Keywords
Summary

Keywords

1. Actions for annulment - Pleas in law - Breach of essential procedural requirements - Court may consider that question of its own motion

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC))

2. Procedure - Intervention - Application in support of the form of order sought by one of the parties but relying on a different argument - Whether admissible - Freedom to choose the pleas in law relied on - Scope of that freedom

(Rules of Procedure of the Court of First Instance, Art. 116(4))

3. Own resources of the European Communities - Repayment or remission of import or export duties - Article 13 of Regulation No 1430/79 - Commission's power to adopt decisions - Right of the trader concerned to be heard - Scope

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

4. Community law - Observance of the rights of the defence - Fundamental principle - Field of application - Customs matters - Administrative procedure for the remission of import duties - Scope of that principle

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

5. Own resources of the European Communities - Repayment or remission of import or export duties - Special situation - Circumstances in which no deception or obvious negligence may be attributed to the person concerned - Definitions

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

6. Own resources of the European Communities - Repayment or remission of import or export duties - Article 13 of Regulation No 1430/79 - Scope - Commission's power to adopt decisions - Detailed rules concerning the exercise of that power - Special situation - Definition - Serious deficiencies on the part of the contracting parties in implementing an agreement binding the Community - Commission seriously in default

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

7. Own resources of the European Communities - Repayment or remission of import or export duties - Article 13 of Regulation No 1430/79 - Post-clearance recovery of import or export duties - Article 5(2) of Regulation No 1697/79 - Scope

(Council Regulations No 1430/79, Art. 13, and No 1697/79, Art. 5(2))

8. International agreements - EEC-Turkey Association Agreement - Obligations of contracting parties

(EEC-Turkey Association Agreement)

9. Commission - Obligations - Application of EEC-Turkey Association Agreement

(EC Treaty, Art. 155 (now Art. 211 EC))

10. International agreements - EEC-Turkey Association Agreement - Doubts as to the validity of movement of goods certificates - Requirement to make use of the procedure for settling disputes laid down in the Agreement before any other measure

(EEC-Turkey Association Agreement, Art. 25)

11. International agreements - Agreements concluded by the Community - Fulfilment by a third country of obligations undertaken - Existences of tensions between the Community and that country - Commission's obligations - Scope - Limits

(EC Treaty, Art. 155 (now Art. 211 EC))

12. Own resources of the European Communities - Post-clearance recovery of import or export duties - Conditions for the application of Article 5(2) of Regulation No 1697/79 - Error of the administration which could not reasonably have been detected by the person liable - Assessment criteria

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

13. Own resources of the European Communities - Repayment or remission of import or export duties - Article 13 of Regulation No 1430/79 - Obvious negligence - Standard of proof

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

Summary

1. As it concerns an essential procedural requirement the Court of First Instance may consider of its own motion a plea in law alleging the breach of the principle of observance of the rights of defence.

( see paras 134-135 )

2. As provided by Article 116(4) of the Rules of Procedure of the Court of First Instance, an intervener may not go beyond the form of order sought by the party in support of whom it is intervening, but it may freely choose its pleas and arguments in support of that form of order.

( see para. 137 )

3. Observance of the rights of the defence in all proceedings which are initiated against a person and are liable to culminate in a measure adversely affecting that person is a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question. That principle 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 on which the Commission has based the contested decision. In view of the power of assessment enjoyed by the Commission when it adopts a decision pursuant to the general equitable provision contained in Article 13 of Regulation No 1430/79 relating to the remission or repayment of import or export duties, it is all the more important that observance of the right to be heard be guaranteed in procedures initiated pursuant to that regulation. That conclusion is particularly apt where, in exercising its exclusive authority under Article 905 of Regulation No 2454/93, 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, in particular as to whether any obvious negligence can be attributed to the person concerned.

( see paras 151-153, 155 )

4. Observance of the rights of the defence is a fundamental principle of Community law which requires not only that the person concerned be placed in a position in which he may effectively make known his views on the relevant circumstances, but also that he should at least be able to put his own case on the documents taken into account by the Community institution.

Observance of the rights of the defence requires that a person seeking remission of import duty must have had the opportunity to state his views on the documents on which the Commission based the contested decision.

It is not for the Commission to determine the relevance or interest which certain documents might have for a party's defence. It is possible that documents considered irrelevant by the Commission may be of interest to the applicant. If the Commission could unilaterally exclude from the administrative procedure documents which might be detrimental to it, that might constitute a serious breach of the rights of defence of a person seeking remission of import duties.

( see paras 179, 185 )

5. Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or export duties makes that repayment or remission subject to two cumulative conditions, namely the existence of a special situation and the absence of obvious negligence or deception on the part of the person concerned.

The existence of a special situation 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, he would not have suffered the disadvantage caused by the entry in the accounts a posteriori of customs duties.

As regards the condition concerning the absence of obvious negligence or deception on the part of the interested party, it must be made clear that the question whether the error was detectable, within the meaning of Article 5(2) of Regulation No 1697/79, is linked to the existence of obvious negligence or deception within the meaning of Article 13(1) of Regulation No 1430/79, and therefore the conditions laid down by the latter provision must be assessed in the light of those laid down in Article 5(2) of Regulation No 1697/79.

( see paras 217-220 )

6. Article 13(1) of Regulation No 1430/79, which provides that import duties may be repaid or remitted in situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned constitutes a general equitable provision.

In order to determine whether the circumstances of the case constitute a special situation within the meaning of that provision the Commission must assess all the relevant facts. That obligation implies that, in cases in which reliance is placed, in support of applications for remission, on the existence of serious deficiencies on the part of the contracting parties in implementing an agreement binding the Community, 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 supervising and monitoring the implementation of that agreement. Similarly, it cannot 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 interested parties.

Moreover, although the Commission enjoys a discretionary power in applying Article 13, 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 importer acting in good faith in not suffering harm which goes beyond normal commercial risks. Consequently, when considering whether an application for remission is justified, it cannot take account only 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 216, 222-225 )

7. Article 5(2) of Regulation No 1697/79 provides that the competent authorities may refrain from taking action for the post-clearance recovery of import duties or export duties which were not collected as a result of an error made by the competent authorities themselves which could not reasonably have been detected by the person liable, the latter having for his part acted in good faith and observed all the provisions laid down by the rules in force as far as his customs declaration is concerned. Thus, the legitimate expectations of the person liable to pay qualify for the protection provided for by that provision only if it was the competent authorities themselves which created the basis for the expectations of the person liable. That condition cannot be regarded as fulfilled where the competent authorities have been misled, in particular as to the origin of the goods, by incorrect declarations made by the person liable, the validity of which those authorities do not have to check or assess. In such circumstances, it is the person liable to pay who must bear the risks arising from a commercial document which is found to be false when subsequently checked.

Although Article 5(2) of the above Regulation and Article 13(1) of Regulation No 1430/79, which provides that the competent authorities may repay or remit import duties in situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned, pursue the same aim the provisions are not the same. The first has a more limited objective than the second, in so far as it is intended solely to protect the legitimate expectation of the person liable to pay that all the elements on which the decision whether or not to proceed with the recovery of customs duties is based are correct while the second is a general equitable provision.

Thus, where the competent authorities did not enter the customs duties in the accounts because they were misled by statements made by exporters, the person liable cannot rely on Article 5(2) of Regulation No 1697/79. Similarly, as is clear from Article 4(2)(c) of Regulation No 3799/86 and Article 904(c) of Regulation No 2454/93, the person liable cannot argue that the presentation of invalid certificates and the consequent error of the competent authorities are sufficient to constitute a special situation within the meaning of Article 13 of Regulation No 1430/79. On the other hand, those provisions do not prevent the person liable to pay from relying on other matters in support of his application for remission under Article 13 of Regulation No 1430/79. For example, the error of the competent authorities may itself have been made possible by inadequate monitoring by the Commission of the implementation of the provisions of an association agreement and such circumstances may constitute a special situation.

( see paras 231-235 )

8. Under Article 7 of the Agreement establishing an Association between the EEC and Turkey the contracting parties are to take all appropriate measures, whether general or particular, to ensure the fulfilment of the obligations arising from the agreement and to refrain from any measures liable to jeopardise the attainment of its objectives. That provision expresses the pacta sunt servanda principle and the principle of good faith which must govern the conduct of the parties to an agreement in public international law.

( see para. 237 )

9. Pursuant to Article 155 of the EC Treaty (now Article 211 EC) and the principle of good administration, the Commission has a duty to ensure the proper application of the Agreement establishing an Association between the EEC and Turkey and of the Additional Protocol.

( see para. 257 )

10. As envisaged by the Agreement establishing an Association between the EEC and Turkey, it is for the Commission, in cases of doubt about the validity of A.TR.1 movement of goods certificates issued by the Turkish customs authorities to make use of the procedure for settling disputes laid down in Article 25 of that agreement before declaring those certificates invalid. That conclusion is borne out by the fact that the agreement does not provide for the possibility of a contracting party declaring invalid the certificates issued by the customs authorities of the other contracting party. Furthermore, such a manner of proceeding seems difficult to reconcile with the division of responsibility between the customs authorities of the parties to the agreement and the principle that the customs administration of the importing State accepts the determinations legally made by the authorities of the exporting State.

( see para. 270 )

11. The existence of tensions between the Community and a third country does not exonerate the Commission as guardian of the Treaty and of the agreements concluded under it from ensuring the correct implementation by that country of the obligations it has contracted to fulfil under an agreement concluded with the Community, using the means provided for by the agreement or by the decisions taken pursuant thereto. If, as a result of such tensions, it is unable to meet that obligation, inter alia because the means at its disposal prove to be inoperative or ineffective, it is incumbent upon it, at the very least, to inform the Member States as soon as possible of the measures to be taken to prevent damage to the Community and Community traders. In no case can the Commission use its exclusive authority as regards the recovery and remission of import duties to remedy failures in the implementation of an agreement concluded between the Community and a third country.

( see paras 271-272 )

12. In order to determine whether an error made by the competent authorities could not reasonably have been detected by the person liable within the meaning of Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties, account has to be taken inter alia of the precise nature of the error, the professional experience of and the care taken by the trader concerned. That assessment must be made in the light of the particular circumstances of the case. The nature of the error should be assessed inter alia in the light of the amount of time during which the competent authorities persisted in their error and the complexity of the provisions at issue.

( see paras 279, 282 )

13. Article 13 of Regulation No 1430/79 provides that import duties may be repaid or remitted in situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned. It is for the Commission to prove obvious negligence in a situation where it is clear that the manner in which the applicants entered into purchase contracts and carried out the imports at issue is in conformity with standard trade practice.

( see para. 297 )