Heuschen & Schrouff Oriëntal Foods Trading BV v Commission of the European Communities.
Date: 2008-11-20
33. According to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (Case C‑499/03 P Biegi Nahrungsmittel and Commonfood  v Commission  [2005] ECR I‑1751, paragraph 37 and the case-law cited).
34. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance does not satisfy the requirements to state reasons under those provisions (see, to that effect, Biegi Nahrungsmittel and Commonfood  v Commission , paragraph 38 and the case-law cited).
35. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose ( Biegi Nahrungsmittel and Commonfood  v Commission , paragraph 39 and the case-law cited).
40. In order to assess whether there is obvious negligence within the meaning of Article 239 of the Customs Code, account must be taken in particular of the complexity of the provisions non-compliance with which resulted in the customs debt being incurred, and the professional experience of, and care taken by, the trader (Case C-443/05 P Common Market Fertilizers  v Commission  [2007] ECR I‑7209, paragraph 174 and the case-law cited).
41. In that regard, there is strong evidence that the problem to be resolved is a complex one where, in view of the differences of opinion between the various Member States as regards the tariff classification of a product, it has been necessary to adopt a regulation which clarifies conclusively the tariff heading under which the product should be classified (see Case C-250/91 Hewlett Packard France  [1993] ECR I‑1819, paragraph 23).
42. However, in the present case, it must be held that the remission of duties applied for by H & S related to import transactions which were specifically subsequent to the entry into force of the Classification Regulation. Although it is true that, as regards the classification of the goods in question, the wording of the Dutch version of subheading 1905 90 20 of the CN may have appeared less precise than that of other language versions, the fact remains that that classification regulation, which is directly applicable and binding in its entirety, explicitly and unequivocally describes the goods that have to be classified under that subheading and the goods imported by the appellant correspond thereto (see, to that effect, Case C-375/07 Heuschen & Schrouff Oriëntal Foods Trading  [2008] ECR I-0000, paragraph 52).
44. Furthermore, that finding cannot be called into question by the fact that the Court took the view, in paragraph 20 of the judgment in Case C‑64/89 Deutsche Fernsprecher  [1990] ECR I-2535, that in a case such as that there in issue, in which the trader had 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 was evidence that the problem to be resolved was a complex one.
50. In order to assess the professional experience of an importer, which is taken into account with regard to the condition relating to the absence of obvious negligence within the meaning of Article 239 of the Customs Code, it is necessary to examine whether or not the operator 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 ( Söhl & Söhlke , paragraph 57, and Common Market Fertilizers  v Commission , paragraph 188).
51. However, Article 5(2) of the Customs Code makes provision for representation of an operator. Thus, representation of an operator for the performance of the acts and formalities laid down in the customs rules may be either direct, where the representative acts in the operator’s name and on his behalf, or indirect, where the representative acts in his own name but on behalf of another person ( Common Market Fertilizers  v Commission , paragraph 184).
52. In that regard, the Court has stated that an operator who uses a customs agent, whether for direct or indirect representation, is in any event the debtor in respect of the customs debt as far as the customs authorities are concerned and that he cannot avoid liability by relying on mistakes made by that agent (see Common Market Fertilizers  v Commission , paragraphs 186 and 187).
55. With regard to the appellant’s argument seeking to call into question the Court of First Instance’s finding, in paragraph 63 of the judgment under appeal, that the appellant itself had some experience in importing, it must be borne in mind that an appraisal of facts does not, save where the clear sense of the evidence before the Court of First Instance has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see Biegi Nahrungsmittel and Commonfood  v Commission , paragraph 40).
60. It must be borne in mind at the outset that 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 must 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 ( Söhl & Söhlke , paragraph 52).
61. It is mandatory that the Community provisions applicable to customs tariffs be published in the Official Journal of the European Communities . As from their date of publication, they constitute the sole relevant positive law and everyone is deemed to be aware of that law (see Case 161/88 Binder  [1989] ECR 2415, paragraph 19).