Ilumitrónica - Iluminação e Electrónica Ldª v Chefe da Divisão de Procedimentos Aduaneiros e Fiscais/Direcção das Alfândegas de Lisboa, and Ministério Público.
Date: 2002-11-14
29 More generally, it should be noted that, according to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force (see, in particular, Joined Cases C-121/91 and C-122/91 CT Control (Rotterdam) and JCT Benelux v Commission [1993] ECR I-3873, paragraph 22, and Case C-61/98 De Haan [1999] ECR I-5003, paragraph 13).
37 That provision makes waiver of post-clearance recovery by the national authorities subject to three cumulative conditions.  Provided that those three conditions are fulfilled, the person liable is entitled to waiver of post-clearance recovery (see, in particular, Case C-250/91 Hewlett Packard France [1993] ECR I-1819, paragraph 12; Joined Cases C-153/94 and C-204/94 Faroe Seafood and Others [1996] ECR I-2465, paragraph 84, and Case C-15/99 Sommer [2000] ECR I-8989, paragraph 35).
38 First, non-collection of the duties must have been due to an error made by the competent authorities themselves. Second, the error they made must be such that the person competent, acting in good faith, could not reasonably have been able to detect it in spite of the professional experience and exercise of due care required of him. Finally, he must have complied with all the provisions laid down by the legislation in force so far as his customs declaration is concerned (see, in particular, Hewlett Packard France, paragraph 13, Faroe Seafood, paragraph 83, and Case C-370/96 Covita [1998] ECR I-7711, paragraphs 25 to 28).
39 The fulfilment of those conditions must be assessed in the light of the purpose of Article 5(2) of Regulation No 1697/79, which is to protect the legitimate expectation of the person liable that all the information and criteria on which the decision whether or not to proceed with recovery of customs duties is based are correct (see, in particular, Case C-348/89 Mecanarte [1991] ECR I-3277, paragraph 19, and Faroe Seafood, paragraph 87).
Definition of `competent authorities' and `error'
42 The Court has also held that it follows from the wording of Article 5(2) itself that the legitimate expectations of the person liable attract the protection provided for in that article only if it was the competent authorities `themselves' which created the basis for those expectations.  Thus, only errors attributable to acts of those authorities confer entitlement to the waiver of post-clearance recovery of customs duties (Mecanarte, paragraph 23, and Faroe Seafood, paragraph 91).
43 As the Court has pointed out, that condition cannot be regarded as fulfilled where the competent authorities have been misled - in particular as to the origin of the goods - by incorrect declarations on the part of the exporter whose validity they do not have to check or assess. In those circumstances, it is the person liable who must bear the risks arising from a commercial document which is found to be false when subsequently checked (Mecanarte, paragraph 24, and Faroe Seafood, paragraph 92).
54 The Court has consistently held that whether the error was detectable must be determined having regard to the nature of the error, the professional experience of the traders concerned and the degree of care which they exercised (see, in particular, Hewlett Packard France, paragraph 22, Faroe Seafood, paragraph 99, and Sommer, paragraph 37).
56 As regards first the nature of the error, the Court has held that it is necessary to determine it in the light, in particular, of the complexity of the rules concerned (Hewlett Packard France, paragraph 23, and Faroe Seafood, paragraph 100) and of the period of time during which the authorities persisted in their error (Case C-38/95 Foods Import [1996] ECR I-6543, paragraph 30).
57 The importer's knowledge of the rules concerned implied, in the main proceedings, at least a knowledge of Article 3 of the Additional Protocol, providing for the collection of a compensatory levy on goods in the manufacture of which were used products coming from third countries and not in free circulation either in the Community or in Turkey, as well as of Decisions Nos 2/72 and 3/72 of the Association Council, fixing the rate and rules relating to the procedure for collecting that compensatory levy.  As the Advocate General observed in paragraph 63 of his Opinion, those rules may objectively be described as complex.
60 Ilumitrónica's claim that it was unaware of the breach by the Turkish authorities of their obligations must therefore be held to be proven in the light of that omission and, in general, of the conduct of the Commission itself.  Under Article 155 of the EC Treaty (now Article 211 EC), the latter had the task of ensuring the proper implementation of the Association Agreement and had, in particular under Article 7 thereof, all the information needed to do so. However, in the observations which the Commission submitted in this case, whilst acknowledging the absence, from 1973 to 1994, of any provisions in Turkish legislation which would have enabled the Additional Protocol to be applied correctly, it merely mentions the sending of a fact-finding mission to Turkey in 1993, thus taking, as the Advocate General observed in paragraph 67 of his Opinion, nearly 20 years to discover that Turkey was not complying with the Additional Protocol.
The degree of care exercised by the declarant
61 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, in particular, Hewlett Packard France, paragraph 29).
73 It follows from the wording of that provision that it provides for a possibility and not an obligation of submission.