Following an unsuccessful administrative appeal against that decision, Meico-Fell brought an action which has to be decided by the court which has submitted the question for a preliminary ruling.

may not be taken after the expiry of a period of three years from the date of entry in the accounts of the amount originally required of the person liable for payment or, where there is no entry in the accounts, from the date on which the customs debt relating to the said goods was incurred.

The parties to the main proceedings and the referring court all agree that that three-year period had expired, so that only under Article 3 of that regulation is post-clearance recovery still possible. That article provides as follows:

When the competent authorities find that it is following an act that could give rise to criminal court proceedings that the competent authorities were unable to determine the exact amount of the import duties or export duties legally due on the goods in question, the period laid down in Article 2 shall not apply.

Under those circumstances, the competent authorities shall take action for recovery in accordance with the provisions in force in this respect in the Member States.

In order to resolve this problem, the Hessisches Finanzgericht referred the following question to the Court for a preliminary ruling:

Is Article 3 of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of impon duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (Official Journal 1979 L 197, p. 1) to be interpreted as meaning that an act that could give rise to criminal court proceedings refers only to an act specifically covered by the criminal law of the Member State concerned, or does it extend to any infringement of tax provisions carrying a longer period of limitation?

In principle, the customs authorities must commence action to effect post-clearance recovery when they find that all or part of the amount of duties legally due has not been required of the person liable for payment.

See the first paragraph of Article 2(1) of the Regulation.

The Commission and Meico-Fell differ in their views about the scope of this reference to national law: should the meaning of the expression an act that could give rise to criminal court proceedings be determined by applying Community law criteria (which are thus uniform in character) to national law (as the Commission considers) or is it a concept whose meaning varies from one Member State to another and which can be determined only on the basis of the applicable national law (as Meico-Fell considers)? I take the view that, in order to ensure that Community law is applied uniformly and that the persons liable are treated equally, which is one of the aims of Regulation No 1697/79 (see above, at paragraph 4), the Commission's view is to be preferred. That view is also supported by the case-law of the court, according to which the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the Community and that interpretation must take into account the context of the provision and the purpose of the relevant regulations.

See the judgment in Case 327/82 Ekro v Produkuchap voor Vee en Vlees [1984] ECR 107, at paragraph 11.

The narrow criterion advocated by Meico-Fell has the advantage of being easy to apply but it has no Community content and may lead to the unsatisfactory situation in which the post-clearance recovery of customs duties following the commission of a single act is subject to the limitation period applying in Community law or the longer limitation period, depending on whether a Member State has made the decision (which in the end is quite arbitrary) to punish that act under criminal law or under administrative law. The uniform application of the Common Customs Tariff and the equal treatment of persons liable for customs duties will thus be ensured only to a limited extent.

Whilst this criterion may seem more suitable for achieving a uniform application of Community law and the equal treatment of persons liable for customs duties in the Member States, it also has a number of drawbacks. First of all, it is a vague criterion which national courts would have to apply in the context of their own legal system, and this, too, would ultimately lead to results varying from one Member State to another; moreover, being vague, the criterion does not sit well with the principle of legal certainty (on which Regulation No 1697/79 is also based). Secondly, it seems to me that the criterion is difficult to reconcile with the scheme of Regulation No 1697/79: the regulation leaves no doubt that the limitation period of three years laid down by Community law is also applicable when the incorrect or insufficient collection of duties was due to the negligence of the person liable; it is only by way of exception, namely when the acts committed are liable to criminal court proceedings, that the period laid down by national law, which is ex hypothesi longer, is applicable. However, the criterion advocated by the Commission would have the result that the longer period would be applicable whenever the incorrect or insufficient collection of duties is due to culpable negligence, punishable under national law, on the part of the person liable for duties, irrespective of the nature and gravity of the penalty laid down for such negligence. This does not seem to me to be compatible with the scheme of the regulation.

In seeking such a criterion, the obvious starting point is to look at the way in which the expression an act that could give rise to criminal court proceedings is rendered in the various language versions. It is noticeable that some versions, in particular the Danish, German, English and Dutch versions, which are, respectively, en handeling, der vil kunne undergives strafferetlig forfølgning, Handlungen, die strafrechtlich verfolgbar sind, an act that could give rise to criminal court proceedings and strafrechtelijk vervolgbare handelingen, appear to be narrower (they appear to refer to criminal law in the strict sense) than the French, Italian, Spanish, Portuguese and Greek versions (which are, respectively actes passible de poursuite judiciaires repressives, atto passibile di un'azione giudiziaria repressiva, un acto que puede dar lugar a la incoación de un proceso judicial punitivo, um acto passivel de procedimento judicial repressivo and στη συνέχεια πράξεως γιά την οποία έχει επ ιληφθεί η δικαστική αρχή). The broader expressions used in the French, Italian, Spanish, Portuguese and Greek versions suggest that these acts are rather those to which sanctions are attached which, although they must be imposed by a court (not necessarily a criminal court), have a deterrent or repressive character. It is noticeable, moreover, that in other Community instruments in which expressions like an act that could give rise to criminal court proceedings (or similar expressions) are used, expressions belonging to criminal law in the strict sense are used in the French, Italian, Spanish and Portuguese versions.

Three examples may be quoted here. In Council Regulation (EEC) No 2M4/87 (OJ 1987 L 201, p. 15), the corresponding expressions for criminal proceedings used in Article 2(2) are poursuites pénales, azioni penali, diligencias penales and procedimentos penais. In Council Directive 89/592/EEC o( 13 November 1989 coordinating regulations on insider dealing (OJ 1989 L 334, p. 30) the corresponding expressions for judicial proceedings under criminal law as in Article 10(3) are poursuites judiciares à caractère pénal, procedimenti giudiziari di carattere penale, procedimientos judiciales de indole penai and processos judiciais de caracter penal. In Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance (OJ 1987 L 185, p. 77) the corresponding expressions for criminal proceedings used in Article 2(1) are procedure pénale, procedimento penale, procedimiento penal and processo penal.

The European Court of Human Rights was asked to interpret the expression criminal charge (in the French text of the Treaty, accusation en matière pénale) appearing in Article 6(1) of the aforementioned convention and the expression everyone charged with a criminal offence (in the French text, toute personne accusée d'une infraction) contained in Article 6(2) and (3) in connection with infringements which, under national law, are not punished by criminal law penalties but administrative law penalties. In its judgment of 1976 in the Engel case,

The European Court of Human Rights, Engel and Others, judgment of 8 June 1976/23 November 1976, Publication! of the European Court of Human Rights, A Series, Volume 22, in particular paragraphs 80 and 81.

What does this mean specifically as far as the present case is concerned? In my view, the referring court may conclude that an act that could give rise to criminal court proceedings exists first of all where the act in question is one which under the applicable national law is punished with a criminal sanction in the strict sense; and, secondly, where the act is one which infringes a general provision and under the applicable national law is punished with a sanction which is of such a deterrent or punitive character and/or characterized by such a degree of gravity that it must be regarded as being equivalent to a criminal penalty in the strict sense.