Appeal brought on 12 December 2008 by Agrar-Invest-Tatschl GmbH against the judgment delivered by the Court of First Instance (Eighth Chamber) on 8 October 2008 in Case T-51/07 Agrar-Invest-Tatschl GmbH v Commission of the European Communities

(Case C-552/08 P)

(2009/C 55/16)

Language of the case: German

Parties

Appellant: Agrar-Invest-Tatschl GmbH (represented by: U. Schrömbges and O. Wenzlaff, Rechtsanwälte)

Other party to the proceedings: Commission of the European Communities

Form of order sought

Pleas in law and main arguments

This appeal contests the judgment of the Court of First Instance which dismissed the appellant's action challenging Commission Decision C(2006) 5789 final of 4 December 2006 on the subsequent entering in the accounts of import duties owed by the appellant for the import of sugar from Croatia.

The Court of First Instance's basis for dismissing the appellant's action was the absence of good faith, one of the four requirements that must all be met if import duties are not to be subsequently entered in the accounts. The Court stated that, under the fifth subparagraph of Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (‘the Customs Code’), the person liable cannot plead his good faith if the European Commission, as in the case in point, has published in the Official Journal a notice to importers stating that there are grounds for doubt concerning the proper application of the preferential arrangements by the beneficiary country. Nor, according to the Court of First Instance, is it material that the appellant acted in good faith with regard to the subsequent confirmation of the authenticity and accuracy of the movement certificates, since it in any event did not act in good faith when the imports took place.

The appellant bases its appeal on an incorrect interpretation by the Court of First Instance of the fifth subparagraph of Article 220(2)(b) of the Customs Code. It submits that the Court's interpretation is wrong in law in that, according to the Court, the Commission notice published in the Official Journal concerning doubt as to the proper application of the preferential arrangements by the beneficiary country has the effect of excluding good faith even where, as in the present case, the relevant certificates issued in connection with the securing of preferential treatment were subject after publication of the warning notice to a verification procedure that confirmed their authenticity and accuracy.

The Court of First Instance fails to recognise that the effect of a warning notice that is laid down in the fifth subparagraph of Article 220(2)(b) of the Customs Code is restricted by the principle under which decisions of third-country customs authorities within the framework of a system of administrative cooperation should be recognised. The provision of the Customs Code at issue involves a legal fiction of bad faith which is rebuttable, indeed — as in the present case — precisely by carrying out a verification procedure. The appellant's good faith is therefore restored by the subsequent confirmation of the authenticity and accuracy of the movement certificates, that is to say, the appellant could rely on the fact that the grounds for doubt on the basis of which the Commission's warning notice was published were removed in the course of the verification procedure. The appellant's good faith is therefore dependent not on proper issue of the movement certificates at issue by the Croatian authorities but on the proper verification of those certificates by the customs authorities on the basis of the doubts, disclosed by the Commission's warning notice, as to whether they were properly issued.