Covita AVE v Elliniko Dimosio (Greek State).
Date: 1998-11-26
24 So far as concerns the interpretation of Article 5(2) of Regulation No 1697/79, it should be observed at the outset that the Court has consistently held that that provision makes any waiver of post-clearance recovery by the authorities subject to three cumulative conditions (see, in particular, Case C-250/91 Hewlett Packard France v Directeur Général des Douanes [1993] ECR I-1819, paragraphs 12 and 13, and in Joined Cases C-47/95, C-48/95, C-49/95, C-50/95, C-60/95, C-81/95, C-92/95 and C-148/95 Olasagasti and Others v Amministrazione delle Finanze dello Stato [1996] ECR I-6579, paragraph 32).
25 First, non-collection of the duties must have been as the result of an error made by the competent authorities themselves.  In this connection, the legitimate expectations of the person liable do not attract the protection provided for in Article 5(2) of Regulation No 1697/79 unless it was the competent authorities themselves which created the basis for the expectations of the person liable (see Case C-348/89 Mecanarte v Chefe do Serviço da Conferência Final da Alfândega [1991] ECR I-3277, paragraphs 22 and 23).  Moreover, there is an error attributable to the competent authorities where they have provided erroneous information, as Covita claims in the present case, giving rise to legitimate expectations on the part of the person liable.
26 Next, the error made by the competent authorities must be such that it could not reasonably be detected by the person liable acting in good faith, despite his professional experience and the diligence shown by him.  In this regard, it should be observed that it is mandatory for Community provisions introducing a countervailing charge to be published in the Official Journal of the European Communities.  From the date of that publication no person is deemed to be unaware of that charge (see, to that effect, Case 161/88 Binder v Hauptzollamt Bad Reichenhall [1989] ECR 2415, paragraph 19).  That is the case where a professional trader importing goods is aware of the imminent possibility that a countervailing charge might be introduced for those goods.  Such a trader cannot expect each customs office to be immediately informed that the charge has been introduced, but must ascertain, by consulting the relevant issues of the Official Journal, the provisions of Community law applicable to the transactions he is carrying out.  To impose such an obligation on traders to inform themselves does not constitute a requirement that is disproportionate to the objective pursued by the introduction of a countervailing charge, which is to obviate disturbances on the Community market, bearing in mind, moreover, the need to apply Community law uniformly.
27 None the less, it should be observed that, as the Advocate General states at point 31 of his Opinion, it cannot be accepted that a trader such as Covita was aware that Regulation No 1591/92 had been adopted if it proves that the Official Journal of 23 June 1992 was not available on that date in its Greek language version at the Office for Official Publications of the European Communities, situated in Luxembourg.  If evidence is produced that actual publication of the Official Journal was delayed, regard must be had to the date on which the issue was actually available (Case 98/78 Racke v Hauptzollamt Mainz [1979] ECR 69, paragraph 15).
28 Finally, the person liable must have complied with all of the provisions laid down by the rules in force as far as his customs declaration is concerned. Moreover, it is for the national court to establish whether, having regard to the facts of the case, the three conditions laid down in Article 5(2) of Regulation No 1697/79 are fulfilled (Olasagasti, cited above, paragraph 36).
30 Furthermore, Article 13 of Regulation No 1430/79 and Article 5(2) of Regulation No 1697/79 pursue the same aim, namely to limit the post-clearance payment of import and export duties to cases where such payment is justified and is compatible with a fundamental principle such as that of the protection of legitimate expectations (Hewlett Packard France, cited above, paragraph 46).
31 From that point of view, the fact that a trader places his trust in erroneous information provided by the competent authorities could, in certain circumstances, be regarded as a special situation within the meaning of Article 13 of Regulation No 1430/79, despite the fact that that situation is not provided for in Regulation No 3799/86.  The list of special situations within the meaning of Article 13 of Regulation No 1430/79 which Article 4 of Regulation No 3799/86 provides is not exhaustive (see to that effect Hewlett Packard France, cited above, paragraphs 39 and 43).
32 None the less, so far as concerns the second condition laid down by Article 13 of Regulation No 1430/79, it should be borne in mind that the question whether the error was detectable, within the meaning of Article 5(2) of Regulation No 1697/79, is linked to the existence of obvious negligence or deception within the meaning of Article 13 of Regulation No 1430/79 (Hewlett Packard France, cited above, paragraph 46).
36 The sole purpose of the time-limits laid down in Articles 3 and 5 of Regulation No 1854/89 is to ensure rapid and uniform application by the competent administrative authorities of the technical procedures for the entry in the accounts of amounts of import or export duties.  Failure by the customs authorities to observe those time-limits may give rise to the payment of interest in respect of delay by the Member State concerned to the Communities, in the context of making available own resources, under Articles 10 and 11 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities' own resources (OJ 1989 L 155, p. 1).  It follows that those time-limits do not nullify the right of the customs authorities to take action for post-clearance recovery pursuant to the provisions of Regulation No 1697/79 since Article 2(1) of that regulation provides for a period of three years for the recovery of uncollected duties, calculated from the date of entry in the accounts of the amount originally required of the person liable for payment or, where there is no entry in the accounts, from the date on which the customs debt relating to the said goods was incurred.
37 The answer to the second question must therefore be that failure on the part of the customs authorities to observe the time-limits laid down in Articles 3 and 5 of Regulation No 1854/89 when taking action for the post-clearance recovery of the countervailing charge does not nullify the right of those authorities to proceed with such post-clearance recovery, provided that it is carried out within the time-limit laid down in Article 2(1) of Regulation No 1697/79.