CELEX: 62010CJ0153
Language: en
Date: 2011-04-07
Title: Judgment of the Court (Sixth Chamber) of 7 April 2011. # Staatssecretaris van Financiën v Sony Supply Chain Solutions (Europe) BV. # Reference for a preliminary ruling: Hoge Raad der Nederlanden - Netherlands. # Regulation (EEC) No 2913/92 - Community Customs Code - Articles 12(2) and (5), 217(1) and 243 - Regulation (EEC) No 2454/93 - Implementing provisions of Regulation No 2913/92 - Articles 10 and 11 - Classification of goods - Binding tariff information - Invocation by a trader other than the holder with respect to the same goods - Legitimate expectation. # Case C-153/10.

Case C-153/10
      Staatssecretaris van Financiën
      v
      Sony Supply Chain Solutions (Europe) BV, formerly Sony Logistics Europe BV 
      (Reference for a preliminary ruling from the Hoge Raad der Nederlanden)
      (Regulation (EEC) No 2913/92 – Community Customs Code – Articles 12(2) and (5), 217(1) and 243 – Regulation (EEC) No 2454/93 – Implementing provisions of Regulation No 2913/92 – Articles 10 and 11 – Classification of goods – Binding tariff information – Invocation by a trader other than the holder with respect to the same goods – Legitimate expectation)
      Summary of the Judgment
      1.        Common Customs Tariff – Classification of goods – Binding tariff information
      (Council Regulation No 2913/92, as amended by Regulation No 82/97, Arts 5(4) and 12(2); Commission Regulation No 2454/93,
            as amended by Regulation No 12/97, Arts 10 and 11)
      2.        Common Customs Tariff – Classification of goods – Binding tariff information – Challenge by an interested party of the levying
            of customs duties – Means of proof
      (Council Regulation No 2913/92, as amended by Regulation No 82/97, Arts 12(2) and  (5), 217(1) and 243; Commission Regulation
            No 2454/93, as amended by Regulation No 12/97, Art. 11)
      3.        Common Customs Tariff – Classification of goods – Binding tariff information
      (Council Regulation No 2913/92, as amended by Regulation No 82/97, Art. 12; Commission Regulation No 2454/93, as amended by
            Regulation No 12/97, Art. 10(1))
      1.        Article 12(2) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 82/97, and Articles
         10 and 11 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, as amended by Regulation
         No 12/97, must be interpreted as meaning that a person who makes customs declarations in his own name and on his own behalf
         cannot rely on a binding tariff information of which he is not the holder, but which is held by an associated company on whose
         instructions he made those declarations.
      
      The second subparagraph of Article 5(4) of the Customs Code provides that the person who fails to state that he is acting
         in the name of or on behalf of another person or who states that he is acting in the name of or on behalf of another person
         without being empowered to do so is to be deemed to be acting in his own name and on his own behalf. It follows that the representation
         must be express and cannot be implied. The fact that two companies are part of the same group or that one is the fiscal representative
         of the other does not confer on the former the status of representative within the meaning of Article 5 of the Customs Code.
      
      (see paras 31, 34-35, operative part 1)
      2.        Articles 12(2) and (5) and 217(1) of Regulation No 2913/92, as amended by Regulation No 82/97, and Article 11 of Regulation
         No 2454/93 as amended by Regulation No 12/97, read in conjunction with Article 243 of Regulation No 2913/92, as amended by
         Regulation No 82/97, must be interpreted as meaning that, in proceedings relating to the imposition of customs duties, an
         interested party may challenge that imposition by submitting as evidence a binding tariff information issued in respect of
         the same goods in another Member State although the binding tariff information cannot produce the legal effects attaching
         to it. It is, however, for the national court to determine whether the relevant procedural rules of the Member State concerned
         provide for the possibility of producing such types of evidence. 
      
      (see para. 44, operative part 2)
      3.        Article 12 of Regulation No 2913/92, as amended by Regulation No 82/97, and Article 10(1) of Regulation No 2454/93, as amended
         by Regulation No 12/97, must be interpreted as meaning that a national policy which allows national authorities to refer,
         for the purpose of the tariff classification of declared goods, to a binding tariff information issued to a third party for
         the same goods, could not give rise, on the part of traders, to a legitimate expectation that they could rely on that policy.
      
      (see paras 47, 49-50, operative part 3)
JUDGMENT OF THE COURT (Sixth Chamber)
      7 April 2011 (*)
      
      (Regulation (EEC) No 2913/92 – Community Customs Code – Articles 12(2) and (5), 217(1) and 243 – Regulation (EEC) No 2454/93 – Implementing provisions of Regulation No 2913/92 – Articles 10 and 11 – Classification of goods – Binding tariff information – Invocation by a trader other than the holder with respect to the same goods – Legitimate expectation)
      In Case C‑153/10,
      REFERENCE for a preliminary ruling under Article 267 TFEU, from the Hoge Raad der Nederlanden (Netherlands), made by decision
         of 12 March 2010, received at the Court on 1 April 2010, in the proceedings
      
      Staatssecretaris van Financiën
      v
      Sony Supply Chain Solutions (Europe) BV, formerly Sony Logistics Europe BV,
      THE COURT (Sixth Chamber),
      composed of A. Arabadjiev, President of the Chamber, A. Rosas and P. Lindh (Rapporteur), Judges,
      Advocate General: P. Mengozzi,
      Registrar: A. Impellizzeri, Administrator,
      having regard to the written procedure and further to the hearing on 3 February 2011,
      after considering the observations submitted on behalf of:
      –        Sony Supply Chain Solutions (Europe) BV, formerly Sony Logistics Europe BV, by P. De Baere, advocaat,
      –        the Netherlands Government, by C.M. Wissels and B. Koopman, acting as Agents,
      –        the Czech Government, by M. Smolek and K. Havlíčková, acting as Agents,
      –        the European Commission, by B.-R. Killmann and W. Roels, acting as Agents,
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns the interpretation of Articles 12(2) and (5), 217(1) and 243 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 and the corrigendum OJ
         1997 L 179, p. 11 (‘the Customs Code’), and Articles 10 and 11 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
         down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as
         amended by Commission Regulation (EC) No 12/97 of 18 December 1996 (OJ 1997 L 9, p. 1) (‘the implementing regulation’).
      
      2        The reference has been made in proceedings between the Staatssecretaris van Financiën and Sony Logistics Europe BV, now Sony
         Supply Chain Solutions (Europe) BV (‘SLE’) concerning the payment of customs duties on video game consoles.
      
       Legal context
       The Customs Code
      3        Article 4 of the Customs Code is worded as follows:
      
      ‘For the purposes of this Code, the following definitions shall apply:
      …
      (5)      “Decision” means any official act by the customs authorities pertaining to customs rules giving a ruling on a particular case,
         such act having legal effects on one or more specific or identifiable persons; this term covers inter alia a binding tariff
         information within the meaning of Article 12.
      
      …’
      4        Article 5 of the Customs Code states:
      
      ‘1.      Under the conditions set out in Article 64(2) and subject to the provisions adopted within the framework of Article 243(2)(b),
         any person may appoint a representative in his dealings with the customs authorities to perform the acts and formalities laid
         down by customs rules.
      
      2.      Such representation may be:
      –        direct, in which case the representative shall act in the name of and on behalf of another person, or
      –        indirect, in which case the representatives shall act in his own name but on behalf of another person.
      …
      4.      A representative must state that he is acting on behalf of the person represented, specify whether the representation is direct
         or indirect and be empowered to act as a representative.
      
      A person who fails to state that he is acting in the name of or on behalf of another person or who states that he is acting
         in the name of or on behalf of another person without being empowered to do so shall be deemed to be acting in his own name
         and on his own behalf.
      
      …’
      5        Article 12 of the Customs Code provides:
      
      ‘…
      2.      The customs authorities shall issue binding tariff information or binding origin information on written request, acting in
         accordance with the committee procedure.
      
      Binding tariff information or binding origin information shall be binding on the customs authorities only in respect of goods
         on which customs formalities are completed after the date on which the information was supplied by them.
      
      …
      5.      Binding information shall cease to be valid:
      (a)      in the case of tariff information:
      …
      (iii) where it is revoked or amended in accordance with Article 9, provided that the revocation or amendment is notified to the
         holder.
      
      …
      6.      The holder of binding information which ceases to be valid pursuant to paragraph 5 (a)(ii) or (iii) or (b)(ii) or (iii) may
         still use that information for a period of six months from the date of publication or notification, provided that he concluded
         binding contracts for the purchase or sale of the goods in question, on the basis of the binding information, before that
         measure was adopted. However, in the case of products for which an import, export or advance-fixing certificate is submitted
         when customs formalities are carried out, the period of six months is replaced by the period of validity of the certificate.
      
      …’
      6        Article 64(1) of the Customs Code states:
      
      ‘Subject to Article 5, a customs declaration may be made by any person who is able to present the goods in question or to
         have them presented to the competent customs authority, together with all the documents which are required to be produced
         for the application of the rules governing the customs procedure in respect of which the goods were declared.’
      
      7        Article 217 of the Customs Code provides:
      
      ‘1.       Each and every amount of import duty or export duty resulting from a customs debt, hereinafter called “amount of duty”, shall
         be calculated by the customs authorities as soon as they have the necessary particulars, and entered by those authorities
         in the accounting records or on any other equivalent medium (entry in the accounts).
      
      The first subparagraph shall not apply:
      …
      (b)       where the amount of duty legally due exceeds that determined on the basis of binding information.
      …’
      8        Article 243 of the Customs Code is worded as follows:
      
      ‘1.       Any person shall have the right to appeal against decisions taken by the customs authorities which relate to the application
         of customs legislation, and which concern him directly and individually.
      
      Any person who has applied to the customs authorities for a decision relating to the application of customs legislation and
         has not obtained a ruling on that request within the period referred to in Article 6 (2) shall also be entitled to exercise
         the right of appeal.
      
      …
      2.      The right of appeal may be exercised:
      (a)      initially, before the customs authorities designated for that purpose by the Member States;
      (b)      subsequently, before an independent body, which may be a judicial authority or an equivalent specialised body, according to
         the provisions in force in the Member States.’
      
       The implementing regulation
      9        Under Article 5 of the implementing regulation:
      
      ‘For the purpose of this Title:
      (1)      1. binding information: means tariff information or origin information binding on the administrations of all Community Member
         States when the conditions laid down in Articles 6 and 7 are fulfilled;
      
      …’
      10      Article 10(1) and (2) of the implementing regulation states as follows:
      
      ‘1.       Without prejudice to Articles 5 and 64 of the [Customs] Code, binding information may be invoked only by the holder.
      2.       (a) Tariff matters: the customs authorities may require the holder, when fulfilling customs formalities, to inform the customs
         authorities that he is in possession of binding tariff information in respect of the goods being cleared through customs.
      
      …’
      11      Article 11 of the implementing regulation states:
      
      ‘Binding tariff information supplied by the customs authorities of a Member State since 1 January 1991 shall become binding
         on the competent authorities of all the Member States under the same conditions.’
      
       The dispute in the main proceedings and the questions referred for a preliminary ruling
      12      Sony Computer Entertainment Europe Ltd. (‘SCEE’), a company established in the United Kingdom, is responsible for the marketing,
         selling and distribution of games machines, peripherals and software throughout the European Union. Those games machines include
         the game console ‘Playstation 2 Computer Entertainment System’ (‘PS2’).
      
      13      SCEE and SLE are part of the same group of companies, in which SLE provides logistical services to other companies in the
         group. On 1 April 1997, SCEE and SLE concluded an agreement which provides that SLE is to assist SCEE with the import and
         warehousing of European stocks of games machines, including the PS2. SLE is responsible for making customs declarations for
         those game machines.
      
      14      From November 2000 until May 2001 SLE imported PS2 games machines into the Netherlands and made for SCEE, but in its own name
         and on its own behalf, customs declarations with respect to those goods. It stated that PS2s were to be classified under tariff
         subheading 9504 10 00 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 (OJ 1987 L 256, p. 1) (‘the CN’), in the version resulting
         from Commission Regulation (EC) No 2204/1999 of 12 October 1999 (OJ 1999 L 278, p. 1), as regards the imports during 2000
         and Commission Regulation (EC) No 2263/2000 of 13 October 2000 (OJ 2000 L 264, p. 1) as regards those in 2001. Tariff subheading
         9504 10 00 entailed payment of customs duties of 2.2% in 2000 and 1.7% in 2001. The Netherlands customs authorities requested
         payment from SLE of the corresponding customs duties.
      
      15      SLE therefore brought an appeal against that request claiming that PS2s should in fact have been classified under tariff subheading
         8471 49 90 of the CN. It should be stated that the goods classified under that subheading are exempt from customs duties.
      
      16      In that appeal, SLE based its arguments on proceedings between SCEE and the United Kingdom customs authorities. On 19 October
         2000, the latter issued SCEE with a binding tariff information (‘BTI’) for the PS2, classifying it under tariff subheading
         9504 10 00 of the CN.
      
      17      SCEE then brought an action before the English courts challenging that classification. Following those proceedings, the United
         Kingdom customs authorities, on 12 June 2001, issued SCEE with an amended BTI and classified the PS2 in tariff subheading
         8471 49 90 of the CN with effect from 19 October 2000.
      
      18      Before the Netherlands customs authorities SLE relied on the amended BTI issued to SCEE.
      
      19      By decision of 11 December 2007, the Gerechtshof te Amsterdam held that SLE could rely, before the Netherlands customs authorities,
         on the amended BTI issued to SCEE by the United Kingdom customs authorities even with respect to the customs declarations
         submitted between 19 October 2000 and 12 June 2001. Accordingly, the Gerechtshof te Amsterdam decided that PS2s were to be
         classified under tariff subheading 8471 49 90 of the CN.
      
      20      The Staatssecretaris van Financiën brought an appeal in cassation against the decision of 11 December 2007 before the Hoge
         Raad der Nederlanden.
      
      21      That court has doubts regarding the value of the amended BTI between 19 October 2000 and 12 June 2001 as to whether SLE is
         able to rely on it and with respect to the legitimate expectations that the importer could rely on given that the Netherlands
         customs authorities were required, in accordance with their own rules, to take account of a BTI issued to a third party for
         the same goods. 
      
      22      In those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay proceedings and to
         refer the following questions to the Court of Justice for a preliminary ruling:
      
      ‘1.      Must Community law, and in particular Article 12(2) and (5) and Article 217(1) of the [Customs Code] and Article 11 of the
         [implementing regulation], in conjunction with Article 243 of the [Customs Code], be interpreted to mean that a person involved
         in proceedings concerning customs duties which have been imposed may challenge their imposition by producing binding tariff
         information issued in another Member State for the same goods, which information was still the subject of a legal dispute
         at that time, but was eventually revised?
      
      2.      If the answer to Question 1 is in the affirmative, can the person declaring the goods to customs in his own name and for his
         own account successfully rely in a case such as this, when making customs declarations for release for free circulation, on
         binding tariff information whose holder is not that person, but an associated firm on whose instructions that person made
         the customs declarations?
      
      3.      If the answer to Question 2 is in the negative, does Community law preclude a person in a case such as this from successfully
         relying on a national policy decision in which the national authorities raise the expectation that, in respect of the tariff
         classification of the goods declared, it can rely on tariff information issued to a third party for the same goods?’
      
       Consideration of the questions referred for a preliminary ruling
       The second question
      23      By its second question, which it is appropriate to consider first of all, the referring court asks whether the Customs Code
         and the implementing regulation must be interpreted as meaning that a customs declarant, who makes customs declarations in
         his own name and on his own behalf, may rely on a BTI whose holder is not him but an associated firm on whose instructions
         he made the customs declarations.
      
      24      It must be recalled as a preliminary point that the purpose of a BTI is to provide the trader with legal certainty where there
         is a doubt as to the tariff classification of goods in the existing customs nomenclature (see Case C-199/09 Schenker [2010] ECR I-0000, paragraph 16), thereby protecting him against any subsequent change in the position adopted by the customs
         authorities with regard to the classification of those goods (see Case C-315/96 Lopex Export [1998] ECR I-317, paragraph 28).
      
      25      It is clear from the combined provisions of Article 12(2) of the Customs Code and Articles 10 and 11 of the implementing regulation
         that a BTI may be relied on only by its holder vis-à-vis the customs authorities that issued it and vis-à-vis those of other
         Member States.
      
      26      In that connection, the Court has held that a BTI creates rights only for the holder (Case C-495/03 Intermodal Transports [2005] ECR I-8151, paragraph 27).
      
      27      However, Article 10 of the implementing regulation states that the right to invoke a BTI is reserved for its holder, without
         prejudice to Articles 5 and 64 of the Customs Code. The latter govern the customs declaration where that is made by a person
         other than the importer. It follows that the rule that the BTI may be invoked only by its holder does not prohibit the holder
         from making the declaration through the intermediary of a third party.
      
      28      Article 64 of the Customs Code simply states that a written customs declaration may be made by any person who is able to present
         the goods in question or to have them presented to the competent customs authority, together with the accompanying documents,
         subject to Article 5 thereof.
      
      29      Article 5 of the Customs Code lays down the rules relating to representation before the customs authorities in order to perform
         the acts and formalities laid down by customs rules. The BTI obtained by the representative will subsequently be invoked by
         the operator on behalf of whom the representative acted. Likewise, the representative, acting on behalf of the holder of the
         BTI, may invoke it vis-à-vis the customs authorities of Member States other than the State which issued it.
      
      30      The Customs Code lays down exhaustive rules regarding the right to representation before the customs authorities. Article
         5(2) thereof states that the latter may be direct or indirect. Where the representation is direct, the representative acts
         in the name of and on behalf of another person. Where it is indirect, he acts in his own name but on behalf of another person.
         In addition, the Member States may decide that on their territory the representative must be a customs agent.
      
      31      Furthermore, the second subparagraph of Article 5(4) of the Customs Code provides that the person who fails to state that
         he is acting in the name of or on behalf of another person or who states that he is acting in the name of or on behalf of
         another person without being empowered to do so is to be deemed to be acting in his own name and on his own behalf. It follows
         that the representation must be express and cannot be implied.
      
      32      It is clear both from the order for reference and SLE’s submissions to the Court that SLE imported PS2s in its on name and
         on its own behalf given that, at the time the imports were made, that is from November 2000 until May 2001, the Kingdom of
         the Netherlands authorised representation only by customs agents.
      
      33      It follows that, since SLE did not act as SCEE’s representative, it could not rely, vis-à-vis the Netherlands customs authorities,
         on a BTI of which SCEE was the holder.
      
      34      In that connection, the fact that SCEE and SLE were part of the same group of companies or that the second was the fiscal
         representative of the first in the Netherlands, did not confer on SLE the status of representative within the meaning of Article
         5 of the Customs Code.
      
      35      It follows from those considerations that the answer to the second question is that Article 12(2) of the Customs Code and
         Articles 10 and 11 of the implementing regulation must be interpreted as meaning that a person who makes customs declarations
         in his own name and on his own behalf cannot rely on a BTI of which he is not the holder, but which is held by an associated
         company on whose instructions he made those declarations.
      
       The first question
      36      By its first question, the referring court asks whether Articles 12(2) and (5) and 217(1) of the Customs Code and Article
         11 of the implementing regulation, read in conjunction with Article 243 of the Customs Code, must be interpreted as meaning
         that, in proceedings concerning the imposition of customs duties, an interested party may challenge their imposition by producing
         a BTI issued, for the same goods, in another Member State. The referring court also asks whether account must be taken of
         that BTI where, at the time of the import, the validity of that BTI was still disputed and it was revised only after those
         imports.
      
      37      According to Article 243 of the Customs Code, any person has the right to appeal against decisions taken by the customs authorities
         which relate to the application of customs legislation and which concern him directly and individually. It follows from Article
         4(5) of the Customs Code that a BTI is a decision within the meaning of Article 243.
      
      38      The dispute in the main proceedings concerns the tariff classification of goods and the subsequent payment of customs duties.
         In support of its claims, SLE invokes a BTI issued to SCEE by the customs authorities of another Member State. Therefore,
         it appears that that dispute may indeed be regarded as an appeal within the meaning of Article 243 of the Customs Code.
      
      39      As is clear from paragraphs 33 and 35 of this judgment, a person cannot rely on a BTI of which he is not the holder, except
         where that person acts as a representative.
      
      40      Under Article 12(2) of the Customs Code and Article 11 of the implementing regulation a BTI is binding on the customs authorities
         only where it is invoked by the holder or his representative. If that is not the case, the court, seised in accordance with
         Article 243(2) of the Customs Code, and to which a BTI is submitted cannot give that BTI the legal effects attaching to it.
      
      41      However, a BTI may be relied on as evidence by a person other than its holder. Given that there is no legislation at European
         Union level governing the concept of proof, any type of evidence admissible under the procedural law of the Member States
         in proceedings similar to those laid down in Article 243 of the Customs Code is in principle admissible (see, to that effect,
         Joined Cases C-310/98 and C-406/98 Met-Trans and Sagpol [2000] ECR I-1797, paragraph 29).
      
      42      Furthermore, the Court has held that the fact that the customs authorities of another Member State have issued a BTI for specific
         goods to a person not party to the dispute, before a court against whose decisions there is no judicial remedy under national
         law, which seems to reflect a different interpretation of the CN headings from that which that court considers it must adopt
         in respect of similar goods in question in that dispute, most certainly must cause that court to take particular care in its
         assessment of whether there is no reasonable doubt as to the correct application of the CN (see Intermodal Transports, paragraph 34).
      
      43      It follows from that case-law that a BTI issued to a third party may be taken into consideration as evidence by a court seised
         of a dispute relating to the classification of goods and the subsequent payment of customs duties.
      
      44      In light of those considerations, the answer to the first question is that Article 12(2) and (5) and 217(1) of the Customs
         Code and Article 11 of the implementing regulation, read in conjunction with Article 243 of the Customs Code, must be interpreted
         as meaning that, in proceedings relating to the imposition of customs duties, an interested party may challenge that imposition
         by submitting as evidence a BTI issued in respect of the same goods in another Member State although the BTI cannot produce
         the legal effects attaching to it. It is, however, for the national court to determine whether the relevant procedural rules
         of the Member State concerned provide for the possibility of producing such types of evidence.
      
       The third question
      45      By its third question, the referring court asks essentially, whether the Customs Code and the implementing regulation must
         be interpreted as meaning that a national policy decision, which allows the national authorities to refer, for the purpose
         of the tariff classification of declared goods, to a BTI issued to a third party for the same goods, may raise, on the part
         of those importers, a legitimate expectation that they can rely on that policy.
      
      46      It must be stated that, according to the order for reference, at the material time the Netherlands customs manual provided
         that ‘only the holder may rely on a BTI. … [and that i]n every case, the goods offered must correspond in every respect to
         the description of the goods in the BTI. If an importer refers to a valid BTI of which he is not the holder, but makes a declaration
         for precisely the same goods as those described in the BTI, the classification must none the less correspond to that given
         in the BTI’.
      
      47      The Court has held that the principle of the protection of legitimate expectations cannot be relied upon against an unambiguous
         provision of European Union law; nor can the conduct of a national authority responsible for applying European Union law,
         which acts in breach of that law, give rise to a legitimate expectation on the part of a trader of beneficial treatment contrary
         to European Union law (Case 316/86 Krücken [1988] ECR 2213, paragraph 24, Joined Cases C-31/91 to C-44/91 Lageder and Others [1993] ECR I-1761, paragraph 35, and Case C‑94/05 Emsland-Stärke [2006] ECR I-2619, paragraph 31).
      
      48      Article 12 of the Customs Code regulates very closely the conditions of issue, the legal value and the period of the validity
         of a BTI. Furthermore, Article 10(1) of the implementing regulation clearly states that the BTI may be invoked only by its
         holder or the representative acting on behalf of the holder.
      
      49      It appears that the Netherlands customs authorities responsible for applying European Union law attributed to a BTI the same
         legal value whether it was invoked by a third party or its holder. Therefore, those authorities, by applying the customs manual,
         acted in a manner which was inconsistent with European Union law and that conduct could not give rise to a legitimate expectation
         on the part of traders.
      
      50      Therefore, the answer to the third question is that Article 12 of the Customs Code and Article 10(1) of the implementing regulation
         must be interpreted as meaning that a national policy which allows national authorities to refer, for the purpose of the tariff
         classification of declared goods, to a BTI issued to a third party for the same goods, could not give rise, on the part of
         traders, to a legitimate expectation that they could rely on that policy. 
      
       Costs
      51      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 (Sixth Chamber) hereby rules:
      1.      Article 12(2) 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 Articles 10 and 11 of Commission
            Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92
            establishing the Community Customs Code, as amended by Commission Regulation (EC) No 12/97 of 18 December 1996, must be interpreted
            as meaning that a person who makes customs declarations in his own name and on his own behalf cannot rely on a binding tariff
            information of which he is not the holder, but which is held by an associated company on whose instructions he made those
            declarations.
      2.      Articles 12(2) and (5) and 217(1) of Regulation No 2913/92, as amended by Regulation No 82/97, and Article 11 of Regulation
            No 2454/93, read in conjunction with Article 243 of Regulation No 2913/92, as amended by Regulation No 12/97, must be interpreted
            as meaning that, in proceedings relating to the imposition of customs duties, an interested party may challenge that imposition
            by submitting as evidence a binding tariff information issued in respect of the same goods in another Member State although
            the binding tariff information cannot produce the legal effects attaching to it. It is, however, for the national court to
            determine whether the relevant procedural rules of the Member State concerned provide for the possibility of producing such
            types of evidence.
      3.      Article 12 of Regulation No 2913/92, as amended by Regulation No 82/97, and Article 10(1) of Regulation No 2454/93, as amended
            by Regulation No 12/97, must be interpreted as meaning that a national policy which allows national authorities to refer,
            for the purpose of the tariff classification of declared goods, to a binding tariff information issued to a third party for
            the same goods, could not give rise, on the part of traders, to a legitimate expectation that they could rely on that policy.
            
      [Signatures]
      * Language of the case: Dutch.