Keywords
Summary

Keywords

1 Acts of the institutions - Application ratione temporis - Procedural rules - Application to proceedings pending at the time when such rules enter into force

2 Free movement of goods - Community transit - Community external transit - Offences or irregularities - Incurrence of a customs debt - Whether obligatory to warn the person liable of risks posed by a fraud - No such obligation - Customs debt incurred whether or not the person liable is at fault

(Council Regulation No 2726/90, Art. 11(1)(c))

3 Own resources of the European Communities - Post-clearance recovery of import or export duties - Time-limits for recovery

(Council Regulations No 1697/79, Art. 2(1) and No 1854/89, Arts 3, 5 and 6(1))

4 Own resources of the European Communities - Post-clearance recovery of import and export duties - Conditions for non-recovery laid down in Article 5(2) of Regulation No 1697/79 - `Error made by the competent authorities themselves' - Meaning - Deliberate omission to warn a person liable acting in good faith of a possible fraud - Not covered

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

5 Own resources of the European Communities - Repayment or remission of import or export duties - Article 13(1) of Regulation No 1430/79 - `Special situations' - Meaning - Assessment by the customs authorities and by the Commission - Where the national authorities have deliberately, in the interests of an investigation, allowed offences or irregularities to be committed, thus causing a person acting in good faith to incur a customs debt - Where the person liable is placed in an exceptional situation as compared with other economic operators

(Council Regulation No 1430/79, Art. 13(1); Commission Regulations No 3799/86, Art. 4, and No 2454/93, Arts 905 to 909)

Summary

1 Procedural rules are generally held to apply to all proceedings pending at the time when those rules enter into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force.

2 Community law does not impose on customs authorities who have been informed of a possible fraud in connection with external transit arrangements any obligation to warn a principal that he may incur liability for customs duty as a result of the fraud, even where he has acted in good faith.

Article 11(1)(c) of Regulation No 2726/90 on Community transit provides that a principal is, as a rule, responsible for payment of duties due `as a result of an offence or irregularity committed in the course of or in connection with a Community transit operation' and does not require, in order for the customs debt to arise, that the principal be shown to be at fault or that the customs authorities be obliged in any way to inform the principal that an investigation has been carried out and has led to the discovery of an offence or irregularity.

3 Failure on the part of the customs authorities, when taking action for the post-clearance recovery of customs duties, to observe the time-limits laid down in Articles 3, 5 and 6(1) of Regulation No 1854/89 on the entry in the accounts and terms of payment of the amounts of the import duties or export duties resulting from a customs debt does not nullify the right of those authorities to proceed with such recovery, provided that it is carried out within the time-limit laid down in Article 2(1) of Regulation No 1697/79.

4 A deliberate omission on the part of the customs authorities - acting in the interests of an investigation aimed at identifying and apprehending the persons who have carried out or are planning a fraud, or the accomplices of those persons - to inform a principal of a possible fraud in which the principal is not implicated cannot, in any event, be classified as an error on the part of the competent authorities within the meaning of Article 5(2) of Regulation No 1697/79 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.

5 Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or export duties, as amended by Regulation No 3069/86, makes repayment or remission subject to two cumulative conditions, namely the existence of a special situation and the absence of deception or obvious negligence on the part of the economic operator. In this connection, the list, set out in Article 4 of Regulation No 3799/86, of special situations within the meaning of Article 13(1) is not exhaustive. It is therefore for the customs authorities to determine on a case by case basis whether a situation which is not mentioned in that list none the less constitutes a situation which is special within the meaning of the applicable Community legislation.

Where the customs authority has been unable to take a decision on the remission of duties, the Member State to which the authority belongs transmits the case to the Commission to be settled under the procedure laid down in Articles 905 to 909 of Regulation No 2454/93. In that context, Article 905 - pursuant to which the Commission is asked by the customs authority to determine, on the basis of the information placed before it, whether a special situation exists such as to justify the remission of duties - includes a general fairness clause intended to cover the exceptional situation in which a declarant might find himself in comparison with other operators engaged in the same business. In that connection, the demands of an investigation conducted by the national authorities may, in the absence of any deception or negligence on the part of the person liable, and where that person has not been informed that the investigation is being carried out, constitute a special situation within the meaning of Article 13(1) of Regulation No 1430/79 where the fact that the national authorities have, in the interests of the investigation, deliberately allowed offences or irregularities to be committed, thus causing the principal to incur a customs debt, places the principal in an exceptional situation in comparison with other operators engaged in the same business.