Court of Justice 13-11-1984 ECLI:EU:C:1984:342

Summary of the defendant's observations

The defendant emphasizes that what gives rise to the obligation to pay import duties is the act of bringing certain goods into the Community's customs territory. However, it may subsequently be discovered that the imported goods have left the customs territory or have been destroyed. In such cases, a customs debt is no longer justified. The Council adopted Regulation No 1430/79 so as to be able to cancel the customs debt in such cases.

That regulation mentions four different situations and a residual category. It has proved impossible until now to define in general terms the cases which fall into the residual category since the knowledge and experience necessary to do so are still lacking. Thus, cases falling into the residual category must be defined by what is called the committee procedure.

In the relatively numerous cases which have been referred to the defendant under Article 13 of the Council regulation, the defendant has always followed the spirit of the Council regulation, and consequently it has only granted remissions or repayments when, by reason of special circumstance, the goods in question were no longer within the customs territory, or had been placed under another customs procedure, placed in free circulation, destroyed, and so on.

In two cases, for example, duty was reimbursed which had been paid at the time of importation of vehicles bought in the United States but which did not comply with the legislation in force in the United Kingdom and which, for that reason, had to be re-exported.

In this case, there is no question of the goods having been re-exported or destroyed, nor of the application of a higher tariff than that provided for under the Common Customs Tariff; the goods were placed in free circulation in the usual way and have remained in the Community's customs territory. Moreover, the import duty levied by way of the demand for additional duty is at the rate applicable to the goods, having regard to their nature and their origin.

1. With regard to the argument that the Commission's decision infringes the obligation to state the reasons on which it was based, the defendant points out that it is sufficient if the decision sets out in a concise but clear and relevant manner the principal issues of law and of fact upon which it is based and which are necessary in order that the reasoning which led the Commission to adopt that decision mav be understood. In this case, the preambles to the decisions refer in each case first of all to the applications presented by the Netherlands authorities and also contain a detailed statement of the circumstances on the basis of which a remission of import duties is being sought. Two of the arguments on the basis of which the applicants are seeking die remission are mentioned, namely that “the customs agent acted in good faith” and that “the customs authorities could have informed them earlier of their suspicions”.

   The defendant does not dispute the first argument. On the other hand, it emphasizes in the third recital in the preamble that good faith alone is not sufficient if special circumstances have not been shown to exist.

   In that connection,- the defendant states firstly that a customs agent, since he makes the declaration in his own name and on his own account, is himself responsible for the importation, which implies that he is also liable for any defect in the certificates furnished on that occasion. The question of good faith is independent both of the proof of special circumstances (because the latter is a distinct condition) and of proof of liability.

   Secondly, the defendant points out that if the arguments put forward by the applicants are sufficient to obtain a remission, investigations carried out by the Member States after importation would no longer have any purpose since the demand for additional duty to which such investigations could, in an appropriate case, give rise and which is the veiy purpose of such investigations could no longer be made.

   Finally, with regard to the argument advanced by Van Gend & Loos to the effect that the Netherlands customs authorities ought to have informed that applicant of the results of the investigation that it was carrying out while it was in progress, the decision states that the Netherlands administration could not be accused of any negligence on that point. It cannot therefore constitute a special circumstance.

   The applicants complain that the defendant has advanced reasons for its decision before the Court that it did not state in the decisions themselves. However, the arguments put forward by the defendant before the Court which describe in detail the practice which has been followed until now are solely intended to provide information which might be useful in considering the application, and not to advance further grounds for the decisions. Not only was there no need to supply that information as grounds for the individual decision at issue, but the quantity of information involved is such as to make it impossible to have included it in the preambles to the decisions.

   The applicants also complained that the defendant did not take account of the special circumstances relied upon by them (misrepresentation and fraud on the part of the their clients, issue of certificates by the public authorities ...). However, the defendant has explained why the situation was not attributable to special circumstances and why therefore it was no longer obliged to consider the reasons put forward by the applicants. Their situation was, in fact, assessed in the light of the criteria laid down in Article 13 of Regulation No 1430/79.

   When the defendant states that the applicants' good faith is not disputed, that does not mean that its existence is recognized but merely that that second condition does not need to be considered since the first has not been met.

2. In their second argument the applicants dispute the defendant's contention that the grant of a remission would nullify the effect of checks regularly carried out after importation, on the ground that repayment or remission of import duties generally takes place precisely in connection with facts which only emerge during subsequent checks. The defendant states that it is not clear from either the preamble to Regulation No 1430/79 or the terms of the regulation itself that that regulation was intended to cover circumstances which only emerged during subsequent investigations. The examples cited by the defendant show that in practice the situations which arise rarely, if ever, relate to investigations made after importation, but are often concerned with facts which only emerge after the goods have been put in free - circulation rather than facts which already exist at the time the goods are so placed. The defendant points out, however, that it never claimed that “remission of duty must be excluded if an investigation is carried out after importation”.

3. Van Gend & Loos puts forward a third argument in which it claims that it did not, as the decision addressed to it states, complain of the lack of care on the part of the Netherlands authorities in their investigations, but the lack of care of the Netherlands customs authorities when they accepted the declaration of the goods made by the applicant for the purpose of putting the goods into free circulation. However, the recital in the preamble to the decision dealing with that point does not contain any such allegation. It should be emphasized, moreover, that it is not appropriate in an investigation which, like the one in this case, was unusually long and complicated to communicate information to persons directly or indirectly concerned. Finally, the role of the customs authorities when they accept declarations is the relatively passive one of establishing whether or not the declaration is complete. In many cases, internal instructions do not permit customs officers to release information which may be in their possession concerning pending investigations.

4. The applicants point out next that the criteria used by the defendant in applying Article 13 are not clear even though recourse must be had to the procedure laid down in that article to define the situations to which it refers. However, the defendant maintains that if it was in a position to identify criteria which could be used generally, it would certainly incorporate them in a regulation; that is not yet possible. Because of the lack of a precise definition of the concept of “special circumstances”, the defendant has a certain discretion in defining the cases to which it applies. The decision which it takes in a particular case cannot be re_arded as unlawful unless it could not reasonably arrive at a conclusion as to whether or not special circumstances existed, something which has not been proved in this case.

5. As regards the applicant's argument that the Commission's decisions contain no information allowing them to verify that the defendant adopted its decision in accordance with the procedure laid down in Article 25 of Regulation No 1430/79, the defendant points out that the legal basis for the decision, and hence the procedure to be followed, is to be found in Article 5 of Commission Regulation No 1575/80 and not in Article 25 of Regulation No 1430/79. However, Regulation No 1575/80 does not provide for an opinion to be expressed by the Committee on Duty-Free Arrangements or for a vote within that committee, but only for a decision of the Commission to be taken after “consulting a group of experts composed of representatives of all Member States meeting within the framework of the Committee on Duty-Free Arrangements to examine the case in question”. In that connection, the second recital in the preamble to the decision states that, in accordance with that article, “a group of experts composed of representatives of all the Member States met on 26 November 1982 and on 8 December 1982 within the framework of the Committee on Duty-Free Arrangements to examine the case”.

   The applicants are confusing that procedure with the one used to identify the cases to which may be applied the first paragraph of Article 13 of Regulation No 1430/79 and the procedural steps which must be taken to that end. According to the second paragraph of Article 13 of Regulation No 1430/79, recourse is to be had in such cases to the procedure laid down in Article 25, which in its turn refers to Article 9 (2) and (3) of Regulation No 1798/75, and it is this regulation which requires the opinion of the Committee on Duty-Free Arrangements.

6. With regard to the argument that the applicants ought to have been given an opportunity to be heard, it should be emphasized that the applications in the procedures which led to the adoption of the decisions were made by the Netherlands. The representatives of the Netherlands had ample opportunity, during the two meetings of the Committee on Duty-Free Arrangements, to put forward any information or arguments that they considered significant. During the procedure at national level, Van Gend & Loos and Bosman had an opportunity to put forward all their arguments. Moreover, the complete file on the matter was submitted to the Committee. In its judgment of 17 March 1983 (Case 294/81 Control Data Belgium v Commission [1983] ECR 911, paras. 16 and 17), the Court rejected the same argument in similar proceedings concerning exemption from customs duties for scientific apparatus on the ground that the procedure laid down in the relevant Community legislation had been followed and that the applicant liad been able to state its arguments in full through the national authorities. It should be noted that not only do the decisions in the present case and those in Control Data Belgium contain a recital in the preamble concerning consultation with a group of experts but that those recitals are drafted in almost identical terms. The applicants do not accept the parallel drawn with the Control Date Belgium case because, unlike the latter undertaking, they are relying not solely on infringement of essential procedural requirements but also on infringement of the general principles of law. The defendant points out that the applicants surely did not wish to state that the requirements which the statement of reasons for a decision must satisfy depend on the type of action which could subsequently be brought against that decision.

7. As regards the invitation to the Commission to the Commission to produce written evidence that the time-limits have been complied with, the defendant points out that the applications at issue were received on 11 October 1982 and the decisions were adopted on 10 January 1983, so that the time-limit of three months from the date on which the applications were received has been complied with. Those dates are in fact mentioned in the decisions. Notice of the decisions was given to the Netherlands on 11 January 1983 and was thus well within the 30 day period required by the rules governing notice. The Permanent Representation of the Netherlands to the Communities acknowledged receipt of the decisions on the same day. The defendant has submitted documents to the Court in support of its statements.

8. As regards the argument based on the judgments of the Court in relation to the concept of force majeure, the defendant considers that the situations provided for in Article 13 may, in certain cases, constitute examples of force majeure. It points out, however, that the Court has held that “the concept of force majeure is not identical in the different branches of law and the various fields of application” (judgment of 11 July 1968, Case 4/68 Schwarzwaldmilch v Einfuhrund Vorratsstelle [1968] ECR 377). Moreover, Article 13 certainly does not deal exclusively with cases of force majeure. In the present applciations, there is no question of force majeure because that would require not only an unusual event but also that the consequences of that event could not have been foreseen and that the person concerned had shown all due diligence (judgment of 11 July 1968, cited above). It cannot be claimed, however, that the discovery that the certificates of origin were invalid was wholly unforeseeable for a person exercising the profession of customs agent, wno knows that acceptance of a declaration by the customs does not constitute a guarantee against possible further demands for duty. He also knows that the risk is greater in regard to certain types of goods or certain transactions. Moreover, a customs agent must show all due diligence when he concludes a contract involving his making a declaration in his own name but on behalf of another person. There are other ways of making such declarations, such as an agency agreement under which the principal remains liable for payment of whatever import duty is due. The customs agent can also require that security be put up, or he can take out insurance. His fees should also take account of the risk of loss which he runs. The fact that Netherlands legislation makes the applicants themselves liable is not sufficient in itself to warrant recognition of the existence of special circumstances.

   Article 55 of the General Law on customs and excise applies only when the applicants act as customs agents. However, if one of the applicants considered that the risk was too great to be undertaken in its capacity as customs agent, it could, under Article 46 of the aforementioned law, undertake it as a direct agent (in which case the principal himself would be liable).

   Finally, the argument regarding the expectation raised by the Netherlands authorities concerning the validity of the certificates disregards both the relevant Community provisions and the nature of the customs authorities' duties when they accept declarations. Article 7 of Council Directive 79/695 of 24 July 1979 on the harmonization of procedures for the release of goods for free circulation (Official Journal L 205, p. 19) provides that declarations are to be “accepted by the customs authority immediately” if they comply with certain purely formal conditions. Article 10 (2) of that directive provides that that is to be “without prejudice to either any subsequent verification... or the possible consequences of applying the provisions in force, particularly as regards any change in the amount of import duty charged on these goods”. Having regard to the very large number of declarations made each day, the relatively few staff and the need to complete customs formalities rapidly, particularly at frontiers, it is practically impossible to check the validity of declarations immediately.

9. The applicants appear to think that the only reason why the defendant considers that there are no special circumstances in this case is that the imported goods were neither destroyed, nor delivered free of charge to a charity nor re-exported.

   However, the defendant did not rely upon any such negative criterion. Rather, it considered whether the arugments put forward in the Netherlands application in support of the contention that special circumstances existed were adequate.

   It is not possible to draw from the examples cited by the defendant a general rule to the effect that special circumstances only exist in cases of that kind. It is not correct, therefore, to maintain that henceforth the Commission intends to extend the conditions laid down in Article 11 of Regulation No 1430/79 to applications under Article 13.