Action brought on 21 October 2005 — Transnáutica/Commission

(Case T-385/05)

(2005/C 330/59)

Language of the case: English

Parties

Applicant(s): Transnáutica — Transportes e Navegação, SA (Matosinhos, Portugal) [represented by: C. Fernández Vicién, I. Moreno-Tapia, D. Ortigão Ramos, B. Aniceto Silva, lawyers]

Defendant(s): Commission of the European Communities

Form of order sought

Pleas in law and main arguments

The applicant is a Portuguese company, primarily engaged in freight transportation. In 1994 another Portuguese company dispatched a certain number of consignments of tobacco and ethyl alcohol from Portugal to countries then outside the Community under the external Community transit procedure. The applicant was named as principal, in the terms of Article 96 of the Community Customs Code (‘CCC’), for these consignments. It was later revealed that, in fact, the applicant's management was fully unaware of these transactions, as one of its employees had been acting fraudulently, using the applicant's guarantee certificate in violation of internal instructions.

Because there was no evidence that the consignments in question had reached the customs office of their destination, the applicant, as principal, was requested to pay the relevant customs debts. The applicant later applied under Article 239 CCC for the repayment and remission of these debts, alleging that, being unaware of the unauthorised activities of its employee, it was not involved in any fraudulent activities and had collaborated with the authorities and that, further, the Portuguese customs authorities had never informed it about their suspicions of fraud in relation to the transactions in question. This application was rejected by the contested Decision.

In support of its application, the applicant contends that the Commission infringed essential procedural requirements, as it failed to consult the Customs committee and only requested the applicant to intervene in the procedure at a very late stage. The applicant also invokes an alleged manifest error of assessment by the Commission of the facts in question, as well as an infringement of the Commission's duty to state reasons for its decisions. The applicant further refers to alleged infringements of the principle of good administration and its rights of defence on the grounds that the Commission has failed to examine carefully and impartially all relevant aspects of the case. Finally, the applicant invokes an alleged infringement of the principle of proportionality, since its application was rejected even though the Commission and the Portuguese authorities had started an investigation to discover whether the operations in questions constituted smuggling.