**Case T-51/07**

**Agrar-Invest-Tatschl GmbH**

**v**

**Commission of the European Communities**

(Post-clearance recovery of import duties – Sugar originating from Croatia – Article 220(2)(b) of Regulation (EEC) No 2913/92 – Notice to importers published in the Official Journal – Good faith)

Summary of the Judgment

1.      *Actions for annulment – Jurisdiction of the Community judicature – Claim seeking a direction to adopt specific measures –
Inadmissibility*

*(Arts 231 EC and 233 EC)*

2.      *Own resources of the European Communities – Post-clearance recovery of import or export duties*

3.      *Procedure – Measures of inquiry – Late offer of evidence – Conditions*

*(Rules of Procedure of the Court of First Instance, Art. 48(1))*

4.      *Own resources of the European Communities – Remission of import duties*

*(Council Regulation No 2913/92, Arts 220(2)(b) and 239; Rules of Procedure of the Court of First Instance, Art. 44(1)(c))*

1.      The Court of First Instance has no jurisdiction to issue directions to the Community institutions. Under Article 231 EC, the
Court may only declare the contested act to be void. It is then for the institution concerned, in application of Article 233
EC, to take the measures needed to comply with the Court’s judgment. That limitation of the scope of judicial review applies
to all types of contentious matters that might be brought before the Court.

(see paras 27-28)

2.      The fourth subparagraph of Article 220(2)(b) of Regulation No 2913/92 establishing the Community Customs Code provides that
the person liable may plead his good faith only ‘when he can demonstrate that, during the period of the trading operations
concerned, he has taken due care to ensure that all the conditions for the preferential treatment have been fulfilled’. It
follows from that that the person liable must imperatively have been of good faith during the period of the trading operations
concerned. Therefore, the decisive date for taking into account the good faith of the person liable is the date of importation.
The applicant cannot claim that its good faith was retroactively restored as a result of events subsequent to imports of goods
originating in a third country, such as checks which, several months after those imports took place, confirmed the authenticity
and accuracy of the EUR.1 certificates issued in relation to them. In fact, the concept of good faith ‘with regard to the
authenticity and accuracy of the preferential certificates inspected and confirmed subsequently’ makes no sense.

(see paras 47, 49, 51)

3.      In accordance with Article 48(1) of the Rules of Procedure of the Court of First Instance, while the parties may offer further
evidence in support of their arguments in reply or rejoinder, the Court allows the lodging of evidence offered after the rejoinder
only in exceptional circumstances, that is, if the person offering the evidence was unable, before the end of the written
procedure, to obtain possession of the evidence in question, or if evidence produced belatedly by the other party justifies
completing the file so as to ensure observance of the rule that both parties should be heard.

(see para. 57)

4.      While it is true that Article 220(2)(b) and Article 239 of Regulation No 2913/92 establishing the Community Customs Code pursue
the same goal, the two provisions are not coterminous. The first article has a more limited objective than the second, since
it aims only to protect the legitimate expectation of the person liable that all the information and criteria used in the
decision whether or not to make a subsequent entry in the accounts of import duties are correct. By contrast, Article 239
is a general hardship clause.

Since those two articles are discrete provisions the criteria for the application of which are different, applying Article
44(1)(c) of the Rules of Procedure of the Court, the applicant may not confine himself to referring back to explanations relating
to Article 220(2)(b) of Regulation No 2913/92 in order to justify its arguments regarding Article 239 of that regulation.

(see paras 58-59)


JUDGMENT OF THE COURT OF FIRST INSTANCE (Eighth Chamber)

8 October 2008 ([\*](#Footnote*))

(Post-clearance recovery of import duties – Sugar originating from Croatia – Article 220(2)(b) of Regulation (EEC) No 2913/92 – Notice to importers published in the Official Journal – Good faith)

In Case T‐51/07,

**Agrar-Invest-Tatschl GmbH,** established in St. Andrä im Lavanttal (Austria), represented by U. Schrömbges and O. Wenzlaff, lawyers,

applicant,

v

**Commission of the European Communities,** represented by A. Alcover San Pedro and M.S. Schønberg, acting as Agents, assisted by B. Wägenbaur, lawyer,

defendant,

ACTION for annulment in part of Commission Decision C (2006) 5789 final of 4 December 2006,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Eighth Chamber),

composed of E. Martins Ribeiro, President, N. Wahl and A. Dittrich (Rapporteur), Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 2 April 2008,

gives the following

**Judgment**

1        The applicant contests Commission Decision C (2006) 5789 final of 4 December 2006 (‘the contested decision’), addressed to
the Republic of Austria, to the extent that the Commission states in that decision, first, that import duties of EUR 110 937.60,
owed by the applicant, Agrar‐Invest-Tatschl GmbH, for the importation of sugar originating in Croatia should be entered subsequently
in the accounts, and, second, that the remission of those duties is not justified.

**Legal framework**

2        Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992
L 302, p. 1; ‘the CCC’), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November
2000 (OJ 2000 L 311, p. 17), provides:

‘Except in the cases referred to in the second and third subparagraphs of Article 217(1), subsequent entry in the accounts
shall not occur where:

(a)      ...

(b)      the amount of duty legally owed was not entered in the accounts as a result of an error on the part of the customs authorities
which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good
faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration.

Where the preferential status of the goods is established on the basis of a system of administrative cooperation involving
the authorities of a third country, the issue of a certificate by those authorities, should it prove to be incorrect, shall
constitute an error which could not reasonably have been detected within the meaning of the first subparagraph.

The issue of an incorrect certificate shall not, however, constitute an error where the certificate is based on an incorrect
account of the facts provided by the exporter, except where, in particular, it is evident that the issuing authorities were
aware or should have been aware that the goods did not satisfy the conditions laid down for entitlement to the preferential
treatment.

The person liable may plead good faith when he can demonstrate that, during the period of the trading operations concerned,
he has taken due care to ensure that all the conditions for the preferential treatment have been fulfilled.

The person liable may not, however, plead good faith if the European Commission has published a notice in the Official Journal
of the European Communities, stating that there are grounds for doubt concerning the proper application of the preferential
arrangements by the beneficiary country.’

3        Article 239 of the CCC provides:

‘(1)      Import duties or export duties may be repaid or remitted in situations other than those referred to in Articles 236, 237,
and 238:

–        to be determined in accordance with the procedure of the committee;

–        resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations
in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the
Committee procedure. Repayment or remission may be made subject to special conditions.

(2)      Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate
customs office within 12 months from the date on which the amount of the duties was communicated to the debtor.’

**Facts**

4        The applicant is an Austrian undertaking, specialising in trade in agricultural goods. Between 20 September 2001 and 8 August
2002, it carried out 76 import transactions relating to sugar originating in Croatia. Imports Nos 1 to 67 are not covered
by the present action. The action concerns only the subsequent entry in the accounts of the customs duties for the nine import
transactions Nos 68 to 76 (‘the contested imports’), and the remission to which they may be subject. Those imports took place
between 1 July and 8 August 2002.

5        The contested imports were carried out on the basis of the ‘Interim Agreement on trade and trade-related matters between the
European Community, of the one part, and the Republic of Croatia, of the other part’ (OJ 2001 L 330, p. 3; ‘the Interim Agreement’).
That agreement provides inter alia for preferential treatment of sugar originating in Croatia, in so far as the Croatian authorities
issue a movement certificate EUR.1 (‘the EUR.1 certificate’), which must be submitted to the customs authorities of the importing
country.

6        On 2 April 2002, the European Anti-Fraud Office (OLAF) informed the Commission of certain suspicions regarding the use of
false certificates of origin for preferential imports of sugar originating in certain countries of the Western Balkans.

7        By means of a ‘Notice to importers’ (OJ 2002 C 152, p. 14), the Commission announced, on 26 June 2002, that there was reasonable
doubt as to the proper application of the preferential arrangements for sugar originating inter alia in Croatia. It also stated
in the notice that there had been a significant increase in preferential imports of sugar from Croatia and some Balkan countries
whereas the countries in question had in the recent past shown a deficit in sugar production. The Commission therefore advised
Community operators to take all the necessary precautions, since the release of the goods in question for free circulation
may give rise to a customs debt and lead to fraud against the Community’s financial interests.

8        All the contested imports took place following publication of that notice in the Official Journal.

9        At the request of the Austrian customs administration, the Croatian customs authorities carried out, between 23 July 2002
and 16 September 2003, a subsequent verification of the EUR.1 certificates submitted by the applicant in respect of the contested
imports, as provided for under Article 32 of Protocol 4 of the Interim Agreement.

10      Following those verifications, the Croatian customs administration confirmed, on 18 February 2003, the authenticity and accuracy
of the EUR.1 certificates issued in respect of imports Nos 68 to 72 and, on 16 September 2003, in respect of imports Nos 73
to 76.

11      Following publication of the Notice to importers, OLAF analysed, in Greece, some sugar purporting to be Croatian and discovered
that it consisted of a mixture of beet and cane sugar, ruling out completely Croatian origin. On 28 October 2002, OLAF informed
the Member States of this.

12      In June 2003, OLAF undertook investigations at the offices of the Croatian sugar producer IPK Tvornica Šećera Osijek d.o.o.
and found that that undertaking, from which the applicant had purchased sugar, also used imported cane sugar in its production
processes, without it being possible to distinguish between the different batches of sugar concerned.

13      The Croatian authorities therefore withdrew all the EUR.1 certificates drawn up between 14 September 2001 and 17 September
2002. On 30 June 2004, the Austrian authorities informed the importers concerned of the withdrawal of the certificates.

14      Following that withdrawal, the competent Austrian customs authority sent the applicant, on 9 August 2004, a notice for post-clearance
recovery of EUR 916 807.21.

15      The applicant appealed against that decision to the competent Austrian authority and requested, under Article 220(2)(b) of
the CCC, that the amount of customs duties referred to in the recovery notice not be entered subsequently in the accounts
and, in the alternative, on the basis of Article 239 of the CCC, that those duties be remitted.

16      By letter of 1 June 2005, the Republic of Austria requested the Commission to decide, under the abovementioned articles, if
it was justified, in the applicant’s case, to waive subsequent entry of the amount of the customs duties in the accounts and,
in the alternative, to decide whether the remission of those duties was justified.

17      In the contested decision, the Commission stated that it was appropriate to waive subsequent entry in the accounts of the
duties for imports Nos 1 to 67, but it rejected such a waiver, and the grant of remission, for the contested imports, that
is, for a total of EUR 110 937.60.

18      In essence, the Commission maintained that the competent Croatian authorities knew, or at least, should reasonably have known
that the goods did not satisfy the conditions for entitlement to the preferential treatment provided for in the Interim Agreement
and that, accordingly, they had made an error within the meaning of Article 220(2)(b) of the CCC. Nevertheless, given the
fact that a Notice to importers had been published on 26 June 2002, the applicant may not, according to the Commission, rely
on its good faith with regard to imports carried out after that date. The fact that the Croatian authorities confirmed the
validity of certain EUR.1 certificates after publication of the Notice is not relevant in that regard. When it carried out
the contested imports, the applicant knew, according to the Commission, the risks it was running, and the confirmation of
the validity of the certificates concerned could not subsequently give it a legitimate expectation, without rendering the
fifth subparagraph of Article 220(2)(b) of the CCC completely meaningless.

**Procedure and forms of order sought by the parties**

19      By application lodged at the Registry of the Court of First Instance on 22 February 2007, the applicant brought the present
action.

20      On hearing the report of the Judge-Rapporteur, the Court of First Instance (Eighth Chamber) decided to open the oral procedure.

21      The parties presented oral argument and answered the questions put to them by the Court at the hearing on 2 April 2008.

22      The applicant claims that the Court of First Instance should:

–        annul Article 1(2) and Article 1(3) of the contested decision;

–        order the Commission to find that a subsequent entry in the accounts of customs duties amounting to EUR 110 937.60 on the
contested imports should not be made;

–        in the alternative to the second head of claim, order the Commission to find that customs duties amounting to EUR 110 937.60 on
the contested imports should be remitted.

23      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

**Law**

24      In support of its action, the applicant claims in essence an infringement by the contested decision of Articles 220(2)(b)
and 239 of the CCC, inasmuch as the Commission refused to waive subsequent entry in the accounts of the import duties relating
to the contested imports and/or to remit those duties.

*Admissibility of the second and third heads of claim*

 Arguments of the parties

25      The Commission, without formally raising the plea of inadmissibility, points out that it is not the role of the Community
judicature, in the context of its review of legality, to issue directions to the authorities or institutions or to replace
them. Accordingly, the second and third heads of claim, which seek to require the Commission to carry out certain actions,
are inadmissible.

26      At the hearing, the applicant nevertheless reiterated its claims, maintaining that, in the present case, the Commission did
not enjoy any discretion and that, therefore, there was no reason precluding the Court, once the contested decision was found
to be unlawful, from enjoining the Commission to adopt a decision in accordance with its claims.

 Findings of the Court

27      According to well-established case-law, the Court of First Instance has no jurisdiction to issue directions to the Community
institutions (see, to that effect, Case 225/82 *Verzyck* v *Commission* [1983] ECR 1991, paragraph 19; order of the Court of First Instance in Case T-47/96 *SDDDA* v *Commission* [1996] ECR II-1559, paragraph 45). Under Article 231 EC, the Court may only declare the contested act to be void. It is then
for the institution concerned, in application of Article 233 EC, to take the measures needed to comply with the Court’s judgment
(see, to that effect, Case T-74/92 *Ladbroke* v *Commission* [1995] ECR II‐115, paragraph 75, and T-127/98 *UPS Europe* v *Commission* [1999] ECR II‐2633, paragraph 50).

28      Regarding the argument concerning the Commission’s lack of discretion, it should be added that that limitation of the scope
of judicial review applies to all types of contentious matters that might be brought before the Court (Case T‐204/99 *Mattila* v *Council and Commission* [2001] ECR II-2265,paragraph 26, upheld in Case C-353/01 P *Mattila* v *Council and Commission* [2004] ECR I‐1073, paragraph 15).

29      Therefore, the second and third heads of claim are inadmissible.

*Subsequent entry in the accounts of the import duties*

 Arguments of the parties

30      The applicant points out that, according to Article 220(2)(b) of the CCC, subsequent entry in the accounts is not to occur
where, first, the amount of duty legally owed was not entered in the accounts as a result of an error on the part of the customs
authorities themselves, second, that error could not reasonably have been detected by the person liable for payment, the latter
for his part having acted in good faith, and third, all the provisions laid down by the legislation in force as regards the
customs declaration were complied with.

31      In the present case, the relevant question is whether publication in the Official Journal of the Notice to importers, on 26
June 2002, ruled out good faith on the part of the applicant as regards the authenticity and accuracy of the EUR.1 certificates
submitted in respect of the contested imports.

32      According to the applicant, the Commission disregards the fact that it was after publication of the Notice to importers and
because of that notice that the Austrian customs authorities sent their Croatian counterparts requests for inspection of all
the EUR.1 certificates submitted in respect of the contested imports.

33      Consequently, the applicant’s good faith does not relate to the authenticity and accuracy of the EUR.1 certificates issued
in respect of the contested imports. The existence of good faith in relation to those documents was ruled out by the Notice
to importers. By contrast, it was not ruled out with regard to the subsequent confirmation of the EUR.1 certificates following
the inspections carried out by the Croatian customs administration, which were initiated precisely because of the Notice to
importers.

34      The last subparagraph of Article 220(2)(b) of the CCC does not generally and entirely rule out good faith on the part of the
applicant, but excludes it only with regard to the authenticity and accuracy of the documentary proof of origin submitted
at the time of importation of the goods entitled to preferential treatment.

35      According to the applicant, if the economic operator takes supplementary measures in order to ensure the authenticity and
accuracy of the certificate issued with a view to securing preferential treatment, and if the effect of those measures is
that the certificate is authentic and accurate as to its substance, then its good faith is re-established. That good faith
relates not only to the certificate issued with a view to securing preferential treatment which was submitted initially, but
also to that certificate in connection with the subsequent confirmation of its validity and accuracy by means of an inspection
showing that the conditions for issue of the certificate of origin are satisfied.

36      In that regard, the applicant also refers to the wording of the Notice to importers which advised Community operators to ‘take
all the necessary precautions’. The Commission thus indicated that the initial certificates issued with a view to securing
preferential treatment were no longer valid and that it expected the economic operators to take supplementary measures in
order to guarantee their validity and accuracy.

37      Therefore, after the confirmation by the Croatian customs administration of the authenticity and accuracy of the certificates
issued with a view to securing preferential treatment, the good faith of the economic operators with regard to their authenticity
and accuracy was restored.

38      In its reply, the applicant explains that, if, on account of publication of the Notice, it could not be said to have been
acting in good faith at the time of the contested imports, it was the subsequent inspections, the positive results of which
enabled its good faith to be restored, which matter in the present case.

39      The Commission contests the applicant’s arguments.

 Findings of the Court

40      Under Article 220(2)(b) of the CCC, subsequent entry in the accounts of duty resulting from a customs debt is not to occur
where the following conditions are cumulatively satisfied (see, to that effect, Case C-419/04 *Conseil général de la Vienne* v *Directeur**général des douanes et droits indirects* [2006] ECR I‐5645, paragraph 38, and case-law cited):

–        the amount of duty legally owed has not been entered in the accounts as a result of an error on the part of the customs authorities;

–        that error could not reasonably have been detected by the person liable for payment;

–        the latter acted in good faith;

–        all the provisions laid down by the legislation in force as regards the customs declaration were complied with.

41      In the present case, the parties are in dispute concerning the condition relating to the good faith of the applicant. Given
the legal effect of the Notice to importers, it can in fact be ruled out that that condition is satisfied.

42      In that regard, it must be held that the wording of the fifth subparagraph of Article 220(2)(b) of the CCC is clear and unequivocal.
It provides that the person liable may not plead his good faith if the European Commission has published in the Official Journal
a notice to importers stating that there are grounds for doubt, and does not provide the possibility for the person liable
to prove his good faith by taking supplementary measures in order to ensure the authenticity and accuracy of the certificates
issued with a view to securing preferential treatment. That wording was introduced in the CCC by Regulation No 2700/2000,
the eleventh recital of which is drafted as follows:

‘The person liable for payment can plead his good faith where he can demonstrate that he has taken due care, except when a
notice stating that there are grounds for doubt has been published in the Official Journal of the European Communities.’

43      In addition, as the Commission points out, the absolute exclusion of good faith where a notice to importers has been published
ensures a very high level of legal certainty.

44      It must be concluded that in the present case the Notice to importers does not contain any reference back to the fifth subparagraph
of Article 220(2)(b) of the CCC and that it is not very clear as to its legal consequences. In particular, it does not state
that its publication renders it impossible for importers to rely on their good faith. After pointing out that there is reasonable
doubt as to the proper application of the preferential arrangements for sugar originating inter alia in Croatia, the Commission
concludes simply that ‘Community operators ... are therefore advised to take all the necessary precautions’.

45      At the hearing, the Commission admitted that it cannot be excluded that, in exceptional circumstances, it could be prompted
to adjust its position regarding the absolute effect of a notice to importers where an economic operator claims that, following
publication of such a notice, but before importation, it carried out supplementary verification measures which confirmed the
origin of the goods.

46      However, it is not necessary to examine whether, and under what conditions, such an exception would be possible, because,
in any case, the applicant has not acted in good faith in the present case.

47      In its reply, the applicant indeed explicitly acknowledges that, at the time of the contested imports, it was not acting in
good faith on account of the Notice to importers. It claims that its good faith was ‘restored’ by the subsequent confirmation
of the authenticity and accuracy of the EUR.1 certificates following the inspections carried out by the Croatian customs administration.
However, the fourth subparagraph of Article 220(2)(b) of the CCC provides that the person liable may plead his good faith
only ‘when he can demonstrate that, during the period of the trading operations concerned, he has taken due care to ensure
that all the conditions for the preferential treatment have been fulfilled’. It follows from that provision that the person
liable must imperatively have been of good faith during the period of the trading operations concerned. Therefore, the decisive
date for taking into account the good faith of the person liable is the date of importation.

48      In its written pleadings, the applicant has however failed to provide any information concerning the efforts undertaken by
it before or after the date of each contested import, in order to ensure, within the meaning of the fourth subparagraph of
Article 220(2)(b) of the CCC that – despite the publication of the Notice to importers – all the conditions necessary for
the preferential treatment of the goods were complied with.

49      On the contrary, in contending that its good faith was ‘restored’ by the subsequent inspections, the applicant implicitly
confirms that it did not act in good faith until the time when the subsequent checks confirmed the authenticity and accuracy
of the EUR.1 certificates issued in respect of the contested imports, that is to say, several months after those imports took
place.

50      To the extent that the applicant claims that, with regard to its good faith as to the authenticity and accuracy of the EUR.1
certificates concerning the contested imports, it is the subsequent inspection procedure, and not the original import procedure,
which matters, since its positive outcome enabled it to ‘restore’ its good faith, it must be held simply that that contention
has no basis in Article 220(2)(b) of the CCC.

51      Even on the assumption that the applicant had acted in good faith so far as the outcome of the subsequent inspections was
concerned, the fact remains that it was not acting in good faith ‘during the period of the trading operations concerned’.
The applicant cannot claim that its good faith was in some way retroactively restored as a result of events subsequent to
those imports. In fact, the concept of good faith ‘with regard to the authenticity and accuracy of the preferential certificates
inspected and confirmed subsequently’ makes no sense.

52      As a result, the application for annulment of Article 1 (2) of the contested decision must be dismissed.

*Refusal to grant remission of the import duties*

 Arguments of the parties

53      With regard to the refusal to grant subsequent remission of import duties under Article 239 of the CCC, the applicant refers
in its application, and only in the context of its third head of claim, to ‘previous explanations’, without further specification.

54      The Commission points out that the conditions for the grant of remission of import duties, laid down in Article 239 of the
CCC, differ from those contained in Article 220(2)(b) of the CCC. However, instead of demonstrating that the conditions of
Article 239 of the CCC are satisfied in the present case, the applicant refers back generally and without more detailed explanation
to its arguments concerning Article 220(2)(b) of the CCC. It is therefore doubtful whether its application would on that point
comply with the requirements of Article 44(1)(c) of the Rules of Procedure of the Court of First Instance. In any case, the
applicant’s account of the facts is not convincing, which is sufficient for it not to be accepted, given the fact that Article
220(2) and Article 239 of the CCC are two discrete provisions the conditions for the application of which are therefore likewise
different.

 Findings of the Court

55      It should be pointed out at the outset that the arguments capable of being relied upon in support of the third head of claim,
the inadmissibility of which has been established, are equally relevant to the first head of claim, in so far as it seeks
the annulment of Article 1(3) of the contested decision, under which the remission of import duties pursuant to Article 239
of the CCC is not justified in the present case.

56      Nevertheless, it must be held that the applicant does not provide further reasons for its application. It confines itself
to referring back in its application to the explanations regarding Article 220(2)(b) of the CCC. Equally, in its reply the
applicant does not elaborate on its observations on that point. At the hearing, it stated that a customs inspection took place
on the occasion of each importation. It maintained that samples were then taken on each occasion and sent to the Austrian
office for technical verification. According to the applicant, that office identified the samples as 100% sugar beet, confirming
the sugar to be of Croatian origin.

57      In accordance with Article 48(1) of the Rules of Procedure, the offers of further evidence referred to in the preceding paragraph
cannot be taken into account. Although the parties may, under that provision, offer further evidence in support of their arguments
in reply or rejoinder, the Court allows the lodging of evidence offered after the rejoinder only in exceptional circumstances,
that is, if the person offering the evidence was unable, before the end of the written procedure, to obtain possession of
the evidence in question, or if evidence produced belatedly by the other party justifies completing the file so as to ensure
observance of the rule that both parties should be heard (Case T-172/01 *M* v *Court of Justice* [2004] ECR II‐1075, paragraph 44). In any case, Article 48(1) of the Rules of Procedure provides that the parties must give
reasons for the delay in submitting further evidence. While the applicant admitted at the hearing that it had not referred
to those circumstances in the written procedure, it did not provide any justification for that delay. Consequently, those
offers of further evidence cannot be taken into account.

58      With regard to the reference back in the application to the explanations concerning Article 220(2)(b) of the CCC, it should
be pointed out that, while it is true that that provision pursues the same goal as Article 239 of the CCC, the two provisions
are not coterminous. The first article has a more limited objective than the second, since it aims only to protect the legitimate
expectation of the person liable that all the information and criteria used in the decision whether or not to make a subsequent
entry in the accounts of import duties are correct. By contrast, Article 239 EC is a general hardship clause (see, to that
effect, with regard to equivalent provisions in force at the time, Joined Cases C-153/94 and C-204/94 *Faroe Seafood and Others* [1996] ECR I‐2465, paragraph 87, and Case T-42/96 *Eyckeler & Malt* v *Commission* [1998] ECR II‐401, paragraphs 136 to 139).

59      Therefore, Article 220(2)(b) of the CCC and Article 239 of the CCC are two discrete provisions the criteria for the application
of which are different. In those circumstances, applying Article 44(1)(c) of the Rules of Procedure, the applicant may not
confine himself to referring back to the explanations relating to Article 220(2)(b) of the CCC in order to justify its arguments
regarding Article 239 of the CCC.

60      It follows that the application for annulment of Article 1(3) of the contested decision must be dismissed as inadmissible.

61      None of the pleas having been accepted, the action must be dismissed in its entirety.

**Costs**

62      Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, and the Commission has applied
for costs, the applicant must be ordered to pay the Commission’s costs.

On those grounds,

THE COURT (Eighth Chamber)

hereby:

1.      **Dismisses the action;**

2.      **Orders Agrar-Invest-Tatschl GmbH to bear the costs.**

| | | |
| --- | --- | --- |
| Martins Ribeiro | Wahl | Dittrich |

Delivered in open court in Luxembourg on 8 October 2008.

| | | |
| --- | --- | --- |
| E. Coulon | | M.E. Martins Ribeiro |

| | | |
| --- | --- | --- |
| Registrar | | President |

---

[\*](#Footref*) Language of the case: German.