Hewlett Packard France v Directeur Général des Douanes.
Date: 1993-04-01
9 It should be noted at the outset that the Court has consistently held that it has no jurisdiction in proceedings under Article 177 of the Treaty to apply Community rules to a specific case and thereby determine the dispute in the main proceedings. The Court may, however, extract from the wording of the question formulated by the national court, having regard to the facts stated by the latter, those elements which concern the interpretation of Community law for the purpose of enabling that court to resolve the legal issues before it (judgment in Case C-243/90 Smithson [1992] ECR I-467, paragraph 9).
12 That provision makes any waiver of post-clearance recovery by the competent customs authorities subject to the fulfilment of three conditions. Provided that all those conditions are fulfilled, the person liable is entitled to waiver post-clearance recovery (see the judgments in Case C-348/89 Mecanarte-Metalúrgica de Lagoa [1991] ECR I-3277, paragraph 12, and Case 341/85 Foto-Frost [1987] ECR 4199, paragraph 22.)
13 Those conditions are as follows:
° non-collection of the duties was a result of an error made by the competent authorities themselves;
° the person liable acted in good faith, that is to say he was not able to detect the error made by the competent authorities;
° the person liable complied with all the requirements of the rules in force regarding his customs declaration.
The error by the competent authorities
15 As regards the error committed by customs authorities other than those responsible for effecting recovery, it follows from the judgment in Mecanarte-Metalúrgica de Lagoa, cited above, paragraphs 22 and 23, that, in principle, notice may be taken of such an error in proceedings concerning non-recovery initiated by the competent authorities in another Member State, provided that the error is one which is relevant to the recovery of the customs duties and may thus cause the person liable to entertain legitimate expectations.
19 As regards the fact that the competent authorities raised no objection to the tariff classification of the goods entered by the trader on his customs declarations, it is clear from the judgment in Foto-Frost, paragraph 24, that in such circumstances there is an error attributable to the competent customs authorities if the customs declaration of the person liable contained all the factual particulars needed in order to apply the relevant rules, so that any subsequent check carried out by the customs authorities could not disclose any new fact.
21 It must therefore be stated in reply to the question referred that the first subparagraph of Article 5(2) of Council Regulation No 1697/79 must be interpreted as meaning that incorrect tariff information given to a trader other than the person liable for payment by the customs authorities of a Member State other than that of the authority competent to effect post-clearance recovery does not constitute "an error made by the competent authorities themselves"; in contrast, such an error is made by the authorities competent to effect recovery to which that provision refers where, despite the number and size of the imports made by the person liable, those authorities raised no objection concerning the tariff classification of the goods in question, even though a comparison between the tariff heading declared and the explicit description of the goods in accordance with the indications of the nomenclature would have disclosed the incorrect tariff classification.
The impossibility of detecting the error made by the customs authorities
22 The Court has consistently held that it is for the national court to decide whether the person liable could have detected the error made by the competent authorities, having regard to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised (see, among others, the judgments in Case C-187/91 Société Coopérative Belovo [1992] ECR I-4963, paragraph 17, Case C-371/90 Beirafrio [1992] ECR I-2728, paragraph 21, and Case C-64/89 Deutsche Fernsprecher [1990] ECR I-2535, paragraph 24).
23 As regards the nature of the error, the Court held in the above cases that it is necessary to consider whether the rules concerned are complex or simple enough for an examination of the facts to make an error easily detectable. In a case such as the present one, where, in view of the differences of opinion between the Member States, it was necessary to adopt Commission Regulation (EEC) No 1288/91 of 14 May 1991 concerning the classification of certain goods in the customs nomenclature (OJ 1991 L 122, p. 11) in order to clarify the customs heading for computer keyboards, there is strong evidence that the problem to be resolved is a complex one.
24 As regards the degree of care shown, if the trader concerned has doubts as to the correctness of the tariff classification of the goods in question he must make inquiries and seek the greatest clarification possible in order to ascertain whether or not his doubts are well founded (judgment in Deutsche Fernsprecher, cited above, paragraph 22). That requirement may be considered satisfied where the trader concerned had no doubts, in view of the information supplied to a company belonging to the same group as the company liable by the customs authorities of a Member State, as to the correctness of the tariff classification of the goods in question.
26 As regards the experience of the trader concerned, the national court must, in particular, verify whether he is professionally engaged in an activity consisting essentially in import and export operations, and whether he already had some experience of trading in the goods in question, that is to say whether in the past he had carried out similar transactions on which customs duties had been correctly calculated (see the judgment in Deutsche Fernsprecher, cited above, paragraph 21).
29 This condition implies that the declarant is obliged to supply the customs authorities with all the necessary information as required by the Community rules, and any national provisions which supplement or transpose them, in relation to the customs treatment requested for the goods in question (see the judgment in Case 378/87 Top Hit Holzvertrieb [1989] ECR 1359, paragraph 26). That obligation may not however go beyond production of the information that the person liable may reasonably possess and obtain, so that it is sufficient that such information, even if incorrect, was provided in good faith (judgment in Mecanarte-Metalúrgica de Lagoa, cited above, paragraph 29).
39 Commission Regulation No 3799/86 of 12 December 1986 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties (OJ 1986 L 352, p. 19) lists, in Article 4, the special situations covered by Article 13 of Regulation No 1430/79. As expressly stated in the opening paragraph of Article 4 of Regulation No 3799/86, that list is not exhaustive. It is therefore for the competent authorities to determine case by case whether a situation which, like that in the present case, is not mentioned in that list is a special situation within the meaning of the applicable Community provisions.
43 Such a situation may, in certain circumstances, be regarded as a special situation within the meaning of Article 13 of Regulation No 1430/79.
46 That determination must, however, take account of the fact that Article 13 of Regulation No 1430/79 and Article 5(2) of Regulation No 1679/79 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. Seen in that light, the question whether the error was detectable, within the meaning of Article 5(2) of Regulation No 1679/79, is linked to the existence of obvious negligence or deception within the meaning of Article 13 of Regulation No 1430/79, and therefore the conditions laid down by the latter provision must be assessed in the light of those laid down in Article 5(2) of Regulation No 1679/79.