Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (First Chamber)

6 November 1997(1)

(Customs duty - Post-clearance recovery of import duties - Limitation period)

In Case C-261/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Corte d'Appello di Venezia (Italy) for a preliminary ruling in the proceedings pending before that court between

Conserchimica Srl

and

Amministrazione delle Finanze dello Stato

on the interpretation of Article 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 (OJ 1979 L 197, p. 1),

THE COURT (First Chamber),

composed of: D.A.O. Edward (Rapporteur), acting for the President of the Chamber, P. Jann and L. Sevón, Judges,

Advocate General: M.B. Elmer,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

• Conserchimica Srl, by Bruno Babini Mitis, of the Venice Bar,
  
  
• the Italian Government, by Umberto Leanza, Head of the Legal Service in the Ministry of Foreign Affairs, acting as Agent, and Oscar Fiumara, Avvocato dello Stato,
  
  
• the Commission of the European Communities, by Michel Nolin and Paolo Stancanelli, of its Legal Service, acting as Agents,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 12 June 1997,

gives the following

Judgment

1. By order of 9 May 1996, received at the Court on 24 July 1996, the Corte d'Appello (Court of Appeal), Venice, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 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 (OJ 1979 L 197, p. 1).
   
   
2. The question was raised in proceedings between Conserchimica Srl (hereinafter 'Conserchimica'), an Italian undertaking operating in the petroleum industry, and the Amministrazione delle Finanze dello Stato (State Finance Administration), concerning the post-clearance recovery of customs duty on importation of petroleum products.
   
   
3. Between May 1978 and October 1980 Conserchimica acquired from Italian importers petroleum products without being in possession of the written authorization required by Articles 3 and 7 of Commission Regulation (EEC) No 1535/77 of 4 July 1977 determining the conditions under which certain goods are eligible upon importation for a favourable tariff arrangement by reason of their end-use (OJ 1977 L 171, p. 1) and by Commission Regulation (EEC) No 1775/77 of 28 July 1977 determining the conditions under which certain petroleum products are eligible upon importation for a favourable tariff arrangement by reason of their end-use (OJ 1977 L 195, p. 5).
   
   
4. After serving several notices of assessment on Conserchimica between February 1981 and May 1984, the Amministrazione delle Finanze dello Stato sent it a tax demand on 28 April 1986 for the payment of the VAT and customs duties which had not been paid initially.
   
   
5. On 10 May 1986 Conserchimica contested that demand before the Tribunale (District Court), Venice, requesting that court to declare it void.
   
   
6. In the course of the proceedings the Tribunale di Venezia referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 3 and 7 of Regulation No 1535/77, on which the Court gave judgment in Joined Cases 248/88, 254/88 to 258/88, 309/88 and 316/88 Chimica del Friuli and Others v Amministrazione delle Finanze dello Stato [1989] ECR 2837, ruling that Article 7 of Regulation No 1535/77 must be interpreted as meaning that when goods are transferred the transferee must hold an authorization granted in accordance with Article 3 of that regulation, whether the transfer takes place between one Member State and another or within the same Member State.
   
   
7. Accordingly, by judgment of 30 April 1992, the Tribunale di Venezia upheld the claim of the Finance Administration for the post-clearance recovery of the full customs duties and VAT and dismissed the action.
   
   
8. By notice served on the defendant administrative authority on 23 June 1993, Conserchimica appealed against that decision to the Corte d'Appello, Venice, claiming in particular that, since the period of three years prescribed by Article 2 of Regulation No 1697/79 had expired, the authority had forfeited its right to recover the duties which had not been collected.
   
   
9. According to Article 1 of Regulation No 1697/79, the purpose of that regulation is to determine the conditions under which the competent authorities are to undertake post-clearance recovery of import duties or export duties on goods entered for a customs procedure involving the obligation to pay such duties for which, for whatever reason, payment has not been required of the person liable for payment.
   
   
10. Article 2(1) of Regulation No 1697/79 provides:
    
    '1. 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'.
    
    
11. Moreover, in certain specified cases, Regulation No 1697/79 prohibits action for recovery (Article 5(1)) or permits the authorities to refrain from taking action (Article 5(2)). It also specifies the cases in which no interest on overdue payments is to be charged on sums recovered (Article 7).
    
    
12. In accordance with Article 11, Regulation No 1697/79 entered into force on 1 July 1980.
    
    
13. Finding that a number of Conserchimica's debts were incurred prior to that date, the Corte d'Appello, Venice, was uncertain whether Regulation No 1697/79 applied to that company. It therefore stayed proceedings and referred the following question to the Court of Justice:
    
    'Does Article 2 of Council Regulation (EEC) No 1697/79 of 24 July 1979, which prescribes a three-year period for the recovery of duties not collected, also apply to situations where the conditions were satisfied before 1 July 1980, the date on which that regulation entered into force pursuant to Article 11 thereof?'
    
    
14. By that question the national court seeks essentially to ascertain whether the second subparagraph of Article 2(1) of Regulation No 1697/79 applies to duties not collected in respect of goods entered for a customs procedure where the obligation to pay those duties was incurred on a date prior to the entry into force of that regulation.
    
    
15. It should be noted, first, that the period of three years prescribed by the second subparagraph of Article 2(1) of Regulation No 1697/79 begins to run 'from the date of entry in the accounts of the amount originally required of the person liable for payment', that is to say the date of the administrative act determining the amount of the duties 'or, where there is no entry in the accounts, from the date on which the customs debt relating to the said goods was incurred'.
    
    
16. Second, in Joined Cases 212/80 to 217/80 Amministrazione delle Finanze dello Stato v Salumi and Others [1981] ECR 2735, paragraph 8, the Court held that, for the purpose of determining the effect ratione temporis of Regulation No 1697/79, recourse should be had, in the absence of transitional provisions, to generally recognized principles of interpretation, having regard both to the wording of the regulation and to its objectives and general scheme.
    
    
17. Although procedural rules are generally deemed to apply to all proceedings pending at the time when they enter into force, the Court held, inter alia, that, replacing the relevant national provisions, Regulation No 1697/79 contains both procedural and substantive rules which form an indivisible whole and the individual provisions of which may not be considered in isolation, with regard to the time at which they take effect (Salumi and Others, cited above, paragraph 11).
    
    
18. The Court thus ruled that Regulation No 1697/79 did not apply to assessments to import or export duties made before 1 July 1980.
    
    
19. In the main proceedings Conserchimica submitted that whenever an assessment is made after that date the three-year period prescribed by the second subparagraph of Article 2(1) of Regulation No 1697/79 must be regarded as having replaced, in every case, the period prescribed by the earlier national legislation.
    
    
20. However, the three-year period in question constitutes, under the system established by Regulation No 1697/79, a rule on limitation of actions and begins to run, according to the terms of the second subparagraph of Article 2(1) of Regulation No 1697/79, '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'.
    
    
21. Where the customs debt, that is to say, the obligation to pay import duties or export duties, was incurred on a date prior to the entry into force of Regulation No 1697/79, it may be governed only by the national rules in force at that time, including rules on limitation of actions.
    
    
22. Since it is of no consequence, as regards the date on which customs debts were incurred, that they were, as here, assessed only after Regulation No 1697/79 entered into force, the date of assessment does not have the effect of ousting the application of earlier national rules.
    
    
23. Moreover, it is clear from the judgment in Joined Cases C-31/91 to C-44/91 Lageder and Others [1993] ECR I-1761, paragraph 26, that Regulation No 1697/79 was not applicable to events which occurred prior to the date of entry into force of that regulation.
    
    
24. The reply to the question referred to the Court must therefore be that the second subparagraph of Article 2(1) of Regulation No 1697/79 does not apply to duties not collected in respect of goods entered for a customs procedure where the obligation to pay those duties was incurred on a date prior to the entry into force of that regulation.
    
    Costs
    
    
25. The costs incurred by the Italian Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
    
    On those grounds,

    THE COURT (First Chamber),

    in answer to the question referred to it by the Corte d'Appello di Venezia by order of 9 May 1996, hereby rules:
    
    The second subparagraph of 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 does not apply to duties not collected in respect of goods entered for a customs procedure where the obligation to pay those duties was incurred on a date prior to the entry into force of that regulation.
    
    
    

Delivered in open court in Luxembourg on 6 November 1997.

R. Grass

Registrar

1: Language of the case: Italian.