Important legal notice

61991C0187

European Court reports 1992 Page I-04937

Opinion of the Advocate-General

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Belovo applied on nine occasions between 24 November 1988 and 21 September 1989 for licences to import eggs from a number of non-member countries (Israel, the German Democratic Republic, the USSR and Czechoslovakia). Belovo also applied at the same time for advance fixing of the relevant import levies. The competent authorities issued the nine licences requested between 28 November 1988 and 21 September 1989 and supplied the licences with certificates for the advance fixing of import levies.

On 3 October 1989 the Belgian authorities, without giving reasons, revoked the five most recently issued import licences. The revocation was made pursuant to Article 25(1) of Commission Regulation (EEC) No 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (hereinafter "the implementing regulation"). The reason subsequently given for the revocation was that the regulation on the common organization of the market in eggs did not allow for the advance fixing of import levies in the case of eggs imported from non-member countries. Belovo accepted that this explanation was correct and returned the five import licences, which it had used either not at all or only partially.

It appears from the documents relating to the case that, following negotiations during August and September 1989, Belovo had concluded an agreement with a Soviet State organization concerning the sale of a ready-to-operate egg-processing plant. The contract of sale included a condition that Belovo should purchase 2 000 tonnes of fresh eggs. Belovo claims that it attached importance, in the context of the contract with the Soviet State organization, to the possibility of importing into the Community the eggs covered by the contract on the basis of the licences issued, which fixed in advance the relevant import levies. As a result of the contractual conditions, the company was obliged to import the eggs purchased from the Soviet Union between October and December 1989 and place them in customs warehouses. By two interim orders issued by the President of the Tribunal de Première Instance de Bruxelles on 2 November and 8 December 1989, Belovo was allowed to remove the eggs from the warehouses and import them, subject only to payment of the levies specified on the advance fixing certificates. It was pointed out at that time that the eggs would otherwise have perished and that the orders did not prejudge the issue as to whether Belovo might be required at a subsequent date to pay additional import levies.

On 30 August 1990, the Belgian State initiated proceedings in the above case before the Tribunal de Première Instance de Neufchâteau for the back payment of approximately BFR 20 million.

3. The request for back payment relates to import levies in respect of imports effected on the basis of four of the nine import licences.

It will become apparent from what follows that the request for back payment does not relate exclusively to import levies in respect of the importation of eggs covered by the purchase contract concluded with the Soviet State organization.

More than half of the request concerns back payment of import levies in respect of eggs imported from the German Democratic Republic prior to 30 June 1989 on the basis of an import licence which was not covered by the revocation issued in October 1989.

5. The parties to the main proceedings agree that the issue of the advance fixing certificates was not authorized under the applicable Community law. They also agree that the amount in respect of which back payment is requested has been correctly calculated. The dispute between the parties therefore concerns only the issues whether the request for back payment is objectively justified and whether Belovo' s claim for damages can be upheld.

6. The Belgian Government argues that the revocation on 3 October 1989 was authorized under Articles 24 and 25 of the implementing regulation and that those provisions preclude Belovo from acquiring vested rights on the basis of the advance fixing certificates. In addition, it argues that those provisions preclude Belovo from bringing any claim for damages against the authorities. In support of its contentions, the Belgian Government also analyses the nature of import levies. It points out that such levies are neutral and are used solely to offset differences between prices in the exporting countries and prices within the Community, a fact which, in its view, implies that Belovo should not be allowed to rely on the advance fixing of the levies in question.

"Do Article 24 of Commission Regulation (EEC) No 3719/88 of 16 November 1988, which provides that if the issuing agency (of an import licence or certificate) considers a correction to be required it is to withdraw the extract or the licence or certificate as well as any extracts previously issued and is to issue without delay either a corrected extract or a corrected licence or certificate and the corrected extracts corresponding thereto, and Article 25 thereof, which provides that the titular holder must, at the request of the issuing agency, return to that agency the licence or certificate and/or the extracts therefrom, mean:

(1) that a trader who has used incorrect certificates must pay the amounts due in respect of levy increases arising after the issue of an advance fixing certificate granted in error;

(2) that if an importer of eggs, a product covered by a specific regulation, has benefited, as a result of an error, from the advance fixing system, where the import contracts were entered into before the withdrawal of the certificates and the importation effected after the withdrawal of the certificates pursuant to an urgent interim court order authorizing the importation of warehoused goods on account of their perishability, is that trader required subsequently to pay the amounts which would have been payable had there been no error in the issuing of the certificates;

(3) that the trader may benefit from the advance fixing system for current contracts and for orders placed, or on the contrary that he must pay levy increases arising after the advance fixing;

(4) that the trader may object to changes in the amount payable on the incorrect certificate or may hold the issuing agency liable; or

(5) that in the event of an error made by the administration in drawing up an import licence or certificate, the issuing agency may not be claimed to have misled a trader?"

It may be seen from this question that the Court is being asked merely to interpret Articles 24 and 25 of the implementing regulation (on the basis of which four of the licences were revoked) for the purpose of replying to the questions which the Belgian court considers to be relevant for a decision in the case.

It can be assumed that the question is thus limited in the light of the submissions made by the Belgian authorities during the main proceedings.

In the first place, it is my view that the two provisions are hardly relevant to a resolution of the problems which the national court is required to address.

Second, it is difficult in my opinion to overlook the fact that a substantial part of the claim in the main proceedings concerns back payment in respect of an advance fixing certificate used for the importation of eggs from the German Democratic Republic several months prior to the revocation and which is consequently not covered by that revocation.

In their pleadings in the case, the parties do not appear to have specifically addressed the question whether that part of the claim for back payment gives rise to special problems with regard to the application of Articles 24 and 25 of the implementing regulation, which deal only with the revocation of licences. The parties addressed in particular the questions arising in connection with the importation of eggs from the USSR under the purchase contract and which were imported after the revocation of the advance fixing certificates, the existence of which was apparently a precondition for the conclusion of the purchase contract.

It is clear that paragraphs 2 and 3 of the question referred have this latter situation in mind. The remaining paragraphs in the question also presumably concern the possibility under Community law of requesting back payment of import levies in respect of eggs imported from the German Democratic Republic.

10. I wish in the following first of all to examine the scope of Articles 24 and 25 of the implementing regulation.

11. I then wish to consider the relevance of one of the arguments put forward by the Commission, according to which the advance fixing certificates must be treated as null and void.

12. Finally, I wish to examine whether, as submitted by Belovo in the course of its submissions to the Court, the main proceedings ought to be decided on the basis of Council Regulation (EEC) No 1697/79 of 24 July 1979 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 (hereinafter "the regulation on post-clearance recovery").

The scope of Articles 24 and 25 of the implementing regulation

13. The two articles provide as follows:

"Article 24

Article 25

14. I have already referred to the Belgian Government' s contentions that those provisions entitle the authorities to revoke licences which have been wrongly issued, that such a right precludes parties whose licences have been withdrawn from successfully arguing that the revocation infringes vested rights, and that it also means that the authorities cannot be held liable to pay compensation in respect of errors which may have been made when the licences were issued.

The wording of Article 24 itself raises doubts as to whether it can be interpreted in the manner advocated by the Belgian Government.

15. The Commission has submitted that the provision "concerns only minor inaccuracies which may be the subject of a corrigendum ...". However, whether the provision contains a more or less extensive scope for revocation is not, in my opinion, a determinant factor in the present case.

16. The crucial fact is that the provision contains nothing more than conditions and procedural details for the revocation of licences. The provision contains nothing to support the view that revocation can occur without account being taken of the right to legal certainty on the part of those affected by it. This is scarcely surprising. It is open to doubt whether a provision in a legal measure adopted by the Council or Commission can at all have the effect that the Belgian Government claims for Article 24. An unconditional right of revocation may well lead to results at variance with the principle of legal certainty ° including the protection of vested rights and legitimate expectations ° which the Court has consistently held to be a generally applicable principle of Community law which must be complied with when general Community rules are adopted.

17. It must for those reasons be held that Articles 24 and 25 of the regulation do not determine the issues whether the Belgian authorities are entitled to demand back payment of import levies and whether Belovo can succeed in its claim for damages.

The Commission' s view that the advance fixing certificates are null and void

20. The fundamental problem in the case is whether regard for Belovo' s right to legal certainty can restrict the right of the Belgian authorities to demand back payment of the import levies owed by the company where it is established that the advance fixing certificates were invalid. The first question must be whether Community rules exist which lay down criteria for determining the circumstances under which such back payment may be requested and which take account of the need to ensure, on the one hand, that traders pay import levies which they owe and, on the other, that the payment demand does not constitute an unjustified infringement of the right to legal certainty of the party concerned. It stands to reason to examine whether such rules are to be found in the regulation on post-clearance recovery referred to above, the purpose of which is, inter alia, "to limit, for reasons of legal certainty, the possibility for the national authorities to take legal action to recover Community duties after clearance".

In the absence of applicable rules of Community law, the question remains whether the Belgian authorities, in making the demand for post-clearance recovery, which must in principle be made pursuant to national rules, are nevertheless required under Community law to comply with the principle of legal certainty.

The Court' s judgment in Case 316/86 Hauptzollamt Hamburg-Jonas v Kruecken may be cited in support of an affirmative answer to that question. The Court ruled as follows at paragraph 22 of that judgment: "It should be borne in mind that the principle of the protection of legitimate expectations forms part of Community law (see judgment of 3 May 1978 in Case 112/77 Toepfer [1978] ECR 1019) and that all national authorities responsible for applying Community law are bound to observe the general principles of Community law (see judgment of 27 September 1979 in Case 230/78 Eridania [1979] ECR 2749). Consequently, the national authority responsible for applying the system of export refunds within the common organization of the agricultural markets is required to observe the principle of the protection of the legitimate expectations of economic operators." However, the Court held at paragraphs 20 and 21 of its judgment in Padovani, cited above, that ... it cannot be considered that the restrictions which Regulation No 1697/79 places on the post-clearance recovery by national authorities of debts arising under Community law may reflect a Community principle of protection of legitimate expectations which already existed when that regulation came into force. Since Community law does not govern the condition of recovery concerning the protection of legitimate expectations of traders, that question is governed by national law.

21.It can accordingly be held that the request for back payment in the present case must be determined in accordance with the regulation on post-clearance recovery, provided that that regulation is applicable, and that the request must, in the event that that regulation is inapplicable, be determined in principle pursuant to national law, but in such a way that certain general principles of Community law are complied with.

The scope of Council Regulation No 1697/79 on post-clearance recovery

22.As already mentioned, Belovo argued in its submissions before the Court that the back payment of import levies requested is covered by the regulation on post-clearance recovery and that Article 5 of that regulation implies that no such recovery can be made.

23.It is first of all necessary to examine whether that regulation is applicable in the present case.

This is disputed by the Belgian Government, at any rate so far as concerns the post-clearance recovery of levies relating to imports effected after the revocation of the five advance fixing certificates.

24.In my opinion, the basic premiss has to be that the post-clearance recovery of those import levies which relate to imports effected prior to the revocation of the advance fixing certificates must be covered by the regulation. The regulation covers any request for post-clearance recovery, irrespective of the nature of the error which resulted in underpayment of import levies and irrespective of the authority which made that error.

It is less clear whether the request for post-clearance recovery of import levies in respect of imports effected after the revocation of the certificates is also covered. The Belgian Government rightly submitted that the authorities had requested payment, in respect of the imports, of the import levies applicable on the dates of importation and that the need for post-clearance recovery arose solely on account of the two court orders referred to above, which made it possible to effect importation against payment of import levies fixed in advance.

The regulation must be given a wide interpretation if it is also to apply to this situation. However, there are in my view good reasons to give the regulation such a wide interpretation. There is also a need in the present situation to achieve a balance between the importance in ensuring effective and uniform payment of levies to which traders are subject under the relevant Community rules and the need to protect the right of those traders to legal certainty ° in this case, the legitimate expectation claimed by Belovo that it would be able to import from the USSR the eggs covered by the purchase contract on the basis of the advance fixing certificates. The criteria laid down in Article 5 of the regulation can, in my opinion, be properly applied to the present situation.

The Court has also given a wide interpretation to the substantive scope of Article 5(2) of the regulation (see in particular Case C-348/89 Mecanarte, cited in footnote 14) and has, correctly in my view, stressed that a broad application of Article 5 ensures uniform practice throughout the Community in cases involving post-clearance recovery, a situation which is also of benefit to traders.

24.It is now necessary to examine whether Belovo is correct in its contention that post-clearance recovery is excluded under Article 5.

Article 5 provides as follows:

"1. No action may be taken by the competent authorities for recovery where the amount of the import duties or export duties subsequently found to be lower than the amount legally due was calculated:

° either on the basis of information given by the competent authorities themselves which is binding on them,

° or on the basis of provisions of a general nature subsequently invalidated by a court decision.

25.It is in my opinion beyond doubt that Belovo is incorrect in its contention that the present case is covered by Article 5(1), as the company did not receive either a proper prior decision from the Belgian authorities or any other form of "information ... which is binding".

26.The question to be addressed is therefore whether the conditions set out in Article 5(2) have been satisfied.

The Court has consistently held that post-clearance recovery cannot be made if all the requirements set out in Article 5(2) have been fulfilled ° see, inter alia, the Court' s judgment in Case 314/85 Foto-Frost v Hauptzollamt Luebeck-Ost.

Article 5(2) sets out the following three conditions:

(i) First, the failure to collect the levies must be the result of an error made by the competent authorities themselves;

(ii) Second, the error must be one which could not reasonably have been detected by the person liable, the latter having for his part acted in good faith;

(iii) Third, the person liable must have observed all the provisions laid down by the rules in force as far as his customs declaration is concerned.

The central problem in the present case is whether Belovo has satisfied the second of those three conditions. If that condition has been satisfied, there would be no obvious difficulty in assuming that the other two conditions have been satisfied as well.

The Court ruled as follows in paragraphs 18 to 23 of its judgment in Case C-64/89 Hauptzollamt Giessen v Deutsche Fernsprecher:

" ... it is necessary to look specifically at all the circumstances of the case in order to determine whether or not the error was detectable by the trader in question.

In that regard, account must be taken in particular of the precise nature of the error, the professional experience of, and the care taken by, the trader.

As regards the precise nature of the error, the question to be determined each time is whether the rules concerned are complex or simple enough for an examination of the facts to make an error easily detectable. ...

As far as the professional experience of the trader is concerned, the question to be determined is whether or not the trader involved is one whose activity essentially consists in import and export operations, and whether he already had some experience of trading in the goods in question, particularly whether he had in the past carried out similar transactions on which customs duties had been correctly calculated.

As regards the degree of care shown by the trader, it should be pointed out that as soon as he has doubts about the accuracy of the calculation of the customs value of the goods it is for the trader himself to make inquiries and seek the greatest clarification possible in order to ascertain whether his doubts are well founded or not.

It is for the national court to assess whether, having regard to the circumstances of the case before it, those criteria are satisfied."

Those criteria are also of relevance to the present case and can in principle be applied to it without any major problems.

27.Belovo claims that it acted in good faith and that it could not reasonably have been aware that the certificates had been unlawfully issued.

It points out that the rules on the advance fixing of import levies are not easy to understand and that the adoption of the new implementing regulation in November 1988 caused it to believe that, as a departure from previous practice, import levies could subsequently be fixed in advance in the same way as export refunds. Belovo also points out that this expectation was reinforced by the fact that it had had advance fixing certificates issued to it on successive occasions over a ten-month period and that those certificates had in numerous instances been used as a basis for importing goods.

28.Against this, however, it is in my opinion necessary to mention the following facts.

It was Belovo which, towards the end of November 1988, requested the advance fixing of the import levies. It strikes me as surprising that the implementing regulation, adopted a short time previously, could have led the company reasonably to assume that there had been such a fundamental change in the legal position that import levies could in future be fixed in advance.

The new regulation had a relatively limited objective. This becomes apparent from the first recital in its preamble, which mentions that the corresponding regulation previously applicable had "been amended many times, in some cases substantially ..., [and that] therefore, in the interests of clarity and administrative efficiency it is advisable to consolidate the rules in question in a single text, at the same time marking certain amendments which experience has shown to be desirable".

Belovo has failed to indicate which of the "amendments" made may have brought about the change in the legal position relevant to the present case.

Furthermore, the new regulation cannot in any event be understood as altering the principle previously applicable that the substantive rules determining when there is a right to fix levies in advance within the organization of a market are to be found in individual regulations governing the organization of markets. It has not been argued that there ought to have been appropriate amendments at the relevant time to the regulation on the common organization of the market in eggs.

There are accordingly cogent arguments in support of the view that Belovo could not have had any sound reason to expect that the advance fixing certificates could be issued and it is, I believe, in this light that we must consider whether the successive issue of certificates over an extended period could have given rise to such a legitimate expectation.

Moreover, there is a substantive requirement that Belovo should itself have exercised care. It is undisputed that the company has a wide-ranging experience of the sector going back many years, that it is a major undertaking specializing in the importation of eggs from non-member countries and that it ought for that reason to be presumed to be well aware of the fundamental principles which apply within the organization of the market in eggs.

29.It is ultimately a matter for the national court to determine whether the issue of the advance fixing certificates was an error which Belovo could not reasonably have been expected to detect and whether it acted in good faith, account thereby being taken, inter alia, of the nature of the error, Belovo' s experience and the degree of care exercised by the company.

The relevance of Community law to the decision on Belovo' s claim for damages

30.I have already mentioned that Articles 24 and 25 of the implementing regulation do not preclude Belovo from being awarded damages for the loss suffered by the company as a result of the allegedly blameworthy conduct on the part of the Belgian authorities.

Moreover, it is difficult, on the facts of this case, to see how other rules or principles of Community law can be of relevance to a decision on Belovo' s claim for damages. That claim must be decided on the basis of national rules on damages.

Conclusion

31.I accordingly propose that the Court reply as follows to the question submitted by the Tribunal de Première Instance de Neufchâteau:

(1) Articles 24 and 25 of Commission Regulation (EEC) No 3719/88 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products do not preclude account from being taken, in a case concerning post-clearance recovery of import levies, of the defendant' s submissions regarding vested rights and do not preclude the defendant from succeeding in its claim for damages.

(2) (a) A demand for post-clearance recovery of import levies, such as that at issue in the present case, is governed by Article 5(2) of Council Regulation (EEC) 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.

(b) Post-clearance recovery cannot be made if the conditions set out in Article 5(2) have been satisfied.

It is ultimately a matter for the national court to decide whether the issue of the advance fixing certificates was an error which the company could not reasonably have been expected to detect and whether the company acted in good faith, account thereby being taken, inter alia, of the nature of the error, the experience of the company and the degree of care which it exercised.

(3) There are no rules or principles of Community law which preclude the company from succeeding in its claim for damages.

(*) Original language: Danish.

(1) ° OJ 1988 L 331, p. 1.

(2) ° Regulation (EEC) No 2771/75 of the Council of 29 October 1975, OJ 1975 L 282, p. 49.

(3) ° It appears from the documents relating to the main proceedings that the contract was finally concluded between 4 and 8 September 1989 and that in any event two of the import licences under which the eggs were imported were not issued until 20 and 21 September 1989.

(4) ° So far as concerns the remaining five licences, it can be confirmed that three of these were used for imports prior to revocation and that the last two, which were covered by the revocation, were not used.

(5) ° I do not intend to attach any major importance in what follows to this last argument, which the Belgian Government bases on the Court' s judgment in Case 17/67 Neumann v Hauptzollamt Hof [1967] ECR 441. It is obvious that advance fixing can be of immense significance to traders when making their arrangements and that a failure to comply with advance fixing can have far-reaching economic consequences for traders. In this context it would appear incorrect to claim on the basis of an analysis of the nature of advance fixing and import levies that it can never be justified on grounds of legal certainty to protect the rights of traders in cases where it is established that advance fixing certificates have been wrongly issued.

(6) ° OJ 1979 L 197, p. 1.

(7) ° This view is supported to some extent by the 17th recital in the preamble to the regulation, according to which: ... in the interest of sound administration, licences or certificates and extracts therefrom may not be amended after issue; ..., however, in cases of doubt relating to an error attributable to the issuing agency or to obvious inaccuracies and concerning the items appearing on the licence or certificate or extract, a procedure should be introduced whereby inaccurate licences or certificates or extracts may be withdrawn and corrected documents issued .

(8) ° See the judgment of the Court in Case 15/85 Consorzio Cooperative d' Abruzzo v Commission [1987] ECR 1005, at paragraph 10 of which the Court stated that: With regard to the arguments that the decision ... is non-existent, it is necessary to point out that under Community law, as under the national laws of the various Member States, an administrative measure, even though it may be irregular, is presumed to be valid until it has been properly repealed or withdrawn by the institution which adopted it. If a measure is deemed to be non-existent, the finding may be made, even after the period for instituting proceedings has expired, that the measure has not produced any legal effects. For reasons of legal certainty which are evident, that classification must consequently be restricted under Community law, as under the national legal systems which provide for it, to measures which exhibit particularly serious and manifest defects.

(9) ° See paragraph 6 of the Court' s judgment in Case 210/87 Padovani and Others v Amministrazione delle Finanze dello Stato [1988] ECR 6177 and also the second recital in the preamble to Regulation No 1697/79, according to which the post-clearance recovery of import duties or export duties involves some degree of prejudice to the certainty which persons liable for payment have the right to expect from official acts having financial consequences; ... it is therefore appropriate to limit the possible scope of action of the competent authorities in this field ... .

(10) ° [1988] ECR 2213.

(11) ° The Court also ruled at paragraph 23 of that judgment that a wrongful act on the part of the Commission or its officials, and likewise a practice of a Member State which does not conform with Community rules, is not capable of giving rise to legitimate expectations on the part of an economic operator who benefits from the situation thereby created (see judgments of 16 November 1983 in Case 188/82 Thyssen [1983] ECR 3721 and of 15 December 1982 in Case 5/82 Maizena [1982] ECR 4601.

I wish only to point out here that I find this too far-reaching.

(12) ° The Court stated as follows at paragraph 19: It is apparent from a comparative examination of the relevant provisions of national law that it is not possible to identify principles common to the laws of the Member States or generally recognized by those laws from which a general principle of Community law requiring national authorities to refrain from rectifying an insufficient payment of Community levies after the expiry of a uniform period of time or in the event of an error attributable to the national authorities could be deduced.

(13) ° The Court defined this in the following manner at paragraphs 22 and 24 of its judgment in Padovani:

In cases where national law, which is applicable as regards the detailed rules and conditions for recovery, contained a principle protecting the legitimate expectations of traders, the Court has taken the view that Community law does not preclude the application of such a principle of national law to prevent the recovery of such debts with regard to traders acting in good faith, provided, however, that the application of national law does not affect the scope and effectiveness of Community law and is not discriminatory in relation to procedures for dealing with similar but purely national disputes (Case 265/78 Ferwerda v Produktschap voor Vee en Vlees [1980] ECR 617 and Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633).

Conversely, if the conditions and detailed rules of national law applied by the national authorities for the recovery of Community debts are the same as those applied by those authorities in comparable cases concerning purely national debts, it may not in principle be considered that those conditions and rules are contrary to the obligations of the national authorities to implement Community rules within their territory and therefore impair the effectiveness of Community law (see Cases 205/82 to 215/82 Deutsche Milchkontor, cited above).

(14) ° See Case C-348/89 Mecanarte v Chefe do Serviço da Conferência Final da Alfândega, Oporto [1991] ECR I-3277, particularly paragraphs 20 and 22.

(15) ° See Case C-371/90 Beirafrio v Alfândega do Porto [1992] ECR I-2715.

(16) ° [1987] ECR 4199, paragraph 22.

(17) ° [1990] ECR I-2535.

(18) ° See Regulation (EEC) No 2771/75 of the Council of 29 October 1975 (OJ 1975 L 282, p. 49), Articles 3 and 8 of which contain provisions on fixed and variable import levies respectively. As already pointed out, it is clear that the regulation does not make it possible for these to be fixed in advance.