(Reference for a preliminary ruling from the Tribunal d'instance de Metz)

«(Community Customs Code and implementing regulation – Outward processing procedure – Exemption from the import duties applied to compensating products – Amount deductible in the event of an incorrect indication of a tariff heading in the temporary export declaration for the goods – Failure having no significant effect on the correct operation of the outward processing procedure)»

Opinion of Advocate General Tizzano delivered on 26 March 2003

Judgment of the Court (First Chamber), 2 October 2003

Summary of the Judgment

Free movement of goods – Trade with third countries – Outward processing relief arrangements – Total or partial relief from import duties on compensating products – Non-compliance with the conditions and obligations of the system – Proof of the absence of any significant effect – Scope (Council Regulation No 2913/92, Arts 145 to 151)

Articles 145 to 151 of Regulation No 2913/92 establishing the Community Customs Code must be interpreted as meaning that an economic operator who has declared goods under an incorrect tariff heading at the time of their temporary exportation from Community territory under the outward processing procedure is not prohibited, even in the absence of a formal amendment of the temporary export declaration, from adducing proof that the incorrect declaration had no significant effect on the correct operation of the procedure for the purposes of Article 150(2) of that regulation. Such proof must make it possible to establish, without the slightest ambiguity, that the compensating products have resulted from processing of the temporary export goods. It is for the national court to determine, in the light of all the circumstances of the main proceedings, whether or not the economic operator has adduced that proof. If so, the amount of the import duty which would be applicable to the temporary export goods on the basis of their correct tariff heading may be deducted when the compensating products are released for free circulation.

JUDGMENT OF THE COURT (First Chamber) 2 October 2003 (1)

(Community Customs Code and implementing Regulation – Outward processing procedure – Exemption from the import duties applied to compensating products – Amount deductible in the event of an incorrect indication of a tariff heading in the temporary export declaration for the goods – Failure having no significant effect on the correct operation of the outward processing procedure)

In Case C-411/01,

REFERENCE to the Court under Article 234 EC by the Tribunal d'instance de Metz (France) for a preliminary ruling in the proceedings pending before that court between

Receveur principal des douanes,

on the interpretation of Articles 145 to 151 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1),

THE COURT (First Chamber),

composed of: M. Wathelet, President of the Chamber, P. Jann and A. Rosas (Rapporteur), Judges,

Advocate General: A. Tizzano, Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

– GEFCO SA, by F. Goguel, lawyer,

– the French Government, by G. de Bergues and A. Colomb, acting as Agents,

– the Portuguese Government, by L. Fernandes, J. Serra de Andrade and Â. Seiça Neves, acting as Agents,

– the Commission of the European Communities, by R. Tricot, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of GEFCO SA, represented by F. Goguel, of the French Government, represented by A. Colomb, and of the Commission, represented by B. Stromsky and X. Lewis, acting as Agents, at the hearing on 27 November 2002,

after hearing the Opinion of the Advocate General at the sitting on 26 March 2003,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

3 Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4 Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

5 Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

The combined nomenclature (the CN) in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1734/96 of 9 September 1996 (OJ 1996 L 238, p. 1), is a nomenclature of goods designed to satisfy both the requirements of the common customs tariff and those of the Community's external trade statistics. It provides for headings consisting of eight digits, corresponding to the tariff category of each product.

Main proceedings and question referred to the Court

15In 1995 Hewlett Packard Italiana SpA obtained outward processing authorisation from the Italian authorities permitting the temporary export of electronic cards from Italy to China or Japan for installation in printers, which were to be reimported as compensating products into Community customs territory, more specifically into France.

16The tariff heading indicated on the temporary export authorisation for the electronic cards was that declared by Hewlett Packard Italiana Spa, namely CN heading 8473 30 90. The information notice entitled Notice INF 2, drawn up at that undertaking's request, set out as reference tariff heading for those components CN heading 8473, that is to say, a heading containing the first four digits of the heading declared.

17It is apparent from the file that both the temporary export authorisation and Notice INF 2 were accompanied by a detailed description of the technical design of the electronic cards.

18The electronic cards were exported from Italy to China and Japan. The printers incorporating the cards were imported into the Community by GEFCO, which acted on behalf of its customer, Hewlett Packard France, itself acting on behalf of Hewlett Packard Europe. When the printers were imported, GEFCO declared the cards under CN tariff heading 8473 30 10 and not CN heading 8473 30 90, which was declared when they were temporarily exported.

19That discrepancy in the tariff headings was established by the French customs authorities, in a report of 3 December 1998, and an inquiry was opened. The inquiry revealed that Hewlett Packard Europe had given instructions that the re-imported goods should be declared under CN tariff reference 8473 30 10, but that, owing to an error, the goods had continued to be declared on temporary export under CN reference 8473 30 90, until at least November 1996.

20From 1 January 1996, goods under CN tariff heading 8473 30 90 were subject to customs duty of 1.6% and those under CN tariff heading 8474 30 10 to customs duty of 3.3%.

21By a report of 21 June 1999, the Italian authorities confirmed that the correct customs classification of the electronic cards was CN tariff heading 8473 30 10 and that the entry on the documentation relating to the temporary export of the cards was incorrect.

22According to the French customs authorities, GEFCO altered the tariff reference without obtaining the relevant consent of the Italian customs authorities. GEFCO did not request an expert appraisal to show that the tariff heading declared on export was incorrect. Consequently, the authorities served on GEFCO, on 26 September 2000, a notice of infringement demanding payment of a customs debt corresponding to the difference between the customs duties applicable to the electronic cards according to the tariff code declared in France and those resulting from the application of the tariff code declared in Italy.

23GEFCO claimed that the tariff heading indicated on the declarations and export authorisations was the consequence of material errors, since the Italian declarant had not been advised until November 1996 that the tariff heading applicable since 1 January 1996 was CN heading 8473 30 10 and no longer CN heading 8473 30 90.

24Those arguments failed to convince the French customs authorities and by decision of 19 October 2000 the principal collector of customs duties served on GEFCO an order to pay the sum of FRF 8 795 672 representing unpaid customs duty and value added tax.

25On 8 November 2000, GEFCO lodged an objection to that order and brought proceedings before the Tribunal d'instance de Metz. GEFCO claimed that the duty payable should be calculated on the basis of the tariff heading declared to the French customs authorities when the goods were reimported, since that tariff heading was materially correct. Articles 150(2) and 151(2) of the Customs Code make no reference to the nature declared on export and according to their spirit those provisions relate rather to the precise nature of the goods.

26The national court observes that neither the Customs Code nor Articles 748 to 796 of the implementing regulation state whether nature of the goods refers to the precise tariff reference of the product or to that stated in the export declaration. That information is required for the purpose of determining whether, in the main proceedings, GEFCO could unilaterally alter the tariff reference.

In those circumstances, the Tribunal d'instance de Metz decided to stay proceedings and to refer the following question to the Court of Justice for a preliminary ruling: Upon triangular outward processing, is an operator prohibited, on a proper interpretation of Articles 145 to 151 of the Community Customs Code (Regulation (EEC) No 2913/92), from deducting, on release of compensating products for free circulation, the amount of the import duties which would be applicable to the temporary export goods in accordance with their correct tariff heading where their tariff heading declared on their exportation was different because it was incorrect?

The question referred to the Court

Observations submitted to the Court

28GEFCO claims, first of all, that the question clearly relates to a discrepancy between the tariff headings resulting from an administrative error and that its good faith is not impugned. In the main proceedings, copies of the temporary export declarations were attached to the import declarations, so that the discrepancy between the tariff heading declared on export and that declared on import should have been revealed by a careful examination of the import declarations.

29In GEFCO's submission, the French customs authorities appear to consider that the first subparagraph of Article 151(2) of the Customs Code refers to the nature declared when the goods are placed under the outward processing procedure. However, there is nothing in that subparagraph to justify such an interpretation. GEFCO maintains that it is more likely that that provision requires that the actual nature of the goods be taken into consideration rather than the nature declared when the latter subsequently proves to be incorrect.

30GEFCO further refers to Article 150(2) of the Customs Code, which provides that total or partial relief from import duties is not to be granted where one of the conditions or obligations relating to the outward processing procedure is not fulfilled, unless it is established that the failures have no significant effect on the correct operation of the said procedure. The essential condition of the correct operation of the procedure is that it must be possible to establish that the compensating products have resulted from processing of the temporary export goods. There is no basis for the contention that the material error made in respect of the tariff heading upon the temporary export of the goods at issue in the main proceedings had the slightest impact on the proper functioning of the applicable customs procedure.

31GEFCO contends that the penalty which would result from the analysis proposed by the French customs authorities would be disproportionate to the gravity of an infringement such as that at issue in the main proceedings. It refers, in that regard, to the case-law of the Court in Case 203/80 Casati [1981] ECR 2595, Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377 and Case 68/88 Commission v Greece [1989] ECR 2965.

32GEFCO concludes that on a proper interpretation the Customs Code does not prevent it from deducting from the import duties on the compensating products the amount of the import duties which would be applicable to the temporary export goods on the basis of their correct tariff heading.

33The French Government maintains that only the tariff heading indicated on the temporary export authorisation can be used to determine the taxation applicable under the outward processing procedure. It recognises that a change of tariff heading is possible in two situations, but submits that these do not apply in the case before the national court. GEFCO did not notify the customs authorities, pursuant to Article 87(2) of the Customs Code, that the tariff heading of the temporary export goods should be altered. Nor did it amend the particulars of the temporary export declaration in accordance with the first paragraph of Article 65 thereof.

34The French Government contends that it is the authorisation issued by the customs authorities that determines the conditions under which the outward processing procedure may be used. Consequently, when the goods are re-imported, the economic operator can only deduct the duties corresponding to the tariff heading indicated on that authorisation.

35The French Government concludes that, in circumstances such as those to which the question referred to the Court relates, Articles 145 to 151 of the Customs Code do not allow an importer who has not informed the customs authorities of any developments subsequent to the grant of outward processing authorisation, who has not amended the particulars of the temporary export declaration after it has been accepted by the customs authorities and who, consequently, has not obtained authorisation indicating the change in tariff heading, to deduct the amount of the import duty which would apply to the temporary export goods on the basis of their correct tariff heading.

36The Portuguese Government maintains that since the temporary export goods were classified in the declaration under tariff heading 8473 30 90 of the CN and since that classification was confirmed by the customs agent when the goods were exported, GEFCO cannot as a matter of principle unilaterally alter that heading without having sought and obtained authorisation to do so.

37The Portuguese Government raises the question whether in the circumstances of the main proceedings there was an error on the part of the customs authorities. If so, it will be necessary to consider, in accordance with Article 220(2)(b) of the Customs Code, whether the error could not reasonably have been detected by the person liable for payment and whether the latter acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration.

38In the Portuguese Government's submission, it is also important to have an overall view and to take account of the principle of proportionality. The incorrect customs declarations were duly accepted by the Italian authorities for a certain period and there is no indication in the file that GEFCO did not act in good faith.

39In conclusion, the Portuguese Government states that the competent customs authorities must allow temporary export goods to be regarded as having been classified under the correct tariff heading provided that certain conditions are satisfied, namely good faith and absence of manifest negligence or deliberate ploys attributable to the economic operator and also compliance with all the provisions of the rules in force as regards the customs declaration. Nor must there be any doubt as to the nature of the goods concerned. It is also necessary to take into consideration the error made by the undertaking and by the competent authorities and to determine according to the relevant criteria whether that error was capable of being detected. It is for the national court to ascertain whether those conditions are satisfied.

40The Commission observes that use of the outward processing procedure is subject to authorisation on the part of the customs authorities. It is for the national court to ascertain whether, in the main proceedings, the authorisation on which the economic operator relies excludes the temporary export goods from its scope, regard being had to their real tariff heading.

41According to the Commission, there is a presumption that a declaration which is mistaken as to the nature of the goods concerned constitutes a failure having a significant effect on the correct operation of the outward processing procedure for the purposes of Article 150(2) of the Customs Code. However, that presumption is not irrebuttable. It is for the economic operator to prove that the incorrect declaration as to the nature of the goods did not have such an effect.

42The Commission concludes that, in the absence of a failure having significant effect on the correct operation of the customs procedure in question, if a customs control establishes beyond doubt the correct tariff heading of the temporary export goods and if their export was authorised by the customs authorities, the economic operator is authorised to deduct the amount of the import duties which would be applicable to the temporary export goods on the basis of their correct tariff heading, where the tariff heading declared on export is different owing to an error.

The Court's answer

43The national court is asking essentially whether Articles 145 to 151 of the Customs Code are to interpreted as meaning that an economic operator who has declared goods under an incorrect tariff heading when they were temporarily exported from the Community territory under the outward processing procedure may not, when the compensating products are released into free circulation, deduct the amount of the import duties which would apply to the temporary export goods on the basis of their correct tariff heading.

44In order to answer that question, it is appropriate first of all to consider whether, as the Portuguese Government envisages, Article 220(2)(b) of the Customs Code might be applicable in the main proceedings.

45Under that provision, subsequent entry in the accounts of the amount of duty legally owed is not to occur where the amount of duty to be recovered or which remains to be recovered was not determined correctly as a result of an error on the part of the competent authorities themselves which could not reasonably have been detected by the person liable for payment.