Language of document : ECLI:EU:T:2016:742

Case T‑466/14

Kingdom of Spain

v

European Commission

(Customs union — Importation of tuna products from El Salvador — Post-clearance recovery of import duties — Application for non-recovery of import duties — Article 220(2)(b) and Article 236 of Regulation (EEC) No 2913/92 — Right to sound administration under Article 872a of Regulation (EEC) No 2454/93 — Error of the competent authorities not reasonably capable of being detected)

Summary — Judgment of the General Court (Fifth Chamber), 15 December 2016

1.      EU law — Principles — Rights of defence — Right to be heard — Obligation on national authorities to comply with those principles in the context of a procedure for recovering customs duties — Scope

(Charter of Fundamental Rights of the European Union, Arts 41(2), 47 and 48; Commission Regulation No 2454/93, Arts 872, 872a and 873)

2.      Own resources of the European Union — Post-clearance recovery of import or export duties — Conditions for not taking account of import duties set out in Article 220(2)(b) of Regulation No 2913/92 — Cumulative nature

(Council Regulation No 2913/92, as amended by Regulation No 2700/2000, Art. 220(2)(b))

3.      Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the reply stage — Inadmissibility

(Rules of Procedure of the General Court, Arts 76(d), and 84(1))

4.      Own resources of the European Union — Post-clearance recovery of import or export duties — Conditions for not taking account of import duties set out in Article 220(2)(b) of Regulation No 2913/92 — Error by the authorities not reasonably detectable by the taxpayer — Errors appearing in a certificate of origin (formula A) — Criteria for assessment

(Council Regulation No 2913/92, as amended by Regulation No 2700/2000, Art. 220(2)(b))

5.      Own resources of the European Union — Post-clearance recovery of import or export duties — Conditions for not taking account of import duties set out in Article 220(2)(b) of Regulation No 2913/92 — Criteria for assessment

(Council Regulation No 2913/92, as amended by Regulation No 2700/2000, Art. 220(2)(b))

6.      Own resources of the European Union — Post-clearance recovery of import or export duties — Conditions for not taking account of import duties set out in Article 220(2)(b) of Regulation No 2913/92 — Good faith of the taxpayer — Concept — Connection with the condition concerning lack of awareness of the error by the customs authorities

(Council Regulation No 2913/92, as amended by Regulation No 2700/2000, Art. 220(2)(b))

7.      Own resources of the European Union — Post-clearance recovery of import or export duties — Conditions for not taking account of import duties set out in Article 220(2)(b) of Regulation No 2913/92 — Compliance with the legislation in force concerning the customs declaration — Scope

(Council Regulation No 2913/92, as amended by Regulation No 2700/2000, Art. 220(2)(b))

8.      Own resources of the European Union — Post-clearance recovery of import or export duties — Conditions for not taking account of import duties set out in Article 220(2)(b) of Regulation No 2913/92 — Error by the authorities not reasonably detectable by the taxpayer — Criteria for assessment

(Council Regulation No 2913/92, as amended by Regulation No 2700/2000, Art. 220(2)(b))

9.      Own resources of the European Union — Post-clearance recovery of import or export duties — Conditions for not taking account of import duties set out in Article 220(2)(b) of Regulation No 2913/92 — Obligation to provide the customs authorities with all the necessary information required by the EU and national law

(Council Regulation No 2913/92, as amended by Regulation No 2700/2000, Art. 84)

1.      See the text of the decision.

(see paras 39-42)

2.      See the text of the decision.

(see paras 47-50, 124)

3.      See the text of the decision.

(see paras 71-73)

4.      See the text of the decision.

(see paras 79-81, 86)

5.      The second to fifth subparagraphs of Article 220(2)(b) of Regulation No 2913/92 establishing the Community Customs Code (CCC) lay down specific rules under which there is no post-clearance entry in the accounts of import duties owed where the preferential status of goods is established on the basis of a system of administrative cooperation involving the authorities of a non-member country.

In that regard, the examination of an application for waiver of post-clearance recovery of import duties must be conducted in the light of the second subparagraph of Article 220(2)(b) of the Community Customs Code.

Nevertheless, the said examination must also be carried out taking into account the provisions of the first subparagraph of Article 220(2)(b) of the CCC and, therefore, of the cumulative conditions it contains and which must be satisfied, in addition to the condition requiring the error committed by the competent authorities to be reasonably detectable, namely that the person liable must have acted in good faith and complied with all the provisions laid down by the legislation in force.

(see paras 106, 107)

6.      As regards the condition relating to the good faith of the person liable, it is apparent from the fourth subparagraph of Article 220(2)(b) of the CCC that the person liable may plead good faith when he can demonstrate that, during the period of the trading operations concerned, he has taken due care to ensure that all the conditions for preferential treatment have been fulfilled.

None the less, the condition concerning the good faith of the operator is to some extent related to the condition concerning the lack of knowledge of the error committed by the customs authorities. The question whether the operator acted in good faith involves, in particular, determining whether he might not reasonably have been able to detect the error made by the competent authorities.

In that regard, recital 11 of Regulation No 2700/2000, amending Regulation No 2913/92, must be interpreted as evidence that the good faith of the person liable is to be examined where the error committed by the authorities of a non-member country has resulted in the issue of an incorrect certificate, regardless of the origin of that error, whether it lay with the authorities in question or was prompted by an incorrect account of the facts by the exporter.

(see paras 108, 110, 112, 118, 122)

7.      See the text of the decision.

(see para. 125)

8.      The error on the part of the competent authorities must be such that the person liable, acting in good faith, could not reasonably have been able to detect it in spite of the professional experience and exercise of due care required of him. It is true that professional experience does not, in itself, preclude the good faith of the operator or the non-detectability of the error. However, it can be expected that an experienced professional would pay greater attention to administrative and factual details the appraisal of which is an ordinary part of his activities, particularly so that he can identify more easily any departure from correct standard practice. As regards due care, the onus is on the trader, where he has doubts, to make inquiries and seek all possible clarification to ensure that he does not infringe the relevant provisions.

In that regard, it is undeniable that the condition concerning the non-detectability of the error committed by the competent authorities is to some extent related to the question of the good faith of the person liable. However, it cannot be accepted that the automatic and necessary consequence of the presumption that the error was not reasonably capable of detection, which results from the application of the second subparagraph of Article 220(2)(b) of the CCC, inserted by Regulation No 2700/2000, is a finding that the person liable acted in good faith.

(see paras 131, 133, 134, 143)

9.      The person making the declaration must supply the competent customs authorities with all the necessary information as required by the EU rules, and by any national rules supplementing or transposing them, in relation to the customs treatment requested for the goods in question.

However, that obligation may not go beyond production of the information that the person making the declaration may reasonably be expected to possess and obtain, with the result that it is sufficient for such information, even if incorrect, to have been provided in good faith.

(see paras 176, 177)