Hauptzollamt Gießen v Deutsche Fernsprecher GmbH.
Date: 1990-06-26
12 The purpose of the Commission Regulation is to lay down the conditions under which Article 5(2 ) of the Council Regulation, that is to say the provision permitting recovery to be waived in certain cases, is to apply . It follows that Article 4 of the Commission Regulation does not cover a case in which the competent authorities are persuaded that the terms of Article 5(2 ) of the Council Regulation are not fulfilled and therefore consider themselves bound to effect recovery .
13 That interpretation is in conformity with the purposes of the Commission Regulation . The objective of conferring on the Commission a power of decision in regard to the post-clearance recovery of customs duties 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 .
19 In that regard, account must be taken in particular of the precise nature of the error, the professional experience of, and the care taken by, the trader .
20 As regards the precise nature of the error, the question to be determined each time is whether the rules concerned are complex or simple enough for an examination of the facts to make an error easily detectable . It should be stated that, in a case such as this, where the trader twice received confirmation that the erroneous view upon which the customs treatment was based was correct, the repetition of the error by the customs authority is evidence that the problem to be resolved was a complex one .
21 As far as the professional experience of the trader is concerned, the question to be determined is whether or not the trader involved is one whose activity essentially consists in import and export operations, and whether he already had some experience of trading in the goods in question, particularly whether he had in the past carried out similar transactions on which customs duties had been correctly calculated .
22 As regards the degree of care shown by the trader, it should be pointed out that as soon as he has doubts about the accuracy of the calculation of the customs value of the goods it is for the trader himself to make inquiries and seek the greatest clarification possible in order to ascertain whether his doubts are well founded or not .
24 The reply to the second question must therefore be that in order to determine whether there has been "an error ... which could not reasonably have been detected by the person liable" as referred to in Article 5(2 ) of Regulation No 1697/79, regard must be had in particular to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised . It is for the national court to decide, on the basis of that interpretation, whether or not the error responsible for the non-collection of customs duties could have been detected by the person liable .