Keywords
Summary

Keywords

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 - Protection of legitimate expectations - Conditions

3. Own resources of the European Communities - Repayment or remission of import or export duties - Article 13 of Regulation No 1430/79 - Scope - Power of decision of the Commission - Rules for its exercise - Special situation - Meaning - Improper conduct by clients of a customs agent - Not covered

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

4. Acts of the institutions - Statement of reasons - Obligation - Scope

(EC Treaty, Art. 190 (now Art. 253 EC))

Summary

1. Observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question. In view of the margin of assessment enjoyed by the Commission in adopting a decision pursuant to the general equitable provision contained in Article 13 of Regulation No 1430/79 on the repayment or remission of import or export duties, it is all the more important that respect for the right to be heard be guaranteed in procedures initiated pursuant to that Regulation.

Consequently, a trader seeking repayment of customs duties pursuant to that provision has the right to be heard during the procedure for the adoption of a decision on his request.

The requirements implied by that principle are satisfied only partly by the statement for the file mechanism introduced by Article 905 of Regulation No 2454/93, under which all requests for repayment of import duties must be accompanied by a statement from the person concerned that he has read the case transmitted to the Commission by the competent national authorities and - where appropriate - that he has nothing to add. Whilst that effectively enables the person concerned to exercise his right to be heard during the first stage of the administrative procedure, which takes place at national level, it in no way guarantees his rights of defence during the second stage of the procedure, which takes place before the Commission once the national authorities have communicated the case to it. The statement is made at a stage when the Commission has not yet had an opportunity to consider the position of the person concerned, let alone come to a provisional view on his application for repayment. The right to be heard must be guaranteed at both stages. However, such a breach of the rights of the defence cannot result in the annulment of the contested decision unless it is established that without the irregularity the procedure might have had a different outcome.

( see paras 44-47 )

2. The right to rely on the principle of the protection of legitimate expectations extends to any individual in a situation where the Community authorities have caused him to entertain legitimate expectations. However, a person may not plead infringement of the principle unless he has been given precise assurances by the administration.

( see para. 59 )

3. Article 13 of Regulation No 1430/79, which provides that import duties may be repaid or remitted in special situations ... which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned, constitutes a general equitable provision designed to cover situations other than those which arise most often in practice and for which special provision could be made when the regulation was adopted. Article 13 is intended to apply, inter alia, where the circumstances characterising the relationship between a trader and the administration are such that it would be inequitable to require the trader to bear a loss which he would not normally have incurred.

In applying that provision, the Commission enjoys a discretionary power which it must exercise by balancing the Community interest in ensuring that customs rules are respected against the interest of the importer acting in good faith not to incur loss beyond the normal commercial risk.

However, a situation where the documents submitted by a customs agent, albeit in good faith, are subsequently found to be false or incorrect does not amount to a special situation justifying remission or repayment of customs duty. A customs agent, owing to the very nature of his work, assumes liability for the payment of import duties and the validity of the documents which he presents to the customs authorities, and any loss caused by wrongful conduct on the part of his clients cannot be borne by the Community. The possibility of receiving certificates of origin that are invalid, even though they have been issued by the customs authorities of the countries mentioned on them, is one of the trade risks assumed by customs agents.

( see paras 76-78, 82-83 )

4. The statement of reasons required by Article 190 of the EC Treaty (now Article 253 EC) must disclose clearly and unambiguously the reasoning followed by the institution which adopted the measure, so as to enable the persons concerned to acquaint themselves with the reasons for the measure and the Community judicature to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law. The question whether the statement of reasons meets those requirements must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

( see para. 92 )