Important legal notice

61996C0315

European Court reports 1998 Page I-00317

Opinion of the Advocate-General

1 The questions which have been referred to the Court by the Finanzgericht (Finance Court) Hamburg seek to establish whether a rule of Community law which permits the Community legislature to amend the customs nomenclature without laying down transitional provisions is compatible with the principles of legal certainty and protection of legitimate expectations, and ask what consequences would ensue if such a rule were found to be incompatible.

I - The relevant Community legislation

2 The term `binding tariff information' at issue in this case refers to information concerning the classification of goods in the customs nomenclature. (1) Such information is issued by the customs authorities and is binding on the administration. (2)

3 Article 13 of the 1990 regulation 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). (3)

4 Article 14(3) and (4) of the regulation is worded as follows:

- the determination of the import or export duties,

- the calculation of export refunds and any other amounts granted on imports or exports within the framework of the common agricultural policy, and

- the use of import or export licences or advance-fixing certificates which are submitted at the time of completion of the formalities with a view to the acceptance of the customs declaration for the goods in question, on condition that such licences or certificates were issued on the basis of the said binding tariff information.'

5 Article 1(1) of Council Regulation (EEC) No 3798/91 (5) amended the combined nomenclature annexed to Regulation No 2658/87 (6) so as to bring modified whey, hitherto classified under code NC 0404 90, within code NC 0404 10. From 1 January 1992, when the amending regulation came into force, code NC 0404 10 covered modified and non-modified whey.

6 This amendment was not accompanied by any transitional arrangements.

II - Facts and national proceedings

7 The main proceedings concern the grant of a refund for the export of partly desugared whey powder marketed under the name Anilac, which the plaintiff in the main proceedings, Lopex Export GmbH (`Lopex'), exported on 29 and 30 June 1992. An application for the export refund was made on 6 July 1992.

8 The goods were exported 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.

9 By the original binding tariff information issued on 5 December 1988, the customs authorities notified Lopex's suppliers that the abovementioned product was to be classified under subheading 0404 90 of the combined nomenclature. Owing to hesitation as between subheadings 90 and 10, the customs authorities withdrew the information on 30 October 1990.

10 On 14 December 1990 Lopex itself applied for the issue of binding tariff information in respect of the product in question. The information, issued by the customs authorities on 5 June 1991, classified Anilac under subheading 0404 9013 0000 of the combined nomenclature. On receipt of this information, Lopex asked for clarification of the latest subheadings. On 26 August 1991, the customs authorities accordingly issued supplementary binding tariff information classifying the product under subheading 0404 9013 1200. In the tariff information issued on those two dates, the customs authorities expressly refused classification under subheading 0404 10 on the ground that the composition of Anilac differed substantially from that of whey.

11 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 `in accordance with its composition' under subheading 0404 10.

12 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. Following an exchange of correspondence with Lopex, the customs authorities decided on 9 December 1991 that the tariff information would remain provisionally valid for six months after its revocation.

13 Regulation No 3798/91, which was adopted on 19 December 1991, provided that non-modified whey would thenceforth be classified under subheading 0404 10, but did not lay down any transitional arrangements.

14 On 11 August 1992 the Hauptzollamt (Principal Customs Office) Hamburg-Jonas, the defendant in the main proceedings, refused the application for an export refund submitted by Lopex on 6 July 1992. The reason given was that the Zolltechnische Prüfungs- und Lehranstalt (Customs Laboratory and Training College) had classified the product in question under subheading 0404 1011 0000 (which does not confer entitlement to an export refund) and that the validity of the previous binding tariff information, expressing a different opinion, had expired on 28 April 1992.

15 On 1 September 1992 Lopex lodged a complaint concerning the refusal of its application for an export refund, relying on both the export licence and the advance-fixing certificate which it had received and which were valid until 30 June 1992, and alleging that the first paragraph of Article 13 of the 1990 regulation was invalid in so far as it provides that binding tariff information ceases to be valid without a transitional period.

16 The defendant in the main proceedings rejected the complaint relying on the amendment of the customs nomenclature by the 1991 regulation and on the first paragraph of Article 13 of the 1990 regulation.

17 Lopex then brought an action before the Finanzgericht Hamburg for an export refund in the sum of DM 889 880.04 in accordance with its application of 6 July 1992. In those proceedings Lopex argued that, although the first paragraph of Article 13 of the 1990 regulation provides that the adoption of a regulation amending the customs nomenclature invalidates previous binding tariff information without providing for transitional arrangements under Article 14(3) of the same regulation, it is contrary to the principle of the protection of legitimate expectations and the requirement of legal certainty. Lopex pointed out that, in reliance on the tariff information issued on 28 August 1991, (7) it had concluded contracts which could not be cancelled and that an immediate change affecting its right to a refund would lead to a substantial trading loss.

III - The questions referred

18 Finding that the product Anilac exported by Lopex should have been classified since 1 January 1992 under subheading 0404 10 which, unlike subheading 0404 90, does not confer entitlement to an export refund, and that, after that date, Lopex could only claim a refund if the binding tariff information previously issued were still valid, the Finanzgericht Hamburg decided to stay the proceedings pending a preliminary ruling from the Court on the following questions:

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"?

IV - First question

19 Before examining the validity of the first indent of the first paragraph of Article 13 of the 1990 regulation, as requested by the national court, let me point out that this regulation was repealed by the abovementioned Regulation No 2913/92 (`the Code').

20 Among the innovations introduced by Article 12(5) and (6) of the Code, (8) replacing Article 13 of the 1990 regulation, the last subparagraph of paragraph 6 enables the Community legislature to provide for a transitional period extending the validity of tariff information which differs from an amending regulation.

21 However, the questions referred by the national court are still topical because the issue there is merely a power available to the legislature. Hence the possibility cannot be ruled out that, when a regulation which takes immediate effect is adopted, the legality of Article 12 of the Code in the light of the abovementioned principles may be challenged in terms similar to those used in the present case, so that the Court's assessment of the validity of the first indent of the first paragraph of Article 13 of the 1990 regulation will in all likelihood be applicable to the corresponding provisions of the Code in view of the similarity of the two texts. Let me add - and this is essential - that the case before the national court dates from before 1 January 1994, which is when the Code came into force. (9)

The distinction made by Article 13

22 It may appear paradoxical that the validity of a provision which has the stated object of ensuring `a measure of legal certainty for traders when carrying on their activities' (10) has been questioned precisely on the basis of the principles of protection of legitimate expectations and legal certainty.

23 Article 13 of the 1990 regulation distinguishes between two methods for the application in time of regulations concerning the customs nomenclature. In certain situations the Community legislature may extend for a certain period the validity of binding tariff information which does not conform to the new rules whereas, in other situations, no transitional provisions are laid down.

24 The difference in methods of application corresponds to the conventional distinction between amending regulations and classification regulations which arises from Regulation No 2658/87.

25 It should be borne in mind that, in addition to its power to amend the customs nomenclature, the Community legislature, in particular the Commission, has a wide discretion in defining the subject-matter of tariff headings falling to be considered for the classification of particular goods. (11)

26 Under the second paragraph of Article 13 of the 1990 regulation, classification regulations may contain transitional provisions, (12) in contrast to regulations amending the customs nomenclature. (13)

27 The 1991 regulation undoubtedly belongs to the latter category because it classifies modified whey under code NC 0404 10. The Hauptzollamt Hamburg-Jonas accordingly took the view that the binding tariff information which had been issued before that regulation came into force ceased to be valid thereafter.

28 Lopex states that, as it obtained authorisation to rely on the binding tariff information for a transitional period of six months, its expectations were frustrated by the application of the first paragraph of Article 13 of the 1990 regulation.

The principle of the protection of legitimate expectations

29 Lopex's expectation that it was entitled to an export refund could have been justified by the decision to extend the validity of the tariff information revoked on 28 October 1991, by the issue of an advance-fixing certificate on 20 December 1991 and even by the grant of an export licence on 31 December 1991, after the publication of the 1991 regulation.

30 However, if the precise scope of the two regulations and of Article 13 of the 1990 regulation is ascertained and the material time is established, doubts arise as to whether that expectation is legitimate.

31 For this purpose, it is necessary to recall the meaning and effect of the Community law principles in respect of which the national court seeks clarification.

32 According to the Court's case-law, the principle of the protection of legitimate expectations, considered one of the fundamental principles of the Community, (14) is not breached where traders are in a position to foresee changes in the rules which may affect their interests. The Court has held that, in accordance with the principles of legal certainty and protection of legitimate expectations, `Community legislation must be clear and predictable for those who are subject to it'. (15) In particular, they will be unable to rely on acquired rights if they have received clear information concerning proposed changes in the legal framework of their business.

33 The Community legislature must also be able to exercise its legislative powers, which presupposes that it is free to amend existing legislation.

34 In its judgment in Case C-103/96 Eridania Beghin-Say, the Court found that the Council had a substantial discretion in exercising its powers to amend the customs nomenclature. (16)

35 The Court was asked to give a ruling on the validity, in the light of the principles of protection of legitimate expectations and legal certainty, of a regulation which made recourse to inward processing arrangements with equivalent compensation subject to the condition that the equivalent goods must fall within the same subheading of the Common Customs Tariff as the imported goods. However, the two products involved in equivalent compensation - cane sugar and beet sugar - had, in the space of a few years, been classified under the same tariff subheading and then under different subheadings, before being placed once again under the same subheading. The trader's obligations in relation to the customs authorities had changed in accordance with the scope of the inward processing arrangements, which at times did and at times did not cover the products concerned, depending on the amendments to the customs nomenclature.

36 The Court stated that the contested regulation made `the availability of that system [of equivalent compensation] dependent upon a criterion forming part of rules other than those relating to inward processing and liable to vary in scope, in particular as a result of periodic changes to the tariff'. (17) The Court then concluded that the trader `cannot entertain any legitimate expectation other than that of being able to have recourse to equivalent compensation where the goods concerned fall under the nomenclature in force at the material time, within the same subheading'. (18)

37 The Eridania Beghin-Say judgment gives a better idea of the latitude which the Court believes the Council has in amending the combined nomenclature. The Court accordingly found, indirectly but beyond doubt, that a trader cannot base a legitimate expectation on a tariff subheading being maintained because the nomenclature is, so to speak, in a state of flux owing to the need to adapt it to changing economic circumstances.

38 However, the questions on which that ruling was given did not relate to the need for transitional provisions which, according to Lopex, should be added to regulations amending the customs nomenclature.

39 As there must be a means for flexible and rapid amendment of the tariff nomenclature, it is necessary to determine the conditions under which a trader such as Lopex may be deemed to be entitled to use the tariff information in question and thus to benefit from the arrangements applying before the 1991 regulation came into force.

40 The application of the principle of protection of legitimate expectations in the present case presupposes an answer to the question whether Lopex is entitled to rely on acquired rights or, at least, on `reasonable expectations', to adopt the phrase used by the Court, (19) such as to enable it to secure an extension of the validity of the tariff information relied upon in support of its claim.

41It should be remembered that the binding tariff information remained provisionally valid for six months after it was revoked, and that Lopex was issued with an advance-fixing certificate eight days before the 1991 regulation was published. The complaint arising from the refusal of its application for a refund was also rejected by reason, in particular, of the amendment of the customs nomenclature by the latter regulation.

42Hence the loss alleged by Lopex is not a direct result of the 1990 regulation, Article 13 of which is the subject of the question referred, but rather of the 1991 regulation, even if the absence of transitional arrangements arises from the strict application of the earlier regulation.

43However - and I think this is the decisive point - even though the information available does not suggest that Lopex was aware of the imminent adoption of the 1991 regulation, it should be noted that the 1990 regulation was published in the Official Journal of the European Communities on 26 June 1990 and took effect on 1 January 1991.

44The 1990 regulation does not, as such, adversely affect traders' interests because it provides for the future and lays down rules applying to regulations which did not exist at the date of its publication. Until such regulations were adopted, the law applying to current commercial transactions was not changed in any way. Furthermore, the rule that there are no transitional arrangements in regulations amending the customs nomenclature makes traders aware of the permanent risk that the nomenclature may be amended.

45Article 13 of the 1990 regulation therefore makes it possible to foresee, if not future legislative amendments, then at least the conditions under which they will be made. It seems to me that such foreseeability precludes traders from entertaining expectations not only as to the permanence of any particular Community legislation, but also as to transitional arrangements for giving effect to such amendments, which would be capable of safeguarding their rights or expectations.

46In my view, therefore, as Article 13 applied at the time when Lopex carried out its export transactions, it cannot rely on `administrative measures which confer subjective rights ... capable of creating a legitimate expectation' or plead `factual situations already existing, in essence, at the time when new legislation came into force'.

47Tariff information is binding on the authorities only in respect of the classification of goods in the customs nomenclature and it cannot create acquired rights which can be relied upon as against the legislature if the information is issued at a time when a particular measure permits changes to the nomenclature to take effect without a transitional period.

48Similarly, I do not believe the Court's judgment in CNTA v Commission can be cited to justify a legitimate expectation which is said to arise from `transactions irrevocably undertaken by [a trader] because he has obtained ... export licences fixing the amount of the refund in advance'. This would disregard the other grounds of that judgment, which states that such an expectation constitutes a safeguard against any `unforeseeable alteration' of the legislation. This does not apply to the relevant legislation in the present case because, as we have seen, the customs nomenclature is liable to change and amendments thereto are stated to take effect without transitional arrangements.

49Moreover, a trader cannot be allowed to plead ignorance of the relevant legislation even if it merely lays down rules governing the procedure for implementing future regulations. The Court has ruled that the Community provisions constitute the sole relevant positive law as from the date of their publication and everyone is deemed to know that law, without making distinctions according to the nature of the rules laid down.

50In addition, the uncertainty of the customs authorities with regard to the classification of Lopex's product, as shown by a series of binding tariff information notices placing the product under different subheadings, ought to have alerted Lopex to the risk of amendments to the nomenclature and prompted it to enquire into the likelihood of a change in the tariff classification and the way in which such a change might take effect.

51In other words, from 26 June 1990 Lopex must have realised that, as from 1 January 1991, any contract conferring entitlement to an export refund was subject to the risk of a change in the tariff classification applying, without transitional measures, to current transactions and that this could call into question the anticipated refund.

52Admittedly, such an exacting rule is necessary only if the measure in question conforms to the principle of legal certainty.

The principle of legal certainty

53Like the protection of legitimate expectations, legal certainty is a fundamental principle of Community law. The Court has ruled that this principle `requires that rules imposing charges on the taxpayer must be clear and precise so that he may know without ambiguity what are his rights and obligations and may take steps accordingly'. It seems to me that what is true of rules imposing charges on a taxpayer is also true of legislation laying down the conditions for amending regulations which confer advantages on certain traders.

54Article 13 of the 1990 regulation lays down special rules for regulations amending the customs nomenclature, where there can be no doubt as to their scope and content. The first paragraph of Article 13 sets out the rule that binding tariff information which is contrary to a regulation relating to the nomenclature ceases to be valid from the date on which the regulation applies, while the second paragraph distinguishes regulations amending classification regulations and states that these may, under certain conditions, provide that such information may continue to be valid for a certain period notwithstanding the new rules. As we have seen, the 1990 regulation is stated to take effect on 1 January 1991.

55Legal certainty also seems to be observed in so far as the 1990 regulation clearly distinguishes Article 13, which applies only to regulations, from provisions such as Article 14(3) of the 1990 regulation which extend the effects of binding tariff information whose validity is called into question by other legal measures.

56The transitional arrangements differ according to whether an import or export licence or an advance-fixing certificate is submitted during the customs formalities for the products in question or whether none of those documents accompanies the products.

57In both cases, however, the wording refers expressly to Article 14(1), which applies to tariff information `no longer compatible with the interpretation of the customs nomenclature', which expressly excludes the possibility of extending the validity of information inconsistent with the regulations and, a fortiori, regulations amending the customs nomenclature. Therefore the rule does not give rise to any confusion.

58I conclude that Articles 13 and 14 of the 1990 regulation are sufficiently clear and precise to enable a prudent trader who takes care to ascertain the legal conditions governing the business dealings which he proposes to engage in to take account of the possibility of a change in classification by taking all the precautions which he considers appropriate when signing contracts with his trading partners.

59In my view, therefore, there is no reason for the validity of the first indent of the first paragraph of Article 13 of the 1990 regulation to be called in question, with the result that the second question does not call for an answer.

Conclusion

60In view of the foregoing, I propose that the Court answer the first question referred by the national court as follows:

Examination, by reference to the principles of the protection of legitimate expectations and legal certainty, 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 has not disclosed the existence of any factor of such a kind as to affect its validity.

(1) - Article 20(6) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) defines the tariff classification of goods as the determination of the subheading of the combined nomenclature under which the goods are to be classified.

(2) - Third and fifth recitals in the preamble to 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, `the 1990 regulation').

(3) - This class of contracts comprises `binding' contracts for the purchase or sale of goods within or outside the Community.

(4) - Article 14(1) provides that `in addition to the cases referred to in Article 13, binding tariff information shall also cease to be valid where such information is no longer compatible with the interpretation of the customs nomenclature as a result of' different Community or international tariff measures.

(5) - Regulation 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, `the 1991 regulation').

(6) - Council Regulation of 23 July 1987 (OJ 1987 L 256, p. 1).

(7) - The order for reference mentions two dates for the issue of tariff information, 26 and 28 August 1991, but this does not affect the matter or the answer to the questions submitted.

(8) - Article 12(5) and (6) provides as follows: 5. Binding tariff information shall cease to be valid: (a) where a regulation is adopted and the information no longer conforms to the law laid down thereby; (b) where it is no longer compatible with the interpretation of one of the nomenclatures referred to in Article 20(6) either at the Community level ... or at the international level ... (c) where the holder is notified of its withdrawal, revocation or amendment. 6. The holder of binding tariff information which ceases to be valid pursuant to paragraph 5(b) or (c) may still use that information six months from the date of publication or notification provided that he concluded binding contracts for the purchase or sale of the goods in question, on the basis of the binding information before that tariff measure was adopted. However, in the case of products for which an import, export or advance-fixing certificate is submitted when customs formalities are carried out, the period of six months is replaced by the period of validity of the certificate. In the case of paragraph 5(a), the regulation may lay down a period within which the previous subparagraph shall apply.

(9) - Article 253(2).

(10) - See the third recital in the preamble.

(11) - See Case C-401/93 GoldStar Europe [1994] ECR I-5587, paragraphs 18 and 19, and Case C-267/94 France v Commission [1995] ECR I-4845, paragraph 19. Article 9, paragraph 1(a), of Regulation No 2658/87 permits the Commission to adopt measures, in accordance with a specific procedure including consultation of customs experts of the Member States, relating to the application of the combined nomenclature and of the integrated tariff of the European Communities (Taric) concerning, in particular, the classification of goods in those nomenclatures.

(12) - First paragraph, second indent, of Article 13.

(13) - First paragraph, first indent, of Article 13.

(14) - See Case 112/77 Töpfer v Commission [1978] ECR 1019, paragraph 19; Case 112/80 Dürbeck [1981] ECR 1095, paragraph 48; and Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others [1983] ECR 2633, paragraph 30.

(15) - See Joined Cases 212/80 to 217/80 Salumi and Others [1981] ECR 2735, paragraph 10. See also Case 97/76 Merkur v Commission [1977] ECR 1063, paragraph 5, which states that the Community could only be rendered liable for damage by reason of the entry into force of new legislation, without transitional measures, if such legislation was not foreseeable by a prudent trader. More recently see, for example, Case C-368/89 Crispoltoni [1991] ECR I-3695, paragraph 21. On the criterion of foreseeability in academic writings, see in particular P. Gilsdorf, `Confiance légitime, droits acquis et rétroactivité en droit communautaire', Actes du séminaire sur la jurisprudence de la CJCE dans le domaine de la PAC, Brussels, 1981, p. 97, paragraph 3; F. Hubeau, `Le principe de la protection de la confiance légitime dans la jurisprudence de la Cour de Justice des Communautés européennes', Cahiers de Droit Européen, 1983, No 2-3, p. 162; J.-P. Puissochet, `Vous avez dit confiance légitime?', L'État de droit, Mélanges en l'honneur de Guy Braibant, 1996, p. 581, II, B.

(16) - [1997] ECR I-1453.

(17) - Paragraph 36, emphasis added.

(18) - Ibid., paragraph 37.

(19) - See Case 289/81 Mavridis v Parliament [1983] ECR 1731, paragraph 21.

(20) - The original application was refused because the time-limit for extension of the validity of the tariff information had expired. As this is not a factor in the questions referred to the Court, I do not believe a decision is called for on this point.

(21) - Article 19.

(22) - This is the idea expressed by F. Hubeau in the article cited above when he writes that `a finding that the principle of protection of legitimate expectations has been contravened appears ... to be the reaction of a court penalising the use, which is in itself quite proper, by the author of the contested provision, of his powers in a way which, however, takes unawares the expectation legitimately aroused in those to whom the provision is addressed that the state of the law will not be altered without transitional measures' (p. 144, emphasis added).

(23) - French translation of Lopex's written observations, pp. 6 and 7.

(24) - Article 11(1) of the 1990 regulation.

(25) - French translation of Lopex's written observations, pp. 7 and 8.

(26) - Case 74/74 [1975] ECR 533, paragraph 42.

(27) - Ibid.

(28) - See Case 161/88 Binder [1989] ECR 2415, paragraph 19, and Case C-80/89 Behn Verpackungsbedarf [1990] ECR I-2659, paragraph 13.

(29) - See Deutsche Milchkontor, cited above, paragraph 30; Case C-143/93 Van Es Douane Agenten [1996] ECR I-431, paragraph 27, and Case C-177/96 Banque Indosuez and Others [1997] ECR I-0000, paragraph 27. For the principle of legal certainty, see in particular C. Naômé, `La notion de sécurité juridique dans la jurisprudence de la Cour de Justice et du Tribunal de première instance des Communautés européennes', Rivista di Diritto Europeo, 1993, No 2, p. 223.

(30) - See Case 169/80 Gondrand Frères and Garancini [1981] ECR 1931, paragraph 17; Joined Cases 92/87 and 93/87 Commission v France and United Kingdom [1989] ECR 405, paragraph 22; Eridania Beghin-Say, cited above, paragraph 40; and Banque Indosuez and Others, cited above, paragraph 27.

(31) - Emphasis added.