61987J0378

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1.Action for annulment - Time-limit - When time begins to run - Decision notified to the applicant by the national authorities - Precise knowledge of the decision' s contents

( EEC Treaty, Art . 173, third paragraph )

2.European Communities' own resources - Post-clearance recovery of import or export duties - Importer complying with the conditions set out in Article 5(2 ) of Regulation No 1697/79 - Post-clearance recovery - Barred

( Council Regulation No 1697/79, Art . 5(2 ) )

3.Customs union - Harmonization of laws - Procedures for the release of goods into free circulation - Obligations of the person making the customs declaration

( Council Directive 79/695, Art . 3(1 ); Commission Directive 82/57, Art . 2 )

1.It is only from the moment when a trader receives clear and unequivocal notice, so that he can exercise his right of action, of the contents of an institution' s decision, addressed to a Member State, refusing to allow a provision of the Community rules to be applied to him, that time for bringing an action for annulment begins to run .

2.Article 5(2 ) of Regulation No 1697/79 on the post-clearance recovery of import duties or export duties, which lays down three precise conditions to be fulfilled before the competent authorities may waive post-clearance recovery, must be interpreted as meaning that when all those conditions are fulfilled the person liable to pay duties is entitled to the waiver of post-clearance recovery .

3.It is clear from Article 3(1 ) of Directive 79/695, on the harmonization of procedures for the release of goods for free circulation, and Article 2 of Directive 82/57, laying down certain provisions for implementing Directive 79/695, that the person making a customs declaration for the purpose of the release of goods for free circulation must supply the customs authorities with all the information required in relation to the customs treatment requested for the goods in question .

Where the tariff classification of the goods depends on the application of a particular customs system, such as a system providing for exemption from duties, that obligation also includes the determination of the correct subheading of the Common Customs Tariff . If on the sole basis of their description or appearance goods cannot be classified with sufficient accuracy under a particular subheading of the Common Customs Tariff, the person making the declaration must give all other relevant information relating in particular to the characteristics and intended use of the goods in order to enable them to be classified correctly .

In Case 378/87

Top Hit Holzvertrieb GmbH, a company incorporated under German law, in liquidation, formerly Intras Holzimport GmbH, 40 Fabriciusstrasse, D-4010 Hilden, represented by its liquidator, Peter Lehnert, Agent : Schuermann and Partners, Rechtsanwaelte, Frankfurt am Main, with an address for service in Luxembourg at the Chambers of E . Arendt, avocat, 4 avenue Marie-Thérèse,

applicant,

v

Commission of the European Communities, represented by Joern Sack, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre,

defendant,

APPLICATION for a declaration that Commission Decision REC 5/85 of 16 September 1985 is void,

THE COURT ( Third Chamber ),

composed of : F . Grévisse, President of Chamber, J . C . Moitinho de Almeida and M . Zuleeg, Judges,

Advocate General : J . Mischo

Registrar : J . A . Pompe, Deputy Registrar

having regard to the Report for the Hearing and further to the hearing on 25 January 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 2 March 1989,

gives the following

Judgment

1 By application lodged at the Court Registry on 21 December 1987, Top Hit Holzvertrieb GmbH ( hereinafter referred to as "Top Hit "), a company incorporated under German law, in liquidation, brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that Commission Decision REC 5/85 of 16 September 1985 requiring the Federal Republic of Germany to institute post-clearance recovery from the applicant of import duties amounting to DM 244 590.59 is void .

2 Between October 1980 and the end of December 1981, Top Hit, an undertaking specializing in the marketing of wood products, imported into the Federal Republic of Germany 105 consignments of wooden shelving originating in Romania . In the invoices submitted upon importation the goods were successively described as "wooden prefabrications", "unassembled pinewood Nico shelving" and "Viktor batten constructions ". In each case the goods were delivered in complete sets enveloped in contracting plastic . Only the Nico shelving was imported until May 1981 in the form of individual parts stacked in the corresponding number of pieces on separate palettes .

3 When putting the goods into free circulation, the applicant declared all the consignments at issue as falling under subheading 44.28 D II ( Other articles of wood ) of the Common Customs Tariff, describing the Nico shelving, from October 1980 to May 1981, as "wooden construction elements, pine/spruce" and, from May 1981, as "unassembled pinewood shelving" and the Viktor shelving as "pinewood batten constructions ". Pursuant to those declarations the goods in question were put into free circulation under subheading 44.28 D II and imported free of import duty by the applicant under the generalized system of preferences .

4 On 19 October 1982 the Oberfinanzdirektion ( Principal Revenue Office ) Berlin issued two binding tariff classification notices in which the goods in question were classified under subheading 94.03 B ( furniture ) of the Common Customs Tariff, for which no preferential treatment was provided for at that time under the generalized system of preferences . Following the issue of those notices the Hauptzollamt ( Principal Customs Office ) Koeln-Deutz ( hereinafter referred to as the "Hauptzollamt ") decided, by an amending notice of 19 October 1983, which was further amended on 7 March 1985, to proceed with post-clearance recovery of the import duties amounting to DM 244 590.29 under Article 2 of Council Regulation ( EEC ) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties ( Official Journal 1979, L 197, p . 1 ).

5 On 15 November 1983 the applicant lodged an objection against that amending notice in which it requested that on the basis of Article 5(2 ) of the aforementioned Regulation No 1697/79 no action should be taken for post-clearance recovery of the import duties or that the duties should be remitted on the ground of special circumstances in accordance with the first paragraph of Article 13 of Council Regulation ( EEC ) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties ( Official Journal 1979, L 175, p . 1 ).

6 Since the uncollected duties exceeded ECU 2 000, the Federal Republic of Germany, by letter dated 10 May 1985, requested the Commission pursuant to Article 4 of Commission Regulation ( EEC ) No 1573/80 of 20 June 1980 laying down provisions for the implementation of Article 5(2 ) of Regulation No 1697/79 ( Official Journal 1980, L 161, p . 1 ) to take a decision on the post-clearance recovery of the import duties in the case in question . Pursuant to Article 3 of Commission Regulation ( EEC ) No 1575/80 of 20 June 1980 laying down provisions for the implementation of Article 13 of Regulation No 1430/79 ( Official Journal 1980, L 161, p . 13 ) the Federal Republic of Germany also requested the Commission to decide whether a remission of the import duties at issue was justified if post-clearance recovery had to be effected .

7 On 16 September 1985 the Commission adopted Decision REC 5/85, now challenged in this action, finding that the import duties in question had to be recovered and that there was no justification for their remission .

8 By a decision of 21 January 1986, the Hauptzollamt rejected the request for the remission of the import duties because it considered that the conditions laid down in the first paragraph of Article 13 of Regulation No 1430/79 were not satisfied in the case in question .

9 By decision of 13 May 1986 the Hauptzollamt informed the applicant that there was no longer any reason to suspend the procedure regarding the objection, which had been suspended until the application for equitable treatment had been adjudicated upon .

10 Finally, by decision of 21 October 1987, notified on 30 October 1987, the Hauptzollamt also refused to refrain from post-clearance recovery of the import duties on the ground that the applicant ought to have detected the error made by the customs office and that therefore the conditions laid down in Article 5(2 ) of Regulation No 1697/79 were not satisfied .

11 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

Admissibility

12 The Commission considers that the application is inadmissible on the ground that the period laid down in the third paragraph of Article 173 of the EEC Treaty has not been observed . The applicant received notice of the Commission decision at issue, and in particular of the fact that it also related to the request made under Article 5(2 ) of Regulation No 1697/79, from the Hauptzollamt' s decision of 13 May 1986 .

13 That argument of the Commission cannot be accepted . Although the contested decision related both to the application made under the first paragraph of Article 13 of Regulation No 1430/79 and that based on Article 5(2 ) of Regulation No 1697/79, nevertheless the competent German authorities chose to adjudicate upon the application for remission of import duties before determining the application relating to post-clearance recovery . In its decision of 13 May 1986, the Hauptzollamt informed the applicant that "having regard to the said decision ( Commission Decision REC 5/85 of 16 September 1985 ), the question whether in the present case the conditions for adopting a measure pursuant to Article 5(2 ) of Regulation ( EEC ) No 1697/79 are satisfied must essentially also be answered on the basis of the grounds which led to the rejection of the request made under the first paragraph of Article 13 of Regulation ( EEC ) No 1430/79 ". At the same time the applicant was asked, in the decision of 13 May 1986, whether it wished to reconsider and if necessary supplement the grounds of its objection .

14 It must be observed that the wording of the Hauptzollamt' s decision did not show clearly and unequivocally that the Commission had already given a definitive ruling, in the decision at issue, on the treatment of the request lodged under Article 5(2 ) of Regulation No 1697/79 and that the German authorities were bound by that decision . In this connection it must be borne in mind that the contested decision in this case was addressed to the Federal Republic of Germany and not to the applicant itself .

15 In those circumstances, it cannot be considered that the Hauptzollamt' s decision of 13 May 1986 was sufficiently detailed to apprise the applicant of the substance of the Commission' s decision adversely affecting it so that it could exercise its right of action under the aforementioned Article 5(2 ) ( see the judgment of the Court of 5 March 1980 in Case 76/79 Karl Koenecke Fleischwarenfabrik GmbH & Co . KG v Commission (( 1980 )) ECR 665 ).

16 The application is thus admissible .

Substance

17 The applicant bases its action on Article 5(2 ) of Regulation No 1697/79, according to which the competent authorities may refrain from taking action for the post-clearance recovery of import duties or export 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 for his part acted in good faith and observed all the provisions laid down by the rules in force as far as his customs declaration is concerned .

18 It must be recalled first of all that that provision must be interpreted as meaning that when the three conditions set out therein are satisfied the person liable to pay duties is entitled to the waiver of post-clearance recovery ( see the judgment of the Court of 22 October 1987 in Case 314/85 Foto-Frost v Hauptzollamt Luebeck-Ost (( 1987 )) ECR 4199 ).

19 The first condition stipulated in Article 5(2 ) is that the non-collection of the duties must be the result of an error made by the competent authorities themselves . In that respect it suffices to point out that it is an established fact that when the goods were released into free circulation at least 60 consignments were inspected and in 42 cases the correctness of the tariff classification was confirmed by express reference to the wording of the customs declaration . In addition, in 17 other cases the officials responsible for customs clearance found that the goods examined were unassembled shelving . Since the goods in question fell in fact under a tariff subheading different from that specified in the aforementioned customs declarations, the duties at issue were not collected as a result of an error made by the competent authorities themselves .

20 It is necessary to consider next whether the applicant observed all the provisions in force concerning its customs declaration .

21 The Commission considers that the applicant' s customs declaration was misleading, in particular because of the description of the goods used until May 1981, namely "wooden construction elements, pine/spruce ". Consequently, the applicant did not declare the goods correctly and did not observe all the provisions in force .

22 It must be made clear first of all that the provisions in force comprise both Community rules and national rules supplementing or transposing the Community rules where necessary .

23 In the Federal Republic of Germany the content of the customs declaration is determined in particular by paragraph 12 of the Zollgesetz ( Customs Law ) and by paragraph 20 of the Allgemeine Zollordnung ( General Customs Order ). Under paragraph 12(1 ) of the Zollgesetz, relating to the customs declaration, the person making the declaration must declare the goods to which his application for customs clearance relates and specify the characteristics and details relevant to customs clearance and their tariff heading . Paragraph 20 of the Allgemeine Zollordnung states that customs declarations must contain a number of particulars, including :

"...

4 . The nature, quality and, where appropriate, the intended use of the goods, with the accuracy required for the customs treatment applied for,

... ".

24 Those provisions of national law must be interpreted in the light of Council Directive 79/695/EEC of 24 July 1979 on the harmonization of procedures for the release of goods for free circulation ( Official Journal 1979, L 205, p . 19 ). Article 3(1 ) of that directive provides that the entry form for release for free circulation must contain

"the particulars necessary for the identification of the goods and for the application of the import duties and any other provisions governing the release of the goods for free circulation ".

25 Subsequent to the material period, those requirements were more closely defined in Commission Directive 82/57/EEC of 17 December 1981 laying down certain provisions for implementing Council Directive 79/695/EEC on the harmonization of procedures for the release of goods for free circulation ( Official Journal 1982, L 28, p . 38 ). Article 2 of the directive provides that the particulars to be supplied in the entry form for release for free circulation must include inter alia :

"...

( g)the Common Customs Tariff nomenclature heading or subheading of the goods and a description of the said goods in conformity with the terms of that nomenclature or in terms that are sufficiently precise to enable the customs authority to determine forthwith and unambiguously that they correspond to the tariff heading or subheading declared

(( and )) ...

( m)all other particulars needed for application of the rules governing the release for free circulation of the goods declared ".

The abovementioned provisions of German law are consistent with the detailed requirements laid down in Directive 82/57 .

26 It is clear from all the rules set forth above that the person making the declaration must supply the customs authorities with all the information required in relation to the customs treatment requested for the goods in question . Particularly where exemption from import duties depends on the tariff classification of the goods, as for example in the application of the generalized system of preferences to certain products, that obligation includes the determination of the correct subheading of the Common Customs Tariff . If on the sole basis of their description or appearance goods cannot be classified with sufficient accuracy under a particular subheading of the Common Customs Tariff, the person making the declaration must give all other relevant information relating in particular to the characteristics and intended use of the goods in order to enable them to be classified correctly .

27 It is necessary to consider whether the applicant satisfied those obligations incumbent on a person making a customs declaration .

28 It must be observed first of all in this regard that the goods in question, wooden shelving, are not mentioned in the nomenclature of the Common Customs Tariff . The question therefore arises whether those products should be classified as furniture under Chapter 94 or as articles of wood under Chapter 44 . It may nevertheless be observed that in order for wooden shelves, which in the ordinary meaning of the words are generally intended for the placing of articles upon them, not to be regarded as furniture, specific information is necessary with regard to the use and the precise characteristics of the shelving in question .

29 In the present case, the applicant chose to declare the wooden shelving as falling under subheading 44.28 D II of the Common Customs Tariff, which covers "Other articles of wood : Other ". The particularly vague nature of that definition is obvious . It was therefore necessary, according to the abovementioned principles, to describe the goods in question in sufficiently precise terms in order to enable the customs authorities clearly to determine that they were not to be classified in a more specific tariff subheading but in the tariff subheading declared . That obligation was all the greater since upon release into free circulation the shelving in question was unassembled, which made its classification even more difficult .

30 The descriptions given in the applicant' s customs declarations were insufficient to satisfy the aforementioned requirements . The description "wooden construction elements, pine/spruce" used to describe the Nico shelving between October 1980 and May 1981 is not to be found in any heading of the Common Customs Tariff . Moreover, that description did not make it clear that the goods were in fact shelves and therefore concealed one of the main characteristics of the goods for determining its tariff classification . Nor did the description "unassembled pinewood shelving" used after May 1981 or the description "pinewood batten constructions" used for the Viktor shelving enable it to be determined with sufficient accuracy whether the goods were in the nature of furniture or whether they were unspecified articles of wood not having the character of furniture . In view of the presumption that wooden shelves are to be classified as furniture, it was for the applicant to provide all the necessary particulars of the characteristics and purpose of the goods in question since it declared them as falling within tariff subheading 44.28 D II of the Common Customs Tariff . It was even more important for that obligation to be complied with in this case since the result of the applicant' s choice of heading was that the goods concerned were granted an exemption from import duty that was not provided for in the case of the other tariff subheading under which the goods might have been classified .

31 In those circumstances, the applicant cannot be considered to have observed all the provisions laid down by the rules in force concerning its customs declaration .

32 Since post-clearance recovery of the import duties in question may be waived only if all the conditions laid down in Article 5(2 ) of Regulation No 1697/79 are satisfied, the application must be rejected without its being necessary to consider whether the applicant acted in good faith .

Costs

33 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the applicant has failed in its submissions, it must be ordered to pay the costs .

On those grounds,

THE COURT ( Third Chamber )

hereby :

( 1)Dismisses the application;

( 2)Orders the applicant to pay the costs .