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

JUDGMENT OF THE COURT (Second Chamber)

26 November 1998 (1)

(Regulation (EEC) No 1591/92 - Countervailing charge on cherries originating in Bulgaria - Entry in the accounts - Post-clearance recovery)

In Case C-370/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Diikitiko Efetio Thessalonikis (Greece) for a preliminary ruling in the proceedings pending before that court between

Covita AVE

and

Elliniko Dimosio (Greek State),

on the interpretation of Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175, p. 1), 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 (OJ 1979 L 197, p. 1), 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 (OJ 1989 L 186, p. 1), and of Commission

Regulation (EEC) No 1591/92 of 22 June 1992 introducing a countervailing charge on cherries originating in Bulgaria (OJ 1992 L 168, p. 18),

THE COURT (Second Chamber),

composed of: G. Hirsch (Rapporteur), President of the Chamber, G.F. Mancini and R. Schintgen, Judges,

Advocate General: N. Fennelly,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- Covita AVE, by D. Savvopoulos, of the Giannitsa Bar,

- the Greek Government, by G. Kanellopoulos, Assistant Legal Adviser to the State Legal Service, acting as Agent,

- the French Government, by C. de Salins, Deputy Director at the Legal Affairs Directorate of the Ministry of Foreign Affairs, and F. Pascal, seconded to that directorate from the central administration, acting as Agents,

- the United Kingdom Government, by J.E. Collins, Assistant Treasury Solicitor, acting as Agent, and

- the Commission of the European Communities, by M. Condou-Durande and M. Nolin, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Covita AVE, represented by D. Savvopoulos; of the Greek Government, represented by G. Kanellopoulos and G. Karipsiadis, Specialist Technical Adviser in the Community Legal Affairs Department of the Ministry of Foreign Affairs, acting as Agent; of the French Government, by C. Vasak, Assistant Secretary for Foreign Affairs in the Legal Affairs Directorate of the Ministry of Foreign Affairs, acting as Agent; of the United Kingdom Government, by J.E. Collins and S. Moore, barrister; and of the Commission of the European Communities, by M. Condou-Durande, at the hearing on 2 April 1998,

after hearing the Opinion of the Advocate General at the sitting on 28 May 1998,

gives the following

Judgment

1. By judgment of 24 October 1996, received at the Court on 25 November 1996, the Diikitiko Efetio (Administrative Court of Appeal) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions on the interpretation of Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175, p. 1), 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 (OJ 1979 L 197, p. 1), 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 (OJ 1989 L 186, p. 1), and of Commission Regulation (EEC) No 1591/92 of 22 June 1992 introducing a countervailing charge on cherries originating in Bulgaria (OJ 1992 L 168, p. 18).

2. Those questions were raised in the context of a dispute between Covita AVE, a Greek limited liability company ('Covita'), which has been processing cherries and grapes since the beginning of 1991, and the Hellenic Republic, concerning the post-clearance recovery of countervailing charges on cherries from Bulgaria.

   Community legislation

3. 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 the tariff and statistical nomenclature and on the common customs tariff (OJ 1991 L 259, p. 1), provided for the following customs classification for cherries:

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

   ...

   0809 20 - Cherries:

   0809 20 10 - - From 1 May to 15 July

   0809 20 90 - - From 16 July to 30 April.'

4. Article 2(1) of Regulation (EEC) No 1035/72 of the Council of 18 May 1972 on the common organisation of the market in fruit and vegetables (OJ, English Special Edition, First Series 1972 (II), p. 437), amended on several occasions, provides for the establishment of quality standards for certain products, including cherries, to be delivered fresh to the consumer. Annex I to Commission Regulation (EEC) No 899/87 of 30 March 1987 laying down quality standards for cherries and strawberries (OJ 1987 L 88, p. 17) establishes a quality standard for cherries, 'of

   varieties (cultivars) derived from Prunus Avium L., Prunus Cerasus L., or hybrids thereof, to be ... supplied fresh to the consumer, cherries for industrial processing being excluded'. Four classes of quality are established: 'Extra' and Classes I, II and III.

5. Article 25(1) of Regulation No 1035/72 provides that 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, a countervailing charge is to be introduced in respect of the exporting country concerned, save in exceptional circumstances.

6. Commission Regulation (EEC) No 956/92 of 15 April 1992 fixing for the 1992 marketing year the reference prices for cherries (OJ 1992 L 102, p. 27), fixed the reference price for the abovementioned products of Class I at ECU 125.70 per 100 kilograms net for June 1992.

7. On 22 June 1992 the Commission adopted Regulation No 1591/92, Article 1 of which provides:

   'A countervailing charge of ECU 37.86 per 100 kilograms net is applied to cherries (CN code ex 0809 20) originating in Bulgaria.'

   That regulation was published in the Official Journal of the European Communities of 23 June 1992. According to Article 2, it entered into force on 24 June 1992.

8. Article 5(2) of Regulation No 1697/79 provides:

   '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.'

9. Article 13(1) of Regulation No 1430/79, as amended by Council Regulation (EEC) No 3069/86 of 7 October 1986 (OJ 1986 L 286, p. 1), 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. Repayment or remission may be made subject to special conditions.'

10. Article 4 of Commission Regulation (EEC) No 3799/86 of 12 December 1986 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of Regulation No 1430/79 (OJ 1986 L 352, p. 19) lists the special situations resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned.

11. Article 1(2) of Regulation No 1854/89 provides:

    'For the purposes of this regulation:

    ...

    (c) "entry in the accounts" means the entry by the customs authority in the accounts books, or any other medium used in their stead, of the amount of import duties or export duties corresponding to a customs debt;

    ...'

12. Article 5 of that regulation 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.'

    The main proceedings

13. On 28 May 1992 Covita began to import into Greece fresh cherries originating in Bulgaria intended for industrial processing.

14. In order to avert the possibility that a countervailing charge might be imposed, Covita was in touch on a daily basis with the Skidra customs office where the cherries were declared. On 3 July 1992 the Skidra office informed Covita of the existence of Regulation No 1591/92 and so Covita ceased its importations. That regulation was notified by the Commission to the Greek Ministry of Agriculture by telex of 29 June 1992. That ministry forwarded it to the Skidra customs office by telex of 2 July, received on 3 July. The Commission states, however, that it had sent an initial fax on 23 June 1992 to the Greek Ministry of Agriculture in order to inform it that the aforementioned regulation had been adopted.

15. On 21 December 1992, the Skidra customs office, pursuant to Regulation No 1591/92, raised an assessment against Covita for the post-clearance recovery of a countervailing charge amounting in total to DR 83 580 760 in respect of the importation of cherries originating in Bulgaria during the period from 24 June to 1 July 1992.

16. Covita brought an action for the annulment of the customs decisions, arguing that the countervailing charge introduced by Regulation No 1591/92 applies only to dessert cherries which are consumed fresh and which alone are subject to quality standards, and that post-clearance recovery constitutes a breach of the principle of the protection of legitimate expectations. The case in the main proceedings is being heard on appeal by the Diikitiko Efetio, Thessalonika, which decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

    '1. May the terms "special situations" and "error made by the competent authorities" used in Article 13 of Council Regulation (EEC) No 1430/79 and Article 5(2) of Council Regulation (EEC) No 1697/79 respectively be interpreted as including, each one separately or in conjunction both with each other and such other provisions or principles as may be relevant to the subject-matter under examination, the case where an importer acting in good faith and with the authorisation of the customs authority took delivery of and placed into circulation products imported from a non-Member State, without paying the countervailing charge imposed by Commission Regulation (EEC) No 1591/92, where that omission is attributable to the fact that the competent customs authority was not aware of the existence of that regulation owing either to the lack of any machinery for punctual communication to it of the applicability of a Community rule having direct application or to a failure of coordination between the Community and national bodies involved, or to any other reason unconnected with any action taken by the importer, or does the adoption of the Regulation afford sufficient warrant on its own for the post-clearance imposition of the countervailing charge?

    2. Are the time-limits laid down in Articles 3 and 5 of Council Regulation (EEC) No 1854/89 for determining customs duty preclusive in the sense that the expiry thereof with action not having been taken nullifies the right of the customs authority to determine and collect the countervailing charge? Furthermore, in the absence of exceptional circumstances or a situation of force majeure, can the lapse of time amounting to upwards of five months from the time when the customs authority became aware of the situation and was in a position to calculate the amount due be regarded as exceeding a reasonable period within which it ought to have acted?

    3. Does the imposition of the countervailing charge in issue concern solely fresh dessert cherries or also cherries intended for industrial processing?'

    The third question

17. The third question should be considered first, since the first and second are of interest only if it is established that Regulation No 1591/92 also applies to cherries intended for industrial processing.

18. Covita submits that the variety of cherry it imports, intended for an industrial use because of its nature, is not subject to quality standards. The recitals of the preamble to Regulation No 1591/92 take into account cherries of quality class I. Accordingly, the countervailing charge was introduced by that regulation only in respect of those products subject to the quality standards of Class I. In that context, Covita submits that Article 1 of Regulation 1591/92 refers to subheading 0809 20 of the Combined Nomenclature by means of the description 'cherries', and that the subheading's code number is preceded by the term 'ex'. That term means that the countervailing charge applies to only one group of commodities under that heading, namely that of quality class I.

19. That argument cannot be accepted. Regulation No 956/92 did, admittedly, set the reference price for cherries for the 1992 marketing year for Class I products and the subject of the third recital of the preamble to that regulation is the reference price for cherries falling within that quality class.

20. However, as the Advocate General points out at point 18 of his Opinion, the reference price and the entry price are set in relation to products of a single class in order to ensure that like is compared with like. The effect of that method for setting the price cannot, therefore, be that the countervailing charge which, pursuant to Article 25(1) of Regulation No 1035/72, is calculated on the basis of the difference between the reference price and the average entry price, applies only to products of the class in question.

21. Such an interpretation would, rather, run counter to the objective pursued by the introduction of a countervailing charge which is intended to obviate disturbances on the Community market caused by sales of produce from non-member countries at abnormally low prices (Case C-51/95 P Unifruit Hellas v Commission [1997] ECR I-727, paragraph 21). That objective cannot, as a matter of course, be attained unless the countervailing charge covers all the classes of the commodity concerned. Consequently, the proper view is that the countervailing charge introduced by Article 25(1) of Regulation No 1035/72 encompasses all the products mentioned, subject to any express exceptions, in order to attain the aforementioned objective.

22. However, it should be observed that the wording of Article 1 of Regulation No 1591/92 refers to cherries originating in Bulgaria, without differentiating between the quality classes. In those circumstances, the term 'ex' before the code number

    in Article 1 of Regulation No 1591/92 cannot be interpreted as constituting such an exception restricting the scope of the countervailing charge to class I cherries.

23. The answer to the third question must therefore be that the countervailing charge introduced by Regulation No 1591/92 also applies to cherries intended for industrial processing.

    The first question

24. So far as concerns the interpretation of Article 5(2) of Regulation No 1697/79, it should be observed at the outset that the Court has consistently held that that provision makes any waiver of post-clearance recovery by the authorities subject to three cumulative conditions (see, in particular, Case C-250/91 Hewlett Packard France v Directeur Général des Douanes [1993] ECR I-1819, paragraphs 12 and 13, and in Joined Cases C-47/95, C-48/95, C-49/95, C-50/95, C-60/95, C-81/95, C-92/95 and C-148/95 Olasagasti and Others v Amministrazione delle Finanze dello Stato [1996] ECR I-6579, paragraph 32).

25. First, non-collection of the duties must have been as the result of an error made by the competent authorities themselves. In this connection, the legitimate expectations of the person liable do not attract the protection provided for in Article 5(2) of Regulation No 1697/79 unless it was the competent authorities themselves which created the basis for the expectations of the person liable (see Case C-348/89 Mecanarte v Chefe do Serviço da Conferência Final da Alfândega [1991] ECR I-3277, paragraphs 22 and 23). Moreover, there is an error attributable to the competent authorities where they have provided erroneous information, as Covita claims in the present case, giving rise to legitimate expectations on the part of the person liable.

26. Next, the error made by the competent authorities must be such that it could not reasonably be detected by the person liable acting in good faith, despite his professional experience and the diligence shown by him. In this regard, it should be observed that it is mandatory for Community provisions introducing a countervailing charge to be published in the Official Journal of the European Communities. From the date of that publication no person is deemed to be unaware of that charge (see, to that effect, Case 161/88 Binder v Hauptzollamt Bad Reichenhall [1989] ECR 2415, paragraph 19). That is the case where a professional trader importing goods is aware of the imminent possibility that a countervailing charge might be introduced for those goods. Such a trader cannot expect each customs office to be immediately informed that the charge has been introduced, but must ascertain, by consulting the relevant issues of the Official Journal, the provisions of Community law applicable to the transactions he is carrying out. To impose such an obligation on traders to inform themselves does not constitute a requirement that is disproportionate to the objective pursued by the introduction

    of a countervailing charge, which is to obviate disturbances on the Community market, bearing in mind, moreover, the need to apply Community law uniformly.

27. None the less, it should be observed that, as the Advocate General states at point 31 of his Opinion, it cannot be accepted that a trader such as Covita was aware that Regulation No 1591/92 had been adopted if it proves that the Official Journal of 23 June 1992 was not available on that date in its Greek language version at the Office for Official Publications of the European Communities, situated in Luxembourg. If evidence is produced that actual publication of the Official Journal was delayed, regard must be had to the date on which the issue was actually available (Case 98/78 Racke v Hauptzollamt Mainz [1979] ECR 69, paragraph 15).

28. Finally, the person liable must have complied with all of the provisions laid down by the rules in force as far as his customs declaration is concerned. Moreover, it is for the national court to establish whether, having regard to the facts of the case, the three conditions laid down in Article 5(2) of Regulation No 1697/79 are fulfilled (Olasagasti, cited above, paragraph 36).

29. So far as concerns the interpretation of Article 13 of Regulation No 1430/79, it follows from the wording of that provision that repayment or remission of import duties is subject to two cumulative conditions, namely the existence of a special situation and the absence of deception or obvious negligence on the part of the trader.

30. Furthermore, Article 13 of Regulation No 1430/79 and Article 5(2) of Regulation No 1697/79 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 (Hewlett Packard France, cited above, paragraph 46).

31. From that point of view, the fact that a trader places his trust in erroneous information provided by the competent authorities could, in certain circumstances, be regarded as a special situation within the meaning of Article 13 of Regulation No 1430/79, despite the fact that that situation is not provided for in Regulation No 3799/86. The list of special situations within the meaning of Article 13 of Regulation No 1430/79 which Article 4 of Regulation No 3799/86 provides is not exhaustive (see to that effect Hewlett Packard France, cited above, paragraphs 39 and 43).

32. None the less, so far as concerns the second condition laid down by Article 13 of Regulation No 1430/79, it should be borne in mind that the question whether the error was detectable, within the meaning of Article 5(2) of Regulation No 1697/79, is linked to the existence of obvious negligence or deception within the meaning of Article 13 of Regulation No 1430/79 (Hewlett Packard France, cited above, paragraph 46).

33. Accordingly, it clearly follows from paragraphs 25 and 26 above that a trader who, in a situation such as that of Covita, has not ascertained, by consulting the relevant issues of the Official Journal, the provisions of Community law applicable to the transactions which he carries out has been negligent, unless it is established that the Greek version of Regulation No 1591/92 was not available during the period in question.

34. The answer to the first question must therefore be that a trader who has accumulated some experience of import and export transactions and who is aware, in particular, of the imminent risk of a countervailing charge being introduced cannot, if that charge is actually introduced, benefit from the provisions of Article 5(2) of Regulation No 1697/79 or of Article 13 of Regulation No 1430/79 since he could have informed himself as to the actual introduction of the charge by consulting the Official Journal of the European Communities and failed to do so.

    The second question

35. By its second question, the national court asks whether a trader may rely on the fact that the customs authorities taking action for the post-clearance recovery of the customs duties have not observed the time-limits laid down in Articles 3 and 5 of Regulation No 1854/89 and whether a lapse of time in excess of five months from the time when the customs authority was in a position to calculate the amount due nullifies the right of the customs authorities to take action for the post-clearance recovery of the customs duties.

36. The sole purpose of the time-limits laid down in Articles 3 and 5 of Regulation No 1854/89 is to ensure rapid and uniform application by the competent administrative authorities of the technical procedures for the entry in the accounts of amounts of import or export duties. Failure by the customs authorities to observe those time-limits may give rise to the payment of interest in respect of delay by the Member State concerned to the Communities, in the context of making available own resources, under Articles 10 and 11 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities' own resources (OJ 1989 L 155, p. 1). It follows that those time-limits do not nullify the right of the customs authorities to take action for post-clearance recovery pursuant to the provisions of Regulation No 1697/79 since Article 2(1) of that regulation provides for a period of three years for the recovery of uncollected duties, calculated 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.

37. The answer to the second question must therefore be that failure on the part of the customs authorities to observe the time-limits laid down in Articles 3 and 5 of Regulation No 1854/89 when taking action for the post-clearance recovery of the

    countervailing charge does not nullify the right of those authorities to proceed with such post-clearance recovery, provided that it is carried out within the time-limit laid down in Article 2(1) of Regulation No 1697/79.

    Costs

38. The costs incurred by the Greek, French and United Kingdom Governments and by the Commission, 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 (Second Chamber),

in answer to the questions referred to it by the Diikitiko Efetio Thessalonikis by judgment of 24 October 1996, hereby rules:

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 also applies to cherries intended for industrial processing.

2. A trader who has accumulated some experience of import and export transactions and who is aware, in particular, of the imminent risk of a countervailing charge being introduced cannot, if that charge is actually introduced, 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 as to the actual introduction of the charge by consulting theOfficial Journal of the European Communities and failed to do so.

3. Failure to observe 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 does not nullify the right of competent customs authorities to proceed with the post-clearance recovery of customs

duties, provided that it is carried out within the time-limit laid down in Article 2(1) of Regulation No 1697/79.

HirschMancini Schintgen

Delivered in open court in Luxembourg on 26 November 1998.

R. Grass G. Hirsch

Registrar President of the Second Chamber

---

1: Language of the case: Greek.