Case T-205/99

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Commission of the European Communities

‛Customs duties — Importation of television sets from India — Invalid certificates of origin — Application for remission of import duties — Article 13(1) of Regulation (EEC) No 1430/79 — Rights of the defence — Special situation’

Judgment of the Court of First Instance (Third Chamber), 11 July 2002   II-3146

Summary of the Judgment

1. Own resources of the European Communities — Repayment or remission of import or export duties — Article 13 of Regulation No 1430/79 — Power of decision of the Commission — Right of the trader concerned to be heard — Scope

   (Council Regulation No 1430/79, Art. 13; Commission Regulation No 2454/93, Art. 905)

2. Community law — Principles — Rights of the defence — Administrative procedure for the remission of import duties — Obligation of the Commission, acting on its own initiative, to grant the person concerned access to all the documents on which it based its decision — No such obligation — Obligation of the person concerned to request such access

   (Art. 255 EC; Commission Regulation No 2454/93, Art. 905)

3. Own resources of the European Communities — Repayment or remission of import or export duties — Article 13(1) of Regulation No 1430/79 — ‘Special situation’ — Definition — Commission's discretion — Scope — Limits

   (Council Regulation No 1430/79, Art. 13(1))

4. Own resources of the European Communities — Repayment or remission of import duties — Article 13 of Regulation No 1430/79 — Scope — Limits — Procedure provided for in Articles 906 to 909 of Regulation No 2454/93 — Application for annulment of a decision adopted at the end of that procedure — Person liable for duties may not rely on pleas and arguments seeking to show that the decisions of the competent national authorities are unlawful — Adverse effect on the judicial protection of Community importers — No such effect

   (Art. 234 EC; Council Regulations Nos 1430/79, Art. 13, and 2913/92, Art. 243; Commission Regulation No 2454/93, Arts 905 to 909)

5. Own resources of the European Communities — Post-clearance recovery of import or export duties — Pecuniary loss suffered by the importer as a result of post-clearance recovery — Classification as a special situation within the meaning of Article 13(1) of Regulation No 1430/79 — Excluded

   (Council Regulation No 1430/79, Art. 13(1))

1.  In view of the power of assessment enjoyed by the Commission when it adopts a decision pursuant to the general equitable provision set down in Article 13 of Regulation No 1430/79 on the repayment or remission of import or export duties, observance of the right to be heard must be guaranteed in procedures for the remission or repayment of import duties. That conclusion is particularly apt where, in exercising its exclusive authority under Article 905 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, the Commission proposes not to follow the opinion of the national authority as to whether the conditions laid down by Article 13 of Regulation No 1430/79 have been met.

   (see para. 49)

2.  The principle of respect for the rights of the defence requires that any person who may be adversely affected by a decision be placed in a position in which he may effectively make his views known, at least as regards the evidence, including the documents, on which the Commission has based its decision. However, that principle does not require the Commission, acting on its own initiative, to grant access to all the documents which may have some connection with the case at issue when an application for remission of import duties is referred to it. If the party concerned considers that such documents are relevant for establishing the existence of a special situation and/or the lack of deception or obvious negligence on its part, then it is for the party concerned itself to request access to those documents in accordance with the provisions adopted by the institutions under Article 255 EC.

   As regards the administrative procedure concerning remission of customs duties, it is at the request of the party concerned that the Commission is required to provide access to all non-confidential official documents concerning the contested decision. If no such request is made, there is no automatic access to the documents held by the Commission.

   (see paras 50, 63, 65)

3.  The existence of a special situation within the meaning of Article 13(1) of Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties is established where it is clear from the circumstances of the case that the person liable is in an exceptional situation as compared with other operators engaged in the same business and that, in the absence of such circumstances, that person would not have suffered the disadvantage caused by the a posteriori entry in the accounts of customs duties. In order to determine whether the circumstances of the case constitute a special situation in which no deception or obvious negligence may be attributed to the person concerned within the meaning of Article 13(1) of Regulation No 1430/79, the Commission must assess all the relevant facts. In cases where the persons liable have relied, in support of their applications for remission, on the existence of serious errors on the part of the contracting parties in implementing an agreement binding the Community, that obligation implies that the Commission must base its decision as to whether those applications are justified on all the facts relating to the disputed imports of which it gained knowledge in the performance of its task of super vising and monitoring the implementation of that agreement. Moreover, the Commission cannot, in the light of its obligation to assess all the relevant facts, and of the principle of equity which underlies Article 13(1) of Regulation No 1430/79, disregard relevant information of which it has gained knowledge in the performance of its tasks and which, although not forming part of the administrative file at the stage of the national procedure, might have served to justify remission for the parties concerned.

   Moreover, although the Commission enjoys a margin of discretion in applying Article 13 of Regulation No 1430/79, it is required to exercise that power by genuinely balancing, on the one hand, the Community interest in ensuring that the customs provisions are respected and, on the other, the interest of the bona fide importer in not suffering harm which goes beyond normal commercial risk. Consequently, when considering whether an application for remission is justified, the Commission cannot take account simply of the conduct of importers. It must also assess the impact on the resulting situation of its own conduct, which may itself have been wrongful.

   (see paras 92-95)

4.  The sole aim of Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or export duties is to enable importers, when certain special conditions are satisfied and in the absence of deception or obvious negligence, to be exempted from payment of duties due from them and not to enable them to contest the actual principle of a customs debt being due. The application of substantive Community customs law falls within the exclusive competence of the national customs authorities. Decisions adopted by those authorities, including decisions requiring post-clearance payment of customs duties not previously levied, may be challenged before the national courts under Article 243 of the Community Customs Code; those courts may make a reference to the Court of Justice pursuant to Article 234 EC.

   By contrast, since the procedure before the Commission provided for in Articles 906 to 909 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, is, in accordance with Article 905 of that regulation, confined to an examination of whether the conditions for remission laid down in Article 13(1) of Regulation No 1430/79 have been met, the only pleas or arguments which can be properly put forward by a person liable for customs duties who requests annulment of the decision adopted at the end of that procedure are those which seek to show the existence of a special situation and/or the lack of deception or obvious negligence on its part. In no circumstances may a person liable for duties rely, in relation to the contested decision, on pleas or arguments seeking to show that the decisions of the competent national authorities subjecting it to payment of the duties at issue were unlawful. That situation does not adversely affect the judicial protection afforded to Community importers. The fact that, in the context of the procedure provided for in Article 905 et seq. of Regulation No 2454/93, it is impossible for the person liable for duties to rely on arguments contesting the propriety of the withdrawal of the certificates derives from the fact that the Commission is not competent to decide on that matter. Moreover, where appropriate, there is nothing to prevent the person liable from raising such arguments in proceedings before the competent national court seeking review of the legality of the decision of the national customs authorities.

   (see paras 98-100)

5.  The fact that the customs authorities of a Member State decide to make post-clearance recovery of customs duties following withdrawal, by the authorities of a nonmember country, of certificates of origin which proved to be invalid after subsequent verifications by the authorities of that country, constitutes a normal commercial risk which must be taken into consideration by any trader who is aware of the rules. It is therefore the responsibility of traders to take steps to guard against such risks, in particular by making the necessary arrangements in their contractual relations with their suppliers and, where appropriate, by seeking compensation from the perpetrator of the fraud. That conclusion is all the more compelling given that the converse interpretation, namely that the damage suffered as a result of post-clearance recovery is capable of constituting a special situation, within the meaning of Article 13 of Regulation No 1430/79 on the repayment or remission of import or export duties, would jeopardise the very possibility of post-clearance recovery of customs duties, since that type of recovery, by definition, takes place well after the initial importation and subsequent sale of the imported goods, and would therefore prevent all recovery of outstanding duties.

   (see paras 114-115)