In Case C-371/90,
REFERENCE to the Court under Article 177 of the EEC Treaty by Tribunal Fiscal Aduaneiro (Customs Court), Oporto for a preliminary ruling in the proceedings pending before that court between
Beirafrio ° Indústria de Produtos Alimentares, Lda
and
Alfândega do Porto (Chefe do Serviço da Conferência Final)
on the interpretation of Article 5(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 (OJ 1979 L 197, p. 1),
THE COURT (Third Chamber),
composed of: F. Grévisse, President of the Chamber, J.C. Moitinho de Almeida, Judges,
Advocate General: G. Tesauro,
Registrar: H.A. Ruehl, Principal Administrator,
after considering the written observations submitted on behalf of:
Beirafrio ° Indústria de Produtos Alimentares Lda, by Ricardo Garcâo Soares and Adriano Garcâo Soares, of the Oporto Bar,
the Portuguese Government, by Luis Fernandes, Director of the Legal Department, Directorate General for European Community Matters, and Maria Luisa Duarte, Legal Adviser in the Legal Department of that Directorate, acting as Agents,
the Portuguese Ministério Público, by Isabel Aguiar,
the Commission of the European Communities, by Blanca Rodríguez Galindo, a member of its Legal Service, and Helena Varandas, a member of the Portuguese Civil Service seconded to the Commission Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Beirafrio, the Portuguese Government and the Commission at the hearing on 10 January 1992,
after hearing the Opinion of the Advocate General at the sitting on 12 February 1992,
gives the following
Judgment
1 By order of 10 December 1990, which was received at the Court Registry on 17 December 1990, the Tribunal Fiscal Aduaneiro, Oporto, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions on the interpretation of Article 5(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 (OJ 1979 L 197, p. 1).
2 Those questions were raised in proceedings in which Beirafrio - Indústria de Produtos Alimentares Lda (Beirafrio) seeks the annulment of a notice of post-clearance recovery of customs duties issued by the Oporto Customs Office.
3 Beirafrio, which wished to import several consignments of frozen hake from Chile, applied by telex on 4 December 1989 to the Tariff Nomenclature and Policy Division of the Directorate General for Customs for information as to the rates of customs duties in force for that product under the generalized preference scheme.
4 By telex of 5 December 1989, that division gave the requested information, indicating that the applicable rate of customs duties was 6%.
5 Having received that information, Beirafrio imported seven consignments of frozen hake from Chile which, after payment of customs duties calculated at the rate of 6%, were cleared through customs and released for consumption.
6 Subsequently, the Serviço da Conferência Final (Definitive Inspection Department) of the Oporto Customs Office established that frozen hake from Chile did not qualify for the generalized preference scheme, which was applicable only to developing countries, and therefore that the applicable rates would be those laid down in the arrangements for non-member countries, namely 13.5% by way of import customs duty and 15% under the Common Customs Tariff.
7 The Oporto Customs Office, represented by the Serviço da Conferência Final, then commenced seven actions for post-clearance recovery of customs duties payable on the importation of the seven consignments of frozen hake, calculating the amount due from Beirafrio as ESC 45 095 670.
8 Beirafrio lodged an objection against the notice of assessment with the Oporto Directorate General for Customs, calling for the application of Article 5(1) of Regulation No 1697/79, by virtue of which customs authorities may not take action for post-clearance recovery of uncollected customs duties where the amount calculated as due had been based on "information given by the competent authorities themselves which is binding on them".
9 The Oporto Directorate General for Customs rejected that objection on the ground that the conditions laid down in Article 5(1) of Regulation No 1697/79 were not fulfilled since the information provided as to rates of customs duties was not binding on it.
10 An action for annulment of the notice of assessment was brought by Beirafrio before the Tribunal Fiscal Aduaneiro, Oporto, which, entertaining doubts as to the exact meaning of the term "information given by the competent authorities themselves which is binding on them" contained in Article 5(1) of Regulation No 1697/79, stayed the proceedings and referred the following questions to the Court for a preliminary ruling:
"(1) Does that expression cover information on tariff rates?
(2) Does that expression cover information given by the central customs authorities or only information given by the national body entrusted by internal law with the task of giving binding information?
(3) May the range of information which is considered binding be restricted by national law and must such information be given in writing?
(4) Is information containing an error that could not reasonably have been detected by the person liable the only information that may be regarded as binding information which precludes the recovery of duties."
11 Reference is made to the Report for the Hearing for a fuller account of the facts, the relevant Community and Portuguese legislation, the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
12 The present case is essentially concerned with two provisions:
° the first indent of Article 5(1) of Regulation No 1697/79, which provides:
"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 ... on the basis of information given by the competent authorities themselves which is binding on them"
and
Article 5(2) of Regulation No 1697/79, which 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 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".
The first, second and third questions
13 In its first three questions, which, being closely connected with each other, must be considered together, the national court seeks from the Court of Justice, having regard to the first indent of Article 5(1) of Regulation No 1697/79, clarification concerning the information which must be regarded as binding on the competent authorities, the authorities that are empowered to give such information and the form in which such information must be given.
14 No such clarification is given in Article 5(1) nor can it be deduced from the objective of Regulation No 1697/79 since the latter is not intended to lay down uniform rules concerning the information given by the customs authorities of the Member States but rather, as indicated by the second recital in its preamble, to guarantee the certainty which persons liable for payment have the right to expect from official acts having financial consequences where the original calculation of the import duties or export duties was based on information given by the customs authorities themselves and is binding on them.
15 Not until the adoption of Council Regulation (EEC) No 1715/90 of 20 June 1990 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature (OJ 1990 L 160, p. 1), which entered into force on 1 January 1991, did the Community legislature undertake harmonization in this area by providing that only information concerning tariff classification is to be regarded as binding, indicating which authorities are competent to supply such information and laying down common procedures for its provision.
16 It is apparent from the foregoing that, in the absence of any indication in the Community legislation in force at the material time, identification of the information of such a kind as to bind the competent authorities and the conditions under which it is to be given are matters to be determined by each Member State.
17 It must therefore be stated in reply to the first, second and third questions that the first indent of Article 5(1) of Regulation No 1697/79 must be interpreted as meaning that information of the kind which is binding on the competent authorities, the authorities empowered to provide such information and the form in which such information is to be given are to be determined, in the absence of any indication in the Community legislation applicable before the entry into force of Council Regulation No 1715/90, by the legislation of the Member State concerned.
The fourth question
18 In its fourth question, the national court seeks to establish whether Article 5(1) of Regulation No 1697/79 is applicable only if the error contained in the information binding on the competent authorities could not reasonably be detected by the person liable.
19 There is no reference in Article 5(1) of Regulation No 1697/79 to an error being reasonably capable of detection by the person liable.
20 That provision provides special protection for the person liable, based on the fact that the incorrect information binding on the competent authority gave rise to legitimate expectations whereby the person concerned is entitled to expect that there will be no post-clearance recovery, whether or not he could reasonably have detected the error.
21 The fact that the error made by the competent authorities was not reasonably detectable by the person liable is, on the other hand, one of the preconditions for the application of Article 5(2) of Regulation No 1697/79. That condition must therefore be fulfilled where a person liable who is unable to rely on Article 5(1) of that regulation, in particular where the information supplied to him was not binding on the administration, wishes to invoke Article 5(2) of that regulation. It must be recalled, in that connection, that the Court has consistently held that it is for the national court to decide whether that condition has been satisfied, having regard to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised (see in particular the judgment in Case C-64/89 Hauptzollamt Giessen v Deutsche Fernsprecher [1990] ECR I-2535).
22 It must therefore be stated in reply to the fourth question that, for the purposes of the application of the first indent of Article 5(1) of Regulation No 1697/79, the fact that the error contained in the information provided by the competent authorities could not reasonably have been detected by the person liable does not have to be taken into consideration. However, that condition constitutes a pre-requisite for the application of Article 5(2) of the regulation, a rule which traders may rely upon provided that all the conditions laid down therein are satisfied, when the error is based on information which is not binding on the competent authorities.
Costs
23 The costs incurred by the Portuguese Government, the Portuguese Ministério Pùblico and 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 action/proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Third Chamber),
in answer to the questions referred to it by the Tribunal Fiscal Aduaneiro, Oporto, by order of 10 December 1990, hereby rules:
1. The first indent of Article 5(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 must be interpreted as meaning that information of the kind which is binding on the competent authorities, the authorities empowered to provide such information and the form in which such information is to be given are to be determined, in the absence of any indication in the Community legislation applicable before the entry into force of Council Regulation (EEC) No 1715/90 of 20 June 1990 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature, by the legislation of the Member State concerned.
2. For the purposes of the application of the first indent of Article 5(1) of Regulation No 1697/79, the fact that the error contained in the information provided by the competent authorities could not reasonably have been detected by the person liable does not have to be taken into consideration. However, that condition constitutes a pre-requisite for the application of Article 5(2) of the regulation, a rule which traders may rely upon provided that all the conditions laid down therein are satisfied, when the error is based on information which is not binding on the competent authorities.
