Mecanarte - Metalúrgica da Lagoa Ldª v Chefe do Serviço da Conferência Final da Alfândega do Porto.
Date: 1991-06-27
12 With respect to the first question, the Court has consistently held that Article 5(2) of Regulation No 1697/79 must be interpreted as meaning that if all the conditions laid down by that provision are fulfilled the person liable is entitled to the waiver of the recovery of the duty in question (see the judgments in Case 314/85 Foto-Frost [1987] ECR 4199, paragraph 22, Case 378/87 Top Hit [1989] ECR 1359, paragraph 18 and Case 161/88 Binder [1989] ECR 2415, paragraph 16).
19 As a preliminary point, it must be observed that Article 5(2) of Regulation No 1697/79 is intended to protect the legitimate expectation of the person liable that all the information and criteria on which the decision to recover or not to recover customs duties is based are correct.
22 It follows, in the second place, that, since there is no precise and exhaustive definition of the "competent authorities" provided in Regulation No 1697/79, or in Regulation No 1573/80, which was adopted in implementation of the first-mentioned regulation and was in force at the material time, any authority which, acting within the scope of its powers, furnishes information relevant to the recovery of customs duties and which may thus cause the person liable to entertain legitimate expectations, must be regarded as a "competent authority" within the meaning of Article 5(2) of Regulation No 1697/79. This applies in particular to the customs authorities of the exporting Member State which deal with the customs declaration.
23 It follows, in the third place, that the legitimate expectations of the person liable attract the protection provided for in Article 5(2) of Regulation No 1697/79 only if it was the competent authorities "themselves" which created the basis for the expectations of the person liable. Thus, only errors attributable to acts of the competent authorities which could not reasonably have been detected by the person liable create entitlement to the waiver of post-clearance recovery of customs duties.
24 That condition cannot be regarded as fulfilled where the competent authorities have been led into error, in particular as to the origin of the goods, by incorrect declarations by the person liable whose validity they do not have to check or assess. In such circumstances, the Court has consistently held that it is the person liable who must bear the risks arising from a commercial document which is found to be false when subsequently checked (judgment in Joined Cases 98 and 230/83 Van Gend en Loos [1984] ECR 3763, paragraph 20).
29 That obligation may not, however, go beyond production of the information and documents that the person liable may reasonably possess or obtain. It follows that if an economic agent produces in good faith information which, although incorrect or incomplete, is the only information which he can reasonably possess or obtain and therefore include in the customs declaration, the requirement of compliance with the provisions in force concerning the customs declaration must be considered to have been fulfilled.
32 As is already clear from the judgment of the Court in Case C-64/89 Deutsche Fernsprecher [1990] ECR I-2535 (paragraphs 12 and 13), the power of decision conferred on the Commission by Article 4 of Regulation No 1573/80 relates only to cases in which the competent national authorities are convinced that the conditions of Article 5(2) of Regulation No 1697/79 are fulfilled and therefore do not consider that they must effect post-clearance recovery.
33 As the Court made clear in the same judgment, that interpretation is in conformity with the purpose of Regulation No 1697/79, which is to ensure the uniform application of Community law. That is likely to be jeopardized in cases where an application to waive post-clearance recovery is allowed, since the assessment which a Member State may make in taking a favourable decision is likely, in actual fact, owing to the probable absence of any appeal, to escape any review by means of which the uniform application of the conditions laid down in the Community legislation may be ensured. On the other hand, that is not the case where the national authorities proceed to effect recovery, whatever the amount in issue. It is then open to the person concerned to challenge such a decision before the national courts. As a result, it will then be possible for the uniformity of Community law to be ensured by the Court of Justice through the preliminary ruling procedure.
39 It is apparent from the grounds of its order for reference that the national court takes the view that the two provisions of the Portuguese rules applicable to the present case are not only contrary to Community law but are also unconstitutional on functional and substantive grounds since they were adopted in the exercise of administrative functions and not in the exercise of legislative functions, the latter in this case being the prerogative of the national Assembly of the Portuguese Republic, and since they are contrary to the principle of the primacy of international law over domestic law.
44 The effectiveness of the system established by Article 177 of the EEC Treaty requires that the national courts have the widest possible powers to refer questions to the Court of Justice if they consider that a case pending before them raises issues requiring an interpretation or an appraisal of the validity of provisions of Community law whose determination is necessary for the resolution of the dispute brought before them.
45 Moreover, the effectiveness of Community law would be in jeopardy if the existence of an obligation to refer a matter to a constitutional court could prevent a national court hearing a case governed by Community law from exercising the right conferred on it by Article 177 of the EEC Treaty to refer to the Court of Justice questions concerning the interpretation or validity of Community law in order to enable it to decide whether or not a provision of domestic law was compatible with Community law.
46 It must therefore be stated in reply to the first limb of the seventh question that a national court which in a case concerning Community law declares a provision of national law unconstitutional does not lose the right or escape the obligation under Article 177 of the EEC Treaty to refer questions to the Court of Justice on the interpretation or validity of Community law by reason of the fact that such a declaration is subject to a mandatory reference to the constitutional court.
47 As regards the second problem, it need merely be pointed out that the Court has consistently held, with respect to the allocation of judicial functions as between the national courts and the Court of Justice under Article 177 of the Treaty, that national courts have a discretion as to whether a decision on a point of Community law is necessary to enable them to give judgment (see in particular the judgment in Case 283/81 CILFIT [1982] ECR 3415, paragraph 10).