Isaac International Ltd v Revenue & Customs [2009] UKVAT(Customs) C00267 (07 January 2009) 1998 EWCA Civ 775

EWCA-Civ
Isaac International Ltd v Revenue & Customs [2009] UKVAT(Customs) C00267 (07 January 2009)
1998 EWCA Civ 775 · 2009-01-07
[1]C00267 CUSTOMS DUTIES – anti-dumping duty – essential bicycle parts –– Council Regulation 71/97/EC - Commission Regulation 88/97/EC – UK Customs Tariff – CPC 94 00 69 – end use procedure – whether conditions for simplified authorisation satisfied – no CUSTOMS DUTIES – post-clearance demand – Council Regulation 2913/92/EEC, articles 204 and 212a – Commission Regulation 2454/93/EEC article 859 – no obvious negligence – whether conditions for relief satisfied - yes LONDON TRIBUNAL CENTRE ISAAC INTERNATIONAL LTD Appellant - and - THE COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS Respondents Tribunal: Nicholas Aleksander (Chairman) Sitting in public in London on 24 and 25 November 2008 Richard Barlow of Counsel for the Appellant Mario Angiolini of Counsel instructed by the Solicitor for HM Revenue and Customs, for the Respondents © CROWN COPYRIGHT 2008 DECISION The Appeal This is an appeal under section 16 Finance Act 1994 against a deemed review decision. The decision confirmed a post-clearance demand for customs duty of £161,120.76 plus VAT of £28,196.13 in respect of unpaid anti-dumping duty on the importation of bicycle parts from China. The demand relates to 33 importations of bicycle frames which took place between 18 November 2003 and 11 April 2005.[2]In order to be exempt from anti-dumping duty, the importation required authorisation pursuant to Commission Regulation 88/97/EC. Isaac International applied for such authorisation in respect of the importations using the simplified procedure under Article 292(3) of the Implementing Regulations (Commission Regulation 2454/93/EEC). The question before the tribunal is whether Isaac International was entitled to apply for such authorisation using the simplified procedure, and if not, whether exemption from duty can nevertheless be allowed by reason of Articles 204 or 212a of the Customs Code (Council Regulation 2913/92/EEC).[3]A bundle of documents was produced to the tribunal, including witness statements from Mrs Yvonne Robinson, a director of Isaac International and from Lesley Batchelor, an accounts manager employed by Isaac International. Customs did not object to the witness statements and so they were admitted in evidence at the hearing as evidence of the facts stated in them. In addition I heard oral evidence from Mrs Robinson. Background[4]Isaac International is a company incorporated in the UK with a branch in Germany. It has a small office and warehouse in the UK, and a warehouse and distribution centre in Germany. Isaac International has five employees in the UK. Staff are also employed in Germany where the company's marketing and sales operations are based. Isaac International imports bicycle parts from China. All parts are initially imported into the UK, and are subsequently sent to its distribution centre in Germany. Most of the parts are sold by Isaac International to distributors for onward distribution to dealers who either make them into bicycles or who sell them to the ultimate end user for their own assembly. However, some 15% of the parts are assembled in Germany into complete bicycles for sale to distributors around the world.[5]Council Regulation 2474/93 imposed anti-dumping duty on bicycles imported from China. Article 1(4) provides that "unless otherwise specified, the provisions in force concerning customs duties shall apply." Council Regulation 71/97 extended that duty to certain bicycle parts. It is not in dispute that the bicycle frames that are the subject of this appeal are "essential bicycle parts" within the scope of Article 1 of Council Regulation 71/97.[6]In accordance with Article 3(2) of that Regulation, the Commission made Regulation (EC) 88/97 which provides for small scale importations of bicycle parts to be exempted from anti-dumping duty. The Regulation's recitals state that the importation of less than 300 units per month will have limited economic significance and are unlikely to undermine the effect of the anti-dumping duty imposed under Council Regulation 2474/93. Article 2 provides for the exemption of imports of essential bicycle parts from anti-dumping duty if they are declared for free circulation under the provisions on end use control in Article 14. Article 14 allows for duty exemption if the parts are declared in accordance with the TARIC structure and subject to the conditions in Article 82 of the Customs Code and Articles 291 to 304 of the Implementing Regulations (which are applied mutatis mutandis ), where less than 300 units per month per type of bicycle part are declared for free circulation by an importer or are delivered to it.[7]Importation of goods subject to end use control is subject to authorisation pursuant to Articles 21 and 82 of the Customs Code and Article 292 of the Implementing Regulations. Such authorisation can either be a prior written authorisation issued by the customs authorities of an EU member state following an application under Article 292(2) of the Implementing Regulations, or an authorisation granted under the simplified procedure provide for in Article 292(3). Article 292(3) allows member states to impose additional conditions for the use of the simplified procedure. The UK has adopted such additional conditions which are set out in the UK Customs Tariff in the notes to Customs Procedure Code (CPC) 94 00 69, which is the CPC to be used if the simplified procedure applies.[8]The exemption from anti-dumping duty is dependent upon the bicycle frames being subject to end-use control. Normally end-use control applies where favourable rates of duty are dependent upon the imported goods being put to a prescribed use. In this case, the "end use" is the mere importation of the frames and their entry into free circulation in the UK – there is no requirement for the frames to be used in any particular way. There is no "end use" in the normal sense of that phrase.[9]Customs' Public Notice 770 explains how businesses can import goods at reduced or nil rates of duty using end-use relief. This notice can be obtained free of charge from Customs and can be viewed online on Customs' web site. Section 2 deals with authorisation, and Section 2.2 deals with the types of authorisation available. So far as is relevant to simplified authorisation, Section 2.2 reads as follows: ? Simplified authorisation C100 (This simplification is only available for end-use operations carried out in the UK.) The simplification can be used if you import goods to the UK either on a one-off basis or for simple operations eg importation of a single aircraft or an aircraft engine. In addition you must wholly assign the goods to the prescribed use and operations must be carried out solely within the UK. Application is made on Form C100 and presented with the import declaration.[10]Section 2.3 goes on to deal with the completion of Form C100 and the entry Form C88 (SAD), and confirms that acceptance of the entry is the authorisation.[11]Isaac International, took the view that as they were merely importing bicycle frames into the UK, and in quantities of less than 300 frames per month, this could be treated as a simple operation which took place solely in the UK, and therefore the simplified procedure was available. The importations were declared electronically by Isaac International's import agent, and "94 00 69" was entered into box 37 of the import declaration on the basis that simplified authorisation was available. Shortly after importation into the UK, the frames were transferred to Isaac International's distribution centre in Germany.[12]Following an assurance visit to Isaac International's UK premises on 15 December 2005, and subsequent correspondence and telephone conversations, Customs determined that the frames were not eligible to be imported under the simplified procedure. As Isaac International did not have the necessary authorisation to enter the frames to end use control, the frames were not exempt from anti-dumping duty. On this basis a customs debt had been incurred pursuant to Article 204 of the Customs Code, and Customs issued a Post Clearance Demand Note.[13]On 19 April 2006, Isaac International completed an authorisation application and were granted authorisation, which was allowed retrospectively to the maximum extent of one year under Article 294(3) of the Implementing Regulations. Accordingly no duty demand has been issued for importations which have taken place after 18 April 2005. Simplified Authorisation[14]Volume 3 of Appendix E2 of the UK Customs Tariff, as in force at the relevant times, provided as follows: 94 00 69 Goods covered Goods imported under the simplified End-Use procedure at a reduced or nil rate of customs duty, subject to their use within the EC for a prescribed purpose […] .[1]Goods covered Goods imported under the simplified End-Use procedure at a reduced or nil rate of customs duty, subject to their use within the EC for a prescribed purpose […] . […] Notes[9]Notes […] 2 Involves only UK customs 2 Involves only UK customs […] 5 This CPC must only be used for civil aircraft, aircraft engines, and "one-off" situations. It must not be used as a regular means of importation . 5 This CPC must only be used for civil aircraft, aircraft engines, and "one-off" situations. It must not be used as a regular means of importation .[15]It is apparent that Public Notice 770 does not accurately reflect the requirements of note 9.5, as Section 2.2 of the Public Notice does not make clear that simplified authorisation using CPC 94 00 69 cannot be used as a regular means of importation. Also, the Public Notice gives the importation of aircraft engines and civil aircraft as examples of circumstances where simplified authorisation is available, implying that there are other "simple operations" for which the CPC can be used. The Notice does not make it clear that civil aircraft, aircraft engines and "one off" situations represent an exhaustive list of the only circumstances in which CPC 94 00 69 is available. In this context I note that the UK Customs Tariff cannot be accessed from Customs' website (in contrast the European Union's Official Journal and all relevant EU legislation is freely accessible on the Internet at www.eur-lex.europa.eu). The Tariff is only available for inspection at a limited number of Customs' offices and at a limited number of business libraries. Otherwise access can only be obtained by purchasing a subscription at an annual cost of several hundred pounds. I note that the Customs Code requires the Tariff to be readily available, and in my view the current arrangements for making the Tariff available to businesses does not meet the requirements of the Code.[16]I agree with the submissions of Customs that 33 importations in 16 months (just over two importations per month) cannot be regarded as "one off" situations, and are a regular means of importation. Accordingly, Isaac International could not use CPC 94 00 69 in respect of the import of the bicycle frames, and was not entitled to use the simplified authorisation procedure as the requirements of Note 9.5 were not satisfied. Article 204(1), Customs Code[17]As Isaac International incorrectly declared the frames to the simplified procedure, a customs debt arises under Article 204 of the Customs Code, " unless is it established that those failures have no significant effect on the correct operation of the […] customs procedure in question " (last sentence of Article 204(1)).[18]Article 859 of the Implementing Regulations provides an exhaustive list of situations which are regarded as having no significant effect for the purposes of Article 204(1) of the Customs Code. The only situation listed in Article 859 which might conceivably have application to this case is Article 859(1) which relates to failure to comply with certain time limits relating to the use of the imported goods, in circumstances where an extension to the limit would have been given if it had been applied for. Isaac International argue that the time limit in this case is the one year limit on retrospective authorisations in Article 294(3) of the Implementing Regulations. But the one year limit in Article 294(3) does not relate to the use of the imported goods, rather it places a limit on the ability of a customs authority to allow authorisations to apply retrospectively. Accordingly the proviso in the last sentence of Article 204(1) of the Customs Code has no application in this case. Article 212a, Customs Code[19]Article 212a provides as follows: Where customs legislation provides for favourable tariff treatment of goods by reason of their nature of end-use or for relief or total or partial exemption from import or export duties pursuant to Articles 21, 82, 145 or 184 to 187, such favourable tariff treatment, relief or exemption shall also apply in cases where a customs debt is incurred pursuant to Articles 202 to 205, 210 or 211, on condition that the behaviour of the person concerned involves neither fraudulent dealing nor obvious negligence and he produces evidence that the other conditions for the application of favourable treatment, relief or exemption have been satisfied.[20]Customs argue that Article 212a cannot apply to Isaac International for two reasons. The first reason is that Article 212a cannot be used to excuse compliance with one of the fundamental conditions for exemption (such as the need for authorisation). The second reason is that Isaac International was "obviously negligent".[21]Customs submit that Article 212a cannot afford favourable tariff treatment when any of the fundamental conditions for obtaining that treatment have not been fulfilled. Customs have identified three fundamental conditions in the case of the importation of essential bicycle parts as follows: first, that less than 300 units are imported each month, secondly that each importation is declared to end use and subject to end use control, and thirdly that the importer is authorised. Customs give the example of an importer who imported more than 300 units in one month (and therefore failed one of the fundamental conditions for exemption) would be able to escape liability to duty by showing that the remaining conditions were fulfilled. Customs argue that Article 212a is more apt to deal with cases where an irregularity has taken place giving rise to a customs debt, but where, nevertheless, all the pre-conditions for gaining favourable tariff treatment would have been fulfilled – for example where goods have been entered incorrectly to one customs procedure, but would have been entitled to relief under another procedure. Customs also raise the question that if a broad interpretation is given to Article 212a, then what purpose is served by Article 859 of the Implementing Regulations – there is no sense in having an exhaustive list in Article 859 if it can be overridden by the open ended provisions in Article 212a.[22]I disagree with both of these submissions. I note that Article 212a was introduced by way of an amendment to the Customs Code, and was enacted some time after the coming into force of Article 204 (to which Article 859 of the Implementing Regulations relates). I note also that Article 212a expressly cross-refers to Article 204. Article 212a must have been introduced to broaden the reliefs beyond those provided by the proviso in the last sentence of Article 204(1). It must necessarily therefore apply to cases which fall outside Article 859, and there is nothing in the language used in the Article which would suggest that it can only apply in cases where all the fundamental pre-conditions for the relevant favourable tariff treatment have been met. As regards the concern of Customs in the example they gave: if an importer imported bicycle frames in quantities greatly in excess of 300 per month, it is likely that the importer would have been obviously negligent in his failure to correctly count the number of frames imported, and so the relief afforded by Article 212a would not be available.[23]Even if Customs were correct in their analysis that Article 212a can only be used where the fundamental pre-conditions have been met, I consider that Isaac International have met all the fundamental pre-conditions for the exemption from anti-dumping duty. Of the three conditions identified by Customs as "fundamental", it is agreed that the first two (that less than 300 units are imported each month, and that each importation is declared to end use and subject to end use control) were met, but they contend that the third condition was never fulfilled as Isaac International did not have the required authorisation. The facts in this case are that Isaac International applied for authorisation, but applied for the wrong sort of authorisation. They applied for simplified authorisation by using CPC 94 00 69, which they thought had been granted by virtue of the acceptance of the entry on importation. They should have applied for authorisation under Article 292(2). This falls within the example given by Customs where the goods were entered incorrectly to one customs procedure, but would have been entitled to relief under another procedure.[24]The application of Article 212a will therefore turn on whether Isaac International were "obviously negligent" in applying for simplified authorisation under Article 292(3), when they should have applied for authorisation under Article 292(2). Obvious negligence[25]I was referred to a series of decisions by the European Court of Justice on the interpretation of "obvious negligence". The decision of the ECJ in Söhl & Söhlke (Case C-48/98) summarises the key issues that need to be determined in considering whether an importer has been obviously negligent.

(c) of the Court which reads as follows:

"(c) In order to determine whether there is obvious negligence within the meaning of the second indent of Article 239(1) ... account must be taken in particular of the complexity of the provisions non-compliance with which has resulted in the customs debt being incurred and the professional experience of, and the care taken by, the trader. It is for the national court to determine, on the basis of those criteria, whether there is obvious negligence on the part of the trader."
[26]The facts of Söhl & Söhlke were distinctly different from the present circumstances. Söhl & Söhlke, an importer of goods under outward processing arrangements, had started in mid-1993 to miss the 20-day time limit for customs clearance. Söhl & Söhlke received a warning from the customs authorities at the start of 1994 (when the Code came into operation) and was informed that a customs debt had been incurred under Article 204(1)(a) of the Code. For the next 11 months Söhl & Söhlke regularly failed to meet the prescribed time limits for assigning the goods a customs approved treatment or use. Söhl & Söhlke ignored the letter from the customs authorities asking for an explanation. Instead, Söhl & Söhlke made several requests for extensions of the time limits based on reasons of "backlog of work", "computerisation difficulties" and "staff shortages". All those requests were refused and the customs authorities issued 125 notices of assessment under Article 204(1).[27]The Court in paragraph 56 explained that in assessing whether there had been obvious negligence required account to be taken "in particular of the complexity of the provisions non-compliance with which has resulted in the customs debt being incurred, and the professional experience of, and care taken by, the trader". The next three paragraphs explain this: "57. As regards the professional experience of the trader, it is necessary to examine whether or not he is a trader whose business activities consist mainly in import and export transactions and whether he has already gain some experience in the conduct of such transactions. As regards the care taken by the trader, it must be noted that, where doubts exists as to the exact application of the provisions non-compliance with which may result in a customs debt being incurred, the onus is on the trader to make enquiries and seek all possible clarification to ensure that he does not infringe those provisions.[58]As regards the care taken by the trader, it must be noted that, where doubts exists as to the exact application of the provisions non-compliance with which may result in a customs debt being incurred, the onus is on the trader to make enquiries and seek all possible clarification to ensure that he does not infringe those provisions. It is for the national court to determine, on the basis of those criteria, whether there is obvious negligence on the part of the trader."[59]It is for the national court to determine, on the basis of those criteria, whether there is obvious negligence on the part of the trader."[28]This approach was followed by the English courts in Invicta Poultry ([1998] EWCA Civ 775). The Invicta Poultry case did not address the meaning of "obvious negligence", but rather whether an error on the part of a customs authority was "reasonably detectible" for the purposes of Article 230 of the Customs Code. However the ECJ has held in Hewlett Packard France (Case C-250/91) and Günzler Aluminium (Case T-75/95) that this phrase is essentially synonymous with "obvious negligence" for the purposes of Article 239 (and hence 212a) as the provisions pursue the same aim.[29]In the High Court in Invicta Poultry Lightman J said:
"In determining whether this condition [reasonable detectibility] is satisfied, all the circumstances of the individual case must be assessed objectively, taking into account the nature of the error, the professional experience of the trader concerned and the degree of care which he has exercised. […] "
It is well established that in conducting this exercise it must be taken into account that a trader has available to detect any error the [Official] Journal and the provisions of Community law there printed. The principle is clear that 'everyone is deemed to know the law'. […] This principle is more realistically understood and applied under Community law than it is under English law: the trader is only expected to derive from the Journal such knowledge as would be derived by an attentive reader. Where the complexity of the law is such as to defeat the reasonable efforts of such a reader, a greater knowledge and understanding may not be attributed to him: whether it will or not depends on all the circumstances."[30]In the Court of Appeal in the same case, Buxton LJ went a little further:
"… a trader whose business essentially comprises import and export transactions and who has accumulated some experience in that area must, by reading the relevant issues of the Official Journal, acquaint himself with the Community law applicable to the transactions which he undertakes."
[31]The error in the present case is that Isaac International failed to apply for authorisation under Article 292(2), and instead sought to use simplified authorisation under Article 292(3). The "complexity of the provisions", the "professional experience of the trader" and the "care taken" are to be examined in the light of that error. Complexity of the provisions[32]The "provisions" are Council Regulations 2474/93 and 71/97 imposing anti-dumping duty, Commission Regulation (EC) 88/97 providing for the exemptions, the Customs Code and the Implementing Regulations. As these were published in the Official Journal, Issac International is treated as if it had read them attentively. I consider that Isaac International is not to be treated as having read the UK Customs Tariff, as this was not published in the Official Journal, and it is not otherwise readily available for inspection.[33]For the simplified authorisation to be available, the three conditions set out in Article 292(3) must be met. These are that: - the application involves only one customs administration - the goods are wholly assigned to the prescribed end use; and - the proper conduct of operations is safeguarded[34]Of these three conditions, only the first is in question. Customs submit that an attentive reader of the Customs Code would realise that Isaac International's application for authorisation would involve more than one customs administration, and that simplified authorisation was therefore not available. Customs consider that end use control relating to any particular bicycle frame extends until the end of the month in which the frame was imported, so as to ensure that the limit of 300 frames per month is not breached. As the frames were transferred to Germany within this period, the frames would continue to be subject to end use control whilst in Germany. For this reason the application involves more than one of the EU's customs administrations, and therefore simple authorisation is not available.[35]There is no express provision in the legislation that makes it clear that end use control extends until the end of the month in which the frame is imported, and it is arguable that as the end use is the mere importation of the bicycle frames into the UK, that end use control ceases as soon as the frames are entered for free circulation (see Article 82 of the Customs Code). Customs argue that end use control must continue until the end of the month so that the limit of 300 units per month can be monitored. However Article 82 of the Customs Code provides for customs supervision to continue until such time as the conditions applicable to the reduced rate of duty cease to apply, even after the goods cease to be subject to end use control. This is consistent with the example of an importer making onward sales of bicycle frames to unconnected third parties within the 30 day period, in which case end use control must cease as a result of the sale. In such a case, customs supervision would continue under Article 82 – thus allowing the 300 unit limit to continue to be monitored. If this alternative interpretation is correct (and for the avoidance of doubt, I make no finding as to whether it is), then Isaac International's application for end use authorisation would only involve one customs administration, as the bicycle frames would cease to be subject to end use control as soon as they were entered in the UK for free circulation.[36]The provisions requiring consideration in this case can be contrasted with those relevant to the situation in Günzler Aluminium . In Günzler the ECJ found that there was obvious negligence when an importer continued to claim exemption from duties on importation of aluminium products, even though the exemption in question had been repealed. However in Günzler, "the rules were simple enough to be easily understood" (paragraph 44 of the decision) - the relevant regulations giving effect to the repeal were extremely straightforward, each comprising no more than two very short unambiguous Articles.[37]The complexity of the provisions applying to this case is illustrated by the confusion within Customs and contradictory advice given to Isaac International after the issue of the Post Clearance Demand Note. Following the assurance visit in December 2005, there were a series of telephone calls and correspondence between Isaac International and Customs as to the procedures that Isaac International should adopt in the future. Within Customs, there was discussion between the local office and the Unit of Expertise and the Tariffs and Statistics Office, and also correspondence with the European Commission in Brussels. Application for authorisation under Article 292(2) was eventually made in April 2006, but Customs supplied the wrong application form, and a single Community authorisation was subsequently applied for, and granted, in June 2006. In October 2006, Isaac International themselves wrote to the Commission seeking further clarification as to the nature of the authorisation required, and in their response dated 13 October 2006, the Commission stated that Isaac International did not require an exemption certificate if their importations were less than 300 units per month. Following the grant of authorisation, Isaac International telephoned the Customs National Advice Helpline to clarify the CPC that they should use under the new SAD H system. They were given advice by one officer that CPC 94 00 38 (or 4000024 which is its replacement) - which applies where authorisation is given in advance - appeared to be inappropriate, and advice from another officer that end use approval was required. In consequence, Isaac International sent an e-mail to Customs on 18 December 2007 for a definitive answer, and are still awaiting a response. Of course none of this exchange of correspondence can be relied upon by Isaac International to justify the original use of the simplified authorisation procedure, but the confusing advice given by Customs and the Commission does illustrate that these provisions are capable of alternative interpretations – even on an attentive reading.[38]In my view, the fact that the application for authorisation would involve more than one customs administration (if indeed that is the correct interpretation of Article 292(2) in this case) would not necessarily be apparent to an attentive reader of the relevant legislative provisions. Experience of the trader[39]I now turn to consider the professional experience of, and the care taken by, the trader. Who are the traders whose professional expertise falls to be examined? They are the directors and employees of Isaac International. Although a significant part of Isaac International's business is concerned with the import of goods, it a small business, which has only five staff in the UK dealing with the importations. Unlike the importers in Hewlett Packard France (Case C-250/91), Isaac International is not a substantial multi-national corporation. They engage a reputable import agent to deal with the importation formalities The only items that they import are the bicycle frames that are the subject of this appeal, and the scale of importations is such that is acknowledged in the recitals to Regulation 88/97 to be of limited economic significance. The professional experience of Isaac International in relation to the operation of the end use authorisation requirements is extremely limited. Care taken[40]I turn to the obligation on the trader "to make enquiries". Mrs Robinson confirmed in her evidence that she had not read the anti-dumping duty regulations or the Customs Code. Rather she had engaged a reputable import agent whom she paid to deal with these matters. The agent e-mailed her with the amount of duty payable, which she arranged to pay. It is agreed that between November 2003 and April 2005, Isaac International did not make any enquiries of Customs as to whether they could use the simplified authorisation procedure. Customs argue that either the legislative provisions are simple, in which case there must be obvious negligence, or, alternatively, the provisions are complex (as I have decided), in which case Isaac International should have sought advice.[41]It is clear from the Invicta Poultry case that it is not "obviously negligent" for traders to appoint agents to deal with the customs clearance of importations on their behalf - although Isaac International cannot avoid liability on account of mistakes that may have been made by its agent – see Common Market Fertilizers (Case 443/05P) at paragraph 187.[42]It is clear from paragraph 58 of the decision of the ECJ in Söhl & Söhlke that doubts must actually exist in the mind of the trader (or their agents) before enquiries need be made of the customs authorities. The fact that these must be real doubts rather than vague possibilities is supported by the decision of the ECJ in Common Market Fertilizers where at paragraph 197 of the decision the Court notes that the trader in question must have had doubts as to the application of the specific duty to its chosen arrangements.[43]In giving evidence, Mrs Robinson confirmed that she, her staff and her import agents had no doubts about the availability of simplified authorisation in the light of Public Notice 770. As the company was importing bicycle frames in quantities which fell within the exemption, there was little reason for Isaac International to have any doubts. It was only following the assurance visit in December 2005 that doubts first arose.[44]In these circumstances, and having regard to all the features referred to above, I consider that Isaac International took care to the standard set out by the European Court of Justice in Söhl & Söhlke . I am therefore satisfied that there has not been obvious negligence on the part of Isaac International. Reference to the ECJ[45]Customs made a submission that if the Tribunal has any doubts about the interpretation of the relevant provisions of Commission Regulation 88/97/EC, the Customs Code or the Implementing Regulations, these issues should be referred to the ECJ pursuant to Article 234 of the EC Treaty.[46]The tribunal's decision is that Isaac International can take advantage of Article 212a on the basis that were not obviously negligent. The determination of obvious negligence is one for national courts, and therefore a reference to the ECJ is inappropriate. Decision[47]For the reasons given above I find that Isaac International are entitled under Article 212a of the Customs Code to the exemption from anti-dumping duty, notwithstanding that they were ineligible to apply for simplified authorisation, as their behaviour involved neither fraudulent dealing nor obvious negligence and all the other conditions for the exemption had been satisfied. This means that the appeal is allowed.[48]I direct that the Respondents should pay the costs of the Appellant of and incidental to and consequent upon this appeal, the amount of such costs to be agreed between the parties but failing agreement to be determined by the Tribunal. Nicholas Aleksander CHAIRMAN RELEASE DATE: 7 January 2009 LON/07/7020 Cases referred to in skeleton arguments: Covita Ave v Greece (case C-370/96)

Cited in 1 later judgment