T-75/95

Commission of the European Communities, represented by Claudia Schmidt, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

A P P L I C A T I O N for annulment of the Commission's decision of 14 November 1994, document K(911)3006 final, concerning remission of import duties, which is addressed to the Federal Republic of Germany,

* Language of the case: German.

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Legal background

1 Article 13(1) of Council Regulation (EEC) N o 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175, p. 1), as amended by Article 1(6) of Council Regulation (EEC) N o 3069/86 of 7 October 1986 amending Regulation (EEC) N o 1430/79 on the repayment or remission of import or export duties (OJ 1986 L 286, p. 1), provides that 'import duties may be repaid or remitted in special situations other than those referred to in Sections A to D, which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned'.

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2 Article 5(2) of Council Regulation (EEC) N o 1697/79 of 24 July 1979 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 involv- ing the obligation to pay such duties (OJ 1979 L 197, p. 1) provides that 'the com- petent 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 cus- toms declaration is concerned'.

Facts

6 The customs office then failed to submit a report to the central office responsible for monitoring quotas and ceilings. As a result, it was not until March and August 1991 (as regards the 1990 and 1991 imports respectively), following a subsequent verification of the customs declarations, that the exemptions from customs duties were discovered to have been wrongly granted.

7 O n 23 April and 30 June 1992, the competent principal customs office sent the applicant customs duty reassessment notices for an amount totalling D M 29 429.79.

8 When the applicant learned of the intention to proceed with post-clearance recov­ ery of the customs duties, it attempted to contact its Yugoslav trading partners, but was unable to do so as a result of the turmoil caused by the civil war which had broken out in the meantime.

9 The applicant then appealed to the competent German customs authorities for the waiver of post-clearance recovery of the customs duties in accordance with Article 5(2) of Regulation N o 1697/79. In the alternative, it sought remission of import duties under Article 13 of Regulation N o 1430/79. In its appeal, the applicant also sought and obtained an extension of time to pay under national law.

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15 The applicant claims that the Court should:

— annul the Commission's decision of 14 November 1994; and

— require the Commission to adopt a new decision concerning Germany's request of 2 May 1994 concerning the repayment or remission of import or export duties, in compliance with the legal position adopted by the Court.

16 The Commission contends that the Court should:

JUDGMENT OF 5. 6.1996 — CASE T-75/95

18 It is settled law that in an action for annulment brought under Article 173 of the E C Treaty, the Community Court cannot, without encroaching on the prerogatives of the administrative authority, order a Community institution to take the neces­ sary measures to comply, as required by Article 176 of the Treaty, with a judgment by which a decision is annulled (see, most recently, Case T-346/94 France-Aviation ν Commission [1995] E C R 11-2841, paragraph 42).

19 The second head of claim, for an order requiring the Commission to adopt a new decision concerning Germany's request of 2 May 1994, is therefore inadmissible.

Substance

The first head of claim — seeking annulment

20 The applicant puts forward a single plea in law, alleging breach of the first subpara­ graph of Article 13(1) of Regulation N o 1430/79, as amended by Regulation N o 3069/86.

24 Those inexplicable delays were the sole reason for the applicant's no longer being able, as a result of the civil war in the former Federal Republic of Yugoslavia, to claim reimbursement from its trading partners of the customs duties whose post- clearance recovery had been decided upon.

25 Secondly, the applicant submits that the concept of a 'special situation' is a legal one, the tenor of which must be interpreted in the light of the objective pursued by the charging of import duties. The Commission should therefore have exam­ ined the merits of the request by comparing the instant case with the situations in which remission of import duties is expressly provided for. In that context, remis­ sion of import duties is justified when the economic aim pursued by the importa-

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tion of the goods can no longer be achieved as a result of circumstances beyond the importer's control.

26 That is precisely the situation here. The applicant would not have been penalized financially by post-clearance recovery if the customs office had applied the relevant rules properly or if the error had been rectified within a reasonable period, the competent Yugoslav central office being unable to accede to the well-founded claims for reimbursement as it had ceased to exist. Exemption from import duties should thus also be granted in the present case.

29 Finally, whilst Article 13 of Regulation N o 1430/79 and Article 5(2) of Regulation N o 1697/79 may have the 'same aim', the applicant raises the question whether it may be inferred that the factual preconditions for the application of those two pro­ visions are the same. In any event, it considers that it has not failed in its duty to exercise due care for the purposes of Article 5(2) of Regulation N o 1697/79.

30 The Commission argues, first, that the remedy available under German law to chal­ lenge the validity of the reassessment notices of 23 April and 30 June 1992 bars the applicant from relying on Article 13 of Regulation N o 1430/79, as a general equi­ table provision (see Case 283/82 Schoellershammer ν Commission [1983] E C R 4219, paragraph 7, and Cerealmangimi, cited above, paragraph 10). Where such a remedy is available, there is no need to seek a decision on equitable grounds (see Cerealmangimi, paragraph 17).

31 If the applicant were none the less allowed to rely on Article 13 of Regulation N o 1430/79, the Commission points out that the concept of a 'special situation' has not been defined. In the Commission's view, it must be interpreted in the light of the situations listed in Sections A to D of Regulation N o 1430/79, taking into account the fact that it is an equitable provision.

32 As for the error made by the German customs authorities, the Commission argues that the exceptional situations expressly described in Regulation N o 1430/79 refer to cases in which goods can no longer be used for the purpose for which they were

36 The applicant's alleged inexperience should have led it, the Commission claims, to examine the relevant provisions and publications with care. If the applicant wished to be sure that it would not be subject to post-clearance recovery of customs duties, it should not have placed blind confidence in the notice exempting it from payment of duties.

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37 Finally, as regards the applicant's argument that an importer cannot be expected to have more extensive knowledge than the customs officials themselves, the Com­ mission points out that it has already been rejected by the Court of Justice (see Deutsche Fernsprecher, paragraph 17).

Findings of the Court

38 It is, first of all, common ground that the imports in question were subject to cus­ toms duties under Commission Regulations N o 1280/90 and N o 1347/91. As regards the first two consignments, imported on 22 May and 8 June 1990 respec­ tively, the levying of customs duties was reimposed, under Article 1 of Regulation N o 1280/90, on imports into the Community of products of the kind in question originating in Yugoslavia, from 19 May to 31 December 1990. As regards the third consignment, imported on 26 June 1991, the levying of customs duties was reim­ posed, under Article 1 of Regulation N o 1347/91, on imports into the Community of such products originating in Yugoslavia, from 27 May to 31 December 1991.

were not collected as a result of an error made by the competent authorities them­ selves which could not reasonably have been detected by the person liable, the lat­ ter 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'. The object of Regulation N o 1697/79, as stated in Article 1 thereof, is to determine the condi­ tions under which post-clearance recovery is undertaken of import or export duties on goods entered for a customs procedure involving the obligation to pay such duties which have not been required of the person liable for payment (see Joined Cases 212/80 to 217/80 Amministrazione delle Finanze dello Stato ν Salumi and Others [1981] E C R 2735, paragraph 7). It is clear, moreover, from the file submit­ ted to the Commission by the German authorities that, following receipt of the customs duty reassessment notices, the applicant's principal request was for waiver of post-clearance recovery under Article 5(2) of Regulation N o 1697/79.

41 In addition, Regulation N o 1697/79, repealed with effect from 1 January 1994 by Article 251 of Council Regulation (EEC) N o 2913/92 of 12 October 1992 estab­ lishing the Community Customs Code (OJ 1992 L 302, p. 1), was in force at the material times, the goods having been imported in 1990 and 1991 and the reassess­ ment notices having been issued in 1992.

45 With regard to the trader's professional experience, the Court rejects the applicant's argument that since it had only occasionally imported aluminium bars from abroad it must be regarded as an inexperienced trader and could not reasonably be expected to be more knowledgeable than the customs authorities, still less to review their actions.

46 It appears from the documents before the Court, and the applicant has not denied, that it imported aluminium bars on eleven occasions in 1990 and on eight in 1991, the value on each occasion being far from negligible. Although the applicant's activ­ ity does not essentially consist in import and export operations, it had none the less already gained some experience of importing the goods in question, having in the past carried out such transactions on which customs duties had been calculated (see Deutsche Fernsprecher, cited above, paragraph 21).

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47 The argument that an importer cannot be expected to have more extensive knowl- edge than customs officials has been rejected by the Court of Justice, on the ground that to establish any such principle would make it practically impossible to effect post-clearance recovery since the error will perforce always have been committed by the official concerned through failure to examine a factual or legal situation in every respect. Article 5(2) of the Council Regulation would be divested of its pur- pose since it necessarily presupposes that the duties in question were not collected as a result of an error by the competent authorities themselves (see Deutsche Fernsprecher, paragraph 17).

49 However, it appears from the applicant's reply to the written questions put by the Court that the purchase price for both of the consignments imported in 1990 was paid before the applicant had received the assessment notices from the customs office. The first consignment was imported on 22 May 1990 and the assessment notice issued on 25 May 1990. The applicant had nevertheless already paid up on 17 May 1990, before the customs declaration had even been submitted. The second consignment was imported on 8 June 1990 and the assessment notice issued on 11 June 1990, whereas the applicant had already paid up on 8 June 1990. The appli- cant itself thus took a financial risk which was not unavoidable under the contract terms, set out at paragraph 3 above. It cannot, therefore, claim to have entertained a legitimate expectation, subsequently frustrated, as to the validity of those assess- ment notices, the aim of Article 5(2) of Regulation N o 1697/79 being, in particular, to protect the legitimate expectation of the person liable that all the information

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and criteria on which the decision whether or not to recover customs duties is based are correct (see Case C-348/89 Mecanarte ν Chefe do Serviço da Conferência Final da Alfandega [1991] ECR I-3277, paragraph 19).

50 Furthermore, as the Commission has rightly stated, the applicant should have examined the relevant provisions and publications if it wished to be certain of not being liable for duty after clearance. It is settled law that, as from the date of their publication in the Official Journal, the applicable Community provisions constitute the only relevant substantive rules, of which all are deemed to be aware (see Case C-80/89 Behn ν Hauptzollamt Itzehoe [1990] E C R I-2659, paragraph 13, and Binder, cited above, paragraph 19). The error could have been detected by an atten­ tive trader by reading the Official Journal in which the regulations had been pub­ lished several days before the import transactions in question took place (see Binder; paragraph 20). Contrary to the applicant's opinion, that case-law does not apply only to commercial traders whose activities essentially consist of import- export operations.

54 It is clear from its wording that application of Article 13 of Regulation N o 1430/79 is dependent on the concurrent fulfilment of two conditions — the existence of a special situation and the absence of obvious negligence or deception — so that remission of duties must be refused if either of those conditions is not met (see Oryzomyli Kavallas, cited above). In the contested decision, the Commission con- sidered that the request was not justified on the ground that the reimposition of customs duties had been published in the Official Journal, which may be relied on as against any person liable, all persons being deemed to be aware of the provisions published therein. The Commission thus took the view, essentially, that the appli- cant had not demonstrated the absence of obvious negligence on its part, within the meaning of Article 13.

55 Even though the Commission should have assessed the applicant's request under Article 5(2) of Regulation N o 1697/79 (see paragraph 40 above), Article 13 of Regulation N o 1430/79 and Article 5(2) of Regulation N o 1697/79 pursue the same aim, namely to limit the post-clearance payment of import and export duties to cases where such payment is justified and is compatible with a fundamental prin- ciple, namely the protection of legitimate expectations. It follows, as noted in para- graph 52 above, that the question whether the error was capable of being detected, within the meaning of Article 5(2) of Regulation N o 1697/79, is linked to the exist-

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enee of obvious negligence or deception within the meaning of Article 13 of Regu­ lation N o 1430/79. Although the Commission was wrong in law to examine the case before it under Article 13 of Regulation N o 1430/79, that error was of a purely formal nature as it did not, in the specific circumstances of this case, have any deci­ sive influence as to the outcome of the examination. There is accordingly no need to annul the contested decision on the ground that the Commission relied on the wrong legal basis.

O n those grounds,

T H E C O U R T O F FIRST INSTANCE (Third Chamber)

hereby:

1. Dismisses the application as inadmissible in so far as it seeks that directions be issued to the Commission;

2. Dismisses the remainder of the application as unfounded;

3. Orders the applicant to pay the costs.