CELEX: 62001CJ0411
Language: en
Date: 2003-10-02
Title: Judgment of the Court (First Chamber) of 2 October 2003. # GEFCO SA v Receveur principal des douanes. # Reference for a preliminary ruling: Tribunal d'instance de Metz - France. # Community Customs Code and implementing Regulation - Outward processing procedure - Exemption from the import duties applied to compensating products - Amount deductible in the event of an incorrect indication of a tariff heading in the temporary export declaration for the goods - Failure having no significant effect on the correct operation of the outward processing procedure. # Case C-411/01.

Case C-411/01 GEFCO SAvReceveur principal des douanes(Reference for a preliminary ruling from the Tribunal d'instance de Metz)
         
            «(Community Customs Code and implementing regulation – Outward processing procedure – Exemption from the import duties applied to compensating products – Amount deductible in the event of an incorrect indication of a tariff heading in the temporary export declaration for the
               goods – Failure having no significant effect on the correct operation of the outward processing procedure)»
            
            
               
                  Opinion of Advocate General Tizzano delivered on 26 March 2003 
                     
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                  Judgment of the Court (First Chamber), 2 October 2003  
                     
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            Summary of the Judgment
         
         
                  
                  Free movement of goods – Trade with third countries – Outward processing relief arrangements – Total or partial relief from import duties on compensating products – Non-compliance with the conditions and obligations of the system – Proof of the absence of any significant effect – Scope(Council Regulation No 2913/92, Arts 145 to 151)Articles 145 to 151 of Regulation No 2913/92 establishing the Community Customs Code must be interpreted as meaning that an
         economic operator who has declared goods under an incorrect tariff heading at the time of their temporary exportation from
         Community territory under the outward processing procedure is not prohibited, even in the absence of a formal amendment of
         the temporary export declaration, from adducing proof that the incorrect declaration had no significant effect on the correct
         operation of the procedure for the purposes of Article 150(2) of that regulation. Such proof must make it possible to establish,
         without the slightest ambiguity, that the compensating products have resulted from processing of the temporary export goods.
         It is for the national court to determine, in the light of all the circumstances of the main proceedings, whether or not the
         economic operator has adduced that proof. If so, the amount of the import duty which would be applicable to the temporary
         export goods on the basis of their correct tariff heading may be deducted when the compensating products are released for
         free circulation.see para. 55, operative part 1-4
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (First Chamber)2 October 2003  (1)
         
         
            
         
               ((Community Customs Code and implementing Regulation – Outward processing procedure – Exemption from the import duties applied to compensating products – Amount deductible in the event of an incorrect indication of a tariff heading in the temporary export declaration for the
                  goods – Failure having no significant effect on the correct operation of the outward processing procedure))
               
               
            In Case C-411/01, 
            REFERENCE to the Court under Article 234 EC by the Tribunal d'instance de Metz (France) for a preliminary ruling in the proceedings
            pending before that court between
            
            
            
             GEFCO SA 
            
            
            and
            
             Receveur principal des douanes, 
            
            
            on the interpretation of Articles 145 to 151 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community
            Customs Code (OJ 1992 L 302, p. 1),
            
            THE COURT (First Chamber),,
            
            composed of: M. Wathelet, President of the Chamber, P. Jann and A. Rosas (Rapporteur), Judges, 
            
            Advocate General: A. Tizzano, Registrar: H. von Holstein, Deputy Registrar, 
            
            
            after considering the written observations submitted on behalf of:
               
               
               ─
               GEFCO SA, by F. Goguel, lawyer, 
               
               
               ─
               the French Government, by G. de Bergues and A. Colomb, acting as Agents, 
               
               
               ─
               the Portuguese Government, by L. Fernandes, J. Serra de Andrade and Â. Seiça Neves, acting as Agents, 
               
               
               ─
               the Commission of the European Communities, by R. Tricot, acting as Agent, 
               
               
            
            
            having regard to the Report for the Hearing,
            
            after hearing the oral observations of GEFCO SA, represented by F. Goguel, of the French Government, represented by A. Colomb,
               and of the Commission, represented by B. Stromsky and X. Lewis, acting as Agents, at the hearing on 27 November 2002,
            
            
            after hearing the Opinion of the Advocate General at the sitting on 26 March 2003, 
         gives the following
         
         
         Judgment
         1
            
         By order of 8 October 2001, received at the Court on 17 October 2001, the Tribunal d'instance de Metz (District Court, Metz)
         referred to the Court for a preliminary reference under Article 234 EC a question on the interpretation of Articles 145 to
         151 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
            
         That question was raised in proceedings between GEFCO SA (
         GEFCO), an undertaking operating as a customs agent, and the customs authorities concerning a customs debt incurred in a triangular
         outward processing operation. 
         
            
               Legal framework
            
         
         3
            
         Article 65 of the Customs Code provides: 1. The [declarant] shall, at his request, be authorised to amend one or more of the particulars of the declaration after it
         has been accepted by customs.  The amendment shall not have the effect of rendering the declaration applicable to goods other
         than those it originally covered.However, no amendment shall be permitted where authorisation is requested after the customs authorities:...(c) ... have released the goods.
         
         
         4
            
         Article 78 of the Customs Code, which appears under the heading  
         Post-clearance examination of declarations, states: 1. The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release
         of the goods....3. Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure
         concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance
         with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information
         available to them.
         
         
         5
            
         Article 87 of the Customs Code provides: 1. The conditions under which the procedure in question is used shall be set out in the authorisation.2. The holder of the authorisation shall notify the customs authorities of all factors arising after the authorisation was
         granted which may influence its continuation or content.
         
         
         6
            
         The outward processing procedure is governed by Articles 145 to 160 of the Customs Code. 
         
         
         7
            
         Article 145(1) of the Customs Code provides that the outward processing procedure is to allow Community goods to be exported
         temporarily from the customs territory of the Community in order to undergo processing operations and the products resulting
         from those operations to be released for free circulation with total or partial relief from import duties. 
         
         
         8
            
         Article 148(1)(b) of the Customs Code states that authorisation for outward processing is to be granted only where it is considered
         that it will be possible to establish that the compensating products have resulted from processing of the temporary export
         goods. 
         
         
         9
            
         Under Article 150(2) of the Customs Code, the total or partial relief from import duties provided for in Article 151 thereof
         is not to be granted where one of the conditions or obligations relating to the outward processing procedure is not fulfilled,
         unless it is established that the failures have no significant effect on the correct operation of the said procedure. 
         
         
         10
            
         Article 151(1) of the Customs Code provides that the total or partial relief from import duties provided for in Article 145
         thereof is to be effected by deducting from the amount of the import duties applicable to the compensating products released
         for free circulation the amount of the import duties that would be applicable on the same date to the temporary export goods
         if they were imported into the customs territory of the Community from the country in which they underwent the processing
         operation or last processing operation. 
         
         
         11
            
         Article 151(2) of the Customs Code states that the amount to be deducted pursuant to paragraph 1 of that article is to be
         calculated on the basis of the quantity and nature of the goods in question on the date of acceptance of the declaration placing
         them under the outward processing procedure and on the basis of the other items of charge applicable to them on the date of
         acceptance of the declaration relating to the release for free circulation of the compensating products. 
         
         
         12
            
         Article 220 of the Customs Code, on the entry in the accounts and communication to the debtor of the amount of duty resulting
         from a customs debt, provides: 1. Where the amount of duty resulting from a customs debt ... has been entered in the accounts at a level lower than the amount
         legally owed, the amount of duty to be recovered or which remains to be recovered shall be entered in the accounts within
         two days of the date on which the customs authorities become aware of the situation and are in a position to calculate the
         amount legally owed and to determine the debtor (subsequent entry in the accounts). ...2. ... subsequent entry in the accounts shall not occur where:...
         
         (b)
         the amount of duty legally owed failed to be entered in the accounts as a result of an error on the part of the customs authorities
         which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good
         faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration
         . 
         
         
         13
            
         At the material time, the provisions for the implementation of the outward processing procedure provided for in the Customs
         Code consisted of Articles 748 to 787 of Commission Regulation (EEC) No 2454/93 laying down provisions for the implementation
         of Council Regulation No 2913/92 (OJ 1993 L 253, p. 1,  
         the implementing regulation) 
         
         
         14
            
         The combined nomenclature (
         the CN) in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and the Common
         Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1734/96 of 9 September 1996 (OJ 1996 L 238,
         p. 1), is a nomenclature of goods designed to satisfy both the requirements of the common customs tariff and those of the
         Community's external trade statistics.  It provides for headings consisting of eight digits, corresponding to the tariff category
         of each product. 
         Main proceedings and question referred to the Court
         
         15
            
         In 1995 Hewlett Packard Italiana SpA obtained outward processing authorisation from the Italian authorities permitting the
         temporary export of electronic cards from Italy to China or Japan for installation in printers, which were to be reimported
         as compensating products into Community customs territory, more specifically into France. 
         
         
         16
            
         The tariff heading indicated on the temporary export authorisation for the electronic cards was that declared by Hewlett Packard
         Italiana Spa, namely CN heading 8473 30 90.  The information notice entitled  
         Notice INF 2, drawn up at that undertaking's request, set out as reference tariff heading for those components CN heading 8473, that is
         to say, a heading containing the first four digits of the heading declared. 
         
         
         17
            
         It is apparent from the file that both the temporary export authorisation and Notice INF 2 were accompanied by a detailed
         description of the technical design of the electronic cards. 
         
         
         18
            
         The electronic cards were exported from Italy to China and Japan.  The printers incorporating the cards were imported into
         the Community by GEFCO, which acted on behalf of its customer, Hewlett Packard France, itself acting on behalf of Hewlett
         Packard Europe.  When the printers were imported, GEFCO declared the cards under CN tariff heading 8473 30 10 and not CN heading
         8473 30 90, which was declared when they were temporarily exported. 
         
         
         19
            
         That discrepancy in the tariff headings was established by the French customs authorities, in a report of 3 December 1998,
         and an inquiry was opened.  The inquiry revealed that Hewlett Packard Europe had given instructions that the re-imported goods
         should be declared under CN tariff reference 8473 30 10, but that, owing to an error, the goods had continued to be declared
         on temporary export under CN reference 8473 30 90, until at least November 1996. 
         
         
         20
            
         From 1 January 1996, goods under CN tariff heading 8473 30 90 were subject to customs duty of 1.6% and those under CN tariff
         heading 8474 30 10 to customs duty of 3.3%. 
         
         
         21
            
         By a report of 21 June 1999, the Italian authorities confirmed that the correct customs classification of the electronic cards
         was CN tariff heading 8473 30 10 and that the entry on the documentation relating to the temporary export of the cards was
         incorrect. 
         
         
         22
            
         According to the French customs authorities, GEFCO altered the tariff reference without obtaining the relevant consent of
         the Italian customs authorities.  GEFCO did not request an expert appraisal to show that the tariff heading declared on export
         was incorrect.  Consequently, the authorities served on GEFCO, on 26 September 2000, a notice of infringement demanding payment
         of a customs debt corresponding to the difference between the customs duties applicable to the electronic cards according
         to the tariff code declared in France and those resulting from the application of the tariff code declared in Italy. 
         
         
         23
            
         GEFCO claimed that the tariff heading indicated on the declarations and export authorisations was the consequence of material
         errors, since the Italian declarant had not been advised until November 1996 that the tariff heading applicable since 1 January
         1996 was CN heading 8473 30 10 and no longer CN heading 8473 30 90. 
         
         
         24
            
         Those arguments failed to convince the French customs authorities and by decision of 19 October 2000 the principal collector
         of customs duties served on GEFCO an order to pay the sum of FRF 8 795 672 representing unpaid customs duty and value added
         tax. 
         
         
         25
            
         On 8 November 2000, GEFCO lodged an objection to that order and brought proceedings before the Tribunal d'instance de Metz.
          GEFCO claimed that the duty payable should be calculated on the basis of the tariff heading declared to the French customs
         authorities when the goods were reimported, since that tariff heading was materially correct.  Articles 150(2) and 151(2)
         of the Customs Code make no reference to the nature declared on export and according to their spirit those provisions relate
         rather to the precise nature of the goods. 
         
         
         26
            
         The national court observes that neither the Customs Code nor Articles 748 to 796 of the implementing regulation state whether
          
         nature of the goods refers to the precise tariff reference of the product or to that stated in the export declaration.  That information is required
         for the purpose of determining whether, in the main proceedings, GEFCO could unilaterally alter the tariff reference. 
         
         
         27
            
         In those circumstances, the Tribunal d'instance de Metz decided to stay proceedings and to refer the following question to
         the Court of Justice for a preliminary ruling: Upon triangular outward processing, is an operator prohibited, on a proper interpretation of Articles 145 to 151 of the Community
         Customs Code (Regulation (EEC) No 2913/92), from deducting, on release of compensating products for free circulation, the
         amount of the import duties which would be applicable to the temporary export goods in accordance with their correct tariff
         heading where their tariff heading declared on their exportation was different because it was incorrect?
         The question referred to the CourtObservations submitted to the Court
         
         
         28
            
         GEFCO claims, first of all, that the question clearly relates to a discrepancy between the tariff headings resulting from
         an administrative error and that its good faith is not impugned.  In the main proceedings, copies of the temporary export
         declarations were attached to the import declarations, so that the discrepancy between the tariff heading declared on export
         and that declared on import should have been revealed by a careful examination of the import declarations. 
         
         
         29
            
         In GEFCO's submission, the French customs authorities appear to consider that the first subparagraph of Article 151(2) of
         the Customs Code refers to the nature declared when the goods are placed under the outward processing procedure.  However,
         there is nothing in that subparagraph to justify such an interpretation.  GEFCO maintains that it is more likely that that
         provision requires that the actual nature of the goods be taken into consideration rather than the nature declared when the
         latter subsequently proves to be incorrect. 
         
         
         30
            
         GEFCO further refers to Article 150(2) of the Customs Code, which provides that total or partial relief from import duties
         is not to be granted where one of the conditions or obligations relating to the outward processing procedure is not fulfilled,
         unless it is established that the failures have no significant effect on the correct operation of the said procedure  The
         essential condition of the correct operation of the procedure is that it must be possible to establish that the compensating
         products have resulted from processing of the temporary export goods.  There is no basis for the contention that the material
         error made in respect of the tariff heading upon the temporary export of the goods at issue in the main proceedings had the
         slightest impact on the proper functioning of the applicable customs procedure. 
         
         
         31
            
         GEFCO contends that the penalty which would result from the analysis proposed by the French customs authorities would be disproportionate
         to the gravity of an infringement such as that at issue in the main proceedings.  It refers, in that regard, to the case-law
         of the Court in Case 203/80  
          Casati  [1981] ECR 2595, Joined Cases 286/82 and 26/83  
          Luisi and Carbone  [1984] ECR 377 and Case 68/88  
          Commission  v  
          Greece  [1989] ECR 2965. 
         
         
         32
            
         GEFCO concludes that on a proper interpretation the Customs Code does not prevent it from deducting from the import duties
         on the compensating products the amount of the import duties which would be applicable to the temporary export goods on the
         basis of their correct tariff heading. 
         
         
         33
            
         The French Government maintains that only the tariff heading indicated on the temporary export authorisation can be used to
         determine the taxation applicable under the outward processing procedure.  It recognises that a change of tariff heading is
         possible in two situations, but submits that these do not apply in the case before the national court.  GEFCO did not notify
         the customs authorities, pursuant to Article 87(2) of the Customs Code, that the tariff heading of the temporary export goods
         should be altered.  Nor did it amend the particulars of the temporary export declaration in accordance with the first paragraph
         of Article 65 thereof. 
         
         
         34
            
         The French Government contends that it is the authorisation issued by the customs authorities that determines the conditions
         under which the outward processing procedure may be used.  Consequently, when the goods are re-imported, the economic operator
         can only deduct the duties corresponding to the tariff heading indicated on that authorisation. 
         
         
         35
            
         The French Government concludes that, in circumstances such as those to which the question referred to the Court relates,
         Articles 145 to 151 of the Customs Code do not allow an importer who has not informed the customs authorities of any developments
         subsequent to the grant of outward processing authorisation, who has not amended the particulars of the temporary export declaration
         after it has been accepted by the customs authorities and who, consequently, has not obtained authorisation indicating the
         change in tariff heading, to deduct the amount of the import duty which would apply to the temporary export goods on the basis
         of their correct tariff heading. 
         
         
         36
            
         The Portuguese Government maintains that since the temporary export goods were classified in the declaration under tariff
         heading 8473 30 90 of the CN and since that classification was confirmed by the customs agent when the goods were exported,
         GEFCO cannot as a matter of principle unilaterally alter that heading without having sought and obtained authorisation to
         do so. 
         
         
         37
            
         The Portuguese Government raises the question whether in the circumstances of the main proceedings there was an error on the
         part of the customs authorities.  If so, it will be necessary to consider, in accordance with Article 220(2)(b) of the Customs
         Code, whether the error could not reasonably have been detected by the person liable for payment and whether the latter acted
         in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration.
         
         
         
         38
            
         In the Portuguese Government's submission, it is also important to have an overall view and to take account of the principle
         of proportionality.  The incorrect customs declarations were duly accepted by the Italian authorities for a certain period
         and there is no indication in the file that GEFCO did not act in good faith. 
         
         
         39
            
         In conclusion, the Portuguese Government states that the competent customs authorities must allow temporary export goods to
         be regarded as having been classified under the correct tariff heading provided that certain conditions are satisfied, namely
         good faith and absence of manifest negligence or deliberate ploys attributable to the economic operator and also compliance
         with all the provisions of the rules in force as regards the customs declaration.  Nor must there be any doubt as to the nature
         of the goods concerned.  It is also necessary to take into consideration the error made by the undertaking and by the competent
         authorities and to determine according to the relevant criteria whether that error was capable of being detected.  It is for
         the national court to ascertain whether those conditions are satisfied. 
         
         
         40
            
         The Commission observes that use of the outward processing procedure is subject to authorisation on the part of the customs
         authorities.  It is for the national court to ascertain whether, in the main proceedings, the authorisation on which the economic
         operator relies excludes the temporary export goods from its scope, regard being had to their real tariff heading. 
         
         
         41
            
         According to the Commission, there is a presumption that a declaration which is mistaken as to the nature of the goods concerned
         constitutes a failure having a significant effect on the correct operation of the outward processing procedure for the purposes
         of Article 150(2) of the Customs Code.  However, that presumption is not irrebuttable.  It is for the economic operator to
         prove that the incorrect declaration as to the nature of the goods did not have such an effect. 
         
         
         42
            
         The Commission concludes that, in the absence of a failure having significant effect on the correct operation of the customs
         procedure in question, if a customs control establishes beyond doubt the correct tariff heading of the temporary export goods
         and if their export was authorised by the customs authorities, the economic operator is authorised to deduct the amount of
         the import duties which would be applicable to the temporary export goods on the basis of their correct tariff heading, where
         the tariff heading declared on export is different owing to an error. 
         The Court's answer
         
         
         43
            
         The national court is asking essentially whether Articles 145 to 151 of the Customs Code are to interpreted as meaning that
         an economic operator who has declared goods under an incorrect tariff heading when they were temporarily exported from the
         Community territory under the outward processing procedure may not, when the compensating products are released into free
         circulation, deduct the amount of the import duties which would apply to the temporary export goods on the basis of their
         correct tariff heading. 
         
         
         44
            
         In order to answer that question, it is appropriate first of all to consider whether, as the Portuguese Government envisages,
         Article 220(2)(b) of the Customs Code might be applicable in the main proceedings. 
         
         
         45
            
         Under that provision, subsequent entry in the accounts of the amount of duty legally owed is not to occur where the amount
         of duty to be recovered or which remains to be recovered was not determined correctly as a result of an error on the part
         of the competent authorities themselves which could not reasonably have been detected by the person liable for payment. 
         
         
         46
            
         As the Advocate General correctly observes at points 53 and 54 of his Opinion, the error in designating the tariff heading
         of the temporary export goods at issue in the main proceedings is not to be attributed to either the French customs authorities
         or the Italian customs authorities, but is primarily due to the Italian declarant, Hewlett Packard Italiana SpA, which used
         an incorrect tariff heading in its own temporary export declarations.  It is apparent from the file, moreover, that the error
         was quite easily detected by GEFCO. 
         
         
         47
            
         It must be held, therefore, that the conditions for the application of Article 220(2)(b) of the Customs Code are not satisfied
         in the main proceedings. 
         
         
         48
            
         Accordingly, the circumstances of the main proceedings must be examined solely from the aspect of the provisions governing
         the outward processing procedure, in particular Article 150(2) of the Customs Code.  Under that paragraph, total or partial
         relief from import duties is not to be granted where one of the conditions or obligations relating to the outward processing
         procedure is not fulfilled, unless it is established that the failures have no significant effect on the correct operation
         of the procedure. 
         
         
         49
            
         In the main proceedings, the tariff heading used in the temporary export declaration and reiterated in the export authorisation
         was incorrect.  It is apparent from the file that those documents were not formally amended.  It is not disputed by any of
         the parties who have submitted observations that in such circumstances all the conditions and obligations relating to the
         outward processing procedure were not fulfilled. 
         
         
         50
            
         Those parties are divided as to whether, in the absence of a formal amendment of the relevant customs documents, the economic
         operator is entitled to adduce proof that the incorrect declaration had no significant effect on the correct operation of
         the outward processing procedure for the purposes of Article 150(2) of the Customs Code. 
         
         
         51
            
         It must be stated that to prohibit in all circumstances the economic operator from adducing such proof would be to deprive
         Article 150(2) of the Customs Code of its practical effect.  One of the objectives of the outward processing procedure is
         to prevent customs duties from being charged on goods exported from the European Community for outward processing (see, to
         that effect, Case C-142/96  
          Wacker Werke  [1997] ECR I-4649, paragraph 21).  As the Advocate General correctly observes at point 66 of his Opinion, an interpretation
         which did not permit the proof in question to be adduced would be likely to compromise the attainment of that objective, since
         operators would be charged a higher rate of duty that would not be justified. 
         
         
         52
            
         Since such proof is admissible, it is for the person responsible for paying the customs debt to adduce it.  That person must
         prove to the competent national authorities that the incorrect temporary export declaration had no significant effect on the
         correct operation of the customs arrangements in issue.  In particular, such proof must make it possible to establish without
         the slightest ambiguity that the compensating products have resulted from processing of the temporary export goods. 
         
         
         53
            
         As the Commission correctly submits, an incorrect declaration generally has a significant effect on the correct operation
         of the outward processing procedure.  However, that is not necessarily the case where the customs authorities themselves have
         established the inaccuracy of the content of the relevant customs documents and a correct classification can easily be made
         by adducing proof of the actual nature of the temporary export goods. 
         
         
         54
            
         It should be borne in mind that in the circumstances of the main proceedings, the Italian customs authorities confirmed that
         the correct tariff heading of the temporary export goods was that declared by GEFCO.  Furthermore, the temporary export authorisation
         contained a number of points on which the correct nature of the goods could have been established. 
         
         
         55
            
         In the light of the foregoing considerations, the answer to the question referred to the Court must be that: 
         
         
         ─
            Articles 145 to 151 of the Customs Code must be interpreted as meaning that an economic operator who has declared goods under
            an incorrect tariff heading at the time of their temporary exportation from Community territory under the outward processing
            procedure is not prohibited, even in the absence of a formal amendment of the temporary export declaration, from adducing
            proof that the incorrect declaration had no significant effect on the correct operation of the procedure for the purposes
            of Article 150(2) of the Customs Code; 
         
         
         
         ─
            such proof must make it possible to establish, without the slightest ambiguity, that the compensating products have resulted
            from processing of the temporary export goods; 
         
         
         
         ─
            it is for the national court to determine, in the light of all the circumstances of the main proceedings, whether or not the
            economic operator has adduced that proof; 
         
         
         
         ─
            if so, the amount of the import duty which would be applicable to the temporary export goods on the basis of their correct
            tariff heading may be deducted when the compensating products are released for free circulation. 
         
         
         
         Costs
         56
            
         The costs incurred by the French and Portuguese Governments and by the Commission, which have submitted observations to the
         Court, are not recoverable.  Since these proceedings are, for the parties to the main proceedings, a step in the proceedings
         pending before the national court, the decision on costs is a matter for that court. 
         
         On those grounds, 
         
         
         
            
            THE COURT (First Chamber),
         
         
         in answer to the question referred to it by the Tribunal d'instance de Metz by order of 8 October 2001, hereby rules: 
         
            
            1.
             Articles 145 to 151 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must
            be interpreted as meaning that an economic operator who has declared goods under an incorrect tariff heading at the time of
            their temporary exportation from Community territory under the outward processing procedure is not prohibited, even in the
            absence of a formal amendment of the temporary export declaration, from adducing proof that the incorrect declaration had
            no significant effect on the correct operation of the procedure for the purposes of Article 150(2) of the Customs Code. 
            
            
            2.
             Such proof must make it possible to establish, without the slightest ambiguity, that the compensating products have resulted
            from processing of the temporary export goods. 
            
            
            3.
             It is for the national court to determine, in the light of all the circumstances of the main proceedings, whether or not the
            economic operator has adduced that proof. 
            
            
            4.
             If so, the amount of the import duty which would be applicable to the temporary export goods on the basis of their correct
            tariff heading may be deducted when the compensating products are released for free circulation. 
            
            
                  Wathelet
               
               
                  Jann 
               
               
                  Rosas 
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 2 October 2003. 
         
         
         
         
                  R. Grass 
               
               
                  M. Wathelet  
               
            
         
         
         
                  Registrar
               
               
                  President of the First Chamber
               
            
      
      
          1 –
            
             Language of the case: French.