JUDGMENT OF THE COURT (Sixth Chamber)

11 November 1999 (1)

(Community Customs Code and implementing Regulation - Exceeding of time-limits for the customs clearance of non-Community goods in temporary storage- Failure having 'no significant effect on the correct operation of the temporarystorage or customs procedure in question‘ - Extension of period - 'Obviousnegligence‘)

In Case C-48/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234EC) by the Finanzgericht Bremen (Germany) for a preliminary ruling in theproceedings pending before that court between

Firma Söhl & Söhlke

and

Hauptzollamt Bremen,

on the interpretation of Articles 49, 204 and 239 of Council Regulation (EEC) No2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992L 302, p. 1) and Article 212a of Regulation No 2913/92, as amended by Regulation(EC) No 82/97 of the European Parliament and of the Council of 19 December1996 (OJ 1997, L 17, p. 1) and on the validity and interpretation of Article 859 andthe interpretation of Articles 900 and 905 of Commission Regulation (EEC) No2454/93 of 2 July 1993 laying down provisions for the implementation of RegulationNo 2913/92 (OJ 1993 L 253, p. 1), as amended by Article 1(29) of CommissionRegulation (EC) No 3254/94 of 19 December 1994 (OJ 1994 L 346, p. 1),

THE COURT (Sixth Chamber),

composed of: R. Schintgen (Rapporteur), President of the Second Chamber actingfor the President of the Sixth Chamber, P.J.G. Kapteyn and H. Ragnemalm,Judges,

Advocate General: F.G. Jacobs,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

-    Firma Söhl & Söhlke by H. Glashoff, Financial Adviser, and H.-J. Stiehle,Rechtsanwalt, Frankfurt am Main,

    -    Hauptzollamt Bremen by M. Tischler, Zolloberamtrat at the HauptzollamtBremen, acting as Agent,

    

-    the German Government by E. Röder, Ministerialrat at the FederalMinistry of the Economy, and C.D. Quassowksi, Regierungsdirektor at thesame Ministry, acting as Agents,

    -    the United Kingdom Government by D. Cooper, of the Treasury Solicitor'sDepartment, acting as Agent, and S. Moore, Barrister,

    -    the Commission of the European Communities by R. Tricot, of its LegalService, and K. Schreyer a national civil servant on secondment to the LegalService, acting as Agents, and R. Bierwagen, of the Brussels Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of Firma Söhl & Söhlke, represented by H.-J.Stiehle, of the German Government, represented W.-D. Plessing, Ministerialrat atthe Federal Ministry of Finance, acting as Agent, and of the Commission,represented by K. Schreyer and R. Bierwagen, at the hearing on 11 February 1999,

after hearing the Opinion of the Advocate General at the sitting on 29 April 1999,

gives the following

Judgment

1.

    By order of 2 December 1997, received at the Court on 24 February 1998, theFinanzgericht (Finance Court) Bremen referred to the Court for a preliminaryruling under Article 177 of the EC Treaty (now Article 234 EC) seven questionson the interpretation of Articles 49, 204 and 239 of Council Regulation (EEC) No2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992L 302, p. 1, hereinafter 'the Customs Code‘) and Article 212a of Regulation No2913/92, as amended by Regulation (EC) No 82/97 of the European Parliamentand of the Council of 19 December 1996 (OJ 1997, L 17, p. 1) and on the validityand interpretation of Article 859 and the interpretation of Articles 900 and 905 ofCommission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisionsfor the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1), asamended by Article 1(29) of Commission Regulation (EC) No 3254/94 of 19December 1994 (OJ 1994 L 346, p. 1, hereinafter 'the implementing Regulation‘).

2.

    Those questions were raised in proceedings between the German undertakingFirma Söhl & Söhlke (hereinafter 'Söhl & Söhlke‘), a textile business, andHauptzollamt (Principal Customs Office) Bremen (hereinafter 'the Hauptzollamt‘)concerning several notices of assessment in respect of customs clearances relatingto the period from February to December 1994.

The relevant Community provisions

3.

    Article 49 of the Customs Code states:

'1.    Where goods are covered by a summary declaration, the formalitiesnecessary for them to be assigned a customs-approved treatment or use must becarried out within:

    (a)    ...

    (b)    20 days from the date on which the summary declaration is lodged inthe case of goods carried otherwise than by sea.

2.    Where circumstances so warrant, the customs authorities may set a shorterperiod or authorise an extension of the periods referred to in paragraph 1. Suchextension shall not, however, exceed the genuine requirements which are justifiedby the circumstances.‘

4.

    Article 204(1) of the Customs Code provides:

'A customs debt on importation shall be incurred through:

(a)    non-fulfilment of one of the obligations arising, in respect of goods liable toimport duties, from their temporary storage or from the use of the customsprocedure under which they are placed,

or

(b)    ...

in cases other than those referred to in Article 203 unless it is established thatthose failures have no significant effect on the correct operation of the temporarystorage or customs procedure in question.‘

5.

    Article 203 of the Customs Code refers to the unlawful removal from customssupervision of goods liable to import duties.

6.

    Regulation No 82/97, which entered into force on 1 January 1997, inserted into theCustoms Code a new Article 212a which reads as follows:

'Where customs legislation provides for partial or total exemption from import orexport duties pursuant to Articles 18[4] to 187, such partial or total exemption shallalso apply in cases where a customs debt is incurred pursuant to Articles 202 to205, 210 or 211 where the behaviour of the declarant implies neither fraudulentdealing nor manifest negligence and he produces evidence that the other conditionsfor the application of relief or exemption have been satisfied.‘

7.

    Article 239 of the Customs Code provides:

'1.    Import duties or export duties may be repaid or remitted in situations otherthan those referred to in Articles 236, 237, and 238:

    -    to be determined in accordance with the procedure of the committee,

-    resulting from circumstances in which no deception or obvious negligencemay be attributed to the person concerned. The situations in which thisprovision may be applied and the procedures to be followed to that endshall be defined in accordance with the Committee procedure. Repaymentor remission may be made subject to special conditions.

2.    Duties shall be repaid or remitted for the reasons set out in paragraph 1upon submission of an application to the appropriate customs office within 12months from the date on which the amount of the duties was communicated to thedebtor.

However, the customs authorities may permit this period to be exceeded in dulyjustified exceptional cases.‘

8.

    Articles 236, 237 and 238 of the Customs Code concern the situations in which,respectively, duties were not legally owed, the customs declaration is invalidatedand the goods concerned have been rejected by the importer because they aredefective or do not comply with the terms of the contract.

9.

    Under Article 243 of the Customs Code:

'1.    Any person shall have the right to appeal against decisions taken by thecustoms authorities which relate to the application of customs legislation, and whichconcern him directly and individually.

Any person who has applied to the customs authorities for a decision relating tothe application of customs legislation and has not obtained a ruling on that requestwithin the period referred to in Article 6(2) shall also be entitled to exercise theright of appeal.

The appeal must be lodged in the Member State where the decision has beentaken or applied for.

2.    The right of appeal may be exercised:

(a)    initially, before the customs authorities designated for that purpose by theMember States;

(b)    subsequently, before an independent body, which may be a judicial authorityor an equivalent specialised body, according to the provisions in force in theMember States.‘

10.

    Article 245 of the Customs Code states:

'The provisions for the implementation of the appeals procedure shall bedetermined by the Member States.‘

11.

    Under Article 249 of the Customs Code:

'1.    The provisions required for the implementation of this Code, includingimplementation of the Regulation referred to in Article 184, except for Title VIIIand subject to Articles 9 and 10 of Council Regulation (EEC) No 2658/87 and toparagraph 4, shall be adopted in accordance with the procedure laid down inparagraphs 2 and 3, in compliance with the international commitments entered intoby the Community.

2.    The representative of the Commission shall submit to the committee a draftof the measures to be taken. The committee shall deliver its opinion on the draftwithin a time-limit which the chairman may lay down according to the urgency ofthe matter. The opinion shall be delivered by the majority laid down in Article148(2) of the Treaty in the case of decisions which the Council is required to adopton a proposal from the Commission. The votes of the representatives of theMember States within the committee shall be weighted in the manner set out inthat Article. The chairman shall not vote.

    3.     (a)    The Commission shall adopt the measures envisaged if they are inaccordance with the opinion of the committee.

    (b)    If the measures envisaged are not in accordance with the opinion ofthe committee, or if no opinion is delivered, the Commission shall,without delay, submit to the Council a proposal relating to theprovisions to be adopted. The Council shall act by a qualifiedmajority.

    (c)    If, on the expiry of a period of three months from the date of referralto the Council, the Council has not acted, the proposed measuresshall be adopted by the Commission.

4.    The provisions necessary for implementing Articles 11, 12 and 21 shall beadopted by the procedure referred to in Article 10 of Regulation (EEC) No2658/87.‘

12.

    The seventh and eighth recitals in the preamble to the Customs Code provide:

'... it is important to guarantee the uniform application of this Code and toprovide, to that end, for a Community procedure which enables the procedures forits implementation to be adopted within a suitable time; ... a Customs CodeCommittee should be set up in order to ensure close and effective cooperationbetween the Member States and the Commission in this field;

... in adopting the measures required to implement this Code, the utmost care mustbe taken to prevent any fraud or irregularity liable to affect adversely the GeneralBudget of the European Communities‘.

13.

    Article 859 of the implementing Regulation states:

'The following failures shall be considered to have no significant effect on thecorrect operation of the temporary storage or customs procedure in question withinthe meaning of Article 204(1) of the Code, provided:

    -    they do not constitute an attempt to remove the goods unlawfully fromcustoms supervision,

    -    they do not imply obvious negligence on the part of the person concerned,and

    -    all the formalities necessary to regularise the situation of the goods aresubsequently carried out:

1.    exceeding the time-limit allowed for assignment of the goods to one of thecustoms-approved treatments or uses provided for under the temporarystorage or customs procedure in question, where the time-limit would havebeen extended had an extension been applied for in time;

2.    in the case of goods placed under a transit procedure, exceeding the time-limit for presentation of the goods to the office of destination, where suchpresentation takes place later;

3.    in the case of goods placed in temporary storage or under the customswarehousing procedure, handling not authorised in advance by the customsauthorities, provided such handling would have been authorised if appliedfor;

4.    in the case of goods placed under the temporary importation procedure, useof the goods otherwise than as provided for in the authorisation, providedsuch use would have been authorised under that procedure if applied for;

5.    in the case of goods in temporary storage or placed under a customsprocedure, unauthorised movement of the goods, provided the goods canbe presented to the customs authorities at their request;

6.    in the case of goods in temporary storage or placed under a customsprocedure, removal of the goods from the customs territory of theCommunity or their entry into a free zone or free warehouse withoutcompletion of the necessary formalities;

7.    in the case of goods having received favourable tariff treatment by reasonof their end-use, transfer of the goods without notification to the customsauthorities, before they have been put to the intended use, provided that:

    (a)    the transfer is recorded in the transferor's stock records; and

    (b)    the transferee is the holder of an authorisation for the goods inquestion.‘

14.

    Under Article 860 of the implementing Regulation:

'The customs authorities shall consider a customs debt to have been incurredunder Article 204(1) of the Code unless the person who would be the debtorestablishes that the conditions set out in Article 859 are fulfilled.‘

15.

    Article 899 of the implementing Regulation provides that 'where the decision-making customs authority establishes that an application for repayment orremission submitted to it under Article 239(2) of the Code:

    -    is based on grounds corresponding to one of the circumstances referred toin Articles 900 to 903, and that these do not result from deception orobvious negligence on the part of the person concerned, it shall repay orremit the amount of import duties concerned.

    ”The person concerned” shall mean the person or persons referred to inArticle 878(1), or their representatives, and any other person who wasinvolved with the completion of the customs formalities relating to the goodsconcerned or gave the instructions necessary for the completion of theseformalities,

    -    is based on grounds corresponding to one of the circumstances referred toin Article 904, it shall not repay or remit the amount of import dutiesconcerned.‘

16.

    Article 900(1)(o) of the implementing Regulation, as inserted by Article 1(29) ofRegulation No. 3254/94 with effect from 1 January 1994, states:

'Import duties shall be repaid or remitted where:

...

(o)    the customs debt has been incurred otherwise than under Article 201 of theCode and the person concerned is able to produce a certificate of origin, amovement certificate, an internal Community transit document or otherappropriate document showing that if the imported goods had been enteredfor free circulation they would have been eligible for Community treatmentor preferential tariff treatment, provided the other conditions referred to inArticle 890 were satisfied.‘

17.

    Under Article 905(1) of the implementing Regulation:

'Where the decision-making customs authority to which an application forrepayment or remission under Article 239(2) of the Code has been submittedcannot take a decision on the basis of Article 899, but the application is supportedby evidence which might constitute a special situation resulting from circumstancesin which no deception or obvious negligence may be attributed to the personconcerned, the Member State to which this authority belongs shall transmit the caseto the Commission to be settled under the procedure laid down in Articles 906 to909.

The term ”the person concerned” shall be interpreted in the same way as in Article899.

In all other cases, the decision-making customs authority shall refuse theapplication.‘

18.

    The fourteenth and fifteenth recitals in the preamble to Regulation No 3254/94provide:

'... Article 890 of Regulation (EEC) No 2454/93 provides that duties may be repaidor remitted on imports eligible for Community treatment or preferential tarifftreatment, where a customs debt has been incurred as a result of release for freecirculation;

... there are also cases in which the importer is able to produce a documentshowing entitlement to such preferential treatment but the customs debt has beenincurred for reasons other than release for free circulation; ... the obligation to payduty in such cases, where no deception or obvious negligence is involved, isdisproportionate to the need for protection which the common customs tariff isintended to provide‘.

The dispute in the main proceedings

19.

    Söhl & Söhlke imports goods under outward processing arrangements and re-exports some non-Community goods introduced into the customs territory of theCommunity. In 1994 non-Community goods were regularly dispatched to Bremenunder the transit procedure, presented at the Hauptzollamt and released fortemporary storage with Söhl & Söhlke.

20.

    In August 1993 Söhl & Söhlke informed the Hauptzollamt that computerisation ofits customs calculations, which would enable clearance to be effected more rapidly,had not yet been completed and consequently it would not always be possible tomeet the 20-day time-limit for customs clearance laid down in Article 49(1) of theCustoms Code.

21.

    In January 1994 the Hauptzollamt informed Söhl & Söhlke that, having regard tothe entry into force of the Customs Code on 1 January 1994, it would no longerdraw its attention to the expiry of time-limits in respect of goods released to it fortemporary storage. At the same time Söhl & Söhlke was informed that a customsdebt on importation had been incurred under Article 204(1)(a), read in conjunctionwith Article 49, of the Customs Code.

22.

    From mid-February to the end of 1994 Söhl & Söhlke regularly failed to meet theprescribed time-limits for assigning to goods a customs-approved treatment or use.By a letter of 12 October 1994, the Hauptzollamt pointed out to Söhl & Söhlke theconsequences of that behaviour in terms of customs debts and requested it to setout its reasons for failing to meet the deadlines. Söhl & Söhlke did not reply to thatletter but subsequently made several requests for the time-limits to be extended,referring to the considerable backlog of work that had unforeseeably arisen as aresult of the computerisation of its accounting procedure and staff shortages dueto illness. The Hauptzollamt refused several of those requests by a decision of 20December 1994.

23.

    Between 20 October 1994 and 15 February 1995 the Hauptzollamt issued 125notices of assessment on the basis of Article 204(1)(a) of the Customs Codeconcerning customs clearances carried out between February and December 1994.

24.

    Söhl & Söhlke lodged objections against all the notices of assessment, essentiallyarguing that no customs debt had been incurred under Article 204(1)(a) of theCustoms Code because its failures had had no significant effect on the correctoperation of the temporary storage or customs procedure in question. In thealternative, it applied, pursuant to Article 239 of the Customs Code, read inconjunction with Article 900(1)(o) of the implementing Regulation, for repaymentof the import duties that had been paid.

25.

    By two decisions of 23 May 1995 the Hauptzollamt rejected the objections lodgedby Söhl & Söhlke and dismissed its application made in the alternative forrepayment. By a decision of 12 May 1997 it dismissed the appeal which Söhl &Söhlke had lodged against the Hauptzollamt's refusal of its application forrepayment.

26.

    In June 1995 Söhl & Söhlke brought an action before the Finanzgericht seeking theannulment of the duties fixed in the decision of 23 May 1995 issued in response toits objections to the notices of assessment. In June 1997 it brought an action beforethe same court challenging the decision of 12 May 1997 dismissing its appealagainst the decision to refuse its application for repayment.

27.

    The Finanzgericht Bremen, which ordered that the two cases should be joined,decided to stay proceedings and refer the following questions to the Court for apreliminary ruling:

'1.    Does Article 859 of Commission Regulation (EEC) No 2454/93 of 2 July1993 laying down provisions for the implementation of Council Regulation(EEC) No 2913/92 establishing the Community Customs Code (OJ 1993L 253, p. 1) (”the implementing Regulation”) contain a validly constitutedand exhaustive set of rules on failures, within the meaning of Article204(1)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992establishing the Community Customs Code (OJ 1992 L 302, p. 1) (”theCustoms Code”), which ”have no significant effect on the correct operationof the temporary storage or customs procedure in question”?

2.    If Question 1 is to be answered in the affirmative:

    (a)    Where an application is made in time for an extension of the time-limit referred to in Article 859(1) of the implementing Regulation, isthe national court precluded from examining of its own motion thecriteria for the grant of such an extension where it has been refusedby a now unappealable decision of the customs authority?

    (b)    Is it permissible for an application for an extension to relate not todeclarations to be listed individually but instead globally to alldeclarations to be made within a given period (in this case, severalmonths), where reference is made, by way of justification, to specialproblems existing during that period in the applicant's business (forexample, the fact that employees have suddenly fallen ill or have beenabsent on leave, the induction of new employees, problems with theapplication of a data processing system developed for the purposes ofcarrying out customs formalities or, in cases involving outwardprocessing, the excessive work involved in the preparation ofattributions which should in fact have been prepared by the customsauthorities), without obvious negligence arising under the secondindent of Article 859 of the implementing Regulation?

3.    If Question 1 is to be answered in the negative:

    

    Must it be assumed that the numerous instances of failure to comply in timewith the obligation to assign to goods presented to customs a customs-approved treatment or use are to be considered to ”have no significanteffect on the correct operation of the temporary storage or customsprocedure in question” where such treatment or use is assigned to the goodsafter the time-limit has expired and an extension of the time allowed forsuch assignment would not have been justified under Article 49(2) of theCustoms Code?

4.    If Question 2(b) or Question 3 is to be answered in the negative:

    Is Article 900(1)(o) of the implementing Regulation, as inserted by Article1(29) of Commission Regulation (EC) No 3254/94 of 19 December 1994(OJ 1994 L 346, p. 1), concerning eligibility for preferential rates orCommunity treatment, also applicable to the grant of other forms ofpreferential tariff treatment?

5.    If Question 4 is to be answered in the negative:

    Where a claim is made for repayment, are the customs authorities andcourts required to examine of their own motion whether all relevant criteriafor repayment are fulfilled, even in the event that the claimant expresslybases his claim for repayment on one legal criterion only, thus rendering itnecessary, in circumstances such as those of the present case, to examinewhether the conditions laid down in the second indent of Article 239(1) ofthe Customs Code in conjunction with the first sentence of Article 905(1)of the implementing Regulation are fulfilled with regard to declarations forentry into free circulation in which valid movement certificates on FormEUR.1 or certificates of origin on Form A have been produced, and wherethere exists the possibility of total or partial exemption from import dutiesof goods which have been re-imported following outward processing(differential customs clearance) or goods returned following repair?

6.    Where the repayment criteria laid down in Article 900(1)(o) of theimplementing Regulation are fulfilled, can it ordinarily be assumed that theperson concerned has not acted with any fraudulent intent or in a mannerwhich is obviously negligent?

7.    If Question 6 and/or Question 4 are to be answered in the negative:

    Should the term ”offensichtliche Fahrlässigkeit” (obvious negligence) in thesecond indent of Article 239(1) of the Customs Code be defined accordingto objective and/or subjective criteria, and does it have the same meaningas the term ”grobe Fahrlässigkeit” (obvious negligence) in the second indentof Article 859 of the implementing Regulation and the term ”offenkundigeFahrlässigkeit” (manifest negligence) in Article 212a? Can no ”obviousnegligence” be said to exist within the meaning of Article 239 of theCustoms Code where customs debts on importation have been incurredunder Article 204(1)(a) because, for reasons such as those given by way ofexample in Question 2(b), there has been non-compliance over a period ofmany months with the time-limit laid down in Article 49(1) of the CustomsCode and no circumstances justifying extensions of time existed, with theresult that there was also obvious negligence under the second indent ofArticle 859 of the implementing Regulation?‘

28.

    As a preliminary point, it would appear expedient to deal with the third questionafter the first and to answer the seventh question before the second.

First question

29.

    By its first question, the national court asks essentially whether Article 859 of theimplementing Regulation contains a validly constituted and exhaustive set of ruleson failures, within the meaning of Article 204(1) of the Customs Code, which'have no significant effect on the correct operation of the temporary storage orcustoms procedure in question ‘.

30.

    Söhl & Söhlke and the German Government argue that the Commission did nothave a sufficient legal basis to list exhaustively, in the implementing Regulation, thesituations liable to be covered by the proviso at the end of Article 204(1) of theCustoms Code.

31.

    However, the Commission submits that by Articles 204 and 249 of the CustomsCode the Council provided it with a sufficient legal basis on which to enact, inagreement with the Customs Code Committee (hereinafter 'the Committee‘),exhaustive rules such as those contained in Article 859 of the implementingRegulation. In its view, the objective of uniform application of the Customs Codein all the Member States necessitated the adoption of such exhaustive rules.

32.

    In that context it should be borne in mind, first of all, that it follows from the case-law of the Court that where a provision of the EC Treaty, such as Article 28 of theEC Treaty (now, after amendment, Article 26 EC) on the basis of which theCustoms Code was adopted, in principle gives the Council power to adopt, on aproposal from the Commission, rules on a specified matter, Articles 145 and 155(now Articles 202 EC and 211 EC) allow the Council to confer on the Commission,in the acts which the Council adopts, powers for the implementation of the ruleswhich the Council lays down. Article 145 nevertheless provides that the Councilmay also reserve the right, in specific cases, to exercise those powers itself (see inparticular, with regard to agriculture, Case C-240/90 Germany v Commission [1992]ECR I-5383, at paragraph 35).

33.

    However, the fact remains, first, that the Council did not, in Article 204 of theCustoms Code, reserve the right to list exhaustively the categories of failuresreferred to in that article and, secondly, that by Article 249 of the Customs Codeit conferred on the Commission the task of adopting, in accordance with aprescribed procedure closely involving the Committee, the 'provisions required forthe implementation of [the Customs] Code‘, except for certain specific provisionswhich do not include Article 204.

34.

    Secondly, according to the case-law of the Court, since the Council has laid downin its basic regulation the essential rules governing the matter in question, it maydelegate to the Commission general implementing power without having to specifythe essential components of the delegated power; for that purpose, a provisiondrafted in general terms provides a sufficient basis for the authority to act (see inparticular, with regard to agriculture, Germany v Commission, cited above, atparagraph 41).

35.

    Furthermore, Article 249 of the Customs Code constitutes a sufficient basis for theCommission to adopt a set of rules for the implementation of the Customs Codeand Article 204 in particular.

36.

    Lastly, it follows from the case-law of the Court that the Commission is authorisedto adopt all the measures which are necessary or appropriate for theimplementation of the basic legislation, provided that they are not contrary to suchlegislation or to the implementing legislation adopted by the Council (see inparticular, with regard to agriculture, Case 121/83 Zuckerfabrik Franken [1984] ECR2039, at paragraph 13; Case C-478/93 Netherlands v Commission [1995] ECR I-3081, at paragraph 31; and Joined Cases C-9/95, C-23/95 and C-156/95 Belgium andGermany v Commission [1997] ECR I-645, at paragraph 37).

37.

    Therefore, it is necessary to ascertain whether the exhaustive set of rules laid downby Article 859 of the implementing Regulation is necessary or appropriate for theimplementation of the Customs Code and whether it is contrary to that Code.

38.

    It must be observed, first, that since neither Article 204 nor any other provision ofthe Customs Code preclude the Commission from adopting exhaustive rules onfailures which 'have no significant effect on the correct operation of the temporarystorage or customs procedure in question‘, the exhaustive set of rules laid down byArticle 859 of the implementing Regulation is not contrary to the Customs Code.

39.

    Secondly, it is evident from the seventh and eighth recitals in the preamble to theCustoms Code that the Council sought to 'guarantee the uniform application‘ ofthe Code in the Member States by establishing, to that end, a specific procedureenabling the procedures for its implementation to be adopted within a suitabletime, and to ensure that 'in adopting the measures required to implement‘ theCustoms Code, the utmost care was taken 'to prevent any fraud or irregularityliable to affect adversely the General Budget of the European Communities‘.

40.

    Having regard to those objectives and the need to treat equally all traders in all theMember States, Article 859 of the implementing Regulation must be regarded notonly as appropriate but also as necessary for the implementation of the basiclegislation in that it guarantees the uniform application of a provision of theCustoms Code in all the Member States.

41.

    Moreover, since, under the fifth recital in the preamble to the implementingRegulation, 'the measures provided for by this Regulation are in accordance withthe opinion of the Customs Code Committee‘, it should be noted that Article 249of the Customs Code establishing the procedure for adopting the implementingRegulation has been complied with and that that regulation has been adopted withvalid effect.

42.

    Therefore, the objection raised by Söhl & Söhlke and the German Governmentcannot be sustained.

43.

    In the light of the foregoing considerations, the answer to the first question mustbe that Article 859 of Commission Regulation contains a validly constituted andexhaustive set of rules on failures, within the meaning of Article 204(1)(a) of theCustoms Code, which 'have no significant effect on the correct operation of thetemporary storage or customs procedure in question‘.

Third question

44.

    Having regard to the answer given to the first question, there is no need to answerthe third question.

Seventh question

45.

    By its seventh question the national court asks essentially, first, whether the terms'offenkundige Fahrlässigkeit‘, 'offensichtliche Fahrlässigkeit‘, and 'grobeFahrlässigkeit‘, which appear respectively in the German version of Article 212aof the Customs Code, as amended by Regulation No 82/97, Article 239 of theCustoms Code and Article 859 of the implementing Regulation and correspond tothe terms 'manifest negligence‘ and 'obvious negligence‘ in the English version,have the same meaning. Secondly, the national court asks what are the criteria fordetermining whether or not there is obvious negligence within the meaning ofArticle 239 of the Customs Code. Lastly, it asks whether it is possible to concludethat there was no obvious negligence ('offensichtliche Fahrlässigkeit‘) within themeaning of the second indent of Article 239(1) of the Customs Code where non-compliance with the time-limit laid down in Article 49(1) of the Customs Code,which is regarded as constituting obvious negligence ('grobe Fahrlässigkeit‘) withinthe meaning of the second indent of Article 859 of the implementing Regulation,results in a customs debt being incurred pursuant to Article 204(1)(a) of theCustoms Code.

First and third parts of the seventh question

46.

    As regards the first part of the question, it should be borne in mind first of all, that,according to settled case-law, the need for a uniform interpretation of Communityregulations makes it impossible for the text of a provision to be considered inisolation but requires, on the contrary, that it should be interpreted and applied inthe light of the versions existing in the other official languages (see, to that effect,Case C-296/95 EMU Tabac and Others [1998] ECR I-1605, at paragraph 36).

47.

    Secondly, as the Advocate General notes at paragraphs 72 and 73 of his Opinion,unlike the German version, in which the second indent of Article 239(1) of theCustoms Code, the first indent of Article 899 and Article 905(1) of theimplementing Regulation use the term 'offensichtliche Fahrlässigkeit‘, whereas thesecond indent of Article 859 of the implementing Regulation uses the term 'grobeFahrlässigkeit‘ and Article 212a of the Customs Code, as amended by RegulationNo 82/97, 'offenkundige Fahrlässigkeit‘, the French, Danish, Italian, Portugueseand Spanish versions use the same terms in all those provisions. As for the otherlanguage versions, some use two terms and others three or four, but not in thesame places.

48.

    Thus, as the Advocate General points out at paragraph 73 of his Opinion, acomparison of all the languages version of the abovementioned provisions indicatesthat the terms qualifying negligence are not used consistently. It must therefore beconcluded that the legislature was not pursuing a particular objective by usingdifferent terms in the German version. Accordingly it must be considered that theterms which qualify negligence in the abovementioned rules all have one and thesame meaning and must be understood as referring to obvious negligence('offensichtliche Fahrlässigkeit‘ in the German version).

49.

    It follows from the foregoing considerations that the terms used to qualifynegligence in the German version of Article 212a of the Customs Code, asamended by Regulation 82/97, Article 239 of the Customs Code and Article 859 ofthe implementing Regulation have one and the same meaning. In the Germanversion those terms must be understood as referring to 'offensichtliche Fahrlässigkeit‘ (obvious negligence).

50.

    As regards the third part of the seventh question, since the same term, that is tosay 'obvious negligence‘ is used in the second indent of Article 859 of theimplementing Regulation and the second indent of Article 239(1) of the CustomsCode, it is not possible to conclude that there was no obvious negligence within themeaning of the second indent of Article 239(1) where a customs debt is incurredpursuant to Article 204(1)(a) of the Customs Code as a result of behaviour whichconstitutes obvious negligence within the meaning of the second indent of Article859 of the implementing Regulation.

Second part of the seventh question.

51.

    As regards the second part of the seventh question, it should be observed first ofall that, as is evident from paragraphs 46 to 49 of this judgment, the second indentof Article 239(1) of the Customs Code and the other provisions of the CustomsCode or the implementing Regulation which form the subject-matter of thisjudgment refer to the same concept of 'obvious negligence‘.

52.

    Secondly, the repayment or remission of import and export duties, which may bemade only under certain conditions and in cases specifically provided for,constitutes an exception to the normal import and export procedure and,consequently, the provisions which provide for such repayment or remission are tobe interpreted strictly. Since a lack of 'obvious negligence‘ is an essential conditionof being able to claim repayment or remission of import or export duties, it followsthat that term must be interpreted in such a way that the number of cases ofrepayment or remission remains limited.

53.

    Thirdly, it appears that the Customs Code brought together the provisions ofcustoms law which had previously been dispersed in a large number of Communityregulations and directives. When that happened Article 13 of Council Regulation(EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import orexport duties (OJ 1979 L 175, p. 1) was essentially reproduced in Article 239 of theCustoms Code. Therefore, the case-law of the Court concerning the former mustalso apply to the latter.

54.

    It follows from the judgment in Case C-250/91 Hewlett Packard France [1993] ECRI-1819, paragraph 46, that Article 13 of Regulation No 1430/79 and Article 5(2) ofCouncil Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearancerecovery of import duties or export duties which have not been required of theperson liable for payment on goods entered for a customs procedure involving theobligation to pay such duties (OJ 1979 L 197, p. 1), pursue the same aim, namelyto limit the post-clearance payment of import and export duties to cases wheresuch payment is justified and is compatible with a fundamental principle such asthat of the protection of legitimate expectations. It follows that the conditions towhich the application of those articles is made subject, that is to say that nonegligence or deception may be attributed to the person concerned in the case ofArticle 13 of Regulation No 1430/79 and that no error has been made by thecustoms authorities which could reasonably have been detected by the person liable in the case of Article 5(2) of Regulation No 1697/79, must be interpreted in thesame manner.

55.

    Moreover, in its judgment concerning Article 5(2) of Regulation No 1697/79 inCase C-64/89 Deutscher Fernsprecher [1990] ECR I-2535, paragraph 19, the Courtheld that the question whether or not an error committed by the customsauthorities was detectable by a trader had to be examined taking account inparticular of the precise nature of the error, the professional experience of, and thecare taken by, the trader.

56.

    By analogy with those criteria, in order to determine whether or not there is'obvious negligence‘ within the meaning of the second indent of Article 239(1) ofthe Customs Code, account must be taken in particular of the complexity of theprovisions non-compliance with which has resulted in the customs debt beingincurred, and the professional experience of, and care taken by, the trader.

57.

    As regards the professional experience of the trader, it is necessary to examinewhether or not he is a trader whose business activities consist mainly in import andexport transactions and whether he had already gained some experience in theconduct of such transactions.

58.

    As regards the care taken by the trader, it must be noted that, where doubts existas to the exact application of the provisions non-compliance with which may resultin a customs debt being incurred, the onus is on the trader to make inquiries andseek all possible clarification to ensure that he does not infringe those provisions.

59.

    It is for the national court to determine, on the basis of those criteria, whetherthere is obvious negligence on the part of the trader.

60.

    In those circumstances, the answer to the second part of the seventh question mustbe that in order to determine whether or not there is 'obvious negligence‘ withinthe meaning of the second indent of Article 239(1) of the Customs Code, accountmust be taken in particular of the complexity of the provisions non-compliance withwhich has resulted in the customs debt being incurred and the professionalexperience of, and the care taken by, the trader. It is for the national court todetermine, on the basis of those criteria, whether there is obvious negligence on thepart of the trader.

Second question

61.

    The second question comprises two limbs.

First limb of the second question

62.

    By this question the national court asks essentially whether Community lawprecludes a court from determining independently whether the criterion laid downin Article 859(1) of the implementing Regulation, namely that the time-limit oughtto have been extended, is fulfilled where an application for an extension made intime has been refused by a now unappealable decision of the customs authority.

63.

    As the Commission has noted, in a case such as that in the main proceedings, inwhich the customs authorities are alleging a failure on the part of the trader in thathe did not comply with the time-limit laid down in Article 49(1) of the CustomsCode after they had refused an extension of that time-limit by a now unappealabledecision, no provision of the Customs Code or the implementing Regulationprecludes a national court from determining independently whether the said failureis covered by Article 859(1) of the implementing Regulation.

64.

    Contrary to the contentions of the United Kingdom Government, no suchprohibition is apparent from the wording of Article 859(1) of the implementingRegulation. That provision constitutes just one of the failures set out in Article 859of the implementing Regulation which may, under certain conditions, be consideredto have no significant effect on the correct operation of the temporary storage orcustoms procedure in question within the meaning of Article 204(1) of the CustomsCode.

65.

    Furthermore, although Article 243 of the Customs Code grants all traders a rightto appeal against decisions taken by the customs authorities which relate to theapplication of customs legislation, and which concern them directly and individually,Article 245 of the Customs Code leaves it to the Member States to determine theprovisions for the implementation of the appeals procedure.

66.

    It should be added that in any event the Court has held that in the absence ofCommunity rules governing a matter, it is for the domestic legal system of eachMember State to designate the courts and tribunals having jurisdiction and to laydown the detailed procedural rules governing actions for safeguarding rights whichindividuals derive from the direct effect of Community law, it being understood thatsuch rules must not be less favourable than those governing similar domesticactions nor render virtually impossible or excessively difficult the exercise of rightsconferred by Community law (see, in particular, Case 33/76 Rewe [1976] ECR 1989,at paragraph 5; Case 45/76 Comet [1976] ECR 2043, at paragraphs 12 to 16, andCase C-312/93 Peterbroeck [1995] ECR I-4599, at paragraph 12).

67.

    In the light of the foregoing considerations, the answer to the first limb of thesecond question must be that Community law does not preclude a national courtfrom determining independently whether the criterion laid down in Article 859(1)of the implementing Regulation, namely that the time-limit ought to have beenextended, is fulfilled where an application for an extension made in time has beenrefused by a now unappealable decision of the customs authority.

Second limb of the second question

68.

    By this question, the national court asks essentially, first of all, what circumstancescan justify an extension of the time-limit referred to in Article 49(1) of the CustomsCode and whether problems peculiar to an undertaking, such as the fact thatemployees have suddenly fallen ill or have been absent on leave, the induction ofnew employees, problems with the application of a data processing systemdeveloped for the purposes of carrying out customs formalities or, in cases involvingoutward processing, the excessive work involved in the preparation of attributionswhich ought normally to be prepared by the customs authorities, might constitutesuch a circumstance. Secondly, the national court seeks to ascertain whether anapplication for an extension must be made in respect of each declaration orwhether a single application may be made in respect of several declarations to bemade within a given period, that is to say a period of several months in the mainproceedings. Lastly, the national court asks whether there is obvious negligencewithin the meaning of the second indent of Article 859 of the implementingRegulation where the criteria justifying an extension are not satisfied andapplications for an extension are submitted late.

69.

    As regards the circumstances which may justify an extension of the time-limit, itshould be noted that Article 49(2) of the Customs Code allows customs authoritiesto extend the time-limit for carrying out the formalities required to assign to goodscovered by a summary declaration a customs-approved treatment or use '[w]herecircumstances so warrant‘, but such extension may not exceed 'the genuinerequirements which are justified by the circumstances‘.

70.

    Since it is not possible to determine the circumstances which can justify anextension from the wording of that Article, it is necessary to examine whether thosecircumstances may be determined from the purpose of that provision.

71.

    It should be noted that Article 49(1) of the Customs Code lays down short time-limits to ensure that goods presented to customs are quickly assigned a customs-approved treatment or use. Until such time as they are assigned such a customs-approved treatment or use, goods presented to customs have the status of goodsin temporary storage.

72.

    The objective of Article 49(1) of the Customs Code would not be achieved iftraders were able to rely on circumstances which were in no way exceptional inorder to obtain an extension. Such an interpretation of the term 'circumstances‘contained in that provision would lead to the result that temporary storage couldbe regularly extended and the temporary storage procedure might, in time, betransformed into a customs warehousing procedure.

73.

    Therefore, the term 'circumstances‘ within the meaning of Article 49(2) of theCustoms code must be interpreted as referring to circumstances which are liableto put the applicant in an exceptional situation in relation to other traders carryingon the same activity.

74.

    Exceptional circumstances which, although not unknown to the trader, are notevents which normally confront any trader in the exercise of his occupation, mayconstitute such circumstances.

75.

    It is for the customs authorities and the national courts and tribunals to determinein each case whether such circumstances exist.

76.

    It should, however, be added that in any event circumstances such as those givenby way of example by the national court do not constitute circumstances which mayjustify an extension of the time-limit referred to in Article 49(1) of the CustomsCode.

77.

    In the light of the foregoing considerations, the answer to the first part of thesecond limb of the second question must be that only circumstances liable to putthe applicant in an exceptional situation in relation to other traders carrying on thesame activity can justify an extension of the time-limit referred to in Article 49(1)of the Customs Code. Exceptional circumstances which, although not unknown tothe trader, are not events which would normally confront any trader in the exerciseof his occupation may constitute such circumstances. It is for the customsauthorities and the national courts to determine in each case whether suchcircumstances exist.

78.

    As regards the question whether an application for an extension must be made foreach declaration or whether a single application may be made for severaldeclarations to be made within a given period - a period of several months in themain proceedings - it must be noted, first, that the wording of Article 49(2) of theCustoms Code does not preclude a trader from lodging a single application forseveral summary declarations.

79.

    Secondly, as is apparent from the sixth recital in the preamble to the CustomsCode, a particular objective thereof is to ensure that 'customs formalities andcontrols should be ... kept to a minimum‘. The fact that a trader may lodge a singleapplication for an extension of the prescribed time-limit for assigning to goodscovered by several summary declarations a customs-approved treatment or uselimits the customs formalities which that trader has to carry out.

80.

    Therefore, nothing precludes, in principle, a trader from lodging a singleapplication for an extension of the prescribed time-limit for assigning to goodscovered by several summary declarations a customs-approved treatment or use.

81.

    However, it follows from Article 49 of the Customs Code, read in conjunction withArticle 859(1) of the implementing Regulation, that an application for an extensionof the prescribed time-limit for assigning to goods in temporary storage a customs-approved treatment or use cannot be lodged with valid effect before that time-limithas expired. Therefore, in the case of a single application a time-limit may beextended only in respect of goods in relation to which the prescribed time-limit forassigning a customs-approved treatment or use has not yet expired.

82.

    In the light of the foregoing considerations, the answer to the second part of thesecond limb of the second question must be that Community law does not precludea trader from lodging a single application for an extension of the prescribed time-limit for assigning to goods covered by several summary declarations a customs-approved treatment or use. However, even in the case of a single application, thetime-limit may be extended only in respect of goods in relation to which theprescribed time-limit for assigning a customs-approved treatment or use has not yetexpired.

83.

    As regards the third part of the second limb of the second question, it is for thenational court to determine whether, having regard to the criteria set out inparagraphs 51 to 60 of this judgment, there is obvious negligence within themeaning of the second indent of Article 859 of the implementing Regulation.

Fourth question

84.

    As regards the fourth question, it is sufficient to point out that it is quite clear fromthe wording of Article 900(1)(o) of the implementing Regulation that that provisionis designed to apply only to a case in which it is established that 'if the importedgoods had been entered for free circulation they would have been eligible forCommunity treatment or preferential tariff treatment, provided the other conditionsreferred to in Article 890 were satisfied.‘ Since that provision refers clearly to'Community treatment‘ and 'preferential tariff treatment‘, it cannot apply toother forms of favourable treatment such as, for example, complete or partialexemption from import duties for goods reimported following outward processingor goods returned following repair.

85.

    That interpretation is supported by the fifteenth recital in the preamble toRegulation No 3254/94 which added Article 900(1)(o) to the implementingRegulation. It is clear from that recital that the Article is designed to apply only tocases in which the importer is able to produce a document showing entitlement tosuch 'preferential treatment‘ but the customs debt has been incurred for reasonsother than release for free circulation.

86.

    In the light of the foregoing considerations, the answer to the fourth question mustbe that Article 900(1)(o) of the implementing Regulation applies to cases in whichthe goods would have been eligible for Community treatment or preferential tarifftreatment, but not to cases in which the goods would have been eligible for otherforms of favourable treatment.

Fifth question

87.

    By its fifth question the national court asks essentially whether the customsauthority or national court to which an application has been submitted for therepayment or remission of duties referred to in Article 239 of the Customs Codeis required, where that application is based on Article 900(1)(o) of theimplementing Regulation and repayment cannot be made pursuant to thatprovision, to examine of its own motion the merits of that application in the lightof the other provisions of Article 900 and Articles 901 to 905 of the implementingRegulation.

88.

    In that context, it should be noted, first, that it is apparent from the wording ofArticle 899 of the implementing Regulation that the decision-making customsauthority must examine whether an application for repayment or remissionsubmitted to it under Article 239(2) of the Code 'is based on groundscorresponding to one of the circumstances referred to‘ in Articles 900 to 904 of theimplementing Regulation. Therefore, in order to rule on that application thecustoms authority is required to examine the grounds on which that application isbased in the light of all the circumstances provided for in Articles 900 to 904 of theimplementing Regulation.

89.

    The fact that an applicant has based his application on a precise provision, withoutbeing required to do so by the legislation, even though the grounds adduced do notcorrespond to the circumstances referred to in that provision, does not release theauthority to which the application has been made from its duty to ascertain whetherthose grounds correspond to one of the circumstances referred to in Articles 900to 904 of the implementing Regulation. Since an application for repayment orremission referred to in Article 239 of the Customs Code does not have to specifythe provision of the implementing Regulation on which the applicant intends torely, an application which does refer to a specific legal basis must be subjected toas exhaustive an examination as other applications.

90.

    That interpretation is supported by the wording of Article 905(1) of theimplementing Regulation, from which it is clear that the implementation of theprocedure provided for in Articles 905 to 909 of the implementing Regulation issubject, in addition, to the precondition that the decision-making authority 'cannottake a decision on the basis of Article 899‘ to grant or refuse an application for therepayment or remission of import or export duties.

91.

    Secondly, the Court has held that where the customs authority is not in a position,on the basis of the grounds adduced, to take a decision to repay or remit duties onthe basis of Article 899 of the implementing Regulation, it is then required to verifywhether there is any evidence of the existence of a special situation within themeaning of Article 905(1) of the implementing Regulation, which does not entailany deception or manifest negligence on the part of the person concerned and, ifneed be, to forward the file to the Commission, which will, on the basis of theinformation placed before it, consider whether a special situation exists such as tojustify the repayment or remission of duties (judgment in Case C-86/97 Trans-Ex-Import [1999] ECR I-1041, at paragraph 19).

92.

    In the light of the foregoing considerations, the answer to the fifth question mustbe that the customs authority or national court to which an application is submittedfor repayment on the basis of Article 900(1)(o) of the implementing Regulation isrequired, where it is unable to grant the repayment applied for pursuant to thatprovision, to examine of its own motion the merits of that application in the lightof the other provisions of Article 900 and Articles 901 to 904 of the implementingRegulation. Where the decision-making authority is not in a position, on the basisof the grounds adduced, to take a decision to repay or remit duties on the basis ofArticle 899 of the implementing Regulation, it is required to examine of its ownmotion whether there is any evidence 'which might constitute a special situationresulting from circumstances in which no deception or obvious negligence may beattributed to the person concerned‘ within the meaning of Article 905(1) of theimplementing Regulation which would necessitate examination of the file by theCommission.

Sixth question

93.

    By its sixth question the national court asks essentially whether, in the situationreferred to in Article 900(1)(o) of the implementing Regulation, the condition thatthere be no obvious negligence on the part of the trader, to which Article 899 ofthe implementing Regulation makes repayment or remission of duties subject, isalways satisfied.

94.

    In that context it is sufficient to point out that Article 899 of the implementingRegulation states 'where the decision-making customs authority establishes that anapplication for repayment or remission submitted to it under Article 239(2) of the[Customs] Code:

    -    is based on grounds corresponding to one of the circumstances referred toin Articles 900 to 903, and that these do not result from deception orobvious negligence on the part of the person concerned, it shall repay orremit the amount of import duties concerned.‘

95.

    As the Commission and the Hauptzollamt have rightly observed, it is quite clearfrom the wording of Article 89 of the implementing Regulation that the repaymentor remission referred to in Article 239(2) of the Customs Code may be made onlyif two cumulative conditions are satisfied, that is to say, first, that 'one of thecircumstances referred to in Articles 900 to 903‘ applies and, secondly, 'that [thosecircumstances] do not result from deception or obvious negligence on the part ofthe person concerned‘.

96.

    That interpretation is supported in particular by the fifteenth recital in thepreamble to Regulation No 3254/94 which added Article 900(1)(o) to theimplementing Regulation. According to that recital, there are 'cases in which theimporter is able to produce a document showing entitlement to such preferentialtreatment but the customs debt has been incurred for reasons other than releasefor free circulation‘ and 'the obligation to pay duty in such cases, where nodeception or obvious negligence is involved, is disproportionate to the need forprotection which the common customs tariff is intended to provide‘.

97.

    Therefore, the answer to the sixth question must be that, where an application issubmitted for the repayment or remission of import or export duties, the customsauthority or national court cannot assume that the person concerned has not actedwith any fraudulent intent or in a manner which is obviously negligent on the soleground that he is in a situation referred to in Article 900(1)(o) of the implementingRegulation.

Costs

98.

    The costs incurred by the German and United Kingdom Governments and by theCommission of the European Communities, which have submitted observations tothe Court, are not recoverable. Since these proceedings are, for the parties to themain proceedings, a step in the proceedings pending before the national court, thedecision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Finanzgericht Bremen by order of2 December 1997, hereby rules:

1.    Article 859 of Commission Regulation (EEC) No 2454/93 of 2 July 1993laying down provisions for the implementation of Council Regulation(EEC) No 2913/92 establishing the Community Customs Code contains avalidly constituted and exhaustive set of rules on failures, within themeaning of Article 204(1)(a) of Council Regulation (EEC) No 2913/92 of12 October 1992 establishing the Community Customs Code which 'haveno significant effect on the correct operation of the temporary storage orcustoms procedure in question‘.

        2.     (a)    The terms used to qualify negligence in the German version of Article212a of Regulation No 2913/92, as amended by Regulation (EC) No82/97 of the European Parliament and of the Council of 19 December1996, Article 239 of Regulation No 2913/92 and Article 859 ofRegulation No 2454/93 have one and the same meaning. In theGerman version those terms must be understood as referring to'offensichtliche Fahrlässigkeit‘ (obvious negligence).

        (b)    It is not possible to conclude that there was no obvious negligencewithin the meaning of the second indent of Article 239(1) ofRegulation No 2913/92 where a customs debt is incurred pursuant toArticle 204(1)(a) of Regulation No 2913/92 as a result of behaviourwhich constitutes obvious negligence within the meaning of thesecond indent of Article 859 of Regulation No 2454/93.

        (c)    In order to determine whether there is 'obvious negligence‘ withinthe meaning of the second indent of Article 239(1) of Regulation No2913/92, account must be taken in particular of the complexity of theprovisions non-compliance with which has resulted in the customsdebt being incurred and the professional experience of, and the caretaken by, the trader. It is for the national court to determine, on thebasis of those criteria, whether there is obvious negligence on the partof the trader.

    3.     Community law does not preclude a national court from determiningindependently whether the criterion laid down in Article 859(1) ofRegulation No 2454/93, namely that the time-limit ought to have beenextended, is fulfilled where an application for an extension made in timehas been refused by a now unappealable decision of the customs authority.

        4.     (a)    Only circumstances liable to put the applicant in an exceptionalsituation in relation to other traders carrying on the same activitycan justify an extension of the time-limit referred to in Article 49(1)of Regulation No 2913/92. Exceptional circumstances which, althoughnot unknown to the trader, are not events which would normallyconfront any trader in the exercise of his occupation may constitutesuch circumstances. It is for the customs authorities and the nationalcourts to determine in each case whether such circumstances exist.

        (b)    Community law does not preclude a trader from lodging a singleapplication for an extension of the prescribed time-limit for assigningto goods covered by several summary declarations a customs-approved treatment or use. However, even in the case of a singleapplication, the time-limit may be extended only in respect of goodsin relation to which the prescribed time-limit for assigning acustoms-approved treatment or use has not yet expired.

    5.    Article 900(1)(o) of Regulation No 2454/93, as amended by Article 1(29) ofCommission Regulation (EC) No 3254/94 of 19 December 1994, applies tocases in which the goods would have been eligible for Community treatmentor preferential tariff treatment, but not to cases in which the goods wouldhave been eligible for other forms of favourable treatment.

    6.    The customs authority or national court to which an application issubmitted for repayment on the basis of Article 900(1)(o) of Regulation No.2454/93, as amended by Article 1(29) of Regulation No 3254/94, is required,where it is unable to grant the repayment applied for pursuant to thatprovision, to examine of its own motion the merits of that application inthe light of the other provisions of Article 900 and Articles 901 to 904 ofRegulation No 2454/93. Where the decision-making authority is not in aposition, on the basis of the grounds adduced, to take a decision to repayor remit duties on the basis of Article 899 of Regulation No 2454/93, it isrequired to examine of its own motion whether there is any evidence 'whichmight constitute a special situation resulting from circumstances in whichno deception or obvious negligence may be attributed to the personconcerned‘ within the meaning of Article 905(1) of Regulation No 2454/93which would necessitate examination of the file by the Commission.

    7.    Where an application is submitted for the repayment or remission ofimport or export duties, the customs authority or national court cannotassume that the person concerned has not acted with any fraudulent intentor in a manner which is obviously negligent on the sole ground that he isin a situation referred to in Article 900(1)(o) of Regulation No 2454/93, asamended by Article 1(29) of Regulation No 3254/94.

SchintgenKapteyn Ragnemalm

Delivered in open court in Luxembourg on 11 November 1999.

R. Grass

J.C. Moitinho de Almeida

Registrar

President of the Sixth Chamber

1: Language of the case: German.