61985J0328

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1 . EUROPEAN COMMUNITIES' OWN RESOURCES - REPAYMENT OR REMISSION OF IMPORT DUTIES - REGULATION ADOPTED UNDER THE EEC TREATY - APPLICATION TO GOODS FALLING UNDER THE ECSC TREATY

( EEC TREATY, ART . 232 ( 1 ); COUNCIL REGULATION NO 1430/79 )

2 . EUROPEAN COMMUNITIES' OWN RESOURCES - REPAYMENT OR REMISSION OF IMPORT DUTIES - ARTICLE 2 ( 1 ) OF REGULATION NO 1430/79 - DELIBERATELY FALSE DECLARATION OF THE PRICE OF IMPORTED GOODS - NOT APPLICABLE

( COUNCIL REGULATION NO 1430/79, ART . 2 ( 1 ) )

1 . ARTICLE 232 ( 1 ) OF THE EEC TREATY MUST BE INTERPRETED AS MEANING THAT IN SO FAR AS MATTERS ARE NOT THE SUBJECT OF PROVISIONS IN THE ECSC TREATY OR RULES ADOPTED ON THE BASIS THEREOF, THE EEC TREATY AND THE PROVISIONS ADOPTED FOR ITS IMPLEMENTATION CAN APPLY TO PRODUCTS COVERED BY THE ECSC TREATY .

THAT IS THE CASE IN REGARD TO REGULATION NO 1430/79 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES .

2 . THE SECOND INDENT OF ARTICLE 2 ( 1 ) OF REGULATION NO 1430/79, WHICH PROVIDES THAT IMPORT DUTIES ARE TO BE REPAID OR REMITTED IF IT IS OBVIOUS THAT THE AMOUNT OF SUCH DUTIES ENTERED IN THE ACCOUNTS EXCEEDS FOR ANY REASON THE AMOUNT LAWFULLY PAYABLE, APPLIES, HAVING REGARD TO THE RECITALS IN THE PREAMBLE TO THE REGULATION, TO CASES OF ERROR . IT DOES NOT APPLY WHEN THE TRADER LIABLE FOR THE IMPORT DUTIES HAS, AT THE TIME OF ENTRY OF THE GOODS FOR FREE CIRCULATION, DECLARED A PRICE HIGHER THAN THAT WHICH HE ACTUALLY HAD TO PAY, TAKING INTO ACCOUNT THE DISCOUNTS AND BONUSES GRANTED TO HIM ON ACCOUNT OF THE QUANTITIES ORDERED, AND WHEN THE DECLARATION OF THE HIGHER PRICE WAS DESIGNED TO ENABLE THE GOODS TO BE RELEASED FOR FREE CIRCULATION ON THE BASIS OF A LICENCE WHICH MADE NO MENTION OF THOSE DISCOUNTS AND BONUSES .

IN CASE 328/85

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) HAMBURG FOR A PRELIMINARY RULING IN THE PROCEEDINGS BEFORE THAT COURT BETWEEN

DEUTSCHE BABCOCK HANDEL GMBH

AND

HAUPTZOLLAMT LOEBECK-OST ( PRINCIPAL CUSTOMS OFFICE LOEBECK EAST )

ON THE INTERPRETATION OF COUNCIL REGULATION NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES ( OFFICIAL JOURNAL, L 175, P . 1 ),

THE COURT

COMPOSED OF : G . BOSCO, PRESIDENT OF CHAMBER, ACTING AS PRESIDENT, O . DUE AND J.C . MOITINHO DE ALMEIDA ( PRESIDENTS OF CHAMBERS ), T . KOOPMANS, U . EVERLING, K . BAHLMANN, Y . GALMOT, C . KAKOURIS, R . JOLIET, T.F . O' HIGGINS AND F . SCHOCKWEILER, JUDGES,

ADVOCATE GENERAL : SIR GORDON SLYNN

REGISTRAR : B . PASTOR, ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

DEUTSCHE BABCOCK HANDEL GMBH, THE PLAINTIFF IN THE MAIN PROCEEDINGS, BY BALDUIN KAMPRAD, RECHTSANWALT,

HAUPTZOLLAMT LOEBECK-OST, DEFENDANT IN THE MAIN PROCEEDINGS, BY ITS DIRECTOR,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY JOERN SACK, A MEMBER OF ITS LEGAL DEPARTMENT,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 12 FEBRUARY 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 7 APRIL 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN ORDER OF 14 OCTOBER 1985, WHICH WAS RECEIVED AT THE COURT ON 6 NOVEMBER 1985, THE FINANZGERICHT HAMBURG REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS CONCERNING THE INTERPRETATION OF COUNCIL REGULATION NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES ( OFFICIAL JOURNAL, L 175, P . 1 ).

2 THOSE QUESTIONS AROSE IN PROCEEDINGS BEFORE THAT COURT BETWEEN DEUTSCHE BABCOCK HANDEL GMBH ( HEREINAFTER REFERRED TO AS "DEUTSCHE BABCOCK "), A COMPANY WHICH DEALS IN METALLURGICAL PRODUCTS, AND HAUPTZOLLAMT LOEBECK-OST . DEUTSCHE BABCOCK IS SEEKING REPAYMENT UNDER THE SECOND INDENT OF ARTICLE 2 ( 1 ) OF REGULATION NO 1430/79 OF CUSTOMS DUTIES WHICH IT PAID ON THE IMPORTATION OF SHEET STEEL FROM POLAND AND HUNGARY INTO THE FEDERAL REPUBLIC OF GERMANY . SINCE IT HAD INDICATED IN ITS DECLARATION OF CUSTOMS VALUE ONLY THE GROSS PRICE EVEN THOUGH IT HAD IN FACT OBTAINED DISCOUNTS FROM THE SUPPLIERS ON THE BASIS OF THE QUANTITIES ORDERED, IT HAD TO PAY CUSTOMS DUTIES CALCULATED ON THE BASIS OF THE GROSS PRICE AND NOT OF THE PRICE REDUCED BY THE QUANTITATIVE DISCOUNTS OBTAINED .

3 THE SECOND INDENT OF ARTICLE 2 ( 1 ) OF REGULATION NO 1430/79 PROVIDES AS FOLLOWS :

"IMPORT DUTIES SHALL BE REPAID OR REMITTED IN SO FAR AS THE COMPETENT AUTHORITIES ARE SATISFIED THAT THE AMOUNT OF SUCH DUTIES ENTERED IN THE ACCOUNTS :

- ...

- EXCEEDS FOR ANY REASON THE AMOUNT LAWFULLY PAYABLE ".

4 SINCE IT CONSIDERED THAT THE DISPUTE RAISED QUESTIONS CONCERNING THE INTERPRETATION OF COMMUNITY LAW, THE FINANZGERICHT STAYED PROCEEDINGS UNTIL THE COURT OF JUSTICE HAD GIVEN A PRELIMINARY RULING ON THE FOLLOWING QUESTIONS :

"( 1 ) IS COUNCIL REGULATION ( EEC ) NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES, AS MOST RECENTLY AMENDED BY COUNCIL REGULATION ( EEC ) NO 1672/82 OF 24 JUNE 1982, DIRECTLY APPLICABLE TO GOODS TO WHICH THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY APPLIES?

( 2 ) IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE : CAN THE COURT OF JUSTICE BE ASKED, IN PRELIMINARY REFERENCE PROCEEDINGS, TO RULE ON THE INTERPRETATION OF REGULATION ( EEC ) NO 1430/79 WHERE THAT REGULATION APPLIES IN A MEMBER STATE ONLY BY VIRTUE OF ITS INCORPORATION IN NATIONAL LEGISLATION?

( 3 ) IF THE COURT OF JUSTICE HOLDS THAT IT HAS JURISDICTION TO GIVE A RULING ON THE INTERPRETATION OF REGULATION ( EEC ) NO 1430/79 IN THIS CASE :

IS THE SECOND INDENT OF ARTICLE 2 ( 1 ) OF REGULATION ( EEC ) NO 1430/79 SUBJECT TO THE GENERAL LEGAL PRINCIPLE THAT APPLICANTS MUST ACT IN GOOD FAITH, SO THAT IMPORT DUTIES SHOULD NOT BE REPAID WHERE, IN ENTERING GOODS FOR FREE CIRCULATION, THE PERSON LIABLE FOR IMPORT DUTY DECLARES A PRICE HIGHER THAN THAT WHICH HE ACTUALLY HAD TO PAY, TAKING INTO ACCOUNT DISCOUNTS AND TURNOVER BONUSES, AND THAT DECLARATION WAS MADE WITH A VIEW TO OBTAINING RELEASE FOR FREE CIRCULATION ON THE BASIS OF AN EXPORT LICENCE WHICH DID NOT TAKE INTO ACCOUNT THOSE DISCOUNTS OR BONUSES, ALTHOUGH AN IMPORT LICENCE WOULD HAVE BEEN GRANTED UPON APPLICATION STATING THE PRICE AFTER DEDUCTION OF THE DISCOUNTS OR BONUSES?"

5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A MORE DETAILED STATEMENT OF THE FACTS OF THE CASE, THE PROCEDURE AND THE OBSERVATIONS SUBMITTED TO THE COURT WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

FIRST QUESTION

6 IN ITS FIRST QUESTION, THE FINANZGERICHT IS ASKING ESSENTIALLY WHETHER REGULATION NO 1430/79 APPLIES TO GOODS COVERED BY THE ECSC TREATY .

7 IT SHOULD BE OBSERVED FIRST IN THAT REGARD THAT THE PROVISIONS OF THE REGULATION MAKE NO DISTINCTION ON THE BASIS OF WHETHER THE GOODS CONCERNED ARE OR ARE NOT COVERED BY THE ECSC TREATY . HOWEVER, ACCOUNT MUST ALSO BE TAKEN OF THE FACT THAT THE REGULATION WAS ADOPTED ON THE BASIS ONLY OF THE EEC TREATY, IN PARTICULAR ARTICLES 43 AND 235 THEREOF .

8 THE QUESTION THEREFORE ARISES WHETHER REGULATION NO 1430/79 CAN APPLY TO GOODS COVERED BY THE ECSC TREATY EVEN THOUGH ITS LEGAL BASIS IS THE EEC TREATY AND NOT THE ECSC TREATY .

9 IT SHOULD BE OBSERVED THAT, UNLIKE THE ECSC TREATY, THE EEC TREATY IS NOT LIMITED TO SPECIFIED GOODS WHICH DELIMIT ITS SCOPE RATIONE MATERIAE .

10 ACCORDING TO ARTICLE 232 ( 1 ) OF THE EEC TREATY, THE PROVISIONS OF THAT TREATY DO NOT AFFECT THE PROVISIONS OF THE ECSC TREATY, IN PARTICULAR AS REGARDS THE RIGHTS AND OBLIGATIONS OF MEMBER STATES, THE POWERS OF THE INSTITUTIONS OF THE COMMUNITY AND THE RULES LAID DOWN BY THAT TREATY FOR THE FUNCTIONING OF THE COMMON MARKET IN COAL AND STEEL . THE VERY TERMS OF THAT PROVISION REQUIRE THAT IT SHOULD BE INTERPRETED AS MEANING THAT IN SO FAR AS MATTERS ARE NOT THE SUBJECT OF PROVISIONS IN THE ECSC TREATY OR RULES ADOPTED ON THE BASIS THEREOF, THE EEC TREATY AND THE PROVISIONS ADOPTED FOR ITS IMPLEMENTATION CAN APPLY TO PRODUCTS COVERED BY THE ECSC TREATY .

11 THE QUESTION THEREFORE ARISES WHETHER THE MATTERS GOVERNED BY REGULATION NO 1430/79 ARE THE SUBJECT OF PROVISIONS OF THE ECSC TREATY OR RULES ADOPTED FOR ITS IMPLEMENTATION .

12 IT SHOULD BE POINTED OUT THAT REGULATION NO 1430/79 DEALS WITH A SUBJECT, NAMELY THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES, WHICH IS NOT THE SUBJECT EITHER OF PROVISIONS OF THE ECSC TREATY ITSELF OR OF PROVISIONS ADOPTED THEREUNDER . AS REGARDS IN PARTICULAR ARTICLE 72 OF THE ECSC TREATY, WHICH DEALS WITH CUSTOMS DUTIES, THAT PROVISION MERELY GRANTS THE COUNCIL POWERS TO FIX MINIMUM AND MAXIMUM RATES, LEAVING IT TO EACH MEMBER STATE TO DETERMINE, WITHIN THE LIMITS SO FIXED, ITS TARIFFS ACCORDING TO ITS OWN NATIONAL PROCEDURE . CONSEQUENTLY, THE COLLECTION AND REPAYMENT OF CUSTOMS DUTIES ARE NOT GOVERNED BY THAT TREATY .

13 CONSEQUENTLY, IN THE ABSENCE OF SPECIFIC RULES, NEITHER THE ECSC TREATY NOR THE IMPLEMENTING DECISIONS ADOPTED THEREUNDER PREVENT THE APPLICATION OF REGULATION NO 1430/79 .

14 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE THAT REGULATION NO 1430/79 APPLIES TO GOODS FALLING UNDER THE ECSC TREATY .

15 HAVING REGARD TO THE REPLY TO THE FIRST QUESTION, THERE IS NO NEED TO REPLY TO THE SECOND QUESTION .

THIRD QUESTION

16 THE THIRD QUESTION SEEKS ESSENTIALLY TO ESTABLISH WHETHER THE SECOND INDENT OF ARTICLE 2 ( 1 ) OF REGULATION NO 1430/79 APPLIES WHEN A TRADER LIABLE TO PAY IMPORT DUTIES HAS DECLARED, AT THE TIME AT WHICH THE GOODS ARE ENTERED FOR FREE CIRCULATION, A PRICE HIGHER THAN THAT WHICH HE ACTUALLY HAD TO PAY, TAKING INTO ACCOUNT THE DISCOUNTS AND BONUSES GRANTED TO HIM ON ACCOUNT OF THE QUANTITIES ORDERED AND WHEN THE DECLARATION OF THE HIGHER PRICE WAS DESIGNED TO ENABLE THE GOODS TO BE RELEASED FOR FREE CIRCULATION ON THE BASIS OF A LICENCE WHICH MADE NO MENTION OF THOSE DISCOUNTS AND BONUSES .

17 IT MUST BE OBSERVED THAT IT CAN BE SEEN FROM THE SECOND RECITAL IN THE PREAMBLE TO THE REGULATION AT ISSUE THAT THE SECOND INDENT OF ARTICLE 2 ( 1 ) REFERS TO THE REPAYMENT OR REMISSION OF IMPORT DUTIES WHERE THE AMOUNT PAID OR DEFERRED PROVES TO BE HIGHER THAN THAT LEGALLY DUE EITHER OWING TO AN ERROR OF CALCULATION OR TRANSCRIPTION OR OWING TO THE APPLICATION OF INACCURATE OR INCOMPLETE TAX CRITERIA, IN PARTICULAR WITH REGARD TO THE TYPE, VALUE OR ORIGIN ADOPTED FOR DETERMINING THAT AMOUNT .

18 IT FOLLOWS THAT THAT PROVISION SHOULD APPLY IN CASES OF ERROR . IT CANNOT BE APPLIED IN ORDER TO AUTHORIZE THE REPAYMENT OF CUSTOMS DUTIES IN A SITUATION IN WHICH A PERSON DELIBERATELY MAKES FALSE DECLARATIONS AS TO THE PRICE OF THE GOODS IN HIS APPLICATION FOR A LICENCE, WHICH LEADS TO THE DETERMINATION OF A DUTY HIGHER THAN THAT WHICH HE SHOULD HAVE PAID .

19 THE REPLY TO THE THIRD QUESTION MUST THEREFORE BE THAT THE SECOND INDENT OF ARTICLE 2 ( 1 ) OF REGULATION NO 1430/79 DOES NOT APPLY WHEN THE TRADER LIABLE FOR THE IMPORT DUTIES HAS, AT THE TIME OF ENTRY OF THE GOODS FOR FREE CIRCULATION, DECLARED A PRICE HIGHER THAN THAT WHICH HE ACTUALLY HAD TO PAY, TAKING INTO ACCOUNT THE DISCOUNTS AND BONUSES GRANTED TO HIM ON ACCOUNT OF THE QUANTITIES ORDERED, AND WHEN THE DECLARATION OF THE HIGHER PRICE WAS DESIGNED TO ENABLE THE GOODS TO BE RELEASED FOR FREE CIRCULATION ON THE BASIS OF A LICENCE WHICH MADE NO MENTION OF THOSE DISCOUNTS AND BONUSES .

COSTS

20 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT, THE DECISION AS TO THE COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT HAMBURG, BY ORDER OF 14 OCTOBER 1985, HEREBY RULES :

( 1 ) REGULATION NO 1430/79 APPLIES TO GOODS FALLING UNDER THE ECSC TREATY;

( 2 ) THE SECOND INDENT OF ARTICLE 2 ( 1 ) OF REGULATION NO 1430/79 DOES NOT APPLY WHEN THE TRADER LIABLE FOR THE IMPORT DUTIES HAS, AT THE TIME OF ENTRY OF THE GOODS FOR FREE CIRCULATION, DECLARED A PRICE HIGHER THAN THAT WHICH HE ACTUALLY HAD TO PAY, TAKING INTO ACCOUNT THE DISCOUNTS AND BONUSES GRANTED TO HIM ON ACCOUNT OF THE QUANTITIES ORDERED, AND WHEN THE DECLARATION OF THE HIGHER PRICE WAS DESIGNED TO ENABLE THE GOODS TO BE RELEASED FOR FREE CIRCULATION ON THE BASIS OF A LICENCE WHICH MADE NO MENTION OF THOSE DISCOUNTS AND BONUSES .