Firma Söhl & Söhlke v Hauptzollamt Bremen.
Date: 1999-11-11
32 In that context it should be borne in mind, first of all, that it follows from the case-law of the Court that where a provision of the EC Treaty, such as Article 28 of the EC Treaty (now, after amendment, Article 26 EC) on the basis of which the Customs Code was adopted, in principle gives the Council power to adopt, on a proposal from the Commission, rules on a specified matter, Articles 145 and 155 (now Articles 202 EC and 211 EC) allow the Council to confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. Article 145 nevertheless provides that the Council may also reserve the right, in specific cases, to exercise those powers itself (see in particular, with regard to agriculture, Case C-240/90 Germany v Commission [1992] ECR I-5383, at paragraph 35).
34 Secondly, according to the case-law of the Court, since the Council has laid down in its basic regulation the essential rules governing the matter in question, it may delegate to the Commission general implementing power without having to specify the essential components of the delegated power; for that purpose, a provision drafted in general terms provides a sufficient basis for the authority to act (see in particular, with regard to agriculture, Germany v Commission, cited above, at paragraph 41).
35 Furthermore, Article 249 of the Customs Code constitutes a sufficient basis for the Commission to adopt a set of rules for the implementation of the Customs Code and Article 204 in particular.
36 Lastly, it follows from the case-law of the Court that the Commission is authorised to adopt all the measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to such legislation or to the implementing legislation adopted by the Council (see in particular, with regard to agriculture, Case 121/83 Zuckerfabrik Franken [1984] ECR 2039, at paragraph 13; Case C-478/93 Netherlands v Commission [1995] ECR I-3081, at paragraph 31; and Joined Cases C-9/95, C-23/95 and C-156/95 Belgium and Germany v Commission [1997] ECR I-645, at paragraph 37).
43 In the light of the foregoing considerations, the answer to the first question must be that Article 859 of the implementing Regulation contains a validly constituted and exhaustive set of rules on failures, within the meaning of Article 204(1)(a) of the Customs Code, which `have no significant effect on the correct operation of the temporary storage or customs procedure in question'.
Third question
46 As regards the first part of the question, it should be borne in mind first of all, that, according to settled case-law, the need for a uniform interpretation of Community regulations makes it impossible for the text of a provision to be considered in isolation but requires, on the contrary, that it should be interpreted and applied in the light of the versions existing in the other official languages (see, to that effect, Case C-296/95 EMU Tabac and Others [1998] ECR I-1605, at paragraph 36).
50 As regards the third part of the seventh question, since the same term, that is to say `obvious negligence' is used in the second indent of Article 859 of the implementing Regulation and the second indent of Article 239(1) of the Customs Code, it is not possible to conclude that there was no obvious negligence within the meaning of the second indent of Article 239(1) where a customs debt is incurred pursuant to Article 204(1)(a) of the Customs Code as a result of behaviour which constitutes obvious negligence within the meaning of the second indent of Article 859 of the implementing Regulation.
Second part of the seventh question.
52 Secondly, 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. Since a lack of `obvious negligence' is an essential condition of being able to claim repayment or remission of import or export duties, it follows that that term must be interpreted in such a way that the number of cases of repayment or remission remains limited.
54 It follows from the judgment in Case C-250/91 Hewlett Packard France [1993] ECR I-1819, paragraph 46, that Article 13 of Regulation No 1430/79 and Article 5(2) 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), 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. It follows that the conditions to which the application of those articles is made subject, that is to say that no negligence or deception may be attributed to the person concerned in the case of Article 13 of Regulation No 1430/79 and that no error has been made by the customs authorities which could reasonably have been detected by the person liable  in the case of Article 5(2) of Regulation No 1697/79, must be interpreted in the same manner.
55 Moreover, in its judgment concerning Article 5(2) of Regulation No 1697/79 in Case C-64/89 Deutscher Fernsprecher [1990] ECR I-2535, paragraph 19, the Court held that the question whether or not an error committed by the customs authorities was detectable by a trader had to be examined taking account in particular of the precise nature of the error, the professional experience of, and the care taken by, the trader.
56 By analogy with those criteria, in order to determine whether or not there is `obvious negligence' within the meaning of the second indent of Article 239(1) of the Customs Code, account must be taken in particular of the complexity of the provisions non-compliance with which has resulted in the customs debt being incurred, and the professional experience of, and care taken by, the trader.
57 As regards the professional experience of the trader, it is necessary to examine whether or not he is a trader whose business activities consist mainly in import and export transactions and whether he had already gained some experience in the conduct of such transactions.
58 As regards the care taken by the trader, it must be noted that, where doubts exist as to the exact application of the provisions non-compliance with which may result in a customs debt being incurred, the onus is on the trader to make inquiries and seek all possible clarification to ensure that he does not infringe those provisions.
66 It should be added that in any event the Court has held that in the absence of Community rules governing a matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law, it being understood that such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see, in particular, Case 33/76 Rewe [1976] ECR 1989, at paragraph 5; Case 45/76 Comet [1976] ECR 2043, at paragraphs 12 to 16, and Case C-312/93 Peterbroeck [1995] ECR I-4599, at paragraph 12).
86 In the light of the foregoing considerations, the answer to the fourth question must be that Article 900(1)(o) of the implementing Regulation applies to cases in which the goods would have been eligible for Community treatment or preferential tariff treatment, but not to cases in which the goods would have been eligible for other forms of favourable treatment.
Fifth question
91 Secondly, the Court has held that where the customs authority is not in a position, on the basis of the grounds adduced, to take a decision to repay or remit duties on the basis of Article 899 of the implementing Regulation, it is then required to verify whether there is any evidence of the existence of a special situation within the meaning of Article 905(1) of the implementing Regulation, which does not entail any deception or manifest negligence on the part of the person concerned and, if need be, to forward the file to the Commission, which will, on the basis of the information placed before it, consider whether a special situation exists such as to justify the repayment or remission of duties (judgment in Case C-86/97 Trans-Ex-Import [1999] ECR I-1041, at paragraph 19).