(Appeal Remission of import duties Commission decision Article 239 of the Customs Code Existence of a special situation Absence of deception Obvious negligence on the part of the importer)
- By its appeal, Heuschen & Schrouff Orià«ntal Foods Trading BV ('H & S') seeks to have set aside the judgment of the Court of First Instance of the European Communities of 30 November 2006 in Case T-382/04 Heuschen & Schrouff Orià«ntal Foods v Commission ('the judgment under appeal'), which dismissed its action for annulment of Commission Decision REM 19/2002 of 17 June 2004 finding that remission of import duties was not justified in a particular case ('the contested decision').
Legal context
Legislation relating to the tariff classification of rice paper
- Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1) established a complete nomenclature of goods being imported and exported in the European Community ('the CN'). That nomenclature is set out in Annex I to Regulation No 2658/87.
- Subheadings 1901 90 99 and 1905 90 20 of the CN, in the version resulting from Commission Regulation (EC) No 1624/97 of 13 August 1997 amending Annex I to Regulation No 2658/87 (OJ 1997 L 224, p. 16), were potentially applicable in the present case.
- Headings 1901 and 1905 of the CN and the corresponding subheadings are as follows:
'1901
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Malt extract; food preparations of flour, meal, starch or malt extract, not containing cocoa ..., not elsewhere specified or included; food preparations of goods of headings Nos 0401 to 0404, not containing cocoa ..., not elsewhere specified or included:
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...
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1901 90 99
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Other:
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...
1905
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Bread, pastry, cakes, biscuits and other bakers' wares, whether or not containing cocoa; communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products:
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...
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1905 90
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Other:
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...
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1905 90 20
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Communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products.'
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- The Dutch version of the CN describes heading 1905 and the corresponding subheadings as follows:
'1905
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Brood, gebak, biscuits en andere bakkerswaren, ook indien deze producten cacao bevatten; ouwel in bladen, hosties, ouwels voor geneesmiddelen, plakouwels en dergelijke producten van meel of van zetmeel:
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...
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1905 90
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andere:
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...
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1905 90 20
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ouwel in bladen, hosties, ouwels voor geneesmiddelen, plakouwels en dergelijke producten, van meel of van zetmeel.'
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- In order to ensure uniform application of the CN within the Community, the Commission of the European Communities may, under the first indent of Article 9(1)(a) of Regulation No 2658/87, adopt regulations for the classification of specific goods in the CN.
- According to the Annex to Commission Regulation (EC) No 1196/97 of 27 June 1997 concerning the classification of certain goods in the combined nomenclature (OJ 1997 L 170, p. 13) ('the Classification Regulation'), 'Food preparation[s], in the form of dry, translucent sheets of different sizes, made from rice flour, salt and water' are covered by subheading 1905 90 20 of the CN. It is also stated in that annex that '[t]hese sheets are, after being soaked in water ..., generally used to make the 'wrappers' for spring rolls and similar products'.
Legislation relating to the remission of import duties
- Article 5 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 (OJ 1997 L 17, p. 1), ('the Customs Code') provides:
'1. Under the conditions set out in Article 64(2) and subject to the provisions adopted within the framework of Article 243(2)(b), any person may appoint a representative in his dealings with the customs authorities to perform the acts and formalities laid down by customs rules.
2. Such representation may be:
direct, in which case the representative shall act in the name of and on behalf of another person,
or
indirect, in which case the representative shall act in his own name but on behalf of another person.
...'
- Article 239 of the Customs Code provides:
'1. Import duties or export duties may be repaid or remitted in situations other than 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 negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the committee procedure. Repayment or remission may be made subject to special conditions.
2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office ...'
Facts of the dispute as set out in the judgment under appeal
- H & S, established in the Netherlands, imports rice paper from Vietnam. For that purpose, it used the services of a customs agent, namely Switch Customs Brokers BV, which it designated as its direct representative within the terms of Article 5(2) of the Customs Code.
- H & S declared the rice paper which it imported under subheading 1901 90 99 of the CN. By letter of 21 March 1996, the Netherlands customs authorities ('the customs authorities') informed the appellant that the rice paper in question actually had to be classified under that subheading.
- On 27 June 1997 the Commission adopted the Classification Regulation, which was published in the Official Journal of the European Communities on 28 June 1997 and entered into force on 19 July 1997.
- Notwithstanding the existence of that classification regulation, H & S continued to import rice paper under subheading 1901 90 99 of the CN and the customs authorities accepted a further 29 declarations in six months (with documentary inspection and, in one case, physical inspection) under such a classification. On 16 March 1998, however, the customs authorities informed the appellant that the goods in question should be classified, not under subheading 1901 90 99 of the CN, but under subheading 1905 90 20 of the CN. Later on the same day, the customs authorities nevertheless stated that a declaration classifying rice paper under subheading 1901 90 99 of the CN was correct. As from 17 March 1998, the appellant imported the rice paper by classifying it under subheading 1905 90 20 of the CN.
- By letter of 22 November 2000, the customs authorities informed H & S that, in respect of the period from 13 November 1997 to 31 December 1998, they would be effecting post-clearance recovery of import duties in the total amount of NLG 645 399.50 (EUR 292 869.52) on the ground that H & S had, during that period, classified the goods in question incorrectly inasmuch as subheading 1905 90 20 of the CN was that which was in accordance with the Classification Regulation. After adjustment, that amount was finally fixed at NLG 636 518.40, corresponding to the declarations lodged with the incorrect classification under subheading 1901 90 99 of the CN during the period from 25 November 1997 to 2 February 1998.
- Acceding to a request made by H & S to that end, the Kingdom of the Netherlands asked the Commission, on 13 September 2002, to decide, under Article 239 of the Customs Code, whether the remission of import duties for that company was justified.
- On 17 June 2004, the Commission adopted the contested decision. In that decision, it stated that there was a special situation within the meaning of Article 239 of the Customs Code. However, it took the view that H & S had displayed obvious negligence because, although it was an experienced trader and the Classification Regulation had dispelled the legislative complexity which may have existed previously, it had taken no steps to inform itself as to the correctness of the customs authorities' practice, which was manifestly contrary to that regulation.
Procedure before the Court of First Instance and the judgment under appeal
- By application lodged at the Registry of the Court of First Instance on 23 September 2004, H & S brought an action against the contested decision claiming, first, that that decision should be annulled in so far as it stated that the application for remission of duties was not justified and, secondly, that the Commission should be ordered to pay the costs. The Commission contended that the action should be dismissed and that the appellant should be ordered to pay the costs.
- In support of its action, H & S relied on three pleas alleging, first, infringement of Article 239 of the Customs Code, an incorrect assessment of the facts and failure to state reasons for the decision, secondly, infringement of the principles of sound administration and equal treatment and, thirdly, infringement of the principle of proportionality.
- By the judgment under appeal, the Court of First Instance dismissed H & S's action.
- By its first plea, H & S maintained, inter alia, that the legislation was complex on account of the fact that, unlike other language versions, the Dutch version of the CN did not contain an express reference to 'dried sheets of flour paste', with the result that, like the customs authorities which had, in the past, stated that those goods had to be classified under subheading 1901 90 99 of the CN, it could in good faith take the view that the rice sheets were covered by that subheading. Furthermore, H & S submitted that the Classification Regulation was contrary to the Dutch version of the CN and could not therefore be relied on against H & S.
- H & S also claimed that it was not an experienced importer and that the professional experience of its customs agent could not be attributed to it. In that regard, it maintained that possible negligence on the part of that customs agent, which had not acquainted itself with the Classification Regulation published in the Official Journal of the European Communities, could not be taken into account for the purpose of finding that there had been obvious negligence on the part of H & S.
- In that regard, after having first pointed out, in paragraph 43 of the judgment under appeal, that the case related exclusively to the question whether the Commission could reasonably have concluded that there had been obvious negligence on the part of H & S, the Court of First Instance ruled, in paragraph 44 of that judgment that, according to the case-law stemming from Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 56, for the purposes of determining whether or not there was obvious negligence, account had to be taken in particular of the complexity of the provisions non-compliance with which had resulted in the customs debt being incurred, and the professional experience of, and care taken by, the trader.
- Secondly, the Court of First Instance found, in paragraph 58 of the judgment under appeal, that the publication of the Classification Regulation had put an end to any possible legislative complexity created by the absence of certain words in the Dutch version of the wording of subheading 1905 90 20 of the CN. In paragraph 70 of that judgment, it held that the matters relating to the possible negligence of the customs agent, including its professional experience, had to be attributed to H & S. Lastly, in paragraph 75 of that judgment, the Court of First Instance pointed out that, where doubts exist as to the correct application of the provisions non-compliance with which may result in a customs debt being incurred, the onus is on the trader to make inquiries and to seek all possible clarification in order to ensure that he does not infringe those provisions.
- The Court of First Instance then concluded, in paragraph 87 of the judgment under appeal, that, by not asking the customs authorities for information about the reasons for the discrepancy between its classification practice and the provisions of the Classification Regulation, H & S and its customs agent had failed to display the care required by Article 239 of the Customs Code.
- In those circumstances, the Court of First Instance found, in paragraph 96 of the judgment under appeal, that H & S had not established that the Commission had infringed Article 239 of the Customs Code, incorrectly assessed the facts or failed to state reasons for the contested decision. The Court of First Instance accordingly rejected the first plea.
- By its second plea, H & S complained inter alia that the Commission had been overly strict, contrary to the principle of sound administration, in leaving out of account the errors of the customs authorities in its assessment of the care taken by the importer.
- In that regard, the Court of First Instance took the view, in paragraph 103 of the judgment under appeal, that the negligence on the part of the customs authorities had already been taken into account when it assessed whether a special situation existed, but that it could not, however, release H & S from the consequences of its own negligence.
- As regards the third plea, the Court of First Instance found, in paragraph 111 of the judgment under appeal, that where the conditions for applying Article 239 of the Customs Code are not satisfied, a refusal to remit duties does not constitute infringement of the principle of proportionality.
The appeal
- By its appeal, H & S claims that the Court should set aside the judgment under appeal, annul the contested decision and order the Commission to pay the costs.
- The Commission contends that the Court should dismiss the appeal as unfounded and order H & S to pay the costs.
- H & S relies, in essence, on a single ground of appeal alleging that the Court of First Instance infringed Article 239 of the Customs Code in its assessment of the condition relating to lack of obvious negligence on the part of the trader. That ground of appeal is divided into three parts corresponding to the three criteria derived from case-law in connection with such an assessment, namely the complexity of the legislation, the professional experience of the importer and the care taken by him.
- The Commission submits that the Court of First Instance was correct in its application of Article 239 of the Customs Code. Furthermore, although it maintains that it does not intend to raise an objection of inadmissibility, it states that H & S repeats, at times literally, the arguments which it submitted before the Court of First Instance.
Admissibility
- According to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (Case C-499/03 P Biegi Nahrungsmittel and Commonfood v Commission [2005] ECR I-1751, paragraph 37 and the case-law cited).
- An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance does not satisfy the requirements to state reasons under those provisions (see, to that effect, Biegi Nahrungsmittel and Commonfood v Commission, paragraph 38 and the case-law cited).
- However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (Biegi Nahrungsmittel and Commonfood v Commission, paragraph 39 and the case-law cited).
- In the present case, it must be stated that, although the appellant relies on arguments which it has already submitted in support of its action for annulment before the Court of First Instance, it none the less challenges the latter's interpretation of the criteria which must be met in order to satisfy the condition relating to absence of obvious negligence on the part of the importer, as provided for in Article 239 of the Customs Code.
- In those circumstances it is necessary to examine the present appeal.
The first part: the complexity of the legislation
Arguments of the parties
- According to H & S, it has still not been established that rice paper must be classified under subheading 1905 90 20 of the CN, as is borne out by the fact that the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) has made a reference to the Court for a preliminary ruling, which has been registered as Case C-375/07. That tends to reinforce the appellant's view that the legislation is complex, in particular on account of the drafting inadequacies of the Dutch version of the CN and the customs authorities' persistence in accepting an allegedly incorrect classification. Furthermore, the appellant takes the view that, contrary to what was held by the Court of First Instance, the Classification Regulation could not dispel the ambiguity relating to the classification of the goods at issue because the classification effected by that regulation is contrary to the CN and to the case-law of the Court in Case C-12/94 Uelzena Milchwerke [1995] ECR I-2397.
- According to the Commission, the applicable legislation is not complex and, in any event, the Classification Regulation, the application of which is at issue in the present case, clarified the rules in force. In actual fact, H & S's arguments are focused on the issue of the complexity of the classification of rice paper. Such a line of argument, however, relates not to the procedure for the remission of duties, but to whether there is a customs debt or not, that is to say, to the action brought by H & S before the national courts challenging the classification by the customs authorities of those goods under subheading 1905 90 20 of the CN.
Findings of the Court
- In order to assess whether there is obvious negligence within the meaning of Article 239 of the Customs Code, account must be taken in particular of the complexity of the provisions non-compliance with which resulted in the customs debt being incurred, and the professional experience of, and care taken by, the trader (Case C-443/05 P Common Market Fertilizers v Commission [2007] ECR I-7209, paragraph 174 and the case-law cited).
- In that regard, there is strong evidence that the problem to be resolved is a complex one where, in view of the differences of opinion between the various Member States as regards the tariff classification of a product, it has been necessary to adopt a regulation which clarifies conclusively the tariff heading under which the product should be classified (see Case C-250/91 Hewlett Packard France [1993] ECR I-1819, paragraph 23).
- However, in the present case, it must be held that the remission of duties applied for by H & S related to import transactions which were specifically subsequent to the entry into force of the Classification Regulation. Although it is true that, as regards the classification of the goods in question, the wording of the Dutch version of subheading 1905 90 20 of the CN may have appeared less precise than that of other language versions, the fact remains that that classification regulation, which is directly applicable and binding in its entirety, explicitly and unequivocally describes the goods that have to be classified under that subheading and the goods imported by the appellant correspond thereto (see, to that effect, Case C-375/07 Heuschen & Schrouff Orià«ntal Foods Trading [2008] ECR I-0000, paragraph 52).
- It follows that the Court of First Instance did not err in law when it found, in paragraph 58 of the judgment under appeal, that the publication of the Classification Regulation had put an end to any possible legislative complexity created by the absence of certain words in the wording of the Dutch version of heading 1905 of the CN and, more specifically, of subheading 1905 90 20.
- Furthermore, that finding cannot be called into question by the fact that the Court took the view, in paragraph 20 of the judgment in Case C-64/89 Deutsche Fernsprecher [1990] ECR I-2535, that in a case such as that there in issue, in which the trader had twice received confirmation that the erroneous view upon which the customs treatment was based was correct, the repetition of the error by the customs authority was evidence that the problem to be resolved was a complex one.
- In the case which gave rise to the judgment in Deutsche Fernsprecher, as is stated in paragraph 5 thereof, the applicant, doubting whether an exemption from customs duty which it had received was valid, asked the customs office to re-examine its case and then received confirmation from the director of that customs office of the exemption from customs duty. In the present case, it is common ground that H & S, after questioning the customs authorities on their practice, did not obtain any such confirmation at variance with the content of the Classification Regulation. H & S merely continued to make customs declarations, which were accepted until those authorities became aware that the classification was incorrect.
- It follows from the foregoing, as the Court of First Instance found in paragraph 58 of the judgment under appeal, that the tariff legislation at issue, in the Dutch version applicable to the facts of the case, was not particularly complex.
- Consequently, the first part of the ground of appeal must be rejected.
The second part: the professional experience of the importer
Arguments of the parties
- H & S submits that the Court of First Instance erred when it found that the professional experience of its customs agent should be attributed to it. It states, first, that it deals only with production and trade and thus in no way specialises in import transactions. Secondly, it argues, the interpretation of the Court of First Instance is contrary to the intention of the legislature inasmuch as an undertaking directly represented by an agent is thus less likely to receive remission of duties than a company which makes its own customs declarations.
- According to the Commission, the Court of First Instance was right to find that the professional experience of the customs agent should be attributed to the importing undertaking because, where there is direct representation, the declaration is made by the agent in the name of and on behalf of the importer. Furthermore, the Court of First Instance in any event found that the appellant was an experienced importer.
Findings of the Court
- In order to assess the professional experience of an importer, which is taken into account with regard to the condition relating to the absence of obvious negligence within the meaning of Article 239 of the Customs Code, it is necessary to examine whether or not the operator is a trader whose business activities consist mainly in import and export transactions and whether he had already gained some experience in the conduct of such transactions (Söhl & Söhlke, paragraph 57, and Common Market Fertilizers v Commission, paragraph 188).
- However, Article 5(2) of the Customs Code makes provision for representation of an operator. Thus, representation of an operator for the performance of the acts and formalities laid down in the customs rules may be either direct, where the representative acts in the operator's name and on his behalf, or indirect, where the representative acts in his own name but on behalf of another person (Common Market Fertilizers v Commission, paragraph 184).
- In that regard, the Court has stated that an operator who uses a customs agent, whether for direct or indirect representation, is in any event the debtor in respect of the customs debt as far as the customs authorities are concerned and that he cannot avoid liability by relying on mistakes made by that agent (see Common Market Fertilizers v Commission, paragraphs 186 and 187).
- In the same way, an operator who uses the services of a customs agent cannot avoid post-clearance recovery of customs duties by relying on his inexperience with regard to customs formalities. Operators might in some cases be able to circumvent the condition relating to professional experience by using the services of customs specialists as a matter of course and thus, contrary to what H & S submits, it would be operators carrying out their customs operations on their own who would be placed at a disadvantage with regard to the procedure set out in Article 239 of the Customs Code. Furthermore, as the appellant itself admits in paragraph 71 of its appeal, an operator who is represented unquestionably benefits from the professional experience of his customs agent.
- It follows that the Court of First Instance did not err in law in finding, in paragraph 70 of the judgment under appeal, that, in so far as the agent acted in the name of and on behalf of the importer, the information concerning possible negligence on the part of the agent, including the level of its professional experience, had to be taken into account for the purposes of assessing the negligence of that importer.
- With regard to the appellant's argument seeking to call into question the Court of First Instance's finding, in paragraph 63 of the judgment under appeal, that the appellant itself had some experience in importing, it must be borne in mind that an appraisal of facts does not, save where the clear sense of the evidence before the Court of First Instance has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see Biegi Nahrungsmittel and Commonfood v Commission, paragraph 40).
- That argument must accordingly be rejected as inadmissible.
- Having regard to the foregoing, the second part of the ground of appeal must also be rejected.
The third part: the care taken by the importer
Arguments of the parties
- H & S submits that the Court of First Instance infringed Article 239 of the Customs Code by requiring that the care taken by an importer should extend to disputing the tariff classification applied by its customs authorities. In the present case, that company saw no reason to proceed in this way since, first, the classification of 'unbaked' goods under subheading 1901 90 99 appeared to it to comply with the CN and, secondly, the Classification Regulation could relate only to 'baked' goods. Furthermore, the appellant takes the view that operators cannot be required to acquaint themselves with the applicable provisions in the different language versions published in the Official Journal of the European Communities. In continuing to make its customs declarations under subheading 1901 90 99 declarations which were accepted by the customs authorities it therefore acted with the necessary care. Furthermore, if there was any negligence, such negligence would have been committed by its customs agent and could not be attributed to H & S. Lastly, H & S submits that, even if it had been negligent, such negligence would have been minimal when compared with the negligence of the customs authorities.
- The Commission maintains that the Court of First Instance did not err in law in its application of the criterion relating to the care to be taken by the importer. It points out that, according to the case-law, where doubts exist as to the correct application of the provisions non-compliance with which may result in a customs debt being incurred, the onus is on the trader to make inquiries and to seek all possible clarification in order to ensure that he does not infringe those provisions. It is common ground that neither H & S nor its customs agent acquainted itself with the Classification Regulation published in the Official Journal of the European Communities, which in itself constitutes negligence. A fortiori, they were unable to question the customs authorities as to the tariff heading which should have been used in order to apply the CN correctly.
Findings of the Court
- It must be borne in mind at the outset that repayment or remission of import and export duties, which may be made 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 must be interpreted strictly. Since a lack of 'obvious negligence' is an essential condition of being able to claim repayment or remission of import or export duties, it follows that that term must be interpreted in such a way that the number of cases of repayment or remission remains limited (Söhl & Söhlke, paragraph 52).
- It is mandatory that the Community provisions applicable to customs tariffs be published in the Official Journal of the European Communities. As from their date of publication, they constitute the sole relevant positive law and everyone is deemed to be aware of that law (see Case 161/88 Binder [1989] ECR 2415, paragraph 19).
- As was stated in paragraph 42 of this judgment, the Classification Regulation, including the Dutch version thereof, which was duly published in the Official Journal of the European Communities, and which was consequently directly applicable and binding in its entirety, explicitly and unequivocally describes the goods that have to be classified under subheading 1905 90 20 and the goods imported by H & S correspond thereto.
- It follows that the appellant cannot claim that it could, in good faith, take the view that that regulation did not concern the goods that it imported, in this case unbaked goods.
- As regards the errors on the part of the customs authorities, which reinforced the appellant in its choice of subheading 1901 90 99 of the CN for its import transactions, it must be pointed out that a careful operator, who has acquainted himself with a classification regulation published in the Official Journal of the European Communities such as that at issue in the present case, cannot simply continue to import his goods under a CN heading on the sole ground that that classification has been accepted by those authorities. To allow such negligence would be tantamount to encouraging operators to benefit from the errors of their customs authorities.
- Furthermore, as the Court of First Instance correctly stated in paragraph 103 of the judgment under appeal, the error on the part of the customs authorities, which had already been taken into account in the present case in the examination as to whether a special situation existed, cannot, as a rule, release an operator from the consequences of its own negligence.
- In any event, it must be pointed out that, in circumstances such as those of the appellant, an operator retains the possibility of challenging the existence of the customs debt, if necessary by claiming that the classification regulation is unlawful, as indeed H & S proceeded to do before the national court, which made a reference to the Court of Justice for a preliminary ruling, that case giving rise to the judgment in Case C-375/07 Heuschen & Schrouff Orià«ntal Foods Trading.
- Having regard to what was stated in paragraph 52 of this judgment, H & S's line of argument seeking to dispute the possibility of having the negligence of its customs agent attributed to it cannot succeed.
- It follows that the third part of the ground of appeal must also be rejected.
- As all three parts of the single ground of appeal relied on by H & S have been rejected, the appeal must be dismissed.
Costs
- Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings pursuant to Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. As the Commission has applied for costs to be awarded against H & S and the latter has been unsuccessful, H & S must be ordered to pay the costs.
On those grounds, the Court (Second Chamber) hereby:
1. Dismisses the appeal;
2. Orders Heuschen & Schrouff Orià«ntal Foods Trading BV to pay the costs.
[Signatures]
* Language of the case: Dutch.
