OPINION OF ADVOCATE GENERAL

TIZZANO

delivered on 17 November 2005 ¹(1)

Case C-419/04

Conseil général de la Vienne

v

Directeur général des douanes et droits indirects

(Reference for a preliminary ruling from the Cour d’appel de Poitiers (France))

(Regulation (EEC) No 2454/93 – Import duties – Post-clearance recovery – Article 871 – Obligation to consult the Commission – None)

1.        By a decision of 30 September 2004, the Cour d’appel de Poitiers (Court of Appeal, Poitiers), submitted to the Court of Justice a question for a preliminary ruling concerning the interpretation of Article 871 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (hereinafter: ‘Regulation No 2454/93’). (2) The national court is seeking, in particular, to ascertain whether that regulation requires the national customs authorities to refer a case to the Commission if they intend to undertake the post-clearance recovery of a duty eluded at the time when goods were imported, but have expressed doubts concerning the fulfilment of the conditions laid down for waiving recovery.

I –  Legislative framework

2.        Article 868 et seq. of Regulation No 2454/93 governs the procedure for entry in the accounts and post-clearance recovery of a customs debt. I shall confine myself here to those elements which are pertinent in this case, and would point out that, in accordance with Article 869 of that regulation, in the version applicable to the facts of the case at the material time, (3) the national authorities are able autonomously to decide to waive recovery of uncollected duties, if those duties amount to less than EUR 2 000. If the amount is in excess of that figure, Article 871 takes effect, and according to that article, again, in the version applicable at the material time:

‘In cases other than those referred to in Article 869, where the customs authorities either consider that the conditions laid down in Article 220(2)(b) of the Code are fulfilled or are in doubt as to the precise scope of the criteria of that provision with regard to a particular case, those authorities shall submit the case to the Commission, so that a decision may be taken in accordance with the procedure laid down in Articles 872 to 876. The case submitted to the Commission shall contain all the information required for a full examination.

…’

3.        Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing a Community Customs Code (hereinafter: the ‘Customs Code’), (4) to which the abovementioned provision of Regulation No 2454/93 refers, provides that there shall be no post-clearance recovery:

‘Where the amount of duty legally owed failed to be entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration.’

4.        That said, I would point out that where those same conditions are fulfilled, a debt may be remitted, a process which, according to Article 235(b) of the Customs Code, means to ‘waive all or part of the amount of a customs debt’. In fact, pursuant to the second subparagraph of Article 236(1) of the Customs Code: ‘… Import duties or export duties shall be remitted in so far as it is established that when they were entered in the accounts the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).’

II –  Facts and procedure

5.        Between 31 March and 29 April 1993, the Conseil général de la Vienne, a member of the Conseil de surveillance de la société d’économie mixte locale du Parc du Futurscope (hereinafter: ‘Futurscope’), acquired audiovisual equipment from the IMAX Corporation (hereinafter; ‘IMAX’), a company constituted under Canadian law, and imported that equipment into Community customs territory.

6.        Pursuant to the contract of sale, the payment comprised two elements: the Conseil général de la Vienne was required both to pay to IMAX USD 3 431 650 on delivery of the equipment and, in addition, to pay to IMAX a flat-rate fee of FRF 1.8 for every entry ticket to Futurscope sold.

7.        However, by way of value for customs purposes, the Conseil général de la Vienne declared only the figure of USD 3 431 650 and paid only the duty which the French customs authorities calculated on the basis of that figure.

8.        When a subsequent audit revealed the existence of the second element of the payment, the French authorities asked the Conseil Général de la Vienne to pay the relevant duty. The latter referred the matter to the Commission de conciliation et d’expertise douanière (Customs Assessment and Arbitration Board) (hereinafter: the ‘CCED’), a body made up of members of the judiciary to which importers (or exporters) can turn to act as arbiter in disputes in which they are involved with the customs authorities. In an opinion of 13 April 1999, the CCED concluded that the value for customs purposes of the imported audiovisual equipment had been incorrectly reduced by FRF 5 517 281 (equivalent to EUR 841 104).

9.        In the light of that finding, the Conseil général de la Vienne addressed to the French authorities a request for remission in accordance with Article 236 of the Customs Code, but that request was rejected by a decision of 6 June 2000.

10.      On 17 July 2000, the Conseil général de la Vienne appealed against that decision to the French Ministry of the Economy, Finance and Industry.

11.      On 16 July 2001, after a proposal for settlement of the dispute had come to nothing, the Director-General of the French Customs Authority sent to the Conseil général de la Vienne a letter which began by citing the existence of the abovementioned decision to refuse remission and noting that an administrative appeal was pending, and went on to inform the Conseil général de la Vienne that the Director-General had decided ‘to refer the matter to the Commission’. (5)

12.      In spite of this, on 19 July 2001, the Customs Authority brought an action against the Conseil général de la Vienne before the Tribunal d’instance de Poitiers, seeking to have the latter ordered to pay the customs debt of FRF 1 451 541 (equivalent to EUR 221 286) resulting from the second element of the purchase price of the imported audiovisual equipment.

13.      On 18 September 2001, while the proceedings were still in progress, the French customs authorities asked the French Government to send the Commission a letter seeking confirmation that the analysis which had led them to demand payment of the abovementioned customs debt was correct. That letter, which was in fact sent on 11 December 2001, failed to elicit a reply.

14.      On 20 December 2002, the Tribunal d’instance de Poitiers, found against the Conseil général de la Vienne. The latter appealed against that judgment before the Cour d’appel de Poitiers.

15.      The Cour d’appel first pointed out that, pursuant to Article 871 of Regulation No 2454/93, the customs authorities ‘shall submit’ a case to the Commission where they have doubts as to the precise scope of the criteria which govern the waiving of post-clearance recovery, particularly where the duties legally owed have been eluded because of an error on their part and the person liable for payment could not reasonably have realised this, having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration.

16.      Moreover, in the view of the Cour d’appel, in the case in point the national customs authorities did indeed entertain doubts as to the precise scope of the criteria governing fulfilment of the conditions for waiving post-clearance recovery of the customs debt, given that, by the abovementioned letter of 16 July 2001, they had informed the Conseil général de la Vienne of their decision to refer the case to the Commission.

17.      In those circumstances, the Cour d’appel decided to submit to the Court of Justice the following question for a preliminary ruling, relating to the interpretation of Article 871 exclusively:

‘Is Article 871 of [Regulation No 2454/93] (6) relating to the recovery of the amount of the customs debt to be interpreted as establishing an essential and obligatory procedure, non-compliance with which will result in nullity, if the national customs authorities have expressed doubts, at any time during the recovery procedure concerning a person liable for payment acting in good faith, as regards the precise scope of the criteria relating to the recovery or the remission of duties resulting from a customs debt which has been eluded because it was not entered in the accounts on the date when that debt should have given rise to recovery (debt relating to the possible incorporation into the purchase price of audiovisual equipment supplied by a Canadian supplier of a flat-rate charge compulsorily included in the entry price to the amusement park in which the equipment is operated, whether or not the visitor who paid the charge made use of the equipment)?’

18.      The Conseil général de la Vienne, the French and Slovak Governments and the Commission have submitted written observations in the proceedings referred thus to the Court of Justice. The same parties, with the exception of the Slovak Government, took part in the hearing of 28 September 2005.

III –  Legal analysis

A –    Admissibility

19.      Before I consider the merits, it is necessary to make a number of points concerning admissibility, given that the French Government has challenged the admissibility of the question.

20.      According to the French Government, an interpretation of Article 871 is not required for the purposes of the main action. In so far as it refers to the conditions under Article 220(2)(b) of the Customs Code, it is clear that Article 871 is meant to apply only where such conditions are fulfilled and, therefore, only when the national authorities are concerned that, at the time when the amount of the duty was set, they committed ‘an error … which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force …’.

21.      In the proceedings which gave rise to this reference for a preliminary ruling, the Conseil général de la Vienne in fact disputed the actual inclusion of the second element of the purchase price of the imported audiovisual equipment (linked to the number of visitors to the park using that equipment) in the calculation of the amount of the duty, but failed to cite an error on the part of the authorities as described above, consequently, an interpretation of Article 871 is irrelevant.

22.      Again, according to the French Government, that is borne out by the fact that the doubt about which the Commission was actually consulted – although not even in the manner prescribed by Article 871 – specifically concerned the soundness of the analysis which led the French customs authorities to enter the second element of the purchase price of the audiovisual equipment in the accounts post-clearance, for the purposes of calculating the amount of the duty, and not the existence of an error within the meaning of Article 220(2)(b) of the Customs Code.

23.      I cannot rule out that this was indeed the doubt entertained by the national customs authorities, as set out in the abovementioned letter of 16 July 2001. That, in fact, seems to be the point which the Conseil général de la Vienne raised and which the authorities finally decided to refer to the Commission.

24.      But that does not necessarily lead me to accept the objection of inadmissibility. In point of fact, the national court, which was certainly aware of the arguments the Conseil général de la Vienne had advanced against post-clearance recovery, none the less took the view that the doubts entertained by the French authorities, as detailed in the letter of 16 July 2001, could, in any event, be such as to set in motion the mechanism provided for in Article 871 of Regulation No 2454/93. The national court referred the matter to the Court of Justice specifically to eliminate any uncertainty concerning the conditions required for Article 871 to take effect.

25.      If the matter is framed in those terms, I consider that Community case-law on admissibility means that the question for a preliminary ruling must stand.

26.      As we know, according to Community case-law, ‘in the context of the cooperation between the Court of Justice and the national courts provided for by Article [234 EC], it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the questions which it submits to the Court’. Only ‘in exceptional circumstances, it [the Court of Justice] can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction’. (7) In particular, where it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual facts of the main action or its purpose … or where the problem is hypothetical’. (8)

27.      It seems to me that in so far as the national court has taken the view that the wording of Article 871 of Regulation No 2454/93 does not facilitate a clear understanding of the conditions under which it becomes obligatory to refer a case to the Commission, a ruling of the Court on that point cannot be deemed to be irrelevant, and certainly not quite obviously irrelevant, for the purposes of the national court. The fact is that only after it has obtained from the Court interpretative guidance enabling it to determine whether, in this case, there was or was not an obligation to refer the case to the Commission, will the national court be in a position to assess the legitimacy of the domestic proceedings. More particularly, on the basis of the guidance the Court provides, the national court will be able to decide whether the Conseil général de la Vienne was rightly or wrongly deprived of that guarantee of impartiality which consists in the Commission’s assessment of whether or not the conditions for waiving post-clearance recovery of the customs debt were fulfilled.

28.      I therefore consider that the question is admissible and shall now turn to examine the merits.

B –    Merits

29.      By the question referred for a preliminary ruling, the national court is essentially seeking to establish whether it follows from Article 871 of Regulation No 2454/93 that if the national customs authorities express, albeit temporarily, doubts concerning the fulfilment, in any given case, of the conditions required for waiving post-clearance recovery of a duty which has been eluded, they are under an obligation to refer the case to the Commission.

30.      The Conseil général de la Vienne and the Slovak Government consider that that obligation exists in all instances.

31.      Even the French Government maintains that the obligation in question exists where the doubts take a certain form. But it raises the preliminary issue of whether, in this case, Article 871 should apply in its original version or as amended by Regulation No 1335/2003 (see footnote 3 above) and opts for the latter alternative.

32.      The Commission takes the opposite view on that point. But it also takes the opposite view in relation to the merits of the question at issue, considering that if, subsequent to an initial doubt, the national authorities come to the view that the conditions for waiving post-clearance recovery are not fulfilled, they are not required to refer the case to the Commission.

33.      For my part, I first consider that when it comes to identifying which version of Article 871 applies, in this case only the original version is material. It is, in fact, plain that we are dealing here with a procedural rule and that, according to Community case-law, ‘procedural rules … apply to all proceedings pending at the time when they entered into force’. (9) However, it is also true that, on the basis of general principles, the new law may apply immediately only in relation to situations which, although they came into being at the time when the earlier legislation was in force, were still current when the new law took effect.

34.      It seems to me precisely that, before the amendments introduced by Regulation No 1335/2003, which entered into force on 1 August 2003, were adopted, the legal situation material to this case had completely ceased to exist. In point of fact, the letter by which the customs authorities recorded the existence of doubts to be referred to the Commission is dated 16 July 2001; the writ summoning the Conseil général de la Vienne to appear before the Tribunal d’instance de Poitiers is dated 19 July 2001, and that court handed down its decision on 20 December 2002.

35.      Having clarified those points, I come now to the substance of the matter, that is to say whether or not the customs authorities were obliged to refer the case to the Commission.

36.      In that connection, I would point out that, pursuant to Article 871, ‘where the customs authorities either consider that the conditions laid down in Article 220(2)(b) of the Code are fulfilled or are in doubt as to the precise scope of the criteria of that provision with regard to a particular case, those authorities shall submit the case to the Commission …’. (10)

37.      Given the use of the mandatory present indicative, we can certainly concur, in the light of the drafting technique the Community legislature generally applies, that this constitutes an obligation to refer the case to the Commission.

38.      But more remains to be said in terms of the purposes of this case. It is, in fact, my view that, for the purposes of this case, it is also necessary to ascertain whether that obligation falls and the customs authorities remain free to take their own decision, if the doubts they previously expressed have been resolved. Were it, then, necessary to conclude that the obligation continued to exist when the doubts had been banished, it would also be necessary to indicate what the focus of those doubts should be in order to require that the case be referred to the Commission, even the doubts had been of a temporary nature.

39.      (a) As far as the first aspect is concerned, it seems to me that, as the Commission itself pointed out at the hearing, the wording of Article 871 suggests that the case must be referred to the Commission while the doubts remain in existence, with the result that that obligation no longer applies if the initial doubts have given way to certainty.

40.      I would add that in this case, the French customs authorities were, in the end, persuaded that the conditions laid down in Article 220(2)(b) of the Customs Code were not fulfilled and it was, therefore, necessary to proceed to post-clearance recovery of the duty which had been eluded. I consider that when the national authorities are finally persuaded that they must take that action, they are under no obligation to refer the case to the Commission beforehand.

41.      I draw that conclusion from the principles established by the Court’s case-law in relation to the provisions which have been replaced by Article 871 of Regulation No 2454/93 and Article 220 of the Customs Code, without affecting the underlying purpose of the former provisions.

42.      I would first refer to Article 4 of Commission Regulation (EEC) No 1573/80 of 20 June 1980 laying down provisions for the implementation 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. (11) That provision, which is basically the same as Article 871 of Regulation No 2454/93, provided that ‘where the competent authority of the Member State in which the error was committed is not able to ascertain by its own means whether all the conditions set out in Article 5(2) of the basic regulation are fulfilled …, it shall request the Commission to take a decision on the case ….’

43.      The conditions in question were enshrined in 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, (12) in terms not dissimilar to those then used in Article 220 of the Customs Code. The duties in question had to be duties ‘which were not collected as a result of an error made by the competent authorities themselves which could not reasonably have been detected by the person liable, the latter having acted in good faith and observed all the provisions laid down by the rules in force as far as his customs declaration is concerned’.

44.      The Court has had occasion to make clear that the abovementioned Article 4 of Regulation No 1573/80 ‘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. 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 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. 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.’ (13)

45.      Since, in my view, the advent of neither the Customs Code nor Regulation No 2454/93 has had any effect on the principles the Court has set out in relation to the earlier legislation, I consider that the same conclusion must apply in this case, given that the customs authorities decided to undertake post-clearance recovery.

46.      Since the first of the issues raised in point 38 above has been clarified in the terms set out above, I propose that the answer to the question referred should be that Article 871 of Regulation No 2454/93 must be construed as meaning that, in the circumstances of the present case, that provision does not require the national customs authorities to refer the case to the Commission.

47.      (b) That said, should the Court take the view that the obligation to refer the case to the Commission continues to exist even though no doubts remain and a decision to recover the debt has been taken, it is necessary to identify, as I mentioned in point 38 above, what the focus of those doubts should be in order to render Article 871 of Regulation No 2454/93 applicable.

48.      According to the wording of Article 871, the doubts must relate to the ‘scope of the criteria’ laid down by Article 220(2)(b) of the Customs Code for waiving the post-clearance recovery of a duty.

49.      Since that provision is drafted in terms almost identical to those of the provision which preceded it, that is to say Article 5(2) of Regulation No 1697/79, I consider that, for our purposes here, we can usefully cite the Court’s case-law interpreting that provision. (14)

50.      According to that case-law, the matters to which the doubts should relate are the following:

–        ‘[whether] the duties have not been collected on account of an error of interpretation or application of the provisions on the [duty] in question in so far as it is the consequence of acts of the competent authorities, which excludes errors caused by incorrect declarations by the person liable;

–        [whether] the person liable acting in good faith could not reasonably have detected that error, despite his professional experience and the diligence shown by him; and

–        [whether] the person liable has complied with all the provisions laid down by the rules in force as far as concerns the declaration of the event to which the collection of the [duty] in question relates. (15)

51.      Moreover, as the Court made clear ‘it is for the national court to establish whether, having regard to the facts of the case’, the doubts entertained by the national authorities actually relate to the matters set out above’. (16)

52.      It is sufficient here to confirm once again that should the national court find that the doubts do indeed relate to those matters, then the obligation of the national authorities to refer the case to the Commission takes effect. That is, provided, of course, that, contrary to what I have suggested above, the view is taken that the obligation remains in force even if the national authorities no longer entertain any doubts and have decided to proceed to recovery of the debt.

IV –  Conclusion

53.      In the light of the foregoing, I therefore propose that the Court give the following answer to the question referred by the Cour d’appel de Poitiers:

Article 871 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code must be interpreted as meaning that, in the circumstances of the present case, it does not impose on the national customs authorities an obligation to refer the case to the Commission.

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1 – Original language: Italian.

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2 – OJ 1993 L 253, p. 1.

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3 – Some of the articles of Regulation No 2454/93 which are material for the purposes of this case were amended in 2003 Commission Regulation (EC) No 1335/2003 of 25 July 2003 amending Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (Text with EEA relevance) (OJ 2003 L 187, p. 16), but, as will be explained below (see point 31 et seq.) those amendments are without relevance for this case.

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4 – OJ 1992 L 302, p. 1.

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5 – Unofficial translation of the French text.

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6 –      As a result of a clerical error, the national court refers to Article 871 of the Customs Code.

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7 – Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraphs 38 and 39, and Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraphs 18 and 19.

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8 – See, in particular, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 61; Case C-437/97 EKWand Wein & Co. [2000] ECR I-1157, paragraph 52; Case 36/99 Idéal Tourisme [2000] ECR I-6049, paragraph 20; and Case C-318/00 Bacardi-MartiniandCellier des Dauphins [2003] ECR I-905, paragraph 43. (My emphasis).

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9 – Joined Cases 212/80 to 217/80 Salumi and Others [1981] ECR 2735, paragraph 9, and Joined Cases C-121/91 and C-122/91 CT Control (Rotterdam) and JCT Benelux v Commission [1993] ECR I-3873, paragraph 22.

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10 – My emphasis.

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11 – OJ 1980 L 161, p. 1.

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12 – OJ 1979 L 197, p. 1.

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13– Case C-64/89 Deutsche Fernsprecher [1990] ECR I-2535, paragraphs 12 and 13 (my emphasis). See also Case C-348/89 Mecanarte [1991] ECR I-3277, paragraphs 32 and 33, and Joined Cases C-153/94 and C-204/94 Faroe Seafoodand Others [1996] ECR I-2465, paragraphs 79 and 80.

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14 – In Case C-499/03 P Biegi NahrungsmittelandCommonfood [2005] ECR I-0000, paragraph 46, the Court interpreted Article 220(2)(b) of the Customs Code, citing ‘by analogy’ the case-law relating to Article 5(2) of Regulation No 1697/79.

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15 – Case C-30/00 William Hinton & Sons [2001] ECR I-7511, paragraph 74. See also Case C‑250/91 Hewlett Packard France [1993] ECR I-1819, paragraphs 12 and 13; Joined Cases C‑47/95 to C-50/95, C-60/95, C-81/95, C-92/95 and C-148/95 Olasagasti and Others [1996] ECR I-6579, paragraphs 32 to 35; and Case C-370/96 Covita [1998] ECR I-7711, paragraphs 24 to 28.

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16 – Covita, paragraph 28 and Olasagasti and Others, paragraph 36, both cited in footnote 15 above.