61998O0299

1 Appeals - Pleas in law - Erroneous assessment of the facts - Not admissible - Dismissal - Legal characterisation of the facts - Admissible

(EC Treaty, Art. 168a (now Art. 225 EC); EC Statute of the Court of Justice, Art. 51, first para.)

2 Own resources of the European Communities - Post-clearance recovery of import duties or export duties - Criteria for waiver of recovery laid down in Article 5(2) of Regulation No 1697/79 - Error made by the competent authorities themselves - None - Good faith of the importer responsible for paying the customs debt - No effect

(Council Regulation No 1697/79, Art. 5(2))

3 Appeals - Pleas in law - Plea put forward for the first time in the appeal proceedings - Inadmissible

(Rules of Procedure of the Court of Justice, Art. 113(2))

4 Procedure - Introduction of new pleas in law in the course of the proceedings - Conditions - Application to the appeal procedure - Plea raised for the first time in the reply and based on matters of law which had come to light before those proceedings - Not admissible

(Rules of Procedure of the Court of Justice, Arts 42(2) and 118)

1 As is apparent from Article 168a of the EC Treaty (now Article 225 EC) and the first paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal is to be limited to points of law and must be based on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant or an infringement of Community law by the Court of First Instance.

An appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. Where the Court of First Instance has established or assessed the facts, the Court of Justice has jurisdiction under Article 168a of the EC Treaty to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them.

2 Under Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import duties or export duties, three cumulative conditions must be satisfied for the purposes of waiver by the competent authorities of post-clearance recovery of import duties, namely that non-collection must have been due to an error by the authorities, that the person liable must have acted in good faith and that he must have complied with all the provisions laid down by the legislation in force so far as his customs declaration is concerned.

With regard to the first condition, this cannot be regarded as satisfied if the competent authorities were misled, in particular as to the origin of the goods, by incorrect declarations on the part of the exporter, the validity of which they did not have to check or assess. Only errors attributable to acts of the competent authorities confer entitlement to the waiver of post-clearance recovery of customs duties.

Moreover, the person liable, a bona fide importer, cannot claim that the principle of the protection of legitimate expectations has been infringed where it is the responsibility of traders to make the necessary arrangements in their contractual relations in order to guard against the risks of an action for post-clearance recovery.

3 Under Article 113(2) of the Rules of Procedure of the Court of Justice, the subject-matter of the proceedings before the Court of First Instance may not be changed in the appeal. Were a party to be allowed to put forward for the first time before the Court of Justice a plea in law which it had not raised before the Court of First Instance, that would enable it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal, the jurisdiction of the Court of Justice is confined to review of the assessment made by the Court of First Instance of the pleas argued before it.

4 Article 42(2) of the Rules of Procedure of the Court of Justice, which is applicable to appeal proceedings by virtue of Article 118 of those Rules, provides that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. Therefore a plea raised for the first time by the appellant in its reply in the proceedings before the Court of Justice, concerning a regulation adopted and published before the date on which the appeal was lodged, must be rejected as manifestly inadmissible