De Haan Beheer BV v Inspecteur der Invoerrechten en Accijnzen te Rotterdam.
Date: 1999-09-07
13 It should be noted in this connection 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 212/80 to 217/80 Salumi and Others [1981] ECR 2735, paragraph 9, and Joined Cases C-121/91 and C-122/91 CT Control (Rotterdam) and JCT Benelux v Commission [1993] ECR I-3873, paragraph 22).
14 It is therefore appropriate to refer, on the one hand, to the substantive rules contained in the legislation in force prior to implementation of the Customs Code and, on the other hand, to the procedural rules contained in the Customs Code.
29 It should be borne in mind at the outset that, under Article 177 of the Treaty, the Court has no power to apply rules of Community law to a particular case but may only provide a national court with information on the interpretation of Community law which may be useful to it in assessing the effects of a provision of national law (see, in particular, Case 100/63 Kalsbeek v Sociale Verzekeringsbank [1964] ECR 565, at 572, and Case 137/84 Ministère Public v Mutsch [1985] ECR 2681, paragraph 6).
32 However, quite apart from the question whether circumstances of that kind are such as to justify abstention from post-clearance recovery, or the reimbursement or remission of import duties (a question that will be dealt with in paragraphs 37 to 55 of this judgment), the fact remains that the demands of an investigation aimed at identifying and apprehending the persons who have carried out or are planning a fraud, or the accomplices of those persons, may justify a deliberate omission to inform the principal about the investigation fully or at all, even where the principal is in no way implicated in the perpetration of the fraud.
34 That reasoning cannot be accepted. As the Court has already held, in Case C-370/96 Covita [1998] ECR I-7711, at paragraphs 36 and 37, 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 customs duty does not nullify the right of those authorities to proceed with such post-clearance recovery, provided that it is carried out within the three-year period prescribed for the purpose in Article 2(1) of Regulation No 1697/79. The sole purpose of those time-limits is to ensure rapid and uniform application by the competent administrative authorities of the technical procedures for the entry in the accounts of the amounts payable by way of import and export duties. Whilst failure by the customs authorities to observe the time-limits may result in the Member State concerned paying interest in respect of delay to the Communities, in the context of making  available own resources, such failure does not affect the fact that the customs debt is payable or the authorities' right to proceed with post-clearance recovery.
36 In light of the foregoing, the answer to the first part of the question must be that Community law does not impose on customs authorities which have been informed of a possible fraud in connection with external transit arrangements any obligation to warn a principal that he could incur liability for customs duty as a result of the fraud, even where he has acted in good faith.
Circumstances which may justify abstention from post-clearance recovery, or the reimbursement or remission of duties
39 That provision makes any waiver of post-clearance recoveries by the customs authorities subject to three 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 Covita, cited above, at paragraphs 24 to 28).
41 In this connection, whilst it is for the national court to ascertain whether, having regard to the circumstances of the case, the three conditions set out in Article 5(2) of Regulation No 1697/79 have been met (see Joined Cases C-47/95 to 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, paragraphs 33 to 35), it already follows from paragraph 32 of the present judgment that a deliberate omission on the part of the customs authorities to inform a principal of a possible fraud in which the principal is not implicated cannot, in any event, be classified as an error on the authorities' part.
43 In this connection, it should be borne in mind that the list of special situations within the meaning of Article 13(1) of Regulation No 1430/79 which Article 4 of Regulation No 3799/86 provides is, as the first subparagraph thereof expressly states, not exhaustive (see, to that effect, Covita, cited above, paragraph 31).
48 In this connection it should be pointed out that, in accordance with Article 908 of Regulation No 2454/93, the customs authority has to give its decision on the basis of the Commission's decision. However, if the Court declares that decision invalid, the Commission will be obliged to take the steps called for by such a declaration and re-examine, in the light of the Court's judgment, the question whether Article 13(1) of Regulation No 1430/79 applies to the circumstances in point in the main proceedings, the periods referred to in Articles 907 and 909 of Regulation No 2454/93 beginning to run from the date of delivery of the judgment. This also means that the national court, which may not substitute its own determination for that of the Commission, can stay proceedings pending the Commission's decision or the expiry of the abovementioned periods.
52 Secondly, it should be noted that, as the Court held in Case C-86/97 Woltmann [1999] ECR I-1041, at paragraphs 18 to 21, Article 905 of Regulation No 2454/93, pursuant to which the Member State to which the authority belongs may apply to the Commission to determine, on the basis of the information placed before it, whether a special situation exists such as to justify the remission of duties, includes a general fairness clause intended to cover the exceptional situation in which a declarant might find himself in comparison with other operators engaged in the same business, where the customs authority has not itself been able, on the basis of the grounds adduced, to take a decision regarding the remission of duties under either Article 4 of Regulation No 3799/86 or Article 899 of Regulation No 2454/93, depending on which of those two provisions applies, by reason of its temporal scope, to the situation of the person liable.
53 In that regard, the demands of an investigation conducted by the customs authorities or the police constitute, in the absence of any deception or negligence on the part of the person liable, and where that person has not been informed that the investigation is being carried out, a special situation within the meaning of Article 13(1) of Regulation No 1430/79. Although it may be legitimate for the national authorities, in order better to dismantle a network, identify perpetrators of fraud and obtain or consolidate evidence, deliberately to allow offences or irregularities to be committed, to place on the person liable the burden of the customs debt arising from the choices made in connection with the prosecution of offences is inimical to the objective of fairness which underlies Article 905(1) of Regulation No 2454/93 in that it puts that person in an exceptional situation in comparison with other operators engaged in the same business.