# C_2006048EN.01001202.xml

| 25.2.2006 | EN | Official Journal of the European Union | C 48/12 |
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25.2.2006

EN

Official Journal of the European Union

C 48/12

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Appeal brought on 28 November 2005 by Ricosmos B.V. against the judgment delivered by the Court of First Instance of the European Communities (First Chamber) on 13 September 2005 in Case T-53/02 Ricosmos v Commission of the European Communities

(Case C-420/05 P)

(2006/C 48/25)

Language of the case: Dutch

An appeal was brought before the Court of Justice of the European Communities on 28 November 2005 by Ricosmos B.V., represented by J.J.M. Hertoghs and J.H. Peek, of the law firm Hertoghs Advocaten-Belastingkundigen, Parkstraat 8, (4818 SK) Breda, Netherlands, against the judgment of the Court of First Instance of the European Communities (First Chamber) of 13 September 2005 in Case T-53/02 Ricosmos B.V. v Commission of the European Communities.

Ricosmos B.V.

Commission of the European Communities

The appellant claims that the Court should:

| — | declare the present appeal to be admissible and well founded; |
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declare the present appeal to be admissible and well founded;

| — | set aside the judgment delivered by the Court of First Instance on 13 September 2005; |
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set aside the judgment delivered by the Court of First Instance on 13 September 2005;

| — | grant the application made at first instance for the annulment of Commission Decision REM 09/00 of 16 November 2001 stating that remission of import duties in favour of the present appellant was not justified; |
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grant the application made at first instance for the annulment of Commission Decision REM 09/00 of 16 November 2001 stating that remission of import duties in favour of the present appellant was not justified;

| — | alternatively, remit the case to the Court of First Instance for further consideration; |
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alternatively, remit the case to the Court of First Instance for further consideration;

| — | order the Commission to pay the costs of the present proceedings and of those at first instance. |
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order the Commission to pay the costs of the present proceedings and of those at first instance.

Pleas in law and main arguments

In support of its appeal against the aforementioned judgment, the appellant makes the following submissions:

| 1. | The appellant takes the view that the Court of First Instance proceeded on the basis of an incorrect, or at any rate unduly restricted, interpretation of, in particular, Articles 905 to 909 of the regulation implementing the Community Customs Code (1) with regard to the procedure for the repayment and/or remission of customs duties. The principle of legal certainty requires that the legal situation of Ricosmos should have been foreseeable in this particular case. Ricosmos takes the view that, because of suspensions of the proceedings of which it was not informed, that was not the case here. The Court of First Instance also proceeded incorrectly on the basis of an overly restricted view of the rights of the defence, reflected in its excessively circumscribed interpretation of the right to timeous and full access to the case files (both that of the national customs authorities and that of the Commission): |
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1.

The appellant takes the view that the Court of First Instance proceeded on the basis of an incorrect, or at any rate unduly restricted, interpretation of, in particular, Articles 905 to 909 of the regulation implementing the Community Customs Code (1) with regard to the procedure for the repayment and/or remission of customs duties. The principle of legal certainty requires that the legal situation of Ricosmos should have been foreseeable in this particular case. Ricosmos takes the view that, because of suspensions of the proceedings of which it was not informed, that was not the case here. The Court of First Instance also proceeded incorrectly on the basis of an overly restricted view of the rights of the defence, reflected in its excessively circumscribed interpretation of the right to timeous and full access to the case files (both that of the national customs authorities and that of the Commission):

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| 2. | The appellant considers that the decision of the Court of First Instance is also at variance with Community law. It takes the view that the principle of legal certainty also implies that the criteria for determining that there was no obvious negligence must be clear and readily identifiable. It is precisely because of the considerable flexibility of the term 'obvious negligence' that those criteria ought in principle to be construed restrictively and individually. The negligence must be evident and essential and must also be in a clear causal relationship with the special situation which has been established. In this case, the Court of First Instance wrongly attached in this regard no, or not enough, weight to the complexity of the legislation and to the significant professional experience of the appellant, and also misconstrued a number of obligations on the appellant, or at any rate appraised them in an overly formalistic manner; |
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2.

The appellant considers that the decision of the Court of First Instance is also at variance with Community law. It takes the view that the principle of legal certainty also implies that the criteria for determining that there was no obvious negligence must be clear and readily identifiable. It is precisely because of the considerable flexibility of the term 'obvious negligence' that those criteria ought in principle to be construed restrictively and individually. The negligence must be evident and essential and must also be in a clear causal relationship with the special situation which has been established. In this case, the Court of First Instance wrongly attached in this regard no, or not enough, weight to the complexity of the legislation and to the significant professional experience of the appellant, and also misconstrued a number of obligations on the appellant, or at any rate appraised them in an overly formalistic manner;

| 3. | The appellant is also of the view that the Commission infringed the principle of proportionality and that the Court of First Instance also attached no, or at any rate insufficient, weight to new facts which suggested that the customs duties charged ought to have been cancelled; |
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3.

The appellant is also of the view that the Commission infringed the principle of proportionality and that the Court of First Instance also attached no, or at any rate insufficient, weight to new facts which suggested that the customs duties charged ought to have been cancelled;

| 4. | In conclusion, the appellant expresses the view that the establishment by the Court of First Instance of the facts underlying the dispute was in part erroneous or in any event incomplete. |
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4.

In conclusion, the appellant expresses the view that the establishment by the Court of First Instance of the facts underlying the dispute was in part erroneous or in any event incomplete.

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(1)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).

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