T-42/96

United Kingdom of Great Britain and Northern Ireland, represented initially by Stephanie Ridley, of the Treasury Solicitor's Department, acting as Agent, and subsequently by John Collins, of the Treasury Solicitor's Department, acting as Agent, and by David Anderson, Barrister, with an address for service in Luxem- bourg at the British Embassy, 14 Boulevard Roosevelt,

intervener,

v

Commission of the European Communities, represented by Götz zur Hausen, Legal Adviser, 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,

* Language of the case: German.

having regard to the written procedure and further to the hearing on 26 November 1997,

gives the following

Judgment

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 (OJ 1986 L 286, p. 1), provides:

'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.'

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circulation in the customs territory of the Community. Article 3(a) states that that debt is incurred at the moment when the competent authorities accept the entry of the goods for free circulation.

5 O n 12 October 1992 the Council adopted Regulation (EEC) N o 2913/92 estab- lishing the Community Customs Code (OJ 1992 L 302, p . 1, hereinafter 'the Cus- toms Code'), which entered into force on 1 January 1994. Article 251(1) of the Customs Code repealed, in particular, Regulations N o s 1430/79, 1697/79 and 2144/87.

6 Article 239(1) of the Customs Code provides:

'Import duties or export duties may be repaid or remitted in situations ... resulting from circumstances in which no deception or obvious negligence may be attrib- uted to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accord- ance with the Committee procedure. Repayment or remission may be made sub- ject to special conditions.'

9 Article 904 of the Regulation provides:

'Import duties shall not be ... remitted where the only grounds relied on in the application for ... remission are, as the case may be:

(c) presentation, for the purpose of obtaining preferential tariff treatment of goods declared for free circulation, of documents subsequently found to be forged, falsified or not valid for that purpose, even where such documents were pre- sented in good faith.'

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Background to the dispute

Only the applicable Common Customs Tariff rate of 20% was payable in respect of meat imported under that quota (hereinafter 'the Hilton quota') (Article 1(2)) of both regulations).

14 In respect of the same two years, the Council also adopted Regulations (EEC) N o 2329/91 of 25 July 1991 (OJ 1991 L 214, p . 1) and N o 1158/92 of 28 April 1992 (OJ 1992 L 122, p. 5) opening as an autonomous measure a special import quota for high-quality, fresh, chilled or frozen meat of bovine animals falling within C N codes 0201 and 0202 as well as products falling within C N codes 0206 10 95 and 0206 29 91. Those regulations increased the quantities which could be imported under the Hilton quota.

15 Finally, for the same period, the Commission adopted Regulation (EEC) N o 3884/90 of 27 December 1990 laying down detailed rules for the application of the import arrangements provided for by Council Regulations (EEC) N o 3840/90 and (EEC) N o 3841/90 in the beef and veal sectors (OJ 1990 L 367, p. 129) and Regu- lation (EEC) N o 3743/91 of 18 December 1991 laying down detailed rules for the application of the import arrangements provided for by Council Regulations (EEC) N o 3668/91 and (EEC) N o 3669/91 in the beef and veal sectors (OJ 1991 L 352, p . 36) (hereinafter 'the implementing regulations').

16 Under the Hilton quota, certain quantities of Hilton beef could thus be imported into the Community from Argentina free of levies. Grant of that benefit was sub- ject to production, at the time of importation, of a certificate of authenticity issued by the competent body in the exporting country.

20 The first mission took place from 8 to 19 November 1993. The results of that mis- sion were recorded in a report dated 24 November 1993 (hereinafter 'the 1993 report'), which confirmed the existence of irregularities.

21 According to that report, the Argentine authorities raised the question why those irregularities had not been detected when the Hilton beef was imported into the Community. Point 11 of the report stated: '... the Argentine authorities emphasised that, for many years, they had submitted to the Commission (DG VI) on a more or less regular basis, a list of all the certificates of authenticity for [Hilton beef] issued in the preceding 10 days setting out certain particulars such as the Argentine exporter, the recipient in the Community, the gross and net weight etc. According to the persons interviewed, it would easily have been possible, on the basis of such a list, to compare the data with the details on the certificates produced when the goods at issue were imported and to identify those which did not correspond with the data on the list.'

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22 A second mission to Argentina took place from 19 April to 6 May 1994. Accord- ing to the report of that mission, dated 17 August 1994 (hereinafter 'the summary report'), more than 460 Argentine certificates of authenticity presented in 1991 and 1992 had been falsified.

23 The applicant is a German company which has been importing, inter alia, Hilton beef from Argentina for many years. Its commercial interests were represented in Argentina by an independent agency, Multiagrar Representaciones del Exterior (hereinafter 'the agency'). The agency's task was to gather offers from the various slaughterhouses and forward them to the applicant. During the period at issue, the applicant purchased Hilton beef from several Argentine abattoirs, including the undertaking Manufactura de Carnes Vacunas, which was one of its largest suppli- ers. The investigations subsequently carried out by the Commission apparently revealed, however, that a large proportion of the certificates of authenticity accom- panying the goods delivered by that undertaking had been falsified.

28 O n 2 October 1995 a group of experts composed of representatives of all the Member States met in order to give an opinion on whether the application for remission of import duties was well founded in accordance with Article 907 of Regulation N o 2454/93. Since a copy of the applicant's application of 1 March 1995 had not been sent to all the representatives of the Member States before that meeting, the matter was dealt with only provisionally at the meeting. The Com- mission therefore asked the members of the group of experts to inform it in writ- ing of their definitive position by 25 October 1995 at the latest.

29 By decision of 20 December 1995, addressed to the Federal Republic of Germany, the Commission considered that the application for remission was not justified (hereinafter 'the contested decision').

Procedure and forms of order sought by the parties

30 By application lodged at the Registry of the Court of First Instance on 22 March 1996, the applicant brought an action for the annulment of the contested decision.

31 By application lodged at the Registry of the Court of First Instance on 2 October 1996, the United Kingdom of Great Britain and Northern Ireland sought leave to intervene in support of the applicant. By order of 9 December 1996, the President of the Third Chamber granted that request.

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— order the Commission to pay the costs.

36 The Commission contends that the Court should:

— dismiss the application;

— order the applicant to pay the costs.

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40 In the present case, the 'entry in the accounts', that is to say the act by which the competent authorities determined the amount of the import duties, took place after the Customs Code entered into force on 1 January 1994, since the notices of recovery were dated March 1994. It was only after the Customs Code entered into force that the Commission and the German customs authorities became aware that certificates of authenticity had been falsified and, consequently, sought post- clearance recovery of the import duties.

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41 Furthermore, it is apparent from the judgment in Joined Cases 212/80 to 217/80 Salumi and Others [1981] ECR 2735 that new substantive rules apply to proceed- ings pending in so far as it follows from their terms and objective that they should apply. By repealing Regulation N o 1430/79, the Community legislature intended only the Customs Code to apply from 1 January 1994, even to earlier conduct in respect of which no decision had yet been taken.

42 The choice of the applicable legal rule is important from the point of view of sub- stantive law. Whilst Article 13 of Regulation N o 1430/79 requires the existence of 'special situations', Article 239 of the Customs Code also applies in situations resulting from mere 'circumstances'. The conditions for remission on equitable grounds were thus relaxed in keeping with the case-law according to which a decision on grounds of equity should not be subject to excessively strict condi- tions.

43 Finally, the applicant recalls that, in its application for remission dated 1 March 1995, it claimed that Article 239 of the Customs Code was applicable. Since the Commission had not adopted a decision that was valid from a procedural point of view within the six-month period provided for by Article 907 of Regulation N o 2454/93, the German customs authorities should have granted the application for remission in accordance with Article 909 of that regulation.

47 According to the rules in force at that time, namely Regulation N o 2144/87 (see paragraph 4 above), the customs debt on import was incurred on the dates when the competent authorities accepted the entry of the goods concerned for free cir- culation.

48 When each importation was made the applicant presented an import declaration to the German customs authorities and paid customs duties at the rate of 20% in accordance with Article 1(2) of Regulations N o 3840/90 of 20 December 1990 and N o 3668/91 of 11 December 1991, cited above. Initial entries were accordingly made in the accounts of the amount of the import duties, within the meaning of Article 2 of Regulation N o 1697/79, in respect of the importations made during 1991 and 1992 and initial clearance was received.

49 The customs debt comprised not only the customs duties, but also the levies at issue (see paragraph 11 above), in so far as the exemption from those levies had indirectly been obtained by presentation, at the time when the import declaration was made, of falsified certificates of authenticity.

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so As the Commission correctly pointed out, the date on which the competent national authorities decided to proceed with post-clearance recovery of the levies is not relevant.

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usually interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, objectives or general scheme that such an effect must be given to them (Salumi and Others, cited above, para- graph 9).

56 There is nothing in the Customs Code to suggest that the substantive rule con- tained in Article 239 thereof had retroactive effect.

57 It follows from the foregoing that the first plea must be rejected.

The second plea alleging breach of the rights of the defence

Arguments of the parties

62 In the second limb to the plea, the applicant claims that, when a hearing took place, the Commission should have placed on the file all the documents in its pos- session which might be considered relevant so as to make it possible subsequently to determine whether the allegations that the Commission and the Argentine authorities had failed to comply with their obligations were well founded.

63 According to the applicant, the procedural provisions in Article 878 et seq. of Regulation N o 2454/93 reveal serious gaps from the point of view of legal protec- tion, since those provisions do not provide for the following rights and obliga- tions: the applicant's right to enforce its rights directly before the Commission at a hearing, the Commission's obligation to inform the applicant, before adopting its decision, of the basic facts and considerations in order for it to be able to raise arguments to the contrary, and the applicant's right to require production of all the necessary documents.

64 In view of those gaps, the applicant considers that a procedure similar to that provided for in anti-dumping matters should be applied in the present case.

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65 Finally, it notes that the meeting between its lawyer and the Commission was merely an informal meeting and, furthermore, that it took place before the applica- tion for remission of import duties was submitted to the Commission. That meet- ing therefore did not offer the same guarantees of legal protection as a proper hear- ing.

70 In accordance with the requirements laid down in the case-law, all the information which the applicant itself considered essential was on the file at the time when the contested decision was adopted (Case 294/81 Control Data Belgium v Commission [1983] ECR 911, Joined Cases 98/83 and 230/83 Van Gend & Loos and Expedi- tiebedrijf Wim Bosman v Commission [1984] E C R 3763 and CT Control (Rotter- dam) and JCT Benelux v Commission, cited above).

71 In this plea, the applicant fails to appreciate the purpose of the procedural guaran- tees concerning remission of import duties. The sole purpose of those guarantees is to bring to the attention of the Commission the facts and arguments considered relevant by the applicant and not to inform the latter of the reasons on which the Commission might subsequendy base its decision.

72 It is true that the person liable must be given an opportunity to put his case on the documents relied on by the Commission in adopting its decision (Case C-269/90 Technische Universität München [1991] E C R I-5469 and France-Aviation v Com- mission, cited above), but that does not mean that he should also be able to put his case on other documents.

73 In any event, the applicant's lawyer discussed the case with the Commission on several occasions before it was submitted to the latter by the Federal Republic of Germany. During those discussions, the applicant had already expressed its view on the remission of import duties in the light of its own special situation.

Findings of the Court

74 First, it should be pointed out that the administrative customs procedure for the remission of import duties involves two separate stages. The first is at national

77 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 N o 1430/79, it is all the more important that respect for the right to be heard is guaranteed in procedures for the remission or repayment of import duties

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(France-Aviation v Commission, cited above, paragraph 34, and, to the same effect, Technische Universität München, cited above, paragraph 14).

78 The principle of respect for the rights of the defence requires that any person who may be adversely affected by a decision should be placed in a position in which he may effectively make his views known, at least as regards the matters taken into account by the Commission as the basis for its decision (see, to this effect, Com- mission v Lisrestal and Others, paragraph 21, and Fiskano v Commission, para- graph 40).

79 In competition matters, it is settled case-law that access to the file is itself closely bound up with the principle of respect for the rights of the defence. Indeed, access to the file is one of the procedural guarantees intended to protect the right to be heard Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR and Others v Commission [1992] ECR II-2667, paragraph 38, and T-36/91 ICI v Com- mission [1995] ECR II-1847, paragraph 69).

83 It is alleged for the first time in the contested decision that the applicant failed to exercise due care by omitting to adopt all the necessary safeguards concerning its contractors and intermediaries in Argentina. In particular, the applicant did not itself check the circulation of the certificates of authenticity issued to it (22nd recital in the preamble to the decision) even though it had the resources to take precautions (16th recital).

84 In that respect it should be recalled that, in paragraph 36 of its judgment in France- Aviation v Commission, cited above, the Court considered that when the Commis- sion contemplated diverging from the position taken by the competent national authorities on whether the person concerned was guilty of obvious negligence, it had a duty to arrange for the applicant to be heard. Such a decision involves a complex legal appraisal which can be effected only on the basis of all the relevant facts.

85 That case-law can be applied to the present case, even though it is only alleged that the applicant failed to act with due care. Indeed, the Commission relied inter alia on that allegation in rejecting the application for remission pursuant to Article 13 of Regulation N o 1430/79 which, however, requires the absence of any 'obvious negligence' by the person concerned.

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86 During the procedure before it, the Commission did not give the applicant an opportunity to put its case and effectively make its views known on the relevant circumstances relied on against it as the basis for the contested decision.

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91 Both Article 13 of Regulation N o 1430/79 and Article 239 of the Customs Code constitute general equitable provisions designed to cover situations other than those which arose most often in practice and for which special provision could be made when Regulation N o 1430/79 and the Customs Code were adopted (Joined Cases 244/85 and 245/85 Cerealmangimi and Italgrani v Commission [1987] ECR 1303, paragraph 10, and C-446/93 SEIM [1996] E C R I-73, paragraph 41).

92 The applicant alleges that both the Argentine authorities and the Commission failed to comply with their obligations.

— Obligations allegedly not fulfilled by the Argentine authorities

93 The applicant claims that, under the implementing regulations, the Argentine authorities were required to issue certificates of authenticity guaranteeing the ori- gin of the products at issue. Those certificates should have been issued by an issu- ing body with all the guarantees necessary to ensure the proper operation of the Hilton quota.

96 The applicant claims that the Council entrusted the Commission with the task of properly organising and monitoring the operation of the Hilton quota and, in par- ticular, laying down in the implementing regulations, provisions guaranteeing the nature, origin and source of the goods.

97 Three obligations arise from this main duty. According to the applicant, the Com- mission should, first, have ensured that the undertakings given by the Argentine authorities concerning the issue of certificates of authenticity were respected (see, for example, Article 2(5) and Articles 3 and 4 of Regulation N o 3884/90 of 27 December 1990, cited above), which it failed to do. Second, it should have involved the Member States to as great an extent as possible in monitoring the system. Third, it was itself obliged to ensure that the import system was respected, in accordance with the principle of good administration and the duty of care.

98 The applicant claims, inter alia, that the Commission failed to forward to the national authorities the names and specimen signatures of the persons empowered to issue certificates of authenticity. N o r did it publish those details in the Official Journal of the European Communities. Finally, it failed to inform the national authorities of the serial numbers of the certificates of authenticity which should have been notified to it by the Argentine authorities.

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99 Those failures prevented the competent national authorities from effectively check- ing the validity of the certificates of authenticity when the goods were imported. In the majority of cases, the falsifications could have been detected by simply com- paring the signatures.

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falsification of certificates of authenticity was made possible as a result of those infringements. Second, even by exercising the greatest care, the applicant would have been unable to protect itself against falsification by exporters. Third, it was entitled to assume that the certificates of authenticity were valid.

104 It is also incorrect to claim, with reference to Article 904(c) of Regulation N o 2454/93, that expectations as to the validity of a certificate of authenticity were not protected. That provision simply states that import duties will not be remitted if the only ground in support of the application is the presentation of documents subsequently found to be forged or falsified even where such documents were pre- sented in good faith. In any event, that is not the case here, since the applicant has relied on several other grounds. In that context the Commission incorrectly relies on the judgment in Case 827/79 Acampora [1980] E C R 3731.

105 The rules at issue only granted the Commission a margin of assessment, and not a discretion (Van Gend & Loos and Expeditiebedrijf Wim Bosman v Commission, cited above, paragraph 17). That margin of assessment should be applied very restrictively in the present case since the circumstances relied on by the applicant constitute, inter alia, infringements attributable to the Commission.

106 In response to the Commission's allegation in its defence that the second condition in Article 13 of Regulation N o 1430/79 was not satisfied, the applicant claims that it is a new plea which should, as such, be rejected.

1 1 0 The contested decision i s undoubtedly vitiated,since the Commission failed to take sufficient account of the fact that it had itself contributed to the applicant's problems. The reasoning and the conclusions in the contested decision are mani- festly incorrect inasmuch as the Commission owed a duty to traders to detect fraud and had failed to discharge its duty of supervision under the implementing regulations.

1 1 1In view of the responsibility assumed by the Commission in supervising and monitoring the quota, and its failure to comply with its obligations in the exercise of that responsibility, there was no legal justification for the refusal to grant remis- sion. The effect of that refusal was to penalise wholly innocent traders, which is directly contrary to the general equitable purpose of Article 13 of Regulation N o 1430/79.

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Arguments of the defendant

112 The Commission contends that it had good reason to consider that the facts in the present case did not constitute a special situation justifying remission of the import duties.

117 That approach also follows from Article 4(2)(c) of Regulation N o 3799/86 and Article 904(c) of Regulation N o 2454/93. According to those provisions, the pre- sentation in good faith of falsified documents does not in itself constitute a special circumstance justifying remission. The fact that the German customs authorities initially accepted the certificates of authenticity as valid could not have led the applicant to entertain legitimate expectations {Faroe Seafood and Others, cited above, paragraph 93).

us The Commission points out that it is clear from the case-law, on the one hand, that the Community does not have to bear the adverse consequences of the wrongful acts of the suppliers of its nationals and, on the other, that in calculating the ben- efits from trade in goods likely to enjoy tariff preferences, a prudent trader aware of the rules must be able to assess the risks inherent in the market which it is con- sidering and accept them as normal trade risks (Acampora, paragraph 8, and Pas- coal & Filhos, paragraph 59, cited above). In claiming that the Argentine authori- ties have a 'duty to guarantee', the applicant is thus wrongly attempting to avoid the consequences of that case-law.

119 The grounds of challenge relied on by the applicant are not such as to eliminate or restrict the commercial risk to which it is exposed (see also Van Gend & Loos and Expeditiebedrijf Wim Bosman v Commission, cited above, paragraphs 16 and 17). The sole aim of the system of supervision was to ensure that only meat imported

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123 Quotas were indeed exceeded in 1989. However, that could be explained by confu- sion with certificates of authenticity relating to other imports of meat. When the Commission received information, in 1993, concerning falsification of certificates of authenticity, it reacted immediately. There can therefore be no question of gross negligence on its part.

124 In the absence of error by the competent authorities, therefore, the first of the three cumulative conditions set out in Article 5(2) of Regulation N o 1697/79 (see paragraph 113 above) is not satisfied.

1 2 5The second condition, namely that the person liable acted in good faith, is not satisfied either. Contrary to what the applicant claims, the 17th and 21st recitals in the preamble to the contested decision already mention lack of care on the appli- cant's part.

126 According to the Commission, the falsification of the certificates of authenticity could have been detected if the applicant had examined them carefully. The appli- cant had obtained the original certificates of authenticity through its agency in Argentina. If there was any doubt as to their validity, it had a duty to ascertain that they were valid (Hewlett Packard France, paragraph 24, and Faroe Seafood and Others, paragraph 100, cited above).

1 3 0Since Article 13 of Regulation N o 1430/79 was in force at the material time (see paragraph 53 above) it is necessary, in the context of this plea, to establish whether the contested decision was adopted in breach of that provision.

1 3 1Article 13(1), as amended by Regulation N o 3069/86, provides that 'import duties may be repaid or remitted in special situations other than those referred to in Sec- tions 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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132 According to settled case-law, Article 13 constitutes a general equitable provision designed to cover situations other than those which arose most often in practice and for which special provision could be made when Regulation N o 1430/79 was adopted (Cerealmangini and Italgrani v Commission, cited above, paragraph 10, and SEIM, cited above, paragraph 41 ). It is intended to apply, inter alia, where the circumstances characterising the relationship between a trader and the administra- tion are such that it would be inequitable to require the trader to bear a loss which it normally would not have incurred (Case 58/86 Coopérative Agricole d'Approvisionnement des Avirons [1987] ECR 1525, paragraph 22).

133 The Commission must therefore assess all the facts in order to determine whether they constitute a special situation within the meaning of that provision (see, to that effect, Case 160/84 Oryzomyli Kavallas and Others v Commission [1986] E C R 1633, paragraph 16). Although it enjoys a margin of assessment in that respect (France-Aviation v Commission, cited above, paragraph 34), it is required to exer- cise that power by actually 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 not to suffer harm beyond normal commercial risk. Consequently, when examining whether an application for remission is justi- fied, it cannot simply take account of the conduct of importers. It must also assess the impact of its own conduct on the resulting situation even if it is at fault.

1 3 7It simply considered that the question whether the error by the competent authorities was capable of being detected within the meaning of Article 5(2) of Regulation N o 1697/79 was linked to the existence of obvious negligence or deception within the meaning of Article 13 of Regulation N o 1430/79, and that the conditions laid down by the latter provision must therefore be assessed in the light of those laid down in Article 5(2).

138 Even if the competent authorities did not make an error within the meaning of Article 5(2) of Regulation N o 1697/79, therefore, that does not automatically pre- clude the person concerned from relying, in the alternative, on Article 13 of Regu- lation N o 1430/79 and claiming that there is a special situation justifying remission of the import duties.

139 The Commission's argument disregards the purpose of the two provisions. Whilst Article 5(2) of Regulation N o 1697/79 is intended to protect the legitimate expec- tation of the person liable that all the information and criteria on which the decision whether or not to proceed with recovery of customs duties is based are

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correct (Faroe Seafood and Others, cited above, paragraph 87), Article 13 of Regulation N o 1430/79 constitutes a general equitable provision, as recalled above. That article would cease to be a general equitable provision if the conditions laid down in Article 5(2) had to be satisfied in every case.

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with Article 4 of the two implementing regulations, both bore a stamp, apparently from the same competent issuing authority, and a signature.

144 They contained identical information concerning the date and place of issue, the Argentine exporter, the recipient in the Community and the vessel on which the goods were to be exported. The only difference in the information on the two ver- sions related to the weight indicated, as the Commission confirmed in a response to a question from the Court. The version entitled 'duplicado', which was intended for the Argentine authorities, showed a substantially lower weight than the origi- nal certificate delivered to the importer. Whilst the 'duplicado' version referred to weights in the order of 600 to 2 000 kg, the weight indicated on the original, which corresponded to the quantities actually exported to the Community, was in the region of 10 000 kg. In that respect, the Court notes that, during the period in question, Hilton beef was normally transported in containers with a capacity of approximately 10 000 kg.

1 4 5Furthermore, at the hearing, the Commission cast doubt on the identity of the signatures on the two versions of the certificate.

146 However, a comparison of the signatures in question shows that they are, at first sight, identical, or at least very similar. Likewise, the signatures on the certificates of authenticity delivered to the applicant seem at first sight to correspond to the specimen signatures of the persons empowered to sign which were sent to the Commission by the Argentine authorities in 1991 and 1992. In any event, since the Commission had not circulated those specimen signatures to the Member States or the importers, nor had it published them in the Official Journal, the applicant had no effective means of checking the validity of the signature on the certificate of authenticity upon receipt.

150 In response to the written questions of the Court, the applicant provided an extract from the statements made by the owner of the agency to the Landgericht (Regional Court), Hamburg. According to that document the owner was, at the time, 'entirely unaware of the origin and use of falsified and/or forged certificates of origin by ... Hilton beef exporters', or 'of the existence of periods of conjecture' as regards falsification.

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151 In v i e w of all the foregoing, it must be acknowledged that the applicant's failure to detect the falsifications at issue was reasonable, since it was unable to carry out such a check.

152 A s regards the methods of payment relied o n b y the C o m m i s s i o n in support of the view that the applicant had acted in bad faith, it appears from the statements made b y the owner of the agency to the Landgericht, H a m b u r g , that the transfers were made b y the applicant after the agency had confirmed by fax that it had obtained all the documents for the purpose of dispatch in the prescribed manner.

153 Furthermore, the applicant has established that the transfers to the accounts in the Netherlands were not exceptional. It maintained, without being contradicted by the C o m m i s s i o n , that it is customary in international trade for an exporter in a third country to ask for payment to be made to accounts in the Netherlands, Swit- zerland or the U n i t e d States.

158 Although it is true that an initial division of the quotas between Argentine abat- toirs was published in Argentina, the system of dividing the Hilton quota was not transparent to third parties. According to the summary report, there was a quota market on which the various abattoirs could purchase unused quotas; that was acknowledged by the Commission at the hearing. It has therefore not been estab- lished that the applicant was in a position to ascertain the precise quotas allocated to its contractual partners.

159 Since the manner in which it entered into purchase contracts and carried out the importations at issue formed part of standard trade practice, it was for the Com- mission to prove that the applicant was guilty of obvious negligence.

160 The Commission did not even attempt to furnish such proof. Indeed, in a response to a question raised by the Court to that effect at the hearing, it merely repeated the allegations contained in the contested decision, that the applicant had failed to act with due care by failing to take all necessary precautions with regard to its contractual partners and its intermediaries in Argentina and by not itself checking the circulation of the certificates of authenticity received by it.

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161 In view of all the foregoing, it must be held that the applicant's conduct did not constitute obvious negligence, within the meaning of Article 13 of Regulation N o 1430/79.

165 Pursuant to Article 155 of the Treaty and the principle of good administration, the Commission was obliged to ensure the proper application of the Hilton quota and make sure that it was not exceeded (see, to this effect, Case 175/84 Krohn v Com- mission [1987] E C R 97, paragraph 15).

166 That duty of supervision also derived from the implementing regulations. Article 6(1) of both regulations provided that: 'The Member States shall communicate to the Commission, in respect of each period of 10 days, not later than 15 days after that period, the quantities of products referred to in Article 1 that have been put into free circulation, broken down by their country of origin and combined nomenclature code'. Such a requirement would have been meaningless if it had not been coupled with the obligation, on the Commission, to check that the quota was properly applied.

167 Furthermore, it is apparent from the 1993 report that the Argentine authorities sent to the Commission, on a more or less regular basis, the lists of certificates of authenticity issued during a period of 10 days before they were sent, setting out, inter alia, the Argentine exporter, the recipient in the Community and the gross and net weights. The Argentine authorities also sent the names and specimen sig- natures of Argentine officials empowered to sign the certificates of authenticity.

168 It must therefore be held that only the Commission had — or was in a position to request — the necessary data in order effectively to monitor use of the Hilton quota. In those circumstances, the obligation to ensure that the quota was properly applied was even greater.

173 Thus, it was only at the beginning of the following year that the Commission sum- marised on lists the information which had been sent to it so that differences in quantities and, where appropriate, any excess over the quotas could only be detected at that time. For that reason, in any given year, it was unable to inform the Member States that the quota for that year might have been exhausted.

174 Furthermore, the lists were only handwritten. The Commission would have been able to monitor the data provided much more effectively if it had processed them by computer. Moreover, without any particular difficulty, it could have overcome the problems linked to the fact that the indication, on the certificates of authentic- ity, of the anticipated importing Member State was not binding, so that the goods could be exported to a Member State other than that shown on the certificate.

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175 Second, as already noted at paragraph 146 above, the Commission omitted to cir- culate to the Member States the specimen signatures of the Argentine officials authorised to sign the certificates of authenticity or to publish them in the Official Journal. The national authorities were therefore denied a potentially effective means of detecting falsifications in good time. It is clear from the documents before the Court that the Commission itself acknowledged, at the meeting of the group of experts on 2 October 1995, that that omission constituted an error on its part.

176 Third, the Commission failed to react to findings that the Hilton quota had previ- ously been exceeded.

181 Finally, it was only after the investigation carried out in 1993 that the Commission took measures in order to improve and strengthen the system of monitoring appli- cation of the Hilton quota by adopting Regulation (EC) N o 212/94 of 31 January 1994 laying down detailed rules for the application of the import arrangements provided for by Council Regulations (EC) N o 129/94 and (EC) N o 131/94 for high-quality beef and frozen buffalo meat (OJ 1994 L 27, p . 38).

182 From now on, pursuant to Article 4(1 )(c) of Regulation N o 212/94, the authority which issues certificates of authenticity in Argentina must undertake to communi- cate to the Commission each week any information enabling it to verify the entries made on those certificates. Furthermore, pursuant to Article 5(1 )(c) of that regu- lation, the competent authorities for the management of the organisation of the markets in the Member States may only issue an import licence after they are satis- fied that all information on the certificate of authenticity corresponds to the infor- mation received by the Commission through the weekly communications on the matter. Those new rules thus make regular comparisons of import declarations and export declarations possible.

183 At the hearing, the Commission admitted that, if those new rules had been brought into force after it found that the quota had been exceeded in 1989, it would have been possible to prevent, or at least to limit the extent of, the excess over the quotas in 1991 and 1992.

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EYCKELER & MALT v COMMISSION

have been forged when subsequently checked, since such a situation forms part of commercial risk (Van Gend & Loos and Expeditiebedrijf Wim Bosman v Commission, cited above, paragraph 17, Acampora, cited above, paragraph 8, Mecanarte, cited above, paragraph 24, and Pascoal & Filhos, cited above, paragraphs 59 and 60).

189 However, in the present case, the falsifications made it possible for the Hilton quota to be exceeded to a significant extent only because the Commission had failed to discharge its duty of supervising and monitoring application of the quota in 1991 and 1992. In those circumstances, the falsifications, which, moreover, were carried out in a very professional way, exceeded the normal commercial risk which must be borne by the applicant, in accordance with the case-law cited in the pre- ceding paragraph.

190 Since Article 13 of Regulation N o 1430/79 is intended to be applied when circum- stances 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 normally would not have incurred (Cooperative Agricole d'Approvisionnement des Avirons, cited above, paragraph 22), it must be held that, in view of all the forego- ing, the circumstances of the present case amount to a special situation within the meaning of that provision and justify remission of the import duties.

191 The Commission thus committed a manifest error of assessment in considering that failures in monitoring the application of the quota could not in any circum- stances constitute a special situation.

195 The United Kingdom, which has intervened, must bear its own costs pursuant to the first subparagraph of Article 87(4) of the Rules of Procedure.

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O n those grounds,

T H E C O U R T O F FIRST I N S T A N C E (First Chamber)

hereby:

Registrar President

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