Foto-Frost v Hauptzollamt Lübeck-Ost.
Date: 1987-10-22
12 ARTICLE 177 CONFERS ON THE COURT JURISDICTION TO GIVE PRELIMINARY RULINGS ON THE INTERPRETATION OF THE TREATY AND OF ACTS OF THE COMMUNITY INSTITUTIONS AND ON THE VALIDITY OF SUCH ACTS . THE SECOND PARAGRAPH OF THAT ARTICLE PROVIDES THAT NATIONAL COURTS MAY REFER SUCH QUESTIONS TO THE COURT AND THE THIRD PARAGRAPH OF THAT ARTICLE PUTS THEM UNDER AN OBLIGATION TO DO SO WHERE THERE IS NO JUDICIAL REMEDY UNDER NATIONAL LAW AGAINST THEIR DECISIONS .
13 IN ENABLING NATIONAL COURTS, AGAINST THOSE DECISIONS WHERE THERE IS A JUDICIAL REMEDY UNDER NATIONAL LAW, TO REFER TO THE COURT FOR A PRELIMINARY RULING QUESTIONS ON INTERPRETATION OR VALIDITY, ARTICLE 177 DID NOT SETTLE THE QUESTION WHETHER THOSE COURTS THEMSELVES MAY DECLARE THAT ACTS OF COMMUNITY INSTITUTIONS ARE INVALID .
14 THOSE COURTS MAY CONSIDER THE VALIDITY OF A COMMUNITY ACT AND, IF THEY CONSIDER THAT THE GROUNDS PUT FORWARD BEFORE THEM BY THE PARTIES IN SUPPORT OF INVALIDITY ARE UNFOUNDED, THEY MAY REJECT THEM, CONCLUDING THAT THE MEASURE IS COMPLETELY VALID . BY TAKING THAT ACTION THEY ARE NOT CALLING INTO QUESTION THE EXISTENCE OF THE COMMUNITY MEASURE .
15 ON THE OTHER HAND, THOSE COURTS DO NOT HAVE THE POWER TO DECLARE ACTS OF THE COMMUNITY INSTITUTIONS INVALID . AS THE COURT EMPHASIZED IN THE JUDGMENT OF 13 MAY 1981 IN CASE 66/80 INTERNATIONAL CHEMICAL CORPORATION V AMMINISTRAZIONE DELLE FINANZE (( 1981 )) ECR 1191, THE MAIN PURPOSE OF THE POWERS ACCORDED TO THE COURT BY ARTICLE 177 IS TO ENSURE THAT COMMUNITY LAW IS APPLIED UNIFORMLY BY NATIONAL COURTS . THAT REQUIREMENT OF UNIFORMITY IS PARTICULARLY IMPERATIVE WHEN THE VALIDITY OF A COMMUNITY ACT IS IN QUESTION . DIVERGENCES BETWEEN COURTS IN THE MEMBER STATES AS TO THE VALIDITY OF COMMUNITY ACTS WOULD BE LIABLE TO PLACE IN JEOPARDY THE VERY UNITY OF THE COMMUNITY LEGAL ORDER AND DETRACT FROM THE FUNDAMENTAL REQUIREMENT OF LEGAL CERTAINTY .
16 THE SAME CONCLUSION IS DICTATED BY CONSIDERATION OF THE NECESSARY COHERENCE OF THE SYSTEM OF JUDICIAL PROTECTION ESTABLISHED BY THE TREATY . IN THAT REGARD IT MUST BE OBSERVED THAT REQUESTS FOR PRELIMINARY RULINGS, LIKE ACTIONS FOR ANNULMENT, CONSTITUTE MEANS FOR REVIEWING THE LEGALITY OF ACTS OF THE COMMUNITY INSTITUTIONS . AS THE COURT POINTED OUT IN ITS JUDGMENT OF 23 APRIL 1986 IN CASE 294/83 PARTI ECOLOGISTE "LES VERTS" V EUROPEAN PARLIAMENT (( 1986 )) ECR 1339 ), "IN ARTICLES 173 AND 184, ON THE ONE HAND, AND IN ARTICLE 177, ON THE OTHER, THE TREATY ESTABLISHED A COMPLETE SYSTEM OF LEGAL REMEDIES AND PROCEDURES DESIGNED TO PERMIT THE COURT OF JUSTICE TO REVIEW THE LEGALITY OF MEASURES ADOPTED BY THE INSTITUTIONS ".
17 SINCE ARTICLE 173 GIVES THE COURT EXCLUSIVE JURISDICTION TO DECLARE VOID AN ACT OF A COMMUNITY INSTITUTION, THE COHERENCE OF THE SYSTEM REQUIRES THAT WHERE THE VALIDITY OF A COMMUNITY ACT IS CHALLENGED BEFORE A NATIONAL COURT THE POWER TO DECLARE THE ACT INVALID MUST ALSO BE RESERVED TO THE COURT OF JUSTICE .
18 IT MUST ALSO BE EMPHASIZED THAT THE COURT OF JUSTICE IS IN THE BEST POSITION TO DECIDE ON THE VALIDITY OF COMMUNITY ACTS . UNDER ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC, COMMUNITY INSTITUTIONS WHOSE ACTS ARE CHALLENGED ARE ENTITLED TO PARTICIPATE IN THE PROCEEDINGS IN ORDER TO DEFEND THE VALIDITY OF THE ACTS IN QUESTION . FURTHERMORE, UNDER THE SECOND PARAGRAPH OF ARTICLE 21 OF THAT PROTOCOL THE COURT MAY REQUIRE THE MEMBER STATES AND INSTITUTIONS WHICH ARE NOT PARTICIPATING IN THE PROCEEDINGS TO SUPPLY ALL INFORMATION WHICH IT CONSIDERS NECESSARY FOR THE PURPOSES OF THE CASE BEFORE IT .
19 IT SHOULD BE ADDED THAT THE RULE THAT NATIONAL COURTS MAY NOT THEMSELVES DECLARE COMMUNITY ACTS INVALID MAY HAVE TO BE QUALIFIED IN CERTAIN CIRCUMSTANCES IN THE CASE OF PROCEEDINGS RELATING TO AN APPLICATION FOR INTERIM MEASURES; HOWEVER, THAT CASE IS NOT REFERRED TO IN THE NATIONAL COURT' S QUESTION .
20 THE ANSWER TO THE FIRST QUESTION MUST THEREFORE BE THAT THE NATIONAL COURTS HAVE NO JURISDICTION THEMSELVES TO DECLARE THAT ACTS OF COMMUNITY INSTITUTIONS ARE INVALID .  THE SECOND QUESTION
22 IT MUST BE OBSERVED THAT ARTICLE 5*(2 ) OF REGULATION NO 1697/79 LAYS DOWN THREE SPECIFIC REQUIREMENTS WHICH MUST BE FULFILLED BEFORE THE COMPETENT AUTHORITIES MAY WAIVE THE POST-CLEARANCE RECOVERY OF DUTIES . THAT PROVISION MUST BE INTERPRETED AS MEANING THAT IF ALL THOSE REQUIREMENTS ARE FULFILLED THE PERSON LIABLE IS ENTITLED TO THE WAIVER OF THE RECOVERY OF THE DUTY IN QUESTION .
23 IT NOW FALLS TO BE CONSIDERED WHETHER THE THREE REQUIREMENTS SET OUT IN ARTICLE 5*(2 ) OF REGULATION NO 1697/79 ARE FULFILLED IN THIS CASE . THE COURT HAS THE POWER TO VERIFY THE EXISTENCE OF THE FACTS ON WHICH A COMMUNITY ACT IS BASED AND THE LEGAL INFERENCES WHICH THE COMMUNITY INSTITUTION HAS DRAWN THEREFROM WHERE, IN THE CONTEXT OF A REQUEST FOR A PRELIMINARY RULING, THEY ARE ALLEGED TO BE INCORRECT .
24 THE FIRST REQUIREMENT CONTAINED IN ARTICLE 5*(2 ) IS THAT THE FAILURE TO COLLECT THE DUTY MUST HAVE BEEN THE RESULT OF AN ERROR MADE BY THE COMPETENT AUTHORITIES THEMSELVES . IN THAT REGARD, THE COMMISSION' S ARGUMENT TO THE EFFECT THAT THE CUSTOMS AUTHORITIES DID NOT MAKE AN ERROR THEMSELVES BUT MERELY MADE THE INITIAL ASSUMPTION THAT THE PARTICULARS GIVEN IN FOTO-FROST' S DECLARATION WERE CORRECT, AS THEY WERE ENTITLED TO DO UNDER ARTICLE 10 OF COUNCIL DIRECTIVE 79/695/EEC, MUST BE REJECTED . ACCORDING TO THE LATTER PROVISION, WHERE DUTY HAS BEEN CALCULATED ON THE BASIS OF NON-VERIFIED PARTICULARS GIVEN IN THE CUSTOMS DECLARATION, THE DECLARATION MAY BE SUBJECTED TO SUBSEQUENT VERIFICATION AND THE AMOUNT OF DUTY CALCULATED RECTIFIED . IN THIS CASE, AS THE COMMISSION ITSELF ACKNOWLEDGED IN ITS OBSERVATIONS AND IN ANSWERING A QUESTION PUT TO IT BY THE COURT, FOTO-FROST' S DECLARATION CONTAINED ALL THE FACTUAL PARTICULARS NEEDED IN ORDER TO APPLY THE RELEVANT RULES, AND THOSE PARTICULARS WERE CORRECT . IN THOSE CIRCUMSTANCES, THE POST-CLEARANCE CHECK CARRIED OUT BY THE GERMAN CUSTOMS AUTHORITIES FAILED TO DISCLOSE ANY NEW FACT . THEREFORE, IT WAS IN FACT AS A RESULT OF AN ERROR MADE BY THE CUSTOMS AUTHORITIES THEMSELVES IN INITIALLY APPLYING THE RELEVANT RULES THAT DUTY WAS NOT CHARGED WHEN THE GOODS WERE IMPORTED .
25 THE SECOND REQUIREMENT IS THAT THE PERSON LIABLE MUST HAVE ACTED IN GOOD FAITH OR, IN OTHER WORDS, THAT HE COULD NOT HAVE DETECTED THE ERROR MADE BY THE COMPETENT AUTHORITIES . IN THAT CONNECTION, IT IS OBSERVED THAT THE SPECIALIST JUDGES OF THE FINANZGERICHT HAMBURG EXPRESSED THE VIEW IN THEIR ORDER OF 22 SEPTEMBER 1983 SUSPENDING THE OPERATION OF THE AMENDMENT NOTICE THAT IT WAS VERY DOUBTFUL WHETHER DUTY WAS PAYABLE ON OPERATIONS OF THE TYPE AT ISSUE . THE FINANZGERICHT CONSIDERED THAT SUCH OPERATIONS APPEARED TO FALL WITHIN THE AMBIT OF GERMAN INTERNAL TRADE AND WERE THEREFORE EXEMPT FROM CUSTOMS DUTY UNDER THE PROTOCOL ON SUCH TRADE . HOWEVER, IT OBSERVED THAT THE SITUATION WAS UNCERTAIN AS REGARDS THE CASE-LAW OF BOTH THE COURT OF JUSTICE AND THE NATIONAL COURTS . IN THOSE CIRCUMSTANCES, IT CANNOT REASONABLY BE CONSIDERED THAT FOTO-FROST, A COMMERCIAL UNDERTAKING, COULD HAVE DETECTED THE ERROR MADE BY THE CUSTOMS AUTHORITIES . MOREOVER, IT HAD EVEN LESS REASON TO SUSPECT THAT AN ERROR HAD BEEN MADE, SINCE PREVIOUS SIMILAR OPERATIONS HAS BEEN GRANTED EXEMPTION FROM DUTY .
26 THE THIRD REQUIREMENT IS THAT THE PERSON LIABLE MUST HAVE OBSERVED ALL THE PROVISIONS LAID DOWN BY THE RULES IN FORCE AS FAR AS HIS CUSTOMS DECLARATION IS CONCERNED . AS TO THAT POINT, IT MUST BE OBSERVED THAT, IN ANSWERING A QUESTION PUT TO IT BY THE COURT, THE COMMISSION ITSELF ADMITTED, CONTRARY TO WHAT IS STATED IN ITS DECISION OF 6 MAY 1983, THAT FOTO-FROST HAD COMPLETED ITS CUSTOMS DECLARATION CORRECTLY . MOREOVER, THERE IS NOTHING IN THE DOCUMENTS BEFORE THE COURT TO SUGGEST THAT THAT WAS NOT THE CASE .