T-50/96

JUDGMENT OF 17. 9. 1998 — CASE T-50/96

J U D G M E N T O F T H E C O U R T O F FIRST INSTANCE (First Chamber) 17 September 1998 *

In Case T-50/96,

Primex Produkte Import-Export GmbH&Co. KG, a company incorporated under German law, established in Bad Homburg, Germany,

Gebr. Kruse GmbH, a company incorporated under German law, established in Hamburg, Germany,

Interporc Im- und Export GmbH, a company incorporated under German law, established in Hamburg,

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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,

A P P L I C A T I O N for annulment of the Commission decision of 26 January 1996 (Document K(96) 180 final) addressed to the Federal Republic of Germany and concerning the remission of import duties,

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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.'

2 According to Article 4(2)(c) of Commission Regulation (EEC) N o 3799/86 of 12 December 1986 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of Council Regulation (EEC) N o 1430/79 (OJ 1986 L 352, p. 19), 'pro- duction, even in good faith, for the purpose of securing preferential tariff treatment of goods entered for free circulation, of documents subsequently found to be forged, falsified or not valid for the purpose of securing such preferential tariff treatment' is not by itself a special situation within the meaning of Article 13 of Regulation N o 1430/79.

5 Regulation N o 3799/86 was repealed by Article 913 of Commission Regulation (EEC) N o 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation N o 2913/92 (OJ 1993 L 253, p. 1), with effect from 1 January 1994, the date on which Regulation N o 2454/92 entered into force.

6 Article 907 of Regulation N o 2454/93 provides:

'After consulting a group of experts composed of representatives of all Member States, meeting within the framework of the Committee to consider the case in question, the Commission shall decide whether or not the special situation which has been considered justifies repayment or remission.

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That decision shall be taken within six months of the date on which the case referred to in Article 905(2) is received by the Commission. Where the Commis- sion has found it necessary to ask for additional information from the Member State in order to reach its decision, the six months shall be extended by a period equivalent to that between the date the Commission sent the request for additional information and the date it received that information.'

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Background to the dispute

9 In 1991 and 1992, imports of high-quality beef from Argentina were subject to customs duty at the rate of 20%, within the framework of the Common Customs Tariff [see Council Regulation (EEC) N o 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as subsequently amended].

10 An import levy also applied in addition to that customs duty. The amount of the levy was fixed at regular intervals by the Commission, in accordance with Article 12 of Council Regulation (EEC) N o 805/68 of 27 June 1968 on the common organisation of the market in beef and veal (OJ, English Special Edition 1968 (I) p. 107, as subsequently amended). At the time when the imports at issue took place, it was in the region of D M 10 per kilogram.

1 1 Since 1980, the Community had been required, under the General Agreement on Tariffs and Trade (GATT), to open an annual Community tariff quota exempt from import levies in respect of beef and veal from, inter alia, Argentina.

12 Pursuant to those obligations, the Council adopted Regulations (EEC) N o 3840/90 of 20 December 1990 (OJ 1990 L 367, p. 6) and N o 3668/91 of 11 Decem­ ber 1991 (OJ 1991 L 349, p. 3) opening a Community tariff quota for high-quality, fresh, chilled or frozen meat of bovine animals (so-called 'Hilton beef') falling within C N codes 0201 and 0202 and for products falling within C N codes 0206 10 95 and 0206 29 91 (hereinafter 'Hilton beef') in respect of 1991 and 1992. 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).

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17 The Commission was informed, in 1993, of the possibility that certificates of authenticity were being falsified and initiated investigations in cooperation with the Argentine authorities.

18 O n several occasions, Commission officials visited Argentina to carry out investi­ gations, in cooperation with national officials.

19 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.

20 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 [Directorate-General for Agriculture] (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.'

25 By letters of 1 February, 24 February and 22 March 1995, the applicants thereupon submitted applications to the competent German customs authorities for remission of the import duties (hereinafter 'the applications for remission'). The reasons for the applications were set out in statements dated 6 April 1995. In accordance with national law they also applied for, and were granted, an extension of the time-limit for payment.

26 The applications for remission were submitted to the Federal Ministry of Finance, which asked the Commission to decide whether grant of remission of import duties was justified pursuant to Article 13 of Regulation N o 1430/79. Its request was submitted in the form of letters received by the Commission on 1 August (Case REM 8/95 Primex) and 21 August 1995 (Cases REM 11/95 Gebr. Kruse, and REM 12/95 Interporc) respectively.

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27 O n 4 December 1995 a group of experts composed of representatives of all the Member States met in order to give an opinion on whether the applications for remission of import duties were well founded in accordance with Article 907 of Regulation N o 2454/93.

28 By decision of 26 January 1996 addressed to the Federal Republic of Germany, the Commission considered that the applications for remission were not justified (hereinafter 'the contested decision'). The applicants were informed of that deci­ sion on 7 February 1996.

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33 The Directors-General of D G VI and D G XXI (Customs and Indirect Taxation) largely rejected the application for access to the documents by letters of 22 and 25 March 1996. By letter of 27 March 1996, Interporc confirmed its application of 23 February 1996. By decision of 29 May 1996, the Secretary-General of the Com­ mission rejected that confirmatory application.

34 By application lodged at the Registry of the Court of First Instance on 9 August 1996, Interporc brought an action for the annulment of the decision of 29 May 1996. By judgment of 6 February 1998 (Case T-124/96 Interporc ν Commission [1998] E C R II-231), the Court of First Instance annulled the Commission's deci­ sion of 29 May 1996 on the ground that the statement of reasons was inadequate.

35 By application lodged at the Registry of the Court of First Instance on 8 October 1996, the United Kingdom of Great Britain and Northern Ireland sought leave to intervene in support of the applicants. By order of 30 January 1997, the President of the Third Chamber granted that request.

36 By decision of the Court of First Instance of 2 July 1997, the Judge-Rapporteur was assigned to the First Chamber and the case was, consequently, assigned to that chamber.

37 U p o n hearing the report of the Judge-Rapporteur, the Court of First Instance (First Chamber) decided to open the oral procedure without any preparatory inquiry. By letter of 15 December 1997, however, it requested the parties to pro­ duce certain documents and to reply to certain questions in writing. The Commis­ sion and the applicants complied with that request by letters lodged at the Registry of the Court of First Instance on 13 and 14 January 1998 respectively.

— dismiss the application;

— order the applicants to pay the costs.

40 The United Kingdom, the intervener, claims that the Court should annul the con­ tested decision.

Substance

41 In support of their application, the applicants essentially raise five pleas in law alleging, first, breach of the rights of the defence, second, breach of essential pro­ cedural requirements, in so far as the Commission failed to grant the representative of the Federal Republic of Germany the opportunity to express his views orally during the meeting of the group of experts composed of representatives of the Member States on 4 December 1995, third, infringement of Article 13 of Regula­ tion N o 1430/79, fourth, breach of the principle of proportionality and, fifth, inad­ equate statement of reasons. At the hearing, they withdrew a further plea, initially relied upon, alleging that the Commission had based the contested decision on an incorrect legal basis.

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45 The Commission fails to appreciate the purpose of the procedural guarantees when it observes that the sole purpose of those guarantees is to bring to the attention of the decision-making authority the facts and arguments considered relevant by the applicant. It is also essential that the applicants should be fully aware of the relevant facts, in order to be able effectively to support their applications for remission.

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49 As the Court of Justice held in CT Control (Rotterdam) and JCT Benelux ν Com­ mission (paragraph 52), the procedure applicable with regard to anti-dumping duties differs considerably from that followed with regard to the remission of import duties. Reference cannot therefore be made to procedural rights in respect of anti-dumping proceedings in order to criticise the rules which apply to the pro­ cedure in the present case.

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50 That being so, the Commission considers that, in contrast to the situation consid­ ered in France-Aviation ν Commission, cited above, the contested decision was based on a complete file. Both the Commission and the members of the group of experts provided for by Article 907 of Regulation N o 2454/93 had at their disposal not only the file submitted by the Member State but also the applications for remission, and the reasons for them.

51 In accordance with the requirements laid down in the case-law, all the information which the applicants themselves considered essential was on the file at the time when the contested decision was adopted (Case 294/81 Control Data Belgium ν Commission [1983] E C R 911, Van Gend & Loos and Expeditiebedrijf Wim Bos­ man ν Commission, cited above, paragraph 9, and CT Control (Rotterdam) and JCT Benelux ν Commission, cited above, paragraph 48).

52 According to the Commission, in this plea, the applicants fail to appreciate the purpose of the procedural guarantees 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 in order to determine whether its application for remission is well founded, and not to inform the person concerned of the reasons on which the Commission might subsequently base its decision.

Findings of the Court

57 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 level. The person liable must submit his application for remission to the national administration. If the national administration considers that the remission should not be granted, it may, according to the rules, adopt a decision to that effect with­ out submitting the application to the Commission. Such a decision may be reviewed by the national courts. In contrast, if the national administration either has doubts concerning the remission, or believes that the remission should be granted, it must submit the application to the Commission for a decision. The sec­ ond stage of the procedure is thus at Community level and the national authorities submit the file relating to the person liable to the Commission. After consulting a group of experts composed of representatives of all the Member States, the Com­ mission then decides whether the application for remission is justified.

58 Regulation N o 2454/93 provides only for contact to take place between the person concerned and the national administration, on the one hand, and between the national administration and the Commission, on the other {France-Aviation ν

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Commission, cited above, paragraph 30). Thus, according to the rules in force, the Member State concerned is the Commission's only interlocutor. In particular, the procedural provisions in Regulation N o 2454/93 do not confer any right on the person liable to be heard during the administrative procedure before the Commis­ sion.

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heard (Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR and Others ν Commission [1992] E C R II-2667, paragraph 38, and Case T-36/91 ICI ν Commission [1995] E C R II-1847, paragraph 69).

63 That case-law can be applied to the present case. The principle of respect for the rights of the defence thus requires not only that the person concerned should 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 (Technische Universität München, cited above, paragraph 25, and France-Aviation ν Commis­ sion, cited above, paragraph 32).

64 Furthermore, since the applicants allege that the Commission committed serious breaches of its obligations to monitor the Hilton quota, the Court considers that in order for the right to be heard to be exercised effectively the Commission must provide access to all non-confidential official documents concerning the contested decision, if requested to do so. Indeed, documents which the Commission does not consider to be relevant may well be of interest to the applicants. If the Com­ mission could unilaterally exclude from the administrative procedure documents which might be detrimental to it, that could constitute a serious breach of the rights of the defence of a person seeking remission of import duties (see, to the same effect, ICI ν Commission, cited above, paragraph 93).

68 That case-law can be applied to the present case, even though it is only alleged that the applicants failed to act with due care. Indeed, the Commission relied, inter alia, on that allegation in rejecting the applications 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.

69 It is apparent from the documents on the file that during the procedure before it, the Commission did not give the applicants an opportunity to put their own case and effectively make their views known on the allegations concerning the lack of due care.

70 Although the applicants' lawyer did have discussions with the Commission, those discussions did not concern the allegations raised in the 16th and 22nd recitals in the preamble to the contested decision. In response to a question from the Court on that point, the applicants stated, without being contradicted by the Commis­ sion, that the questions concerning the lack of care or obvious negligence by the applicants or by importers in general were not addressed during those discussions.

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71 It follows that the contested decision was adopted following an administrative pro­ cedure which was vitiated by a breach of essential procedural requirements.

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regulations. Article 6(1) of both regulations required the Member States to com- municate to the Commission, on a regular basis, the imports made under the Hil- ton quota. Only the Commission was in a position to determine the quantity of Hilton beef actually imported and to ensure that it did not exceed the quota.

76 The applicants allege that both the Argentine authorities and the Commission failed to discharge their obligations.

— Obligations allegedly not discharged by the Commission

77 The applicants allege, in particular, that the Commission failed to update the quan- tities which could be imported under the Hilton quota throughout the year and to compare the regular communications from the Member States relating to imports of Hilton beef with those of the Argentine authorities relating to exports.

81 The failures by the Commission created conditions which enabled the falsifications to reach the level currently observed. They constitue a 'special situation' within the meaning of Article 13 of Regulation N o 1430/79.

— Obligations allegedly not discharged by the Argentine authorities

82 The applicants claim that the Argentine authorities also committed errors in super­ vising and monitoring implementation of the Hilton quota. First, they used forms which were not protected against falsification when drawing up certificates of authenticity and, second, they provided Argentine exporters with blank forms. Furthermore, the transfer of authority from the Junta Nacional de Carnes to the Secretaría de Agricultura, Ganadería y Pesca resulted in confusion, lasting several months, as to their respective powers and areas of responsibility, which facilitated the irregularities.

83 The Commission is responsible for the improper conduct of the Argentine authorities, since it knowingly delegated responsibility for administering the Hil- ton quota to them.

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88 In any event, the applicants deny that there was any obvious negligence on their part. They had no doubts as to the validity of the certificates of authenticity. N o r did they have any reason to entertain such doubts, since there was nothing to sug­ gest that any irregularities had been committed. Furthermore, this is not so much an isolated incident as falsification on a large scale. In that respect, the undertak­ ings involved in the falsifications did not supply high quality meat only with falsi­ fied certificates of authenticity. Most of the time they also supplied large quantities with valid certificates.

89 Contrary to the Commission's contention, the applicants were unable, in practice, to take any precautions or safeguards with regard to their contractual partners. N o r was it possible for the applicants, who were established in Europe, to deter­ mine from whom the exporters had obtained the certificates of authenticity.

90 Although it is in possession of all the relevant documents, the Commission has not put forward any arguments which support its allegation that the applicants failed to exercise due care.

91 The applicants conclude that the recovery of the duties from them was not justi­ fied, since all the conditions for the application of Article 13 of Regulation N o 1430/79 were satisfied. The contested decision should therefore be annulled.

95 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.

96 It refers to the judgments in Hewlett Packard France, cited above (paragraph 46), and in Joined Cases C-153/94 and C-204/94 Faroe Seafood and Others [1996] ECR I-2465, paragraph 83, and claims that the conditions set out in Article 13 of Regulation N o 1430/79 must be assessed in the light of Article 5(2) of Regulation N o 1697/79.

97 It is clear that remission of import duties is justified only if the three cumulative conditions set out in that provision are satisfied: the duties must not have been

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collected as a result of an error made by the competent authorities, the person liable must have acted in good faith — that is to say, he could not reasonably have detected the error made by the competent authorities — and he must have observed all the provisions laid down by the rules in force as far as his customs declaration is concerned (see also Article 220(2)(b) of the Customs Code). In that context, contrary to the opinion of the applicants, those two provisions are alto­ gether comparable since they pursue the same aim (Hewlett Packard France, cited above, paragraph 46), or are even interchangeable (Case T-75/95 Giinzler Alu­ minium [1996] E C R 11-497, paragraph 55).

circumstance justifying remission. The fact that the German customs authorities initially accepted the certificates of authenticity as valid could not have led the applicants to entertain legitimate expectations {Faroe Seafood and Others, cited above, paragraph 93).

102 The Commission goes on to point 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 benefits 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 considering and accept them as normal trade risks (Acampora, cited above, para­ graph 8). In claiming that the Commission acted improperly, the applicants are thus wrongly attempting to avoid the consequences of that case-law.

103 The grounds of challenge relied on by the applicants are not such as to eliminate or restrict the commercial risk to which they are exposed (see, in particular, Van Gend & Loos and Expeditiebedrijf Wim Bosman ν Commission, cited above, para­ graphs 16 and 17). The sole aim of the system of supervision was to ensure that only meat imported within the quotas benefited from the exemption from levies. In so far as there was no threat to the Community beef market, the fact that the quota was exceeded did not necessarily result in the Commission adopting mea­ sures in that regard immediately.

104 The aim of the system of supervision was, in particular, not so much to inform the persons concerned about possible fraud, or even to protect them, as to ensure that the quotas were properly applied. The Commission was therefore under no obliga­ tion towards the persons concerned.

108 Furthermore, a comparison would not have been easy. O n the one hand, exports did not necessarily take place at the same time as the notification was made by the Argentine authorities. O n the other, the indication on the certificate of the antici­ pated importing Member State was not binding, meaning that goods were often imported into a Member State other than that indicated on the certificate.

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109 Quotas were indeed exceeded in 1989. However, that could have been due to con- fusion 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. Furthermore, the quotas were only slightly exceeded in 1991 and 1992.

1 1 0In 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 is not satisfied.

1 1 1The second condition, namely that the person liable acted in good faith, is not satisfied either. The Commission points out that although the contested decision does not accuse the applicants of 'obvious negligence', it none the less mentions a lack of care (see the 16th and 22nd recitals in the preamble). The 22nd recital states that the applicants themselves omitted to adopt all the necessary safeguards con- cerning their contractors and intermediaries in Argentina and, in particular, did not themselves check the channels through which they received the certificates of authenticity.

1 1 5 According to settled case-law, Article 13 of Regulation N o 1430/79 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 (Joined Cases 244/85 and 245/85 Cereal- mangimi and Italgrani ν Commission [1987] E C R 1303, paragraph 10, and Case C-446/93 SEIM [1996] E C R I-73, paragraph 41). It 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 it normally would not have incurred (Case 58/86 Coopérative Agricole d'Approvisionnement des Avirons [1987] ECR 1525, paragraph 22).

116 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

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effect, Case 160/84 Oryzomyli Kavallas and Others ν Commission [1986] E C R 1633, paragraph 16). Although it enjoys a margin of assessment in that respect (France-Aviation ν 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 — and possible fault — on the resulting situation.

legitimate expectations (Hewlett Packard France, cited above, paragraph 46), it did not consider that the two provisions could be equated.

120 It 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).

121 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.

122 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 deci­ sion whether or not to proceed with recovery of customs duties is based are cor­ rect {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.

126 In the first place, it is apparent from the documents on the file that the applicants were not aware of the falsifications or irregularities in the certificates of authentic­ ity until the Commission initiated investigations in 1993 (see paragraph 17 above).

127 Next, as regards the manner in which the certificates were falsified, it should be noted, as already stated in Case T-42/96 Eyckeler & Malt ν Commission [1998] ECR II-401, paragraphs 143 and 144, that, as a general rule, two versions of the certificate of authenticity were drawn up in respect of any given export, both bear­ ing the same serial number. In accordance with Article 4 of the two implementing regulations, both bore a signature and a stamp, apparently from the same compe­ tent issuing authority, either the Junta Nacional de Carnes, or the Secretaría de Agricultura, Ganadería y Pesca.

128 Furthermore, a comparison of the signatures on the different versions of a given certificate shows that they are, at first sight, identical, or at least very similar.

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129 Finally, the two versions contained identical information concerning the date and place of issue, the Argentine exporter, the recipient in the Community and the ves­ sel on which the goods were to be exported. The only difference in the informa­ tion on the two versions related to the weight indicated. The version entitled 'duplicado', which was intended for the Argentine authorities, showed a substan­ tially lower weight than the original 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 trans­ ported in containers with a capacity of approximately 10 000 kg.

133 Finally, two observations are called for concerning the prices paid by the appli- cants for the meat at issue.

134 In the first place, it is not disputed that, since no import levies were payable under the Hilton quota, the prices paid for the Hilton beef were higher than those for beef sold without a certificate of authenticity. In that respect, the applicants claimed, without being contradicted by the Commission, that the difference between the prices for the two sorts of meat corresponded approximately to the levies payable on the importation of beef other than Hilton beef.

135 Second, the Commission did not challenge the applicants' claim that the prices paid for the beef imported with certificates of authenticity later found to be falsi- fied were of approximately the same level as those paid for Hilton beef accompa- nied by valid certificates.

136 Those findings demonstrate the good faith of the applicants at the time of the con- tested imports.

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141 In the present case, however, the applicants do not merely claim that, at the time of the importations at issue, they presented falsified documents in good faith. They base their applications for remission primarily on serious failures by the Commis­ sion among others in supervising application of the Hilton quota, which facilitated the falsifications.

142 It follows that, contrary to the Commission's contention, the aforementioned pro­ visions do not preclude remission of import duties.

143 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 ν Com­ mission [1987] E C R 97, paragraph 15).

144 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 could not be regarded as being coupled with the obligation, on the Commission, to check that the quota was properly applied.

149 In reality, importations were only monitored by the Commission in an approxi­ mate and incomplete manner.

150 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.

151 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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152 Second, the Commission omitted to circulate to the Member States the specimen signatures of the Argentine officials authorised to sign the certificates of authentic­ ity or to publish them in the Official Journal of the European Communities. The national authorities were therefore denied a potentially effective means of detecting falsifications in good time.

157 If the Commission had used more effective methods of monitoring at the appro­ priate time in order to overcome the problems linked to the fact that the quota was exceeded in 1989, the falsifications which took place in 1991 and 1992 would prob­ ably not have been able to reach the level subsequently detected, that is to say, approximately 10% of the volume of the Hilton quota. Furthermore, the losses incurred by the traders could therefore have been limited for certain.

158 Failure to implement an effective monitoring system, coupled with the other fail­ ures in respect of supervision of the Hilton quota, created conditions which enabled the falsifications to persist and to reach the scale observed in the present dispute.

159 At this stage, it should also be borne in mind, as already stated at paragraph 134 above, that the market price for Hilton beef sold with a valid certificate of authen­ ticity was normally significantly higher than that of meat sold without a certificate; the difference in price was explained by the fact that levies in the order of D M 10 per kilogram had to be paid in respect of beef imported outside the Hilton quota (see paragraph 10 above).

160 The Commission does not dispute that the prices paid by the applicants for the beef imported with falsified certificates of authenticity were of approximately the same level as those charged for Hilton beef accompanied by valid certificates (see also paragraph 135 above).

161 The applicants therefore claim that, in financial terms, they have already paid a price for the imports at issue which, broadly speaking, includes the contested import levy, because the purchase price for Hilton beef is higher; that is not dis­ puted by the Commission.

165 The Commission thus committed a manifest error of assessment in considering that failures in monitoring the application of the Hilton quota could not in any circumstances constitute a special situation.

166 It follows from the foregoing that, like the first plea, the third plea, alleging infringement of Article 13 of Regulation N o 1430/79, is well founded.

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PRIMEX PRODUKTE IMPORT-EXPORT AND OTHERS ν COMMISSION

167 Consequently, without it being necessary to rule on the second, fourth and fifth pleas, alleging breach of essential procedural requirements, breach of the principle of proportionality and breach of the obligation to state reasons, respectively, the contested decision must be annulled.

Costs

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JUDGMENT OF 17. 9. 1998 — CASE T-50/96

2. Orders the Commission to pay the costs;

3. Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

Vesterdorf Moura Ramos Mengozzi

Delivered in open court in Luxembourg on 17 September 1998.