# C_2007140EN.01001302.xml

| 23.6.2007 | EN | Official Journal of the European Union | C 140/13 |
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23.6.2007

EN

Official Journal of the European Union

C 140/13

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Appeal brought on 16 April 2007 by C.A.S. SpA against the judgment delivered on 6 February 2007 in Case T-23/03 C.A.S. SpA v Commission of the European Communities

(Case C-204/07 P)

(2007/C 140/22)

Language of the case: German

Parties

Appellant: C.A.S. SpA (represented by D. Ehle, Rechtsanwalt)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

| — | set aside the judgment of the Court of First Instance of 6 February 2007 (1) in Case T-23/03; |
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set aside the judgment of the Court of First Instance of 6 February 2007 (1) in Case T-23/03;

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| — | grant the form of order sought at first instance; in the alternative, refer the case back to the Court of First Instance for a decision on the substance; |
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grant the form of order sought at first instance; in the alternative, refer the case back to the Court of First Instance for a decision on the substance;

| — | allow the applications for measures of organisation of procedure made by the appellant by documents of 28 January 2003, 4 August 2003 and 11 August 2003; |
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allow the applications for measures of organisation of procedure made by the appellant by documents of 28 January 2003, 4 August 2003 and 11 August 2003;

| — | order the defendant to pay the costs of the proceedings at first instance. |
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order the defendant to pay the costs of the proceedings at first instance.

Pleas in law and main arguments

The appellant supports its appeal on the following nine grounds, on the basis of which it regards the contested judgment as erroneous:

The first ground of appeal relates to the exclusive competence which the Court of First Instance considered the Turkish authorities to have to determine whether the A.TR.1 movement of goods certificates issued by them and produced on import clearance were ‘authentic’ or ‘false’, or ‘correct’ or ‘incorrect’. The appellant takes the view that in cases in which there are sufficient and conclusive objective indications that the competent customs authorities of a country of export were involved in irregularities in the issue (delivery of forms, stamps and signatures) of movement certificates and the export clearance of the goods on the basis of those certificates, the exclusive jurisdiction of the customs authorities of the country of export ends. Later explanations provided by the Turkish authorities concerning the movement certificates could not be regarded as credible and solely determinative.

first ground of appeal

By the second ground of appeal the appellant criticises the view taken in the contested judgment of the extent of the right of access to documents and the rights of defence of an applicant. The right of access to documents cannot relate only to documents on which the Commission, according to its internal decision and its statements, based its contested decision. The right of access to documents covers also all further confidential and non-confidential documents which could be of importance to the applicant's factual and legal submissions with respect to the assessment of the facts.

second ground of appeal

The appellant's third ground of appeal is that the Court of First Instance imposed on it the entire burden of proof for the factual circumstances which justified a ‘special situation’ within the meaning of Article 239 of the Customs Code and Article 905 of the implementation regulation. The appellant considers that in certain cases the burden of proof is reversed or at least the obligation to provide proof is reduced. In no case is the burden on the applicant to prove certain facts, adduced by it, in third countries (in this case Turkey) which can best be ascertained, and must be ascertained, by the Commission/OLAF within the framework of the possibilities available to those authorities. The same applies to facts which are within the sphere of action and influence of the Commission.

third ground of appeal

As its fourth ground of appeal the appellant submits that the Court of First Instance wrongly — also in view of the full burden of proof imposed on it in the judgment — failed to order the measures of organisation of procedure it applied for, in particular the taking of evidence. Instead the offers to produce evidence were dismissed as immaterial.

fourth ground of appeal

As fifth ground of appeal the appellant submits that the Court of First Instance interpreted and classified wrongly in law all the documentation produced and facts and evidence adduced by it which pointed to the involvement of the Turkish authorities in (allegedly) ‘false’ (but really ‘incorrect’) A.TR.1 movement certificates. As a result it reached incorrect legal conclusions. The Court also completely ignored essential facts as clearly submitted by the appellant.

fifth ground of appeal

As the sixth ground of appeal it is submitted that the Court of First Instance failed to classify the Commission's failure to call on the Customs Committee/Association Council as a fault on the part of the Commission.

sixth ground of appeal

The seventh ground of appeal is that the Court of First Instance did not recognise the appellant's legitimate interest in the annulment of the Commission's partly contested decision with respect to a particular A.TR.1 movement certificate.

seventh ground of appeal

The eighth ground of appeal complains that the Court of First Instance erred in law by omitting to carry out a balancing of fairness and risk related to the specific case. The Court thereby failed to recognise that, even on the assumption that there were false A.TR.1 movement certificates, in view of the gross misconduct of the Turkish authorities and the Commission it was unfair, given the relationship between economic operators and the administration, to leave the appellant as an economic operator to bear a loss it would not have incurred if things had been done correctly.

eighth ground of appeal

As the ninth ground of appeal the appellant criticises the contested judgment for finding pursuant to Article 220(2)(b) of the Customs Code, on the basis of the facts submitted and ascertained, that there was no active involvement of the Turkish customs authorities in the issue and use of the 32 A.TR.1 certificates in question in this case.

ninth ground of appeal

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(1)  OJ C 82, 14.4.2007, p. 30.

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