Important legal notice

61996C0370

European Court reports 1998 Page I-07711

Opinion of the Advocate-General

I - Introduction

A feature of the common market organisation for fruit and vegetables is the periodic imposition of countervailing charges designed to obviate disturbances caused by imports from third countries at prices deemed to be abnormally low. The charge is imposed when import prices fall by a specified amount below a reference price fixed annually. The importer in the present case resists payment of such a charge, claimed from it after customs clearance by the Greek customs authorities, which, in spite of the importer's persistent inquiries, had failed to inform it at the time of importation that a charge had been imposed by the Commission.

According to the order for reference, Covita, a Greek manufacturing company, commenced importing fresh cherries for processing from Bulgaria into Greece on 28 May 1992. The imports at issue in the present case took place between 24 June and 1 July. The cherries were declared upon import at the customs office at Skydras under Code CN 0809 20 10 09900. It appears that Covita was conscious of the risk of imposition of a countervailing charge which would render its imports unprofitable. To that end, it communicated on a daily basis with the customs office of Skydras and once by telex with the Ministry of Agriculture. Covita was informed on 3 July that a charge had been imposed with effect from 24 June by Commission Regulation (EEC) No 1591/92 of 22 June 1992 introducing a countervailing charge on cherries originating in Bulgaria (1) and immediately ceased importing. Regulation No 1591/92 was notified by the Commission to the Ministry of Agriculture by a telex of 29 June 1992, which reached the relevant division on 30 June. (2) The Ministry notified the Regulation to the customs office at Skydras by a telex of 2 July, which was received on 3 July.

II - Legal context

The mechanism which governs the imposition of countervailing charges can be found in Council Regulation (EEC) No 1035/72 of 18 May 1972 on the common organisation of the market in fruit and vegetables, (3) as amended. (4) Article 2(1) of that Regulation provides for the establishment of quality standards for certain products, including cherries, `to be delivered fresh to the consumer'. Article 3 states that products consigned to processing plants shall not be obliged to conform to these quality standards. Annex I to Commission Regulation (EEC) No 899/87 of 30 March 1987 laying down quality standards for cherries and strawberries (5) establishes a quality standard for cherries, `of varieties (cultivars) derived from Prunus Avium L., Prunus Cerasus L., or hybrids thereof, to be (6) supplied fresh to the consumer, cherries for industrial processing being excluded'. Four classes are established: `Extra' and Classes I, II and III.

Article 23(1) of Regulation No 1035/72 provides for the fixing each year of reference prices valid for the whole Community. Article 24(2) provides for the calculation each market day of an entry price in respect of each product subject to a reference price `for a product of the quality class by reference to which the reference price is fixed'. `If the entry price of a product imported from a third country remains at least ECU 0.6 below the reference price for two consecutive market days', Article 25(1) of that Regulation requires the introduction of a countervailing charge.

At the material time, Commission Regulation (EEC) No 2587/91 of 26 July 1991 amending Annex I to Council Regulation (EEC) No 2658/87 on tariff and statistical nomenclature and on the Common Customs Tariff (7) provided for the following customs classification of cherries:

0809 Apricots, cherries, peaches (including nectarines), plums and sloes, fresh:

Article 1 of Commission Regulation (EEC) No 956/92 of 15 April 1992 fixing for the 1992 marketing year the reference price for cherries (8) fixed the reference prices for various periods of that year for cherries falling within CN Code 0809. These prices were expressed in `ecus per 100 kilograms net, of packed products of class I, of all sizes'.

Regulation No 1591/92 applied a countervailing charge of ECU 37.86 per 100 kilograms to cherries (CN Code ex 0809 20) originating in Bulgaria. This Regulation was published on 23 June 1992 and entered into force on 24 June 1992.

Article 2(1) 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 recovery') (9) states:

Where the competent authorities find that all or part of the amount of import duties or export duties legally due on goods entered for a customs procedure involving the obligation to pay such duties has not been required of the person liable for payment, they shall take action to recover the duties not collected. However, such action may not be taken after the expiry of a period of three years from the date of entry in the accounts of the amount originally required of the person liable for payment or, where there is no entry in the accounts, from the date on which the customs debt relating to the said goods was incurred.

Article 5(2) of the Regulation on recovery states, in relevant part:

The competent authorities may refrain from taking action for the post-clearance recovery of import duties or export duties which were not collected as a result of an error made by the competent authorities themselves which could not reasonably have been detected by the person liable, the latter having for his part acted in good faith and observed all the provisions laid down by the rules in force as far as his customs declaration is concerned.

Article 13(1) of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties, (10) as amended by Council Regulation (EEC) No 3069/86 of 7 October 1986, (11) provides as follows:

Import duties may be repaid or remitted in special situations, other than those referred to in Sections A to D, which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which the first paragraph may be applied, and the detailed procedural arrangements to be followed for this purpose, shall be determined in accordance with the procedure laid down in Article 25. [(12)] Repayment or remission may be made subject to special conditions.

Article 3(1) of Council Regulation (EEC) No 1854/89 of 14 June 1989 on the entry in the accounts and terms of payment of the amounts of the import duties or export duties resulting from a customs debt (13) provides, as a general rule, for a customs debt arising from acceptance of the declaration of goods for a customs procedure to be entered in the accounts as soon as it has been calculated and within two days at the latest of the date on which the customs authority granted release or authorised export of the goods in question. Article 3(3) provides:

In the case of a customs debt which arises under conditions other than those referred to in paragraph 1, entry in the accounts of the corresponding amount of duty must occur within two days of the date on which the customs authority is in a position to:

(a) calculate the amount of duty in question, and (b) determine the person liable for payment of that amount.

Article 4(1) of Regulation No 1854/89 states:

The time-limits for entry in the accounts referred to in Article 3 may be extended:

(a) either for reasons to do with the administrative organisation of the Member States, and in particular where the accounts are centralised;

(b) or where special circumstances prevent the customs authority from observing the said time-limits. Time-limits may not, after extension, exceed 14 days.

Article 5 of Regulation No 1854/89 states:

Where the amount of duty resulting from a customs debt has not been entered in the accounts in accordance with Articles 3 and 4 or has been entered in the accounts at a level lower than the amount legally owed, the entry in the accounts of the amount of duty to be recovered or remaining to be recovered must take place within two days of the date on which the customs authority noticed the situation and is in a position to calculate the amount legally owing and to determine the person liable for payment of that amount. This time-limit may be extended in accordance with Article 4.

III - National proceedings

Covita seeks the annulment of the decision of 21 December 1992 of the customs office of Skydras to impose, post-clearance, a countervailing charge on the Bulgarian cherries imported between 24 June and 1 July 1992. The case is being heard on appeal by the Diikitiko Efetio, Salonika (Administrative Appeal Court, Thessalonika, hereinafter `the national court'). Covita argued before the national court:

that the countervailing charge imposed by Regulation No 1591/92 applied only to dessert cherries to be consumed while fresh, which alone are subject to quality standards;

that supplementary duties could not be imposed after clearance of the goods by the customs authorities; and

that post-clearance imposition of the charge was in breach of its legitimate expectations.

The national court referred the following questions to the Court for a preliminary ruling pursuant to Article 177 of the Treaty establishing the European Community:

IV - Observations and analysis

Written and oral observations were submitted by Covita, the Hellenic Republic, the French Republic, the United Kingdom of Great Britain and Northern Ireland and the Commission of the European Communities.

As the first and second questions need not be answered if it is established that the countervailing charge imposed by Regulation No 1591/92 does not apply to cherries imported for industrial processing, it is logical to examine the third question first.

(i) The third question

Covita submits that the cherries which it imported were not subject to the countervailing charge imposed by Article 1 of Regulation No 1591/92 on cherries (CN Code ex 0809 20) originating in Bulgaria. This was imposed in respect of cherries subject to quality standards under Regulation No 1035/72, in particular Class I, in relation to which the reference price is also calculated. This excludes, pursuant to Article 3 of Regulation No 1035/72, cherries intended for processing. This argument is almost entirely based on the use of the term `ex' in Article 1 of Regulation No 1591/92. This indicates a subgroup extracted from this more general customs category. Covita states that this category is divided into sour cherries (0809 20 20) and cherries (0809 20 40), the latter being further subdivided into dessert cherries (0809 20 40 01000), intended to be sold fresh to the final consumer, and others (0809 20 40 09000), which includes cherries intended for industrial processing. (14) It is for this reason, rather than in order to narrow the category of goods affected by the charge to cherries (imported for all purposes) originating in Bulgaria, that the term `ex' was employed. Covita cites a number of Community measures in which the term `ex' is expressly stated to indicate that the goods in question are those corresponding to a narrower, more precise description than that arising from the use of a CN Code on its own. (15)

Greece, France and the Commission argue that all cherries originating in Bulgaria are subject to the charge in the absence of an express exception. Greece submits that the term `ex' indicates that the charge applies exclusively to cherries from CN Code 0809, to the exclusion of the other fruits mentioned therein. The Commission does not directly address the use of the term `ex', but states that the reason the entry price, which is used to determine whether to impose a countervailing charge, is calculated for a particular class of cherries is merely to ensure comparability with the reference price established for the same class (in this case, Class I). The resulting charge applies to all cherries imported from the third country in question. The Commission also states that the version of the Combined Nomenclature referred to by Covita is not that in force at the material time. (16)

In my view, the countervailing charge imposed by Regulation No 1591/92 applied, during its period of application, to all cherries originating in Bulgaria. The reference price and the entry price are set in relation to products of a single class pursuant to Articles 24(2) and 25(1) respectively of Regulation No 1035/72 in order to ensure that like is compared with like. Neither the terms of Regulation No 1035/72 nor those of Regulations No 956/92 and No 1591/92 indicate an intention, either in general or in this particular case, to restrict the application of a countervailing charge to products of the class chosen for the purpose of this comparison. Covita's argument would exclude from the scope of a countervailing charge not only produce imported for industrial processing but also produce imported for delivery fresh to the consumer of a quality standard other than that used to calculate the reference price. This would run contrary to the text and scheme of Articles 23 to 25 of Regulation No 1035/72, which envisage the compilation of representative reference and entry prices. Furthermore, Covita's approach would permanently exclude the application of countervailing charges to cherries imported for industrial processing since, by virtue of Article 3 of Regulation No 1035/72, these are never required to conform to quality standards.

No definition of the term `ex' for general purposes in the Community customs legislation has been cited to the Court. (17) Nor has the Court been asked before to interpret the term. It has, in many cases, interpreted provisions in which the term is used, without, however, expressing any view as to its possible significance. (18) None the less, the term `ex' is used very widely and, in some cases, is defined for the purposes of a particular Community measure in the customs or a related field. The following statement is a common one, to be found in, inter alia, measures adopted very shortly before and after Regulation No 1591/92: (19)

Notwithstanding the rules for the interpretation of the combined nomenclature, the wording for the description of the products is to be considered as having no more than an indicative value, the preferential scheme being determined, within the context of this Annex, by the coverage of the CN Codes. Where ex CN Codes are indicated, the preferential scheme is to be determined by application of the CN Code and corresponding description taken together.

20The effect of this formulation, where it is employed, should logically be to limit the application of a Community measure to a specifically described subset of the goods which normally compose the CN Code which is preceded by the term `ex'. The same conclusion follows from an examination of the codes and descriptions used in Community measures in which the term `ex' is used without an accompanying definition of its effect. In the random sample I have examined, the goods description attached to an `ex Code' is in every case narrower than that used in the Common Customs Tariff (CCT) or Combined Nomenclature (CN) applicable at the time of adoption of the measure in question.

21Furthermore, a measure may list a particular CCT or CN Code more than once, each time preceded by the term `ex' and followed by the description of a different subset of goods falling within that code. Thus, Code ex 8542 11 99 appears several times in the Annex to Council Regulation (EEC) No 3393/89 of 16 October 1989 temporarily suspending the autonomous Common Customs Tariff duty on certain industrial products (in the microelectronics and related sectors), which was interpreted in Analog Devices, with a variety of goods descriptions which fall within that code as defined in Regulation No 2658/87.

22There is evidently no difference other than a semantic one between the interpretations suggested by Covita and by Greece: an `ex Code' refers to a class of goods which is extracted from the wider class covered by the code in question; it thus relates exclusively to that narrower class. It is clear, however, that the explanation offered by Greece in the concrete case of Regulation No 1591/92 cannot be accepted. It was not necessary to precede Code 0809 20 with the term `ex' in order to confine the application of the countervailing charge to cherries, as distinct from the other fruit covered by Code 0809, since this was already accomplished by the use of the additional digits 20. On the other hand, it is also clear, contrary to Covita's submission, that an implicit restriction on the class of cherries normally covered by Code 0809 20, excluding either cherries intended for industrial processing or all cherries other than those in Class I, does not follow from the employment of Class I cherries as a common basis for the determination of the reference and entry prices and, thus, of the countervailing charge. As I have already pointed out, a single class of cherries is used simply for the purposes of comparing like with like when assessing the need for and level of a countervailing charge of general application.

23In any event, it appears, in so far as any conclusions can be drawn from the legislative practice, that an `ex Code' should be accompanied by a detailed description of the narrower class of goods to which it applies, rather than by a merely implicit or speculative restriction. In the present case, the only express restriction in Regulation No 1591/92 on the application of the countervailing charge to cherries is that they originate in Bulgaria. However, the specification of the third country of origin arises from the terms of Regulation No 1035/72 and has no bearing on the classification of the product.

24No express limitation of the scope of application of the countervailing charge can, I think, be identified from the fact that CN Code 0809 20 was further subdivided at the material time by reference to two time periods: from 1 May to 15 July (0809 20 10) and from 16 July to 30 April (0809 20 90). However, if a merely implicit restriction of the normal class of goods covered were to be deduced from the use of an `ex Code', it seems to me that a restriction by time period would be the most obvious one. It may possibly have been intended, when read with the date of entry into force of Regulation No 1591/92 in Article 2 (24 June 1992), to convey simply that the countervailing charge, being non-retroactive, applied only to that subset of Code 0809 20 Cherries which was imported after that date.

Neither of these possible interpretations assists Covita; the interpretation it contended for should, in my view, be rejected. I would therefore propose that the Court respond to the third question that the countervailing charge imposed by Regulation No 1591/92 applies to cherries intended for industrial processing.

(ii)The first question

26Covita refers to the three conditions to be satisfied pursuant to Article 5(2) of the Regulation on recovery with the consequence that the competent national authorities should refrain from taking action for post-clearance recovery, viz.: (i) that the duty was not imposed by reason of an error by the customs authorities themselves; (ii) that the error could not reasonably have been detected by the importer, acting in good faith; and (iii) that the importer observed all relevant rules regarding his customs declaration. The national court accepts that the third condition is satisfied, and that Covita acted in good faith. Covita submits that the assurance by the Skydras customs office that no charge had been imposed constitutes an erroneous act attributable to the competent customs authority for the purposes of the first condition.

27Regarding the second condition, Covita remarks that it has limited professional experience, having been established only in 1991. It adds that it must be inferred from the telex sent by the Commission to the Greek Ministry of Agriculture on 29 June 1992 informing it of the imposition of the countervailing charge that the Official Journal of 23 June 1992, in which Regulation No 1591/92 was published, had not been circulated before that date. Covita also argues that it should not be expected to know more than the competent customs authority about the applicable duties. This combination of circumstances also constitutes a `special situation' within the meaning of Article 13(1) of Regulation No 1430/79, there being no deception or obvious negligence on Covita's part.

28France and the Commission submit that the mere acceptance of Covita's customs declarations by the Skydras customs office over a very brief period does not constitute an erroneous act for the purposes of Article 5(2) of the Regulation on recovery, in contrast to the position in Hewlett Packard France v Directeur Général des Douanes. Greece, France and the Commission state that the imposition of the countervailing charge was reasonably detectable through consultation of the authoritative source, the Official Journal of the European Communities. For the same reason, Covita must be deemed to have been manifestly negligent within the meaning of Article 13 of Regulation No 1430/79. This point applied a fortiori in the present case because, on the basis of prices on the market, Covita could expect, and did expect, that a countervailing charge would be introduced. Only proof that the relevant issue of the Official Journal had not been circulated in time would aid Covita's case. The Commission argues that the fact that it also contacted the Greek Ministry of Agriculture directly about the adoption of Regulation No 1591/92 cannot be construed as evidence to this effect. Greece observes that post-clearance recovery would always be impossible if traders were not expected to know more than the customs authorities and were thus under no obligation to seek to verify themselves the duty applicable to their goods.

29As regards Article 5(2) of the Regulation on recovery, the constant case-law of the Court shows that it is for the national court to apply its provisions in the light of the facts of the case. The competent authorities are not entitled to take action after customs clearance to recover duties which have not been collected if the three conditions set out in Article 5(2) are satisfied. An error made by the customs authorities themselves is deemed only to arise from their own acts, and does not ordinarily result from the initial acceptance of a customs declaration at the point of importation, which is subject to the carrying out of subsequent checks. The question whether any error on the part of the customs authorities could reasonably have been detected by the person liable, acting in good faith, requires the national court to have regard to `the nature of the error, the professional experience of the traders concerned and the degree of care which they exercised'.

30It is well established in the case-law on Article 5(2) of the Regulation on recovery regarding whether an error could reasonably have been detected by an importer acting in good faith that a diligent trader who has accumulated some experience of import and export transactions is expected to consult the Official Journal of the European Communities in order to acquaint himself with the Community law applicable to the transactions which he undertakes. As a result, in both Binder and Behn Verpackungsbedarf, the Court stated that such a trader cannot rely on the statement of rates in a national customs tariff manual in order to determine the applicable rate of duty. The Court also stated that a trader may, thus, be required to be better informed than the competent national authority. In my view, the same reasoning must apply in respect of the statements or assurances given to Covita by the Skydras customs office. The national court, which has the task of assessing the elements of good faith and due diligence of a trader such as Covita, should take account of the fact that, while its regular inquiries may tend to establish its good faith, they may also demonstrate its lively appreciation of the fact that it was trading in an environment associated with a high degree of risk. High profits are attended by high risks. The effectiveness of the imposition of a countervailing charge could be undermined if traders could escape its effect by pleas, however genuine, of ignorance of their existence.

31The only matter which might assist Covita in this regard is if the Official Journal of 23 June 1992 had not been circulated in its Greek-language version on the date stated on its cover. In that case, Covita could not be expected to have been aware of the adoption of Regulation No 1591/92. Furthermore, the countervailing charge would not have been applicable at all before the actual date of publication, in the absence of any evident intention that Regulation No 1591/92 have retroactive effect. In the absence of evidence to the contrary, a regulation is to be regarded as published throughout the Community on the date borne by the issue of the Official Journal containing the text of that regulation. However, what is important is what the Court has referred to as the actual date of publication, which is that on which the relevant issue was made available at the Office for Official Publications of the European Communities, situated in Luxembourg. If the date borne by the issue in question differed from the actual date of publication, it is the latter date which must be taken into account in assessing the information available to Covita. On the other hand, the date on which a regulation is to be regarded as published does not vary according to the availability of the Official Journal in the territories of the different Member States, irrespective of any delays which may arise in spite of efforts to ensure its rapid distribution.

32In the absence of any evidence before the Court that the publication of the Official Journal was delayed, and given the cumulative character of the conditions set out in Article 5(2) of the Regulation on recovery, there is no need for me to address the separate issue whether there was in this case an error attributable to an act of the competent authorities.

33The Court stated in Hewlett Packard that Article 13 of Regulation No 1430/79 and Article 5(2) of the Regulation on recovery pursue the same aim, `namely to limit the post-clearance payment of import and export duties to cases where such payment is justified and is compatible with a fundamental principle such as that of the protection of legitimate expectations'. The Court continued:

34`Seen in that light, the question whether the error was detectable, within the meaning of Article 5(2) of Regulation No 1679/79, is linked to the existence of obvious negligence or deception within the meaning of Article 13 of Regulation No 1430/79, and therefore the conditions laid down by the latter provision must be assessed in the light of those laid down in Article 5(2) of Regulation No 1679/79.'

35The two conditions imposed by Article 13 of Regulation No 1430/79 are also cumulative: that there exist a special situation and that the trader have acted without deception or obvious negligence. As we have just seen, the latter condition is connected with the question whether an error could have been detected under Article 5(2) of the Regulation on recovery. Although the circumstances in which Covita does business may correspond in some respects to those of the relatively small companies, located far from Athens, which were applicants in Oryzomyli Kavallas v Commission, it cannot, in my view, be said not to have been negligent, for the purposes of Article 13 of Regulation No 1430/79, unless it is established that the Greek-language version of Regulation No 1591/92 was unobtainable from the Office for Official Publications of the European Communities during some or all of the period in question. In these circumstances, it is not necessary for me to discuss whether there existed a special situation within the meaning of that Article.

(iii)The second question

36By this question the national court asks whether, as Covita submits, the time-limits in Articles 3 and 5 of Regulation No 1854/89 are mandatory and directly effective, so that failure to comply with them prevents a later entry in the accounts and enforcement of a customs charge.

37France and the United Kingdom submit that the time-limits set out in Regulation No 1854/89 are designed merely to harmonise accounting practices and, thus, competitive conditions in the Community and to determine when monies should be transferred to the Community budget, and have no relevance to post-clearance recovery of customs duties. Furthermore, France, the United Kingdom and the Commission argue that the date of commencement of the period referred to in Article 5 of Regulation No 1854/89, when the customs authorities are in a position to calculate a customs debt, is not normally known to individual traders. They state, as does Greece, that Article 2(1) of the Regulation on recovery provides the sole limitation period in Community law on actions for recovery. France observes that the provision in the second indent of Article 2(1) for calculation of the three-year recovery period in the event of failure to enter a customs debt in the accounts demonstrates that such failure does not affect the authorities' right of recovery.

38I agree with all of the arguments presented by France, Greece, the United Kingdom and the Commission against the interpretation of Articles 3 and 5 of Regulation No 1854/89 as establishing mandatory time-limits for the post-clearance recovery of customs duties. It is clear that the time-limits in these provisions relate to the entry in accounts and not to the recovery of the sums in question and were laid down for accounting purposes rather than in order to create rights for individual traders. This, I think, is demonstrated conclusively by the existence of a distinct time-limit of three years for post-clearance recovery in Article 2(1) of the Regulation on recovery and, in particular, by the fact that provision is made for this time-limit to run either from the date of entry of the customs debt in the accounts or, where this is not done, from the date that the customs debt was incurred. Article 2(1) provides the only limitation period for the post-clearance recovery of customs debts.

39In the light of the foregoing, I would recommend that the Court answer the questions referred by the national court as follows:

(1) The countervailing charge imposed by Commission Regulation (EEC) No 1591/92 of 22 June 1992 introducing a countervailing charge on cherries originating in Bulgaria applies to cherries intended for industrial processing.

(2) A trader who has accumulated some experience of import and export transactions cannot benefit from the provisions of Article 5(2) 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 or of Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties if he could have informed himself of the Community-law rules applicable to his transactions by consultation of the Official Journal of the European Communities and failed to do so.

(3) The time-limits laid down in Articles 3 and 5 of Council Regulation (EEC) No 1854/89 of 14 June 1989 on the entry in the accounts and terms of payment of the amounts of the import duties or export duties resulting from a customs debt are not preclusive of the right of competent customs authorities to proceed with the post-clearance recovery of customs duties, which is subject to the time-limit laid down in Article 2(1) of Regulation No 1697/79.

(1) - OJ 1992 L 168, p. 18.

(2) - The Commission states that an initial fax was sent to the Greek Ministry of Agriculture on 23 June 1992 informing it of the adoption of Regulation No 1591/92.

(3) - OJ, English Special Edition, First Series 1972 (II), p. 437.