61996J0315

Common Customs Tariff - Classification of goods - Binding tariff information - Scope - Protection of traders against any change in the interpretation by the customs authorities of the legislation in force - Limits - Amendment of that legislation - Article 13, first paragraph, first indent, of Regulation No 1715/90 - No breach of the principle of the protection of legitimate expectations or of the principle of legal certainty - Validity

(Council Regulation No 1715/90, Art. 13, first para., first indent)

The aim of binding tariff information is to enable the trader to proceed with certainty where there are doubts as to the classification of goods in the existing customs nomenclature, thereby protecting him against any subsequent change in the position adopted by the customs authorities with regard to the classification of the goods. However, as is confirmed clearly and precisely by the wording of the first indent of the first paragraph of Article 13 of Regulation No 1715/90 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature, such information is not aimed at, nor can it have the effect of, guaranteeing that the tariff heading to which the trader refers will not subsequently be amended by a measure adopted by the Community legislature.

Accordingly, in so far as that article provides that binding tariff information ceases to be valid where, as a result of the adoption of a regulation amending the customs nomenclature, it no longer conforms to Community law as thus established, not only is it in keeping with the requirements inherent in the principle of legal certainty, but it also precludes the trader from being able to entertain, on the sole basis of binding tariff information, a legitimate expectation that the tariff heading in question will not be amended by a measure adopted by the Community legislature.

Moreover, that provision does not prevent the principles of the protection of legitimate expectations and legal certainty from imposing on the Community legislature, when the customs nomenclature is amended, the obligation to protect by means of appropriate measures traders who would otherwise sustain unforeseeable and irreparable damage, whether or not they are the addressees of binding tariff information.

In Case C-315/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Finanzgericht Hamburg (Germany) for a preliminary ruling in the proceedings pending before that court between

Lopex Export GmbH

and

Hauptzollamt Hamburg-Jonas

on the validity of the first indent of the first paragraph of Article 13 of Council Regulation (EEC) No 1715/90 of 20 June 1990 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature (OJ 1990 L 160, p. 1) and, if it is declared invalid, on the consequences of such invalidity,

THE COURT

(Fifth Chamber),

composed of: C. Gulmann (Rapporteur), President of the Chamber, J.C. Moitinho de Almeida, D.A.O. Edward, J.-P. Puissochet and P. Jann, Judges,

Advocate General: P. Léger,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Lopex Export GmbH, by Jürgen Gündisch, Rechtsanwalt, Hamburg,

- the Council of the European Union, by Maria Cristina Giorgi and Guus Houttuin, Legal Advisers, acting as Agents,

- the Commission of the European Communities, by Fernando Castillo de la Torre, of its Legal Service, acting as Agent, and by Hans-Jürgen Rabe and Georg M. Berrisch, Rechtsanwälte, Hamburg, and members of the Brussels Bar,$

having regard to the Report for the Hearing,

after hearing the oral observations of: Lopex Export GmbH, represented by Carsten Bittner, Rechtsanwalt, Hamburg; the Council, represented by Guus Houttuin; and the Commission, represented by Fernando Castillo de la Torre, assisted by Georg M. Berrisch, at the hearing on 16 September 1997,

after hearing the Opinion of the Advocate General at the sitting on 4 November 1997,

gives the following

Judgment

1 By order of 12 August 1996, received at the Court on 26 September 1996, the Finanzgericht Hamburg referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the validity of the first indent of the first paragraph of Article 13 of Council Regulation (EEC) No 1715/90 of 20 June 1990 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature (OJ 1990 L 160, p. 1), and if it is declared invalid, on the consequences of such invalidity.

2 The questions were raised in proceedings between Lopex Export GmbH (hereinafter `Lopex') and the Hauptzollamt (Principal Customs Office) Hamburg-Jonas concerning the grant of export refunds for exports of partly desugared whey powder, marketed under the name `Anilac'.

3 By the issue of binding tariff information on 5 December 1988, the customs authorities notified the suppliers of Lopex that partly desugared whey powder was to be classified under subheading 0404 90 of the combined nomenclature. Owing to doubt as to whether the product should be classified under subheading 0404 90 or 0404 10, the customs authorities withdrew that tariff information on 30 October 1990.

4 On 14 December 1990 Lopex itself applied for the issue of binding tariff information in respect of the product in question. That tariff information, issued on 5 June 1991, classified Anilac under subheading 0404 9013 0000 of the combined nomenclature.

5 On receipt of that information Lopex asked for further clarification of those subheadings, whereupon the customs authorities issued on 26 August 1991 supplementary binding tariff information classifying the product under subheading 0404 9013 1200.

6 In the tariff information supplied on those two dates the customs authorities expressly rejected classification under subheading 0404 10 on the ground that the composition of Anilac differed substantially from that of whey.

7 However, new binding tariff information was issued on 28 October 1991 in response to the plaintiff's original application of 14 December 1990, whereby the customs authorities classified the product under subheading 0404 10 `in accordance with its composition'.

8 On receipt of that tariff information Lopex applied to have the previous classification under code 0404 9013 1200 retained as valid until 30 April 1992.

9 Following an exchange of correspondence with Lopex, the customs authorities decided on 9 December 1991 that the validity of the previous tariff information would continue on a provisional basis for six months after its revocation, that is to say until 28 April 1992.

10 With effect from 1 January 1992, Council Regulation (EEC) No 3798/91 of 19 December 1991 amending Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and the Common Customs Tariff and Regulation (EEC) No 2915/79 determining the groups of products and the special provisions for calculating levies on milk and milk products (OJ 1991 L 357, p. 3) amended the combined nomenclature annexed to Council Regulation (EEC) No 2658/87 of 23 July 1987 (OJ 1987 L 256, p. 1) so as to bring modified whey within the wording of code NC 0404 10. That amendment was not accompanied by any transitional arrangements.

11 The goods at issue in the main proceedings were exported by Lopex on 29 and 30 June 1992 on the basis of an export licence issued on 31 December 1991, which was valid until 30 June 1992 and was accompanied by an advance fixing certificate dated 20 December 1991.

12 On 6 July 1992 Lopex applied for the grant of an export refund in respect of those operations.

13 On 11 August 1992 the Hauptzollamt Hamburg-Jonas rejected that application on the ground that the Zolltechnische Prüf- und Lehranstalt (Customs Laboratory and Training College) had classified the product at issue under heading 0404 10 - which, in contrast to heading 0404 90, does not confer entitlement to an export refund - and that the validity of the binding tariff information previously issued, in which a different opinion was expressed, had expired on 28 April 1992.

14 On 1 September 1992 Lopex lodged an objection against that decision, relying on the export licence accompanied by the advance-fixing certificate which had been issued to it and which was valid until 30 June 1992, and alleging that the first indent of the first paragraph of Article 13 of Regulation No 1715/90 was invalid, in so far as it provides that binding tariff information ceases to be valid without a transitional period where, as a result of the entry into force of a regulation amending the customs nomenclature, it no longer conforms to Community law as thus established.

15 The Hauptzollamt Hamburg-Jonas rejected that objection, on the basis of the amendment to the customs nomenclature under Regulation No 3798/91 and of the first indent of the first paragraph of Article 13 of Regulation No 1715/90.

16 Lopex thereupon brought an action before the Finanzgericht Hamburg in which it sought the grant of an export refund in the amount of DM 889 880.04 in accordance with its application of 6 July 1992. In those proceedings Lopex argued that since the first indent of the first paragraph of Article 13 of Regulation No 1715/90 provides that the adoption of a regulation amending the customs nomenclature entails the invalidity of binding tariff information previously issued without providing for transitional arrangements under Article 14(3) of that regulation, it is contrary to the principle of the protection of legitimate expectations and to the requirement of legal certainty. Lopex pointed out in that regard that, having placed reliance on the tariff information issued on 26 August 1991, it had concluded contracts which could not be reversed and that an immediate change affecting its entitlement to the refund would accordingly result in substantial damage to trade.

17 Finding that the product Anilac exported by Lopex was to be classified as from 1 January 1992 under subheading 0404 10, which does not confer entitlement to an export refund, and that, after that date therefore, Lopex could not claim such entitlement unless the binding tariff information previously supplied was still valid, the Finanzgericht Hamburg decided to stay proceedings pending a preliminary ruling from the Court on the following questions:

`(1) Is the first indent of the first paragraph of Article 13 of Regulation (EEC) No 1715/90, in so far as it prescribes that binding tariff information ceases to be valid immediately as a result of the adoption of a regulation amending the customs nomenclature, with no transitional period, compatible with Community law from the points of view of protection of legitimate expectations and legal certainty?

(2) If not, what are the consequences in particular in a case where binding tariff information, differing from the amended nomenclature, has been issued and/or there is an export licence with an advance-fixing certificate which is valid for six months yet?

Is a decision on the limited continuing validity of binding tariff information to be measured against the general conditions which have been developed for the protection of legitimate expectations, and in particular does it presuppose an expectation on the part of the exporter to that effect which deserves protection as against the Community interest? Does that also apply with respect to the third indent of Article 14(4) of Regulation (EEC) No 1715/90, under which the advance-fixing certificate must have been "issued on the basis of the said binding tariff information"?'

18 In order to answer the first question concerning the validity of the first indent of the first paragraph of Article 13 of Regulation No 1715/90, it is necessary to bear in mind the objective of that regulation and such of its parts as are relevant to this case.

19 According to the third recital in the preamble to that regulation, it appeared necessary, in order to ensure a measure of legal certainty for traders when carrying on their activities, to facilitate the work of the customs services themselves and secure more uniform application of Community customs law, to establish rules which oblige customs authorities to provide information which is binding on the administration under certain well-defined conditions.

20 According to the eighth recital in the preamble to the regulation, it is necessary to lay down `the conditions under which the information provided ceases to be valid ... as a result of the adoption of Community measures amending [or interpreting] the existing law'.

21 Article 1(1) of Regulation No 1715/90 lays down:

`(a) the conditions under which information concerning the classification of goods in the customs nomenclature ... may be obtained from the customs authorities of the Member States;

(b) the legal effect of such information.'

22 Article 3(1) of the regulation provides that `where the conditions laid down in Articles 4 to 8 are fulfilled, the tariff information provided by the customs authority shall constitute, within the meaning of this regulation, binding tariff information in the Member State in which it has been supplied'.

23 Article 13 of the regulation, which forms part of Title III (`Legal effect of binding tariff information'), provides as follows:

`Where, as a result of the adoption of:

- a regulation amending the customs nomenclature, or

- a regulation determining or affecting the classification of goods in the customs nomenclature,

binding tariff information previously supplied no longer conforms to Community law as thus established, such information shall cease to be valid from the date on which the regulation in question applies.

Nevertheless, where a regulation such as that referred to in the second indent above expressly so envisages, binding tariff information may continue to be invoked by the holder thereof during a period fixed by the said regulation, if the holder has concluded a contract as referred to in Article 14(3)(a) or (b).'

24 Article 14(1) of Regulation No 1715/90 provides that binding tariff information also ceases to be valid where such information is no longer compatible with the interpretation of the customs nomenclature as a result of various situations, including amendment of the explanatory notes to the combined nomenclature or adoption of a Community classification slip. Article 14(3) provides as follows:

`In the case of products in respect of which an import or export licence or advance-fixing certificate is submitted when the customs formalities are completed, the binding tariff information which ceases to be valid pursuant to paragraph 1 may continue to be invoked by the holder of the information during the remainder of the period of validity of that licence or certificate.

In other cases, the binding tariff information which ceases to be valid pursuant to paragraph 1 may continue to be invoked by the holder thereof for a period of six months from the date on which he is notified of its non-conformity, as provided in paragraph 2, where it is established to the satisfaction of the customs service that the holder concluded, on the basis of the binding tariff information supplied him and prior to the date of adoption of the tariff measure in question;

...

(b) where such information is invoked for the export of goods:

- a binding contract for the sale of the goods in question to a customer established in a non-Community country, or,

- a binding contract for the purchase of the goods in question from a supplier established in the Community.'

25 In addition, Article 16 of the regulation provides:

`Where the customs authority amends binding tariff information for a reason other than those referred to in Articles 13 and 14(1), the information originally supplied shall cease to be valid from the date on which such amendment is notified to the holder.

Article 14(3), (4) and (5) shall, however, also apply.'

26 Lopex argues that the first indent of the first paragraph of Article 13 of Regulation No 1715/90 is invalid in so far as, contrary to the rules laid down in respect of situations governed by the second indent of the first paragraph of Article 13 and Articles 14 and 16 - and by Article 12(5) and (6) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), which replaces Articles 13 and 14 of Regulation No 1715/90 as from 1 January 1994 - it does not provide for any transitional measures to take account of the need to protect legitimate expectations and legal certainty in accordance with the general principles of Community law.

27 Lopex notes that the dispute in the main proceedings is concerned with an amendment of the combined nomenclature in circumstances where the trader, relying on binding tariff information, has undertaken, through firm and final contracts concluded before the entry into force of the amending regulation, to export the goods in question. In those circumstances, it maintains, it is appropriate to apply the case-law of the Court to the effect that administrative measures conferring vested rights may give rise to a legitimate expectation, and that it may be necessary, in the interests of legal certainty, for a right previously in force to continue to apply to factual situations which had in substance already come into being at the time of the entry into force of a new set of rules (Joined Cases 7/56 and 3/57 to 7/57 Algera v Common Assembly [1957] ECR 39; Case 78/74 Deuka v Einfuhr- und Vorratsstelle Getreide [1975] ECR 421; and Case 5/75 Deuka v Einfuhr- und Vorratsstelle Getreide [1975] ECR 759). In the present case, its expectation arises in particular from the fact that it had given an undertaking to the Community to carry out the transaction in question, having obtained, subject to a deposit, an export licence to cover it (Case 74/74 CNTA v Commission [1975] ECR 533).

28 As the Council and the Commission were right to point out, the aim of binding tariff information is to enable the trader to proceed with certainty where there are doubts as to the classification of goods in the existing customs nomenclature, thereby protecting him against any subsequent change in the position adopted by the customs authorities with regard to the classification of the goods. However, such information is not aimed at, nor can it have the effect of, guaranteeing that the tariff heading to which the trader refers will not subsequently be amended by a measure adopted by the Community legislature. That interpretation is confirmed clearly and precisely by the wording of the first indent of the first paragraph of Article 13 of Regulation No 1715/90.

29 Accordingly, not only is the provision in question in keeping with the requirements inherent in the principle of legal certainty, as set out in the judgment in Case 169/80 Administration des Douanes v Gondrand Frères [1981] ECR 1931, paragraph 17, but it also precludes a trader such as Lopex from being able to entertain, on the sole basis of binding tariff information, a legitimate expectation that the tariff heading in question will not be amended by a measure adopted by the Community legislature.

30 Moreover, that provision does not prevent the principle of the protection of legitimate expectations and the principle of legal certainty from imposing on the Community legislature, when the customs nomenclature is amended, the obligation to protect by means of appropriate measures traders who would otherwise sustain unforeseeable and irreparable damage, whether or not they are the addressees of binding tariff information.

31 The answer to the first question submitted for a preliminary ruling must therefore be that consideration of the first indent of the first paragraph of Article 13 of Regulation No 1715/90 in the light of the principle of the protection of legitimate expectations and the principle of legal certainty has not disclosed the existence of any factors of such a kind as to affect its validity.

32 In view of the negative answer given to the first question submitted for a preliminary ruling, there is no need to answer the second question.

Costs

33 The costs incurred by the Council of the European Union and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(Fifth Chamber),

in answer to the questions referred to it by the Finanzgericht Hamburg by order of 12 August 1996, hereby rules:

Consideration of the first indent of the first paragraph of Article 13 of Council Regulation (EEC) No 1715/90 of 20 June 1990 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature, in the light of the principle of the protection of legitimate expectations and the principle of legal certainty, has not disclosed the existence of any factors of such a kind as to affect its validity.