Lopex Export GmbH v Hauptzollamt Hamburg-Jonas.

• Jurisdiction: European Union
• Celex Number: 61996CC0315
• ECLI: ECLI:EU:C:1997:519
• Date: 04 November 1997
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-315/96

Important legal notice

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61996C0315

Opinion of Mr Advocate General Léger delivered on 4 November 1997. - Lopex Export GmbH v Hauptzollamt Hamburg-Jonas. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Customs duty - Classification of goods - Regulation amending classification - Binding tariff information issued previously - Validity. - Case C-315/96.

European Court reports 1998 Page I-00317

Opinion of the Advocate-General

1 The questions which have been referred to the Court by the Finanzgericht (Finance Court) Hamburg seek to establish whether a rule of Community law which permits the Community legislature to amend the customs nomenclature without laying down transitional provisions is compatible with the principles of legal certainty and protection of legitimate expectations, and ask what consequences would ensue if such a rule were found to be incompatible.

I - The relevant Community legislation

2 The term `binding tariff information' at issue in this case refers to information concerning the classification of goods in the customs nomenclature. (1) Such information is issued by the customs authorities and is binding on the administration. (2)

3 Article 13 of the 1990 regulation provides as follows:

Where, as a result of the adoption of:

- a regulation amending the customs nomenclature, or

- a regulation determining or affecting the classification of goods in the customs nomenclature,

binding tariff information previously supplied no longer conforms to Community law as thus established, such information shall cease to be valid from the date on which the regulation in question applies.

Nevertheless, where a regulation such as that referred to in the second indent above expressly so envisages, binding tariff information may continue to be invoked by the holder thereof during a period fixed by the said regulation, if the holder has concluded a contract as referred to in Article 14(3)(a) or (b). (3)

4 Article 14(3) and (4) of the regulation is worded as follows:

`3. In the case of products in respect of which an import or export licence or advance-fixing certificate is submitted when the customs formalities are completed, the binding tariff information which ceases to be valid pursuant to paragraph 1 (4) may continue to be invoked by the holder of the information during the remainder of the period of validity of that licence or certificate.

...

4. The application under the conditions laid down in paragraph 3 of the classification given in the binding tariff information shall have effect only in regard to:

- the determination of the import or export duties,

- the calculation of export refunds and any other amounts granted on imports or exports within the framework of the common agricultural policy, and

- the use of import or export licences or advance-fixing certificates which are submitted at the time of completion of the formalities with a view to the acceptance of the customs declaration for the goods in question, on condition that such licences or certificates were issued on the basis of the said binding tariff information.'

5 Article 1(1) of Council Regulation (EEC) No 3798/91 (5) amended the combined nomenclature annexed to Regulation No 2658/87 (6) so as to bring modified whey, hitherto classified under code NC 0404 90, within code NC 0404 10. From 1 January 1992, when the amending regulation came into force, code NC 0404 10 covered modified and non-modified whey.

6 This amendment was not accompanied by any transitional arrangements.

II - Facts and national proceedings

7 The main proceedings concern the grant of a refund for the export of partly desugared whey powder marketed under the name Anilac, which the plaintiff in the main proceedings, Lopex Export GmbH (`Lopex'), exported on 29 and 30 June 1992. An application for the export refund was made on 6 July 1992.

8 The goods were exported on the basis of an export licence issued on 31 December 1991, which was valid until 30 June 1992 and was accompanied by an advance-fixing certificate dated 20 December 1991.

9 By the original binding tariff information issued on 5 December 1988, the customs authorities notified Lopex's suppliers that the abovementioned product was to be classified under subheading 0404 90 of the combined nomenclature. Owing to hesitation as between subheadings 90 and 10, the customs authorities withdrew the information on 30 October 1990.

10 On 14 December 1990 Lopex itself applied for the issue of binding tariff information in respect of the product in question. The information, issued by the customs authorities on 5 June 1991, classified Anilac under subheading 0404 9013 0000 of the combined nomenclature. On receipt of this information, Lopex asked for clarification of the latest subheadings. On 26 August 1991, the customs authorities accordingly issued supplementary binding tariff information classifying the product under subheading 0404 9013 1200. In the tariff information issued on those two dates, the customs authorities expressly refused classification under subheading 0404 10 on the ground that the composition of Anilac differed substantially from that of whey.

11 However, new binding tariff information was issued on 28 October 1991 in response to the plaintiff's original application of 14 December 1990, whereby the customs authorities classified the product `in accordance with its composition' under subheading 0404 10.

12 On receipt of that tariff information, Lopex applied to have the previous classification under code 0404 9013 1200 retained as valid until 30 April 1992. Following an exchange of correspondence with Lopex, the customs authorities decided on 9 December 1991 that the tariff information would remain provisionally valid for six months after its revocation.

13 Regulation No 3798/91, which was adopted on 19 December 1991, provided that non-modified whey would thenceforth be classified under subheading 0404 10, but did not lay down any transitional arrangements.

14 On 11 August 1992 the Hauptzollamt (Principal Customs Office) Hamburg-Jonas, the defendant in the main proceedings, refused the application for an export refund submitted by Lopex on 6 July 1992. The reason given was that the Zolltechnische Prüfungs- und Lehranstalt (Customs Laboratory and Training College) had classified the product in question under subheading 0404 1011 0000 (which does not confer entitlement to an export refund) and that the validity of the previous binding tariff information, expressing a different opinion, had expired on 28 April 1992.

15 On 1 September 1992 Lopex lodged a complaint concerning the refusal of its application for an export refund, relying on both the export licence and the advance-fixing certificate which it had received and which were valid until 30 June 1992, and alleging that the first paragraph of Article 13 of the 1990 regulation was invalid in so far as it provides that binding tariff information ceases to be valid without a transitional period.

16 The defendant in the main proceedings rejected the complaint relying on the amendment of the customs nomenclature by the 1991 regulation and on the first paragraph of Article 13 of the 1990 regulation.

17 Lopex then brought an action before the Finanzgericht Hamburg for an export refund in the sum of DM 889 880.04 in accordance with its application of 6 July 1992. In those proceedings Lopex argued that, although the first paragraph of Article 13 of the 1990 regulation provides that the adoption of a regulation amending the customs nomenclature invalidates previous binding tariff information without providing for transitional arrangements under Article...