The obligation upon customs authorities to inform a principal of the likelihood of fraud
29 It should be borne in mind at the outset that, under Article 177 of the Treaty, the Court has no power to apply rules of Community law to a particular case but may only provide a national court with information on the interpretation of Community law which may be useful to it in assessing the effects of a provision of national law (see, in particular, Case 100/63 Kalsbeek ν Sociale Verzekeringsbank [1964] ECR 565, at 572, and Case 137/84 Ministère Public ν Mutsch [1985] ECR 2681, paragraph 6).
30 Next, it should be observed that Article ll(l)(c) of Regulation No 2726/90 provides that a principal is, as a rule, responsible for payment of duties due ‘as a result of an offence or irregularity committed in the course of or in connection with a Community transit operation’, and does not require, in order for the customs debt to arise, that the principal be shown to be at fault or that the customs authorities be obliged in any way to inform the principal that an investigation has been carried out and has led to the discovery of an offence or irregularity.
31 Admittedly, in circumstances such as those in point in the main proceedings, had the customs authorities informed the person liable for payment of the possibility that a fraud was being perpetrated by his clients, that person would have been able to take the necessary steps, if not to avoid incurring the customs debt, at the very least to prevent or limit its increase.
32 However, quite apart from the question whether circumstances of that kind are such as to justify abstention from post-clearance recovery, or the reimbursement or remission of import duties (a question that will be dealt with in paragraphs 37 to 55 of this judgment), the fact remains that the demands of an investigation aimed at identifying and apprehending the persons who have carried out or are planning a fraud, or the accomplices of those persons, may justify a deliberate omission to inform the principal about the investigation fully or at all, even where the principal is in no way implicated in the perpetration of the fraud.
33 De Haan nevertheless maintains that, in accordance with the combined provisions of Article 3(3) and Article 6(1) of Regulation No 1854/89, the duty should have been entered in the accounts within two days of the date on which the customs authority was in a position to calculate its amount and determine the person liable for its payment, and that the amount of duty should have been communicated to it as soon as it was entered in the accounts.
34 That reasoning cannot be accepted. As the Court has already held, in Case C-370/96 Covita [1998] ECR I-7711, at paragraphs 36 and 37, failure on the part of the customs authorities to observe the time-limits laid down in Articles 3 and 5 of Regulation No 1854/89 when taking action for the post-clearance recovery of customs duty does not nullify the right of those authorities to proceed with such post-clearance recovery, provided that it is carried out within the three-year period prescribed for the purpose in Article 2(1) of Regulation No 1697/79. The sole purpose of those time-limits is to ensure rapid and uniform application by the competent administrative authorities of the technical procedures for the entry in the accounts of the amounts payable by way of import and export duties. Whilst failure by the customs authorities to observe the time-limits may result in the Member State concerned paying interest in respect of delay to the Communities, in the context of making available own resources, such failure does not affect the fact that the customs debt is payable or the authorities' right to proceed with post-clearance recovery.
35 The same applies to the time-limit laid down in Article 6(1) of Regulation No 1854/89. Even supposing the customs authorities failed in this case to inform the principal of the amount of duty as soon as it was effectively entered in the accounts, a point which is not clear from the file, that failure to comply with Article 6(1) cannot, by itself, prevent the recovery of the duty payable so long as recovery is effected within the period of three years laid down in Article 2(1) of Regulation No 1697/79.
36 In light of the foregoing, the answer to the first part of the question must be that Community law does not impose on customs authorities which have been informed of a possible fraud in connection with external transit arrangements any obligation to warn a principal that he could incur liability for customs duty as a result of the fraud, even where he has acted in good faith.
Circumstances which may justify abstention from post-clearance recovery, or the reimbursement or remission of duties
37 It should be borne in mind that, under Community law, two categories of specific exceptions to the payment of customs debts are recognised.
38 The first is set out in Article 5(2) of Regulation No 1697/79.
39 That provision makes any waiver of post-clearance recoveries by the customs authorities subject to three conditions (see, in particular, Case C-250/91 Hewlett Packard France ν Directeur General des Douanes [1993] ECR I-1819, paragraphs 12 and 13, and Covita, cited above, at paragraphs 24 to 28).
40 First, the failure to collect duties must be the result of an error made by the competent authorities themselves. Next, the error made by the competent authorities must be such that it could not reasonably be detected by the person liable acting in good faith, notwithstanding his professional experience and the care expected of him. Lastly, the person liable must have complied with all the provisions laid down by the legislation in force as far as his customs declaration is concerned.
41 In this connection, whilst it is for‘ the national court to ascertain whether, having regard to the circumstances of the case, the three conditions set out in Article 5(2) of Regulation No 1697/79 have been met (see Joined Cases C-47/95 to C-50/95, C-60/95, C-81/95, C-92/95 and C-148/95 Olasagasti and Others v Amministrazione delle Finanze dello Stato [1996] ECR I-6579, paragraphs 33 to 35), it already follows from paragraph 32 of the present judgment that a deliberate omission on the part of the customs authorities to inform a principal of a possible fraud in which the principal is not implicated cannot, in any event, be classified as an error on the authorities’ part.
42 The second category of exceptions to the payment of import or export duties is set out in Article 13(1) of Regulation No 1430/79. That provision, which does not require an error to have been made by the competent authorities themselves, makes the repayment or remission of import duties subject to two cumulative conditions, namely the existence of a special situation and the absence of deception or obvious negligence on the part of the economic operator.
43 In this connection, it should be borne in mind that the list of special situations within the meaning of Article 13(1) of Regulation No 1430/79 which Article 4 of Regulation No 3799/86 provides is, as the first subparagraph thereof expressly states, not exhaustive (see, to that effect, Covita, cited above, paragraph 31).
44 It is therefore for the customs authorities to determine on a case by case basis whether a situation such as that in point in the main proceedings, which is not mentioned in the said list, none the less constitutes a situation which is special within the meaning of the applicable Community legislation and thus requires the Member State to which the authority belongs to forward the case to the Commission to be settled under the procedure laid down in Articles 906 to 909 of Regulation No 2454/93.
45 One of the points to be considered, which was highlighted by the referring court and which characterises the situation at issue in the main action, is the fact that, had the customs authorities informed the person liable of their suspicion of fraud, that person would have taken the necessary measures, after the misappropriation of the first consignment of cigarettes, to avoid incurring a customs debt in relation to the next six consignments.
46 Since an application for remission of duties, supported by evidence which might constitute a special situation within the meaning of Article 13(1) of Regulation No 1430/79, had been made to the customs authorities and those authorities were not in a position to take a decision on the basis of Article 4 of Regulation No 3799/86, the Kingdom of the Netherlands requested the Commission to rule on the question whether there was a ‘special situation’ within the meaning of that provision. By decision of 18 February 1998, the Commission expressed the view that there was no such special situation in this case.
47 In view of this, although the national court makes no reference to that decision, the existence and, even more so, the content of which were, because of the date on which it was adopted, probably unknown to it at the time when it made its order for reference, it is appropriate, in order to give that court an answer that will be helpful in resolving the dispute before it, to determine whether that decision was a valid one by examining the question whether the conditions for applying Article 13(1) of Regulation No 1430/79 are in fact satisfied in a case such as that pending before it.
48 In this connection it should be pointed out that, in accordance with Article 908 of Regulation No 2454/93, the customs authority has to give its decision on the basis of the Commission's decision. However, if the Court declares that decision invalid, the Commission will be obliged to take the steps called for by such a declaration and re-examine, in the light of the Court's judgment, the question whether Article 13(1) of Regulation No 1430/79 applies to the circumstances in point in the main proceedings, the periods referred to in Articles 907 and 909 of Regulation No 2454/93 beginning to run from the date of delivery of the judgment. This also means that the national court, which may not substitute its own determination for that of the Commission, can stay proceedings pending the Commission's decision or the expiry of the abovementioned periods.
49 In this instance, review of the Commission's decision, which has in fact been produced to the Court and has been the subject of both written and oral submissions, conforms, moreover, to the principle of procedural economy, in that the question whether the decision was lawful has also been raised directly before the Court in Case C-15 7/98 Netherlands v Commission, the proceedings in which have been stayed pending the delivery of this judgment.
50 In reaching its conclusion that the declarant's situation could not be regarded as a special situation within the meaning of Article 13(1) of Regulation No 1430/79, the Commission observed that De Haan was responsible for the proper conduct of the customs procedure and that exposure to possible fraudulent acts is a normal risk for economic operators. It also took into account, first, the twofold circumstance that, even though De Haan was not itself implicated in the fraud, one of its staff, for whom it was responsible, was implicated, and that the involvement of a Belgian customs official was not established, and, secondly, the fact that the FIOD's abstention, in the interests of completing its investigation, from disclosing its information to De Haan could not constitute a special situation justifying remission of import duties under Article 13(1) of Regulation No 1430/79.
51 In this connection, it should first be observed that, according to the national court, which has not been contradicted by the Commission on the point, no negligence or deception can be attributed to De Haan.
52 Secondly, it should be noted that, as the Court held in Case C-86/97 Woltmann [1999] ECR I-1041, at paragraphs 18 to 21, Article 905 of Regulation No 2454/93, pursuant to which the Member State to which the authority belongs may apply to the Commission to determine, on the basis of the information placed before it, whether a special situation exists such as to justify the remission of duties, includes a general fairness clause intended to cover the exceptional situation in which a declarant might find himself in comparison with other operators engaged in the same business, where the customs authority has not itself been able, on the basis of the grounds adduced, to take a decision regarding the remission of duties under either Article 4 of Regulation No 3799/86 or Article 899 of Regulation No 2454/93, depending on which of those two provisions applies, by reason of its temporal scope, to the situation of the person liable.
53 In that regard, the demands of an investigation conducted by the customs authorities or the police constitute, in the absence of any deception or negligence on the part of the person liable, and where that person has not been informed that the investigation is being carried out, a special situation within the meaning of Article 13(1) of Regulation No 1430/79. Although it may be legitimate for the national authorities, in order better to dismantle a network, identify perpetrators of fraud and obtain or consolidate evidence, deliberately to allow offences or irregularities to be committed, to place on the person liable the burden of the customs debt arising from the choices made in connection with the prosecution of offences is inimical to the objective of fairness which underlies Article 905(1) of Regulation No 2454/93 in that it puts that person in an exceptional situation in comparison with other operators engaged in the same business.
54 It is clear from the wording of the decision of 18 February 1998 that the Commission's assessment, in the light of the abovementioned objective of fairness and the circumstances in which the fraud took place, of the question whether De Haan was in an exceptional situation in comparison with other operators engaged in the same business, was incorrect.
55 The Commission's decision must, therefore, be held to be invalid.
56 In light of the foregoing, the second part of the question must be answered as follows:
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the demands of an investigation conducted by the national authorities may, in the absence of any deception or negligence on the part of the person liable, and where that person has not been informed that the investigation is being carried out, constitute a special situation within the meaning of Article 13(1) of Regulation No 1430/79 where the fact that the national authorities have, in the interests of the investigation, deliberately allowed offences or irregularities to be committed, thus causing the principal to incur a customs debt, places the principal in an exceptional situation in comparison with other operators engaged in the same business;
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Commission Decision C(98) 372 final of 18 February 1998 is invalid.