61982J0283

EUROPEAN COMMUNITIES - OWN RESOURCES - REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES - REGULATION NO 1430/79 - GENERAL PROVISION BASED ON EQUITABLE GROUNDS - SCOPE )

( REGULATION NO 1430/79 , ART . 13 )

ARTICLE 13 OF REGULATION NO 1430/79 , BY VIRTUE OF WHICH IMPORT DUTIES MAY BE REPAID OR REMITTED IN SPECIAL CIRCUMSTANCES WHERE NO NEGLIGENCE OR DECEPTION IS ATTRIBUTABLE TO THE PERSON CONCERNED , APPEARS , IN THE LIGHT OF THE PREAMBLE TO THE REGULATION , TO BE A GENERAL EQUITABLE PROVISION DESIGNED TO COVER SITUATIONS OTHER THAN THOSE WHICH HAD MOST OFTEN ARISEN IN PRACTICE AND FOR WHICH SPECIAL PROVISION COULD BE MADE WHEN THE REGULATION WAS ADOPTED . SINCE ARTICLES 3 AND 4 OF THE REGULATION IN QUESTION , WHICH ARE APPLICABLE WHERE GOODS HAVE BEEN ERRONEOUSLY ENTERED FOR FREE CIRCULATION , WERE NOT DRAWN UP TO COVER THE PARTICULAR SITUATION OF AN UNDERTAKING WHICH HAS BEEN UNABLE TO BENEFIT FROM THOSE PROVISIONS BECAUSE THE ERROR WAS DISCOVERED ONLY AFTER RE-EXPORTATION OF THE GOODS AND WHICH WAS THUS UNABLE TO COMPLETE THE NECESSARY FORMALITIES TO CORRECT THE ORIGINAL DECLARATION , THERE IS NO REASON IN SUCH A CASE TO EXCLUDE THE POSSIBILITY OF APPLYING ARTICLE 13 .

IN CASE 283/82

PAPIERFABRIK SCHOELLERSHAMMER HEINRICH AUGUST SCHOELLER & SOHNE GMBH & CO . KG , DUREN , FEDERAL REPUBLIC OF GERMANY , REPRESENTED BY MESSRS RAUPACH , KAUFFER AND GARSKY , 15 GOETHESTRASSE , 5160 DUREN , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS LOESCH AND WOLTER , 2 RUE GOETHE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY CHRISTOPH BAIL , A MEMBER OF ITS LEGAL DEPARTMENT , AND ALBERTO PROZZILLO , A LEGAL ADVISER OF THE COMMISSION , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION REQUESTING THE COURT TO DECLARE VOID THE COMMISSION ' S DECISION OF 9 JULY 1982 ESTABLISHING THAT THE REPAYMENT OF IMPORT DUTIES IS NOT JUSTIFIED IN AN INDIVIDUAL CASE ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 25 OCTOBER 1982 PAPIERFABRIK SCHOELLERSHAMMER HEINRICH AUGUST SCHOELLER & SOHNE GMBH & CO . KG REQUESTED THE COURT , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY , TO DECLARE VOID THE COMMISSION ' S DECISION OF 9 JULY 1982 , ADDRESSED TO THE FEDERAL REPUBLIC OF GERMANY , ESTABLISHING THAT , IN THE APPLICANT ' S CASE , THE REPAYMENT OF IMPORT DUTIES UNDER COUNCIL REGULATION NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES ( OFFICIAL JOURNAL 1979 , L 175 , P . 1 ) WAS NOT JUSTIFIED .

2 THE APPLICANT IMPORTED FIVE CONSIGNMENTS OF TRANSPARENT DRAWING PAPER FROM SWITZERLAND INTO THE FEDERAL REPUBLIC OF GERMANY , MERELY SO THAT THEY COULD BE LABELLED IN ITS FACTORY , AND IT THEN RE-EXPORTED THEM TO JAPAN . THE GOODS WERE ERRONEOUSLY ENTERED FOR FREE CIRCULATION BECAUSE OF THE INEXPERIENCE OF ONE OF THE COMPANY ' S EMPLOYEES . ARTICLES 3 AND 4 OF REGULATION NO 1430/79 PROVIDE IN SUCH CASES FOR THE POSSIBILITY OF REPAYMENT OF THE IMPORT DUTIES . HOWEVER , THE APPLICANT WAS UNABLE TO BENEFIT FROM THOSE PROVISIONS BECAUSE THE ERROR WAS DISCOVERED ONLY AFTER THE RE-EXPORTATION OF THE GOODS AND THUS IT WAS UNABLE TO COMPLETE THE REQUIRED FORMALITIES .

3 THE APPLICANT IS OF THE OPINION THAT IT MAY NEVERTHELESS BENEFIT FROM ARTICLE 13 OF REGULATION NO 1430/79 , BY VIRTUE OF WHICH IMPORT DUTIES MAY BE REPAID IN SPECIAL CIRCUMSTANCES WHERE NO NEGLIGENCE OR DECEPTION IS ATTRIBUTABLE TO THE PERSON CONCERNED . IT SUBMITS THAT ARTICLE 13 IS A GENERAL PROVISION PERMITTING REPAYMENT OF IMPORT DUTIES ON EQUITABLE GROUNDS AND THAT IT WAS INCLUDED IN THE REGULATION BECAUSE IT WAS IMPOSSIBLE TO DETERMINE PRECISELY IN ADVANCE , OWING TO THE MULTIFARIOUS AND MUTABLE NATURE OF CIRCUMSTANCES , ALL THE CASES WHICH MUST BE PROVIDED FOR .

4 THE COMMISSION CONTESTS THAT INTERPRETATION OF ARTICLE 13 . IN ITS OPINION , ARTICLE 13 APPLIES ONLY TO SITUATIONS OTHER THAN THOSE GOVERNED BY THE PRECEDING SECTIONS OF THE REGULATION ; THE APPLICANT ' S SITUATION FALLS WITHIN ARTICLES 3 AND 4 AND IT CANNOT THEREFORE BENEFIT FROM ARTICLE 13 . IT IS FOR THAT REASON THAT THE COMMISSION DID NOT CONSIDER IN DETAIL THE QUESTION WHETHER THE APPLICANT HAD BEEN NEGLIGENT , NOTWITHSTANDING THE VIEW TO THAT EFFECT EXPRESSED BY THE DELEGATIONS OF SEVERAL MEMBER STATES . THE COMMISSION SUGGESTS THAT IF THE COURT DOES NOT SHARE ITS OPINION IT SHOULD REFER THE CASE BACK TO THE COMMISSION TO ENABLE IT TO EXERCISE ITS POWER OF APPRAISAL UNDER ARTICLE 13 .

5 IN SUPPORT OF ITS INTERPRETATION OF ARTICLE 13 THE COMMISSION REFERS TO THE AMENDMENT MADE TO REGULATION NO 1430/79 BY COUNCIL REGULATION NO 1672/82 OF 24 JUNE 1982 . THE NEW ARTICLE 13 ( 2 ) EXTENDS THE POSSIBILITY OF REPAYMENT TO CASES WHERE THE PERSON CONCERNED FAILED TO COMPLY WITH THE PRESCRIBED PROCEDURAL REQUIREMENTS . IN THE COMMISSION ' S VIEW , THAT PROVES THAT THE LEGISLATURE CONSIDERED THAT THE PREVIOUS VERSION OF THE REGULATION DID NOT ALLOW REPAYMENT IN SUCH CIRCUMSTANCES .

6 IT MUST BE ACKNOWLEDGED THAT THE WORDING OF REGULATION NO 1430/79 , AND IN PARTICULAR ARTICLE 13 THEREOF , IN THE VERSION IN FORCE AT THE MATERIAL TIME IS NOT UNEQUIVOCAL REGARDING THE EXACT RELATIONSHIP BETWEEN THE VARIOUS POSSIBILITIES OF EXEMPTION . THAT IS TRUE , IN PARTICULAR , WITH RESPECT TO ANY PERSON IN THE APPLICANT ' S SITUATION WHO HAS FAILED TO COMPLY WITH THE NECESSARY FORMALITIES TO CORRECT A DECLARATION WHICH WAS ORIGINALLY MADE IN ERROR . ALTHOUGH THE COUNCIL HAS USEFULLY CLARIFIED THE REGULATION FOR THE FUTURE BY MAKING THE AMENDMENT REFERRED TO BY THE COMMISSION , IT IS NOT POSSIBLE TO DRAW ANY INFERENCES THEREFROM REGARDING THE INTERPRETATION TO BE ATTRIBUTED TO THE VERSION OF THE REGULATION IN FORCE BEFORE THE AMENDMENT . IT IS APPROPRIATE THEREFORE TO ANALYSE THE SPIRIT AND THE SCHEME OF THAT REGULATION , AND OF ARTICLE 13 THEREOF , SOLELY ON THE BASIS OF ITS ORIGINAL WORDING IN ORDER TO DETERMINE WHETHER THE COMMISSION ' S INTERPRETATION OF IT IS CORRECT .

7 IN THE LIGHT OF THE PREAMBLE TO THE REGULATION , ARTICLE 13 APPEARS TO THE COURT TO BE A GENERAL EQUITABLE PROVISION DESIGNED TO COVER SITUATIONS OTHER THAN THOSE WHICH HAD MOST OFTEN ARISEN IN PRACTICE AND FOR WHICH SPECIAL PROVISION COULD BE MADE WHEN THE REGULATION WAS ADOPTED . IT IS CLEAR FROM THE CONDITIONS WHICH MUST BE SATISFIED BY PERSONS WISHING TO BENEFIT FROM ARTICLES 3 AND 4 THAT THOSE PROVISIONS WERE NOT DRAWN UP TO COVER THE PARTICULAR SITUATION IN WHICH THE APPLICANT FINDS ITSELF . IN THOSE CIRCUMSTANCES , THE COURT SEES NO REASON IN THIS CASE TO EXCLUDE THE POSSIBILITY OF APPLYING ARTICLE 13 .

8 CONSEQUENTLY , THE CONTESTED DECISION , WHICH RESTS ON THE FINDING THAT THE APPLICANT ' S CASE DOES NOT FALL WITHIN THE SCOPE OF ARTICLE 13 OF REGULATION NO 1430/79 , IS BASED ON LEGALLY INCORRECT GROUNDS . IT MUST THEREFORE BE DECLARED VOID .

9 IT IS INCUMBENT UPON THE COMMISSION , BY VIRTUE OF THE FIRST PARAGRAPH OF ARTICLE 176 OF THE TREATY , TO RECONSIDER THE APPLICANT ' S CASE WITH A VIEW TO DECIDING WHETHER IT FULFILLED THE CONDITIONS LAID DOWN BY ARTICLE 13 OF REGULATION NO 1430/79 AND TO CONSIDER IN PARTICULAR WHETHER THERE ARE ANY CIRCUMSTANCES INDICATING NEGLIGENCE ON THE APPLICANT ' S PART .

10 HOWEVER , THE APPLICANT ' S CLAIM THAT THE COURT SHOULD DECLARE THAT THE REPAYMENT OF DM 24 703.96 IN RESPECT OF IMPORT DUTIES IS JUSTIFIED MANIFESTLY EXCEEDS THE POWERS CONFERRED ON THE COURT BY ARTICLE 173 OF THE EEC TREATY AND MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

COSTS

11 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DECLARES VOID THE COMMISSION ' S DECISION OF 9 JULY 1982 , ADDRESSED TO THE FEDERAL REPUBLIC OF GERMANY , ESTABLISHING THAT THE REPAYMENT OF IMPORT DUTIES IN THE APPLICANT ' S CASE IS NOT JUSTIFIED ;

2.DISMISSES THE REMAINDER OF THE APPLICATION ;

3.ORDERS THE COMMISSION TO PAY THE COSTS .