Staatssecretaris van Financiën v Heuschen & Schrouff Oriëntal Foods Trading BV.
Date: 2008-11-20
43. First of all, it must be borne in mind that the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in, inter alia, the wording of the relevant tariff heading and in the section or chapter notes (Case C-142/06 Olicom  [2007] ECR I-6675, paragraph 16 and the case-law cited).
44. In that regard, both the notes which head the chapters of the Common Customs Tariff and the Explanatory Notes to the HS are important means of ensuring the uniform application of the Tariff and as such may be regarded as useful aids to its interpretation ( Olicom , paragraph 17, and the case-law cited).
46. However, 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 cont rary, that it should be interpreted and applied in the light of the versions existing in the other official languages (Case C-48/98 Söhl & Söhlke  [1999] ECR I-7877, paragraph 46).
51. Lastly, it cannot be inferred from paragraph 12 of Uelzena Milchwerke  that the Court intended to restrict the application of heading 1905 of the CN to ‘baked’ goods alone. It is true that in paragraph 12 of that judgment the Court held that the classification of ‘[b]read, pastry, cakes, biscuits and other bakers’ wares...’ under heading 1905 and of ‘[s]weet biscuits; waffles and wafers’ under subheading 1905 30 presupposed that the goods concerned had been cooked at least once. However, it is clear that that assessment related only to the first category of products in the wording of heading 1905, namely that of ‘[b]read, pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa’, which is covered by paragraph A of the HS explanatory note relating to heading 1905.
52. Having regard to the foregoing, the classification under subheading 1905 90 20 of the CN of foodstuffs prepared from rice flour, salt and water in the form of dried, translucent sheets or discs of various sizes is in accordance with the wording of that subheading.
57. It must be stated at the outset that the procedures provided for in Articles 220 and 239 of the Customs Code 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 (see Case C- 250/91 Hewlett Packard France  [1993] ECR I-1819, paragraph 46, and Söhl & Söhlke , paragraph 54).
58. It follows that the conditions to which the application of those articles is made subject, that is to say, in particular, that no obvious negligence may be attributed to the person concerned in the case of the second indent of Article 239(1) of the Customs Code 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 220 of the Customs Code, must be interpreted in the same manner (see, to that effect, Söhl & Söhlke , paragraph 54).
59. Consequently, as the Court has previously held, in order to determine whether or not a trader has demonstrated ‘obvious negligence’, within the meaning of the second indent of Article 239(1) of the Customs Code, it is appropriate to apply by analogy the criteria used in the context of Article 220 of the Customs Code to ascertain whether or not an error committed by the customs authorities was detectable by a trader (see Söhl and Söhlke , paragraphs 55 and 56, and Case C‑156/00 Netherlands  v Commission  [2003] ECR I-2527, paragraph 92).
62. As the Court has already stated, 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 jeopardised 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, because, in those circumstances, it is still open to the person concerned to challenge such a decision before the national courts (Case C‑419/04 Conseil général de la Vienne  [2006] ECR I-5645, paragraph 42 and the case-law cited).
63. In such cases, it is thus for the national court to assess whether, having regard to the circumstances of the case, those conditions have been satisfied and, 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 (see, to that effect, Case C‑64/89 Deutsche Fernsprecher  [1990] ECR I‑2535, paragraph 13, and Conseil général de la Vienne , paragraph 42 and the case-law cited).
64. However, where an application for remission of import duties has been submitted to the Commission by a Member State for the purposes of Article 239 of the Customs Code and the Commission has already adopted a decision containing assessments of fact and law in a particular case concerning import operations, such assessments bind all the authorities of the Member State to which it was addressed, in accordance with Article 249 EC, including the courts which have to assess the same case under Article 220 of the Customs Code (see, to that effect, Case C‑413/96 Sportgoods  [1998] ECR I-5285, paragraph 41).
66. A national court, such as the Gerechtshof te Amsterdam in the present case, ruling on an appeal against a notice for recovery of import duties, must therefore, when it becomes aware in the course of the proceedings before it that the matter has been referred to the Commission pursuant to Article 220 or Article 239 of the Customs Code, avoid giving decisions which would conflict with a decision contemplated by the Commission in the implementation of those articles (see, by analogy, Case C-234/89 Delimitis [1991] ECR I‑935, paragraph 47, and Case C‑344/98 Masterfoods and HB  [2000] ECR I‑11369, paragraph 51). That means that the referring court, which may not substitute its own determination for that of the Commission, can stay proceedings pending the Commission’s decision (see, to that effect, Case C-61/98 De Haan  [1999] ECR I-5003, paragraph 48).
67. In any event, as the Court has pointed out in, inter alia, proceedings relating to Articles 81 EC and 82 EC, if a national court has doubts as to the validity or interpretation of an act of a Community institution it may, or must, in accordance with the second and third paragraphs of Article 234 EC, refer a question to the Court of Justice for a preliminary ruling (see Masterfoods and HB , paragraph 54).
68. If, as here in the main proceedings, the importer has, within the period prescribed in the fifth paragraph of Article 230 EC, brought an action for annulment of a Commission decision in respect of an application for remission of duties pursuant to Article 239 of the Customs Code, it is for the national court to decide whether to stay the proceedings until a definitive decision has been given in the action for annulment or to refer a question to the Court of Justice for a preliminary ruling as to validity (see, by analogy, Masterfoods and HB , paragraph 55).
69. By contrast, if the Commission takes a decision on a particular case under Article 239 of the Customs Code, it cannot be bound by a decision given previously by a national court ruling on the conditions for the application to that same case of Article 220 of the Customs Code (see, by analogy, Masterfoods and HB , paragraph 48).