’ (‘Einzel-’), but also by the fact that Article 8 does not confer upon the authorities any discretion as to the timing of their action for recovery or the amount to be recovered; the practice of combining transactions in a single order gives the customs authorities a discretion as to the timing of their demand for payment and enables them to choose the number of transactions which they wish to add together.
               Stinnes considers that the argument based on the interpretation of the Committee on Duty-Free Arrangements is also untenable. The method endorsed by the Committee, namely that of adding together all the amounts unlawfully collected even if they are less than 10 European units of account, may be considered fair in the case of an application for reimbursement or recovery because it is advantageous to the person who paid duty; that is not so in the case of post-clearance recovery, however, because the person liable for payment is thereby penalized. Contrary to the view put forward by the Commission, the purpose of Article 8 is in fact to protect the interests of traders, who would be prejudiced if the customs authorities were to recover amounts of less than 10 European units of account.
            
         
               4. 
            
            
               The wording of the preliminary question is clear. First, it asks the meaning of the term ‘a given action for recovery’, contained in Article 8 of Regulation No 1697/79. It is then necessary to determine the legality, again on the basis of that provision, of the practice by which (a) several import or export transactions effected by one person are combined in one general recovery order and (b) payment is required of the total amount obtained by adding together all the underpayments, that is to say the difference between the duty paid and the duty legally due for each transaction.
               Let us first ascertain what is meant by ‘action for recovery’ by referring to Article 2 (1) of Regulation No 1697/79, which lays down the conditions governing such action. That provision states as follows: ‘Where the competent authorities find that all or part of the amount of import duties or export duties legally due on goods entered for a customs procedure involving the obligation to pay such duties has not been required of the person liable for payment, they shall take action to recover the duties not collected. However, such action may not be taken after the expiry of a period of three years from the date of entry in the accounts of the amount originally required... or, where there is no entry in the account, from the date on which the customs debt relating to the said goods was incurred.’ (emphasis added).
               That wording seems to me clear. The action for recovery is ‘taken’: it therefore extends over a period of time. Thus it can be nothing other than the administrative procedure which culminates in the final entry of the debt in the accounts or, in other words, in the notice determining the duties owed by the trader. From that it follows that it is certianly wrong to identify the ‘action’ with the notice, as the Commission has sought to do; the procedure by which a measure is adopted and the measure itself are two different things.
               Up to this point there is no difficulty. In the first paragraph of Article 8, however, the legislature has qualified the words ‘action for recovery’ with the adjective ‘given’. What does that word mean ? Are we to infer that that rule requires the taking of as many actions as there are transactions necessitating post-clearance recovery?
               That question must, in my view, be answered in the negative. The practice whereby several transactions effected by one person over a given period are combined in a single action has been adopted by the authorities in all the Member States and its purpose is consistent with a general principle, namely that the procedure should be as brief as possible and administrative action as simple as possible. It is therefore inconceivable that the legislature intended to prohibit that practice. Moreover, Stinnes is wrong in asserting that Regulation No 1697/79 prevents the authorities from choosing when to take action for recovery. There is no trace of any such rule in the regulation. The three-year time-limit for actions to recover duty may even be evidence of a contrary intention on the part of the legislature.
               However, the fact that it is lawful to combine several transactions in one single action for recovery does not imply that it is lawful to include in it amounts of less than 10 European units of account. According to the Commission, the correctness of including even those amounts follows from the purpose of the regulation, namely to protect the interests of the Community by collecting the maximum amount of duty by means of a minimum of administrative work. It is in view of that requirement that the Commission considers that the authorities should apply the method of calculation defined by the Committee on Duty-Free Arrangements with reference to the interpretation of Article 20 of Regulation No 1430/79, which is similar to Article 8.
               However, I do not find that argument persuasive. Its premise as to the general purpose of the regulation is correct; however, the conclusions which it draws with regard to Article 8 in particular are incorrect. What is in fact the purpose of that rule? It cannot be that put forward by Stinnes (since it is inconceivable that a set of rules which is entirely devoted to preventing loss of customs revenue should be intended in a particular respect to benefit the persons liable for payment); in my view it is to be found instead in the reasons given for the regulation. The fourth recital in the preamble states as follows: ‘The post-clearance recovery of amounts of 10 European units of account or less would not appear to be worthwhile’ (emphasis added). In other words, the legislature considered that there would be no advantage in the authority's going to great length to recover such small amounts. However, it thereby gave traders reason to believe that such amounts would not be recovered, whether they were due as a result of an error of calculation or some other reason. Article 8 therefore cannot be interpreted as authorizing their recovery. Furthermore, such an interpretation would in practice deprive Article 8 of all effect, since it is apparent that the sum of all the underpayments will only rarely be less than 10 European units of account.
               So far as the decision of the Committee on Duty-Free Arrangements is concerned, I would merely point out that that decision was applied to the present case not directly but by analogy. In any event, as we know, the decisions of that Committee do not restrict the power conferred upon the Court by Article 177 of the EEC Treaty to interpret Community law (see in that connection, with reference to the opinions of the Committee on the Common Customs Tariff Nomenclature — which has functions similar to those of the committee concerned here — the judgments of the Court of 15 February 1977 in Cases 69 and 70/76 Dittmeyer v Hauptzollamt Hamburg-Waltershof, [1977] ECR 231, and of 11 July 1980 in Case 798/79 Hauptzollamt Kóln-Rheinauv Chem-Tec [1980] ECR 2639).
            
         
               5. 
            
            
               On the basis of all the considerations set out above, I propose that the Court should answer the question submitted by the Hessisches Finanzgericht by order of 10 August 1984, in the case pending before it between Stinnes AG and Hauptzollamt Kassel, as follows:
               The term ‘a given action for recovery’ contained in Article 8 of Council Regulation No 1697/79 of 24 July 1979 must be interpreted as referring to the procedure by which the customs authorities finally determine the amounts legally due. The administrative measure by which that procedure is concluded may combine a number of import or export transactions effected by the same person during a particular period and require payment of the sum of the amounts representing the difference between the duty paid and the duty legally due. However, individual transactions in respect of which that amount is less than 10 European units of account must be disregarded.
            
         (
            *1
         )	Translated from the Italian.