Europa Article 5(2) of Regulation No 1679/79, which makes any waiver of post-clearance recovery of import or export duties by the competent customs authorities subject to the fulfilment of three conditions, must be interpreted in the light of the following considerations: Incorrect tariff information given to a trader other than the person liable for payment by the customs authorities of a Member State other than that of the authority competent to effect post-clearance recovery does not, in the absence of a Community regulation ensuring that such information has the same legal significance in all the Member States, constitute ‘an error made by the competent authorities themselves’. On the other hand, such an error is made by the authorities competent to effect recovery, within the meaning of that provision, where, despite the number and size of the imports made by the person liable, those authorities raised no objection concerning the tariff classification of the goods in question, even though a comparison between the tariff heading declared and the explicit description of the goods in accordance with the indications of the nomenclature would have disclosed the incorrect tariff classification. In order to determine whether there has been ‘an error … which could not reasonably have been detected by the person liable’, account must be taken, in particular, of the nature of the error, of the experience of the trader and of the diligence shown by him. In that regard, it is appropriate to make clear: – that the need to adopt, in view of the divergences between the various Member States concerning the tariff classification of goods, a regulation definitively clarifying the tariff heading under which the goods are to be classified constitutes strong evidence of the complexity of the problem to be resolved; – that even an experienced trader may regard his customs declarations as correct where he relied, for the purposes of the tariff classification of the goods in question, on tariff information provided by the customs authorities of a Member State other than that of the authority competent to effect post-clearance recovery to a company belonging to the same group as the person liable and where the tariff classification indicated in the customs declaration was not challenged for a relatively long period by the competent authorities; – that the requirement of diligence on the part of the trader concerned must be regarded as satisfied where the trader had no doubt, in view of the existence of tariff information supplied to a company belonging to the same group as the person liable, as to the correctness of the tariff classification of the goods in question; – that it is for the national court, having regard to the circumstances of the case, to establish whether, on the basis of this interpretation, the criteria for determining the extent to which the error that resulted in non-collection of the customs duties was capable of detection are satisfied.
The requirement that the person liable should have observed, in relation to his customs declaration, ‘all the provisions laid down by the rules in force’ must be regarded as satisfied where the trader, acting in good faith, declared the goods under an incorrect tariff heading, provided that the latter was clearly and explicitly indicated together with the description of the goods in question, so that the competent customs authorities should have been able immediately and unequivocally to determine the lack of conformity with the correct tariff heading. 2. Article 13 of Regulation No 1430/79, which empowers the competent authorities to repay or remit import and export duties in special situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned, must be interpreted in the light of the following considerations: The fact that a trader has relied on incorrect information supplied to a company belonging to the same group as the person liable by a competent customs authority in a Member State other than that of the customs authority competent to effect post-clearance recovery may constitute a special situation of the kind referred to in that article. It is for the national court to establish whether both the other preconditions for the application of Article 13, namely the absence of obvious negligence or deception and due compliance with procedural rules, have been satisfied. 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.
Citations:
C-250/91, [1993] EUECJ C-250/91
Links:
European, Customs and Excise
Updated: 01 June 2022; Ref: scu.160788