# C_2009297EN.01001702.xml

| 5.12.2009 | EN | Official Journal of the European Union | C 297/17 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/17

---

Appeal brought on 7 September 2009 by DSV Road NV against the judgment of the Court of First Instance (Fourth Chamber) of 8 July 2009 in Case T-219/07 DSV Road NV v Commission

(Case C-358/09 P)

2009/C 297/22

Language of the case: Dutch

Parties

Parties

Appellant: DSV Road NV (represented by: A. Poelmans and G. Preckler, advocaten)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

Form of order sought

| — | Declare the appellant’s appeal admissible and well founded; |
| --- | --- |

—

Declare the appellant’s appeal admissible and well founded;

| — | Set aside in full the judgment of the Court of First Instance of 8 July 2008 in Case T-219/07; |
| --- | --- |

—

Set aside in full the judgment of the Court of First Instance of 8 July 2008 in Case T-219/07;

| — | And in so far as, in the event of setting aside the judgment, the Court decides to rule in the case itself:
  Annul the Decision of the Commission of the European Communities of 24 April 2007 concerning the request of the Kingdom of Belgium, notified under REC 05/02, C (2007) 1776, which found that the import duties of EUR 168 004,65 which were the subject of the Kingdom of Belgium’s request of 12 August 2002 had to be recovered, and that there was no justification for remission of the import duties of EUR 168 004,65 which were the subject of the Kingdom of Belgium’s request of 12 August 2002. |
| --- | --- |

—

And in so far as, in the event of setting aside the judgment, the Court decides to rule in the case itself:

Annul the Decision of the Commission of the European Communities of 24 April 2007 concerning the request of the Kingdom of Belgium, notified under REC 05/02, C (2007) 1776, which found that the import duties of EUR 168 004,65 which were the subject of the Kingdom of Belgium’s request of 12 August 2002 had to be recovered, and that there was no justification for remission of the import duties of EUR 168 004,65 which were the subject of the Kingdom of Belgium’s request of 12 August 2002.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | With regard to Article 220(2)(b) of the Customs Code (1)

  First ground of appeal: When applying Article 220(2)(b) of the Customs Code, the Court of First Instance failed to take account of the interpretation of that article by the Court of Justice in its judgment of 9 March 2006, (2) in particular with regard to the substance of the burden of proving that incorrect certificates had been issued because of an incorrect account of the facts by the exporter, a burden which, according to that judgment, is not only unequivocally that of the customs authority seeking recovery but must also be satisfied by means of objective, original documentary evidence.
  The Court of First Instance thereby misapplied Article 220(2)(b) of the Customs Code and thus misapplied, and therefore infringed, Community law.
  Second ground of appeal: The Court of First Instance, when appraising the evidence submitted to it, misconstrued that evidence in all respects, as that evidence does not satisfy the requirements of Article 220(2)(b) of the Customs Code, as interpreted and clarified by the Court of Justice in its judgment of 9 March 2006. (3)

  The Court of First Instance thereby erred in law in its characterisation of the evidence and therefore infringed Community law. (4)

  Moreover, when appraising the evidence, the Court of First Instance did not rule coherently, but inconsistently in that, on the one hand, it regarded that evidence as sufficient to satisfy the Commission’s burden of proving that incorrect certificates had been issued because of an incorrect account of the facts by the exporter but, on the other hand, in regard to the same rules, rejected it as insufficient to satisfy the proof required of the appellant that the Thai customs authorities knew, or at least reasonably ought to have known, that the goods were not eligible for preferential treatment.
  The Court of Justice should rule that the errors of the Court of First Instance when considering and appraising the documents adduced as evidence constitute a failure to state reasons. (5) |
| --- | --- |

1.

With regard to Article 220(2)(b) of the Customs Code (1)

1

First ground of appeal: When applying Article 220(2)(b) of the Customs Code, the Court of First Instance failed to take account of the interpretation of that article by the Court of Justice in its judgment of 9 March 2006, (2) in particular with regard to the substance of the burden of proving that incorrect certificates had been issued because of an incorrect account of the facts by the exporter, a burden which, according to that judgment, is not only unequivocally that of the customs authority seeking recovery but must also be satisfied by means of objective, original documentary evidence.

2

The Court of First Instance thereby misapplied Article 220(2)(b) of the Customs Code and thus misapplied, and therefore infringed, Community law.

Second ground of appeal: The Court of First Instance, when appraising the evidence submitted to it, misconstrued that evidence in all respects, as that evidence does not satisfy the requirements of Article 220(2)(b) of the Customs Code, as interpreted and clarified by the Court of Justice in its judgment of 9 March 2006. (3)

3

The Court of First Instance thereby erred in law in its characterisation of the evidence and therefore infringed Community law. (4)

4

Moreover, when appraising the evidence, the Court of First Instance did not rule coherently, but inconsistently in that, on the one hand, it regarded that evidence as sufficient to satisfy the Commission’s burden of proving that incorrect certificates had been issued because of an incorrect account of the facts by the exporter but, on the other hand, in regard to the same rules, rejected it as insufficient to satisfy the proof required of the appellant that the Thai customs authorities knew, or at least reasonably ought to have known, that the goods were not eligible for preferential treatment.

The Court of Justice should rule that the errors of the Court of First Instance when considering and appraising the documents adduced as evidence constitute a failure to state reasons. (5)

5

| 2. | With regard to Article 239 of the Customs Code
  Sole ground of appeal: On the basis of a misapplication of Article 220(2)(b) of the Customs Code and/or the errors in appraising the documents submitted as evidence, the Court of First Instance wrongly held that the circumstances in which the appellant finds itself is not a special situation for the purposes of Article 239 of the Customs Code. |
| --- | --- |

2.

With regard to Article 239 of the Customs Code

Sole ground of appeal: On the basis of a misapplication of Article 220(2)(b) of the Customs Code and/or the errors in appraising the documents submitted as evidence, the Court of First Instance wrongly held that the circumstances in which the appellant finds itself is not a special situation for the purposes of Article 239 of the Customs Code.

---

(1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p.1).

1

(2)  Case C-293/04 Beemsterboer [2006] ECR I-2263.

2

(3)  Ibid.

3

(4)  Order in Case C-325/94 P An Taisce and WWF UK v Commission [1996] ECR I-3739, paras. 28 and 30.

4

(5)  Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5399, para 40.

5

---