Kingdom of the Netherlands v Commission of the European Communities.
Date: 2003-03-13
6.  For the period prior to 1 January 1994, the provision corresponding to Article 221(1) and (3) was to be found in Article 2(1) of Council Regulation (EEC) 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 (OJ 1979 L 197, p. 1). That provision was reproduced in substance in Article 221(1) and (3) of the Customs Code.
35.  The Court notes, as a preliminary point, that some of the facts of the case relating to the customs debt occurred prior to 1 January 1994, that is, prior to the entry into force of the Customs Code and the implementing regulation, whereas some occurred after that date.
36.  Accordingly, it is appropriate to refer not only to those two texts, but also, in keeping with the case-law of the Court, as regards the period prior to 1 January 1994, to the substantive rules contained in the legislation in force prior to implementation of the Customs Code (see Case C-61/98   De Haan   [1999] ECR I-5003, paragraph 14).
The first plea
Arguments of the parties
63.  It follows from the overall scheme of the chapter of the Customs Code dealing with recovery of the amount of the customs debt, namely Chapter 3 of Title VII, which includes Article 221 concerning communication of the debt to the debtor, that the rules laid down in that chapter are addressed principally to the Member States and their customs authorities.
64.  In the absence of any provision in the Customs Code or the implementing regulation empowering the Commission to apply the rule on the time limitation, the Court finds that it is for the Member States and their competent authorities to implement that rule and that the Commission is not empowered to rule on the question whether the recovery procedure for the customs debt was carried out in accordance with that rule.
91.  It is useful to recall, as a preliminary point, that the repayment or remission of import and export duties, which may be made only under certain conditions and in cases specifically provided for, constitutes an exception to the normal import and export procedure and, consequently, the provisions which provide for such repayment or remission are to be interpreted strictly (Case C-48/98   Söhl  & Söhlke   [1999] ECR I-7877, paragraph 52).
92.  In order to determine whether or not Cargill has demonstrated   "obvious negligence"   within the meaning of the second indent of Article 239(1) of the Customs Code, as the Court has previously held, it is appropriate to apply by analogy the criteria used in the context of Article 220 of the Customs Code to ascertain whether or not an error committed by the customs authorities was detectable by a trader (see   Söhl  & Söhlke  , paragraphs 55 and 56). The Commission was therefore correct in applying those criteria to the present case.
93.  Turning to the first criterion, concerning the complexity of the applicable rules, it is appropriate to refer to the definition of the concept of equivalent goods as contained in Article 569(1) of the implementing regulation. Under that provision, equivalent goods must come under the same eight-digit subheading of the CN Code, display the same commercial quality and have the same technical characteristics as the import goods. These three conditions are cumulative (Case C-103/96   Eridania Beghin-Say   [1997] ECR I-1453, paragraph 23).
99.  Moreover, in keeping with the settled case-law of the Court, 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 (Case C-64/89   Deutsche Fernsprecher   [1990] ECR I-2535, paragraph 22; and Case C-250/91   Hewlett Packard France   [1993] ECR I-1819, paragraph 24).