Keywords
Summary

Keywords

1. Own resources of the European Communities - Repayment or remission of import or export duties - Post-clearance presentation of a certificate of authenticity which could have made the goods released into free circulation eligible for favourable tariff treatment - No repayment of duty

(Council Regulation No 2913/92, Art. 236(1); Commission Regulation No 2454/93, Art. 890)

2. Own resources of the European Communities - Repayment or remission of import or export duties - Repayment or remission precluded by Article 236 of the Community Customs Code - Repayment or remission by virtue of Article 239 of that Code and Article 905 of Regulation No 2454/93 - Whether permissible - Conditions

(Council Regulation No 2913/92, Arts 236(1) and 239(1); Commission Regulation No 2454/93, Art. 905(1))

3. Own resources of the European Communities - Repayment or remission of import or export duties - Existence of a special situation, within the meaning of Article 905 of Regulation No 2454/93, making it obligatory for the national customs authorities to forward the file to the Commission - Criteria - Assessment by the national court

(Council Regulation No 2913/92, Art 239; Commission Regulation No 2454/93, Art. 905(1)

Summary

1. Article 236(1) of Regulation No 2913/92 establishing the Community Customs Code does not permit the repayment of import duties where, after a complete customs declaration has been accepted by the customs authorities and the goods covered by it have been released into free circulation, the declarant presents a certificate of authenticity by virtue of which the goods would, supposing the certificate to have been produced with the goods, have been eligible for favourable tariff treatment.

If, because the certificate of authenticity has not been presented together with the goods to which it relates, import duties are levied but it is impossible to take into consideration any favourable tariff treatment, those duties are legally owed within the meaning of Article 236(1) of the Customs Code and so may not in principle be repaid pursuant to that provision.

Moreover, Article 890 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, which is a provision implementing Article 236(1) of the Customs Code, and which provides that repayment or remission may be allowed where a certificate of origin is produced after acceptance of the declaration of the goods for free circulation, is not apt to be applied where the tariff treatment sought is favourable tariff treatment within the meaning of Article 21 of the Customs Code.

Application by analogy of Article 890 to requests for repayment of import duties based on the fact that the goods imported could have been eligible for favourable tariff treatment is also excluded. While it is unarguable that a certificate of authenticity possesses features similar to those of a certificate of origin, the fact nevertheless remains that the roles played by a certificate of origin and a certificate of authenticity in the procedures for obtaining preferential tariff treatment and favourable tariff treatment respectively are quite different and the regime governing certificates of authenticity is much stricter than that governing certificates of origin. Accordingly, in contrast to the situation with regard to certificates of authenticity, the production of a certificate of origin before the goods to which it relates are released into free circulation is not required in order to be entitled to preferential tariff treatment and the duties levied before such a certificate is presented cannot be regarded as being legally owed within the meaning of Article 236(1) of the Customs Code. Having regard to the fact that the consequences connected to the moment at which the certificates in question are presented vary considerably from one of the two regimes to the other, Article 890 cannot be applied by analogy in such a situation.

( see paras 38-39, 46-49, 51, and operative part 1 )

2. The fact that repayment or remission of duties pursuant to Article 236(1) of Regulation No 2913/92 establishing the Community Customs Code is excluded because one of the legal conditions laid down for that repayment or remission has not been satisfied does not, of itself, exclude repayment or remission of those duties on the basis of Article 239(1) of that regulation, by virtue of which duties may be repaid or remitted in situations other than those referred to in Articles 236, 237, and 238, and of Article 905(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, provided that the legal conditions for the application of those provisions are satisfied.

( see paras 53, 61, and operative part 2 )

3. Factors which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned for the purposes of Article 905(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code exist where, having regard to the objective of fairness underlying Article 239 of Regulation No 2913/92, factors liable to place the applicant in an exceptional situation as compared with other operators engaged in the same business are found to exist. It is for the national court to assess, on the basis of that criterion, whether factors which might constitute such a special situation do exist, necessitating examination of the file by the Commission.

( see para. 61, and operative part 2 )