# C_2004262EN.01004502.xml

| 23.10.2004 | EN | Official Journal of the European Union | C 262/45 |
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23.10.2004

EN

Official Journal of the European Union

C 262/45

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Action brought on 30 July 2004 by Hewlett-Packard GmbH against the Commission of the European Communities

(Case T-313/04)

(2004/C 262/86)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 30 July 2004 by Hewlett-Packard GmbH, having its registered office in Böblingen (Germany), represented by Fabienne Boulanger, Marius Mrozek and Michael Tervooren, lawyers.

The applicant claims that the Court should:

| — | annul Commission Decision REM 06/02 of 7 April 2004 holding that a refund is not justified in a specific case. |
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annul Commission Decision REM 06/02 of 7 April 2004 holding that a refund is not justified in a specific case.

Pleas in law and main arguments:

On 21 December 1995 the applicant released from its customs warehouse certain goods (printers and printer cartridges) originating in Singapore for free circulation within the Community. A customs debt arose in respect of those goods at the time of their release for free circulation. According to the applicant, the goods were released for free circulation on 21 December 1995 in order to ensure that the preferential customs rates in force up to 31 December 1995 could be claimed. Otherwise, at the time when the goods were released for free circulation, higher customs rates in respect of their release would have applied with effect from 1 January 1996. By Regulation No 3009/95 (1) goods having the same customs tariff number as those of the applicant were zero-rated with effect from 1 January 1996.

1

In November 1996 the applicant applied to the German customs authorities for a refund of the amount that had been charged. Its application was turned down. The German customs authorities, with the agreement of the applicant, referred the matter to the Commission.

The applicant invokes Article 239 of the Customs Code and submits that, in view of the delay in the publication of, and failure timeously to notify, Regulation No 3009/95, and by reason of its deliberate back-dating and reference to a Council Regulation No 3093/95 (2) of 22 December 1995 which was not published until 21 February 1996, the Commission has infringed the principle that Community institutions must act in a foreseeable manner and has consequently infringed the principle of legal certainty.

2

The applicant submits further that there has been a breach of Article 12 of Council Regulation No 2658/87, (3) which prescribes that the full text of the Combined Nomenclature for a particular year must be published by no later than 31 October of the preceding year. The purpose of that provision is specifically to provide market participants with reliable information on imminent financial consequences and it thus establishes a basis on which Community citizens can make informed plans enabling them to act in an appropriate manner.

3

The applicant also submits that the Commission breached its duty of care towards the applicant by failing to inform it in good time of the imminent further amendment to the Combined Nomenclature. The Commission also proceeded, when issuing the contested decision, on the basis of circumstances which did not objectively obtain. By so doing, the Commission exceeded the scope of the discretionary power which it enjoys in this context, thereby adversely affecting the applicant. The applicant concludes by stating that it did not act in a patently negligent manner or with any deceitful intention.

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(1)  Commission Regulation (EC) No 3009/95 of 22 December 1995 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1995 L 319, p. 1).

1

(2)  Council Regulation (EC) No 3093/95 of 22 December 1995 laying down the rates of duty to be applied by the Community resulting from negotiations under GATT Article XXIV.6 consequent upon the accession of Austria, Finland and Sweden to the European Union (OJ 1995 L 334, p. 1).

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(3)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1).

3

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