ECJ 1. The first subparagraph of Article 5(2) of Council Regulation No 1697/79 provides that the competent authorities may refrain from taking action for the post-clearance recovery of import or export duties which have not been 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 for his part having 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 part of that provision must be interpreted as meaning that it confers on the competent national authorities a non-discretionary power as regards the decision not to carry out post-clearance recovery of import duties when the abovementioned conditions have been fulfilled.
The errors referred to comprise all errors of interpretation or application of the provisions on import duties and export duties which could not reasonably have been detected by the person liable, in so far as they are the consequence of acts of either the authorities responsible for post-clearance recovery or the authorities of the exporting Member State, which excludes errors caused by incorrect declarations by the person liable, except in cases where their incorrectness is merely the consequence of incorrect information given by the competent authorities which is binding upon them.
The last part of the same provision must be interpreted as meaning that it applies to circumstances in which the person liable has fulfilled all the requirements laid down by both the Community rules on customs declarations and any national rules which supplement or implement them, even if he supplied, in good faith, incorrect or incomplete information to the competent national authorities, provided that that information is the only information which he could reasonably have knowledge of or obtain.
2. The power conferred on the Commission by Article 4 of Commission Regulation (EEC) No 1573/80 laying down provisions for the implementation of Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import duties or export duties does not cover decisions to effect post-clearance recovery. It is limited to decisions to refrain from carrying out post-clearance recovery where the amount of the duties involved is equal to or greater than ECU 2 000, even where a person liable has submitted a reasoned request directed against a decision to recover duties taken by the competent national authorities.
It follows that when the person liable submits a request that action for post-clearance recovery of import duties or export duties should not be taken, it is for the national authorities to take a decision on that request and it is not incumbent upon them to refer the case for consideration by the Commission unless they intend not to recover an amount of duties equal to or greater than ECU 2 000.
3. A national court which in a case concerning Community law declares a provision of national law unconstitutional does not lose the right or escape the obligation under Article 177 of the EEC Treaty to refer questions to the Court of Justice on the interpretation or validity of Community law by reason of the fact that such a declaration is subject to a mandatory reference to the constitutional court.
4. It is for the national court, pursuant to the second paragraph of Article 177 of the EEC Treaty, to decide whether the questions of law raised by the case before it are relevant, whether a preliminary ruling is necessary for it to be able to give judgment and at which stage of the proceedings a question must be referred to the Court for a preliminary ruling.
C-348/89,  EUECJ C-348/89
Updated: 01 June 2022; Ref: scu.160373