Judgment — ECLI:EU:T:2003:48
Date: 2003-02-27
Language of the case: German
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union
Concepts: Own resources of the Communities;Rights of the defence and procedural guarantees;Tariff quotas
Procedure: Action for annulment - successful
Origin: Germany

summary of the documents in question (see, to that effect, Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491, paragraphs 142 to 144 and 147). 60. In those circumstances, the first plea in law must be rejected in its entirety. The second plea in law, based on a breach of Article 13(1) of Regulation No 1430/79 Preliminary observations 61. It must be noted that, according to settled case-law, Article 13(1) of Regulation No 1430/79 (see above, paragraph 23) constitutes a general equitable provision (see, in particular, Case 283/82 Schoeller & Söhne v Commission [1983] ECR 4219, paragraph 7, and the Turkish Televisions judgment, cited in paragraph 45 above, paragraph 216). 62. According to that provision, a person liable to pay customs duties who demonstrates both the existence of a special situation and the absence of obvious negligence and deception on his part is entitled to the remission of those duties (Case T-42/96 Eyckeler & Malt v Commission [1998] ECR II-401, paragraph 134, and the Turkish Televisions judgment, cited in paragraph 45 above, paragraph 217). 63. It must however be noted that the remission of import duties, which can only be granted under certain conditions and in cases specifically provided for, constitutes an exception to the normal import procedure and, consequently, the provisions providing for such remission must be interpreted strictly (Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 52). 64. In that context, the Community judicature has held that the existence of a special situation is established where it is clear from the circumstances of the case that the person liable is in an exceptional situation as compared with other operators engaged in the same business (see Case C-86/97 Trans-Ex-Import [1999] ECR I-1041, paragraphs 21 and 22, and De Haan, cited in paragraph 22 above, paragraphs 52 and 53) and that, in the absence of such circumstances, he would not have suffered the disadvantage caused by the entry in the accounts a posteriori of customs duties (Case 58/86 Coopérative agricole d'approvisionnement des Avirons [1987] ECR 1525, paragraph 22, and the Turkish Televisions judgment, cited in paragraph 45 above, paragraph 218). Article 13(1) of Regulation No 1430/79 is thus intended to apply where the circumstances characterising the relationship between a trader and the administration are such that it would be inequitable to require the trader to bear a loss which it would not normally have incurred (Eyckeler & Malt v Commission, cited in paragraph 62 above, paragraph 132). 65. The second plea in law consists of two parts, which relate in particular to the two conditions to which the application of Article 13(1) of Regulation No 1430/79 is subject. In the first part, the applicant observes that it acted in good faith and that it cannot be criticised for any manifest negligence. The second part is based on the existence of a special situation within the meaning of Article 13(1) of Regulation No 1430/79. First part: good faith and the lack of manifest negligence on the part of the applicant 66. The applicant submits a body of evidence demonstrating its good faith and thereby precluding any manifest negligence on its part. It points out, however, that the contested decision contains no allegation of obvious negligence. 67. The Commission submits that the applicant should have noticed the irregular nature of the extracts in question. The applicant was manifestly negligent, which precludes the application of Article 13(1) of Regulation No 1430/79. 68. The Court of First Instance notes that, in the contested decision, the Commission rejected the application for remission of import duties since the circumstances of this case, whether taken in isolation or as a whole, do not constitute a special situation within the meaning of Article 13 of Regulation ... No 1430/79 (paragraph 36 of the contested decision). However, as the Commission acknowledged at the hearing, it made no mention, in the contested decision, of the other condition to which remission of duties is subject, namely the lack of deception and manifest negligence on the part of the party concerned. 69. It follows that the first part of the present plea in law is irrelevant and must therefore be rejected. Second part: existence of a special situation within the meaning of Article 13(1) of Regulation No 1430/79 - Preliminary observations 70. In the second part, the applicant submits that by considering, in the contested decision, that the circumstances of the present case did not constitute a special situation within the meaning of Article 13(1) of Regulation No 1430/79, the Commission made an error of assessment. 71. In that regard, the Court of First Instance would point out that, in order to determine whether the circumstances of the case in question constitute a special situation within the meaning of Article 13(1) of Regulation No 1430/79, the Commission must assess all the relevant facts (Eyckeler & Malt v Commission, cited in paragraph 62 above, paragraph 133; the Turkish Televisions judgment, cited in paragraph 45 above, paragraph 222, and Hyper v Commission, cited in paragraph 46 above, paragraph 93). Although in that regard it enjoys a discretionary power, it is required to exercise that power by genuinely balancing, on the one hand, the Community interest in ensuring that the customs provisions are respected and, on the other, the interest of the importer acting in good faith in not suffering harm which goes beyond normal commercial risk. Consequently, when considering whether an application for remission is justified, the Commission cannot take account only of the conduct of importers. It must also assess the impact on the resulting situation of its own conduct (Eyckeler & Malt v Commission, cited in paragraph 62 above, paragraph 133; the Turkish Televisions judgment, cited in paragraph 45 above, paragraph 225; and Hyper v Commission, cited in paragraph 46 above, paragraph 95) and the conduct of the national customs authorities (Case T-330/99 Spedition Wilhelm Rotermund v Commission [2001] ECR II-1619, paragraph 57). 72. The applicant's argument that the circumstances of the present case constituted a special situation within the meaning of Article 13(1) of Regulation No 1430/79 must be examined in the light of those principles. To that effect, the applicant submits first that it has not been established that the extracts in question were forgeries. Furthermore, the applicant refers to the impact of the conduct of the Spanish authorities and the Commission on the resulting situation. - The extracts in question are not forgeries 73. The applicant first submits that the Commission adduced no proof in paragraphs 16 to 20 of the contested decision that the extracts in question were forgeries. In support of the claim that the contested licences are forgeries, the Commission relies only on statements from the relevant Spanish authorities and on the judgment of the Tribunale de Genova (Regional Administrative Court, Genoa) of 4 May 1998. The Commission conducted no further inquiry. 74. According to the applicant, the extracts in question are not forgeries. They bear the authorised signature and are marked with the stamp valid at that time. They may be false but they were issued by Spanish civil servants. The applicant also points out that all the correspondence between the Commission and the Spanish authorities was conducted exclusively by Ms M for the Spanish authorities. Ms M, whose signature appears on the extracts in question, cannot be considered a source of objective information. 75. At the hearing, the applicant again relied on the transcript of the examination of Ms M, which took place on 24 October 2001 at the request of the Oberlandesgericht Köln (Higher Regional Court, Cologne). During that examination, Ms M declared that the signature on the letter from the Spanish authorities to the Commission of 22 April 1994 (see paragraph 14 above) was hers, although she had previously maintained that it was a forged signature. 76. The Court of First Instance notes that in accordance with Article 905(2) of the IP-CCC, [t]he case sent to the Commission [by the customs authority dealing with the application for remission] shall include all the facts necessary for a full examination of the case presented. It follows that it is in principle the responsibility of the national customs authority concerned to ensure that the file is complete in order to allow the Commission to take a decision. However, under Article 905(2) of the IP-CCC [s]hould it be found that the information supplied by the Member State is not sufficient to enable a decision to be taken on the case concerned in full knowledge of the facts, the Commission may ask for additional information to be supplied. 77. In the present case, the Commission was fully entitled to state in the contested decision on the basis of documents sent to it, in particular declarations of the relevant Spanish authorities and the judgment of the Tribunale di Genova of 4 May 1998, that the extracts in question were forgeries (Fälschungen). No further inquiry on the Commission's part was necessary in that regard. 78. The Spanish authorities stated not only that the extracts in question were false (falsos), but they also explicitly described them as forgeries (falsificaciones) in their letter of 11 February 1997 addressed to Mr J. Poncet of the Unit on Coordination of Fraud Prevention. They confirmed in their reply of 7 July 1997 to a question from the Hauptzollamt Köln-Deutz and in their reply of 1 August 1997 to a question from the Commission that the extracts were false and had not been issued by the relevant Spanish authorities. 79. Furthermore, the judgment of the Tribunale di Genova of 4 May 1998 refers to the fact that the extracts numbered 36 20511395, 36 20511526 and 36 20511571 are essentially forgeries. 80. Finally, the German authorities themselves stated in their letter of 15 June 1999 (see paragraph 29 above) that the extracts in question were forgeries. 81. With regard to the argument that the extracts in question were issued with the collaboration of one or more Spanish officials, it must be noted that the Court of First Instance, in its judgment in Spedition Wilhelm Rotermund v Commission (cited in paragraph 71 above, paragraphs 57 and 58), recognised that the active complicity of an official of the customs authorities in question in a customs fraud may constitute a special situation, within the meaning of Article 13(1) of Regulation No 1430/79, which would give rise to the remission of duties. However, in contrast to the case that gave rise to the cited judgment, no such complicity has been established in the present case. It must be pointed out that all the applicant's arguments concerning the involvement of Ms M or other Spanish officials in the issue of the extracts in question are based on pure supposition and not on any objective evidence. In any case, the transcript of the examination of Ms M, upon which the applicant placed great weight at the hearing, contains nothing to indicate such complicity on the part of Spanish officials in the issue of the extracts in question. Moreover, after being questioned on the issue at the hearing, the applicant withdrew its argument regarding the signature appearing on the letter of 22 April 1994. By that letter, the Spanish authorities informed the Commission of the forged signature [of Ms M] on the false licences. The signature appearing on the letter is, however, Ms M's authentic signature. 82. Finally, the fact that the forged extracts contain a forgery of Ms M's signature is no reason to consider that that Spanish official is not a source of objective information. 83. The first circumstance put forward by the applicant has no factual basis and therefore does not constitute, in the present case, a special situation within the meaning of Article 13(1) of Regulation No 1430/79 giving entitlement to remission of duties. - Impact of the conduct of the Commission and the national authorities on the resulting situation 84. The applicant observes that the national authorities are required to forward to the Commission impressions of the official stamps of the agencies which issue import licences and specimen signatures of the people entitled to issue such licences. The Commission is required to inform the other Member States thereof. 85. However, on the one hand, the relevant Spanish authorities did not send the stamps and signatures used on import licences in 1993 to the Commission and to other national authorities in due time. On the other hand, the Commission did not seek to enforce that obligation. 86. The applicant also observes that, if the Commission, having been informed by the Spanish authorities of a number of irregularities on 20 August 1993, had immediately initiated an inquiry and fully informed the authorities of other Member States, it could have prevented the extracts in question coming onto the market. In those circumstances, it would be inequitable to require the applicant to bear a loss which it would normally not have incurred if the competent Spanish authorities and the Commission had not failed to fulfil their obligations (see Eyckeler & Malt v Commission, cited in paragraph 62 above, paragraph 132). 87. The Commission contends that it administered the tariff quota with all due diligence. Following the initial information provided by the Spanish authorities by fax of 20 August 1993, it informed the Member States by letter of 28 September 1993 of the appearance of forged licences, expressly urging them to be extra vigilant. 88. Furthermore, according to the Commission there was no incorrect conduct on the part of the Spanish authorities due to a purported failure to provide information. The Spanish authorities immediately informed the Commission on 20 August 1993, after it became aware of the first forgeries. When the imports took place in December 1993, the Spanish authorities had no information concerning the forgery of the three extracts in question and the offences committed at the expense of the applicant. They have given unfailing assistance in clarifying the facts and sent the necessary information to the Commission and to the Italian and German authorities. 89. The Court of First Instance would point out, first of all, that, pursuant to Article 211 EC and the principle of good administration, the Commission was obliged to ensure the proper application of the GATT quota (see, to that effect, Eyckeler & Malt v Commission, cited in paragraph 62 above, paragraph 165). 90. It must then be noted that Regulations No 1468/81 and No 3719/88 impose mutual obligations on Member States and on the Commission to provide each other with information so as to facilitate the prevention and detection of infringements of customs rules (see the second recital in the preamble to Regulation No 1468/81), and in particular of the rules concerning the GATT quota. 91. Thus, in accordance with Article 28(4) of Regulation No 3719/88 Member States shall ... forward to the Commission impressions of the official stamps and, where appropriate, of the embossing presses of authorities empowered to act [in the issue of import licences and extracts of such licences]. Under the same provision, [t]he Commission shall immediately inform the other Member States thereof. 92. Next, Article 14a of Regulation No 1468/81 states that [w]here the competent authorities of a Member State become aware of operations which are, or appear to be, contrary to the law on customs or agricultural matters ... they shall pass on to the Commission as quickly as possible, either on their own initiative or at the reasoned request of the Commission, all relevant information. Under that same provision, the Commission is obliged to pass this information on to the competent authorities of the other Member States. 93. It is essential that the Member States and the Commission comply with those obligations in order to ensure the effectiveness of the provisions cited above, which are designed to forestall and detect infringements of customs regulations. First, the detection by the customs authorities of the Member States of any forgeries would be hindered if those authorities did not have impressions of the official stamps used by the authorities of the other Member States for the purpose of issuing import licences and licence extracts. Secondly, where the authorities of a Member State find infringements, it is essential that they notify the Commission without delay; it will immediately inform the other Member States of any information likely to aid the detection of other irregular licences or extracts. 94. Generally, the provisions cited above allow the Commission to obtain from the authorities of the Member States the information required for the exercise of its monitoring duty with regard to the GATT quota. 95. First, in order to check whether the requirements of Article 28(4) of Regulation No 3719/88 were complied with in the present case, the Court of First Instance, by letter of 28 June 2002, requested the Commission to forward to the Court impressions of the official stamps that were in use when the applicant acquired the extracts in question; these had been sent by the Spanish authorities to the Commission on the basis of the provision cited above. The Commission was also requested to produce documentary evidence to show that it had informed the other Member States of those stamps in accordance with the requirement in Article 28(4) of Regulation No 3719/88. 96. By letter of 22 July 2002, the Commission forwarded to the Court of First Instance a letter from the Spanish authorities dated 18 March 1986 (note 28/86) by which those authorities forwarded to the Commission the embossing stamp (selloen seco) of the Directorate-General for External Trade that was used on import licences for agricultural products at the time in question. However, neither the embossing stamp in question nor an impression of the official stamp was forwarded with the letter sent to the Court of First Instance. 97. It is clear, however, from the Commission's summary of the 125th joint meeting of the management committee on trade mechanisms' of 15 and 16 April 1996 that during that meeting examples of stamps issued by the relevant Spanish authorities ... [were] distributed to the Member States. 98. Since it did not receive the impressions of the official stamps, the Court of First Instance again requested the Commission, at the hearing, to submit the stamps used at the material time by the Spanish authorities for the purposes of issuing GATT quota import licences. It also requested the Commission to send to the Court copies of valid Spanish import licences issued in 1993 for the import of beef under the GATT quota. 99. Following that request, the Commission, by letter of 7 October 2002, sent the Court of First Instance a copy of the embossing stamp which was forwarded with the letter from the Spanish authorities dated 18 March 1986 (see paragraph 96 above) and had been passed on to the Member States during the meeting of 15 and 16 April 1986 (see paragraph 97 above). 100. It must, however, be noted that the impression of the embossing stamp does not correspond to the stamp that appears on the copies of the valid licences that were produced to the Court of First Instance. The Commission observes in its letter of 7 October 2002 that it questioned the Spanish authorities on that matter and that they confirmed that the stamp which was transmitted in 1986 was no longer in use in 1993; they explained that the 1986 stamp referred to the Ministerio de Economia y Hacienda whereas the 1993 stamp refers to the Ministerio de Industria, Comercio y Turismo. 101. The same letter of 7 October 2002 also explains that a copy of the valid stamp in use in Spain in 1993 was sent [by the Spanish authorities] to the Commission on 22 April 1994. 102. It must be pointed out that, by letter of 22 April 1994, the Spanish authorities did send the stamp that was in use in 1993 to the Commission. However, the purpose of that letter was to inform the Commission that the 1993 stamp had been withdrawn. The letter includes an impression of the new stamp for 1994 and of the former stamp and explains that [t]he current stamp of the issuing body carries the lettering Ministerio de Comercio y Turismo, and not Ministerio de Industria, Comercio et Turismo (former stamp in use in 1993). 103. It is clear from the above that the Spanish authorities did not comply with the obligations arising from Article 28(4) of Regulation No 3719/88. They forwarded to the Commission the stamp used in 1993 for the issue of GATT quota import licences, at a time when that stamp was no longer valid. 104. Secondly, with regard to the mutual obligations arising from Article 14a of Regulation No 1468/81, it must be remembered that, by fax of 20 August 1993, the Spanish authorities notified the Commission of the existence of false Spanish licences and licence extracts for the import of beef under the 1993 GATT quota. 105. It is clear, however, that by failing to warn the national authorities of the other Member States as soon as possible of the problem of forged Spanish licences and extracts, the Commission failed to fulfil its duty of diligence. It must be noted that the Commission waited until 28 September 1993 before informing the competent authorities of all the Member States of the content of the fax of 20 August 1993. 106. In the present case, it was all the more essential that the Commission immediately inform the authorities of the other Member States because the Commission itself considered that the forgery of licences and extracts referred to in the fax of 20 August 1993 was not an isolated case. In its notice of 28 September 1993, the Commission referred to the increasing numbers of irregularities in connection with the import of beef into the Community. 107. It must also be ascertained whether, in the present case, the Commission complied with its duty of sound administration with regard to the GATT quota by obtaining from the Spanish authorities and passing on to the authorities of other Member States all relevant information within the meaning of Article 14a of Regulation No 1468/81. 108. In that regard, it must first be noted that the fax of 20 August 1993, by which the Spanish authorities informed the Commission of the irregularities discovered and sent it a copy of the forged documents, did not contain all relevant information within the meaning of Article 14a of Regulation No 1468/81. Under that provision, the Spanish authorities were required to pass on to the Commission any information they possessed which could help to track down any other Spanish licence or extract forgeries. In the present case, that obligation required the Spanish authorities to forward not only the official stamp used for the issue of import licences and extracts thereof - which was already required under Article 28(4) of Regulation No 3719/88 - but also the specimen signature of the person or persons authorised to issue such licences or extracts and the numbers of the licences and extracts already issued under the GATT quota for 1993. 109. In order to comply with its obligation to ensure the correct application of the GATT quota, the Commission is required not only to pass on the information received under Article 14a of Regulation No 1468/81 to the authorities of the other Member States as soon as possible, but also to ensure that the Member States comply with the obligations arising from that provision. The Commission's role in terms of its duty to ensure the correct application of the GATT quota does not merely involve the passive transmission of information that the relevant authorities of a Member State decide to pass on to it. Consequently, when Member State authorities have informed the Commission of the discovery of forged import licences and/or import licence extracts, the Commission must obtain, as soon as possible, from the authorities of the Member State from which the forged licences and extracts appear to have come, all information which might aid the discovery of other forged documents. The Commission is required to inform the competent authorities of the other Member States without delay of the information thus obtained. 110. It must, however, be noted that, in its letter of 28 September 1993, the Commission confined itself to passing on the information contained in the fax of 20 August 1993 to the authorities of the other Member States. Even though, in that same letter, it asked the authorities of the Member States to pay particular attention to imports of [beef] and stressed that they should verify, in particular, the correctness of the documents involved, the Commission did not, at that time, send the information necessary for such verification to the Member States. 111. It was only by a note of 2 May 1994 that the Commission passed on to the authorities of the Member States an impression of the authentic stamp used, in 1993, by the Spanish authorities to issue GATT quota import licences and extracts of those licences and forwarded the specimen signature of the Spanish civil servant authorised, in 1993, to sign licences and extracts. Furthermore, the list of import licences and extracts of those licences issued by the Spanish authorities in 1993 for the import of beef under the GATT quota was not sent to the authorities of other Member States until 14 June 1994. 112. It is true that the Spanish authorities themselves were slow to pass on to the Commission all relevant information within the meaning of Article 14a of Regulation No 1468/81. It was not until 22 April 1994 that the Spanish authorities sent to the Commission the impression of the authentic stamp used in 1993 for the issue of valid import licences and licence extracts. Under cover of the same letter, the Spanish authorities forwarded the specimen signature of the person authorised, in 1993, to sign the licences and extracts concerned, whose signature was copied on the extracts in question. Furthermore, it was not until 13 May 1994 that the Spanish authorities sent the complete list of GATT quota licences and licence extracts issued by them in 1993 to the Commission. 113. Even though the Spanish authorities were slow in sending all relevant information to the Commission, the Commission was in breach of its duty of supervision within the framework of the GATT quota by not actively seeking, from the time that it received the fax of 20 August 1993, to obtain such information so as to enable other forged licences and extracts to be detected. 114. Finally, it must be noted that the information that was passed on by the Spanish authorities in April and May 1994 and forwarded by the Commission to the Member States by notices of 2 May and 14 June 1994 did in fact enable the national authorities to detect further forgeries of licences and extracts for the import of frozen beef. Thus, in a Commission notice of 10 November 1994 entitled Results of the ad-hoc meeting held on 27.10.94 in Brussels, which refers among others to the notices of 2 May and 14 June 1994, it is stated first that Member States received [in previous notices] copies of the false licences together with copies of the true signatures and stamps used by the Spanish issuing authority as well as the list of all valid licences issued in 1993 and 1994. Secondly, it states that [a]s a result of this information additional suspect licences have recently been discovered in both Italy and Germany. The information passed on also enabled the perpetrators of the fraud to be identified within a short period. It is apparent, in fact, from that notice of 10 November 1994 that the Commission had already, on 2 June 1994, requested the Italian authorities to carry out an investigation into the Balestrero company. 115. It follows from the above that, in the present case, the conduct of the Spanish authorities and of the Commission rendered Article 28(4) of Regulation No 3719/88 and Article 14a of Regulation No 1468/81 ineffective. The competent authorities of other Member States thus did not receive the information necessary to detect the false Spanish licences and extracts, including the extracts in question, relating to the import of beef under the 1993 GATT quota, and to identify the perpetrators of the fraud, until May or June 1993. If, in this case, first of all, the Commission, once it had been informed of the first forgeries in August 1993, had requested the Spanish authorities to forward to it an impression of the authentic stamp, the specimen signature of the official authorised to sign the licences and extracts issued under the 1993 GATT quota and a list of all valid licences and extracts issued under that quota, and, second, the Commission had forwarded that information, without delay, to the competent authorities of the other Member States, it is likely that the perpetrators of the fraud would have already been identified by the time the applicant acquired the extracts in question, in October 1993. In any event, the fact that the licences in question were false could have been discovered before the applicant's customs debt arose in December 1993. 116. In those circumstances, the facts of the present case must be regarded as a special situation within the meaning of Article 13(1) of Regulation No 1430/79. It is true that Community law does not normally protect the expectations of a person liable for payment as to the validity of an import certificate that is found to have been forged when subsequently checked, since such a situation forms part of commercial risk (Eyckeler & Malt v Commission, cited in paragraph 62 above, paragraph 188, and the case-law cited in the present judgment). However, in the present case, it would be inequitable to require the applicant to bear the burden of the customs debt, provided it is shown that the other condition for the application of Article 13(1) of Regulation No 1430/79, namely lack of deception or manifest negligence on the part of the party concerned, is also satisfied. 117. It follows that the Commission committed a manifest error of assessment in considering in the contested decision that the circumstances of this case, whether taken in isolation or as a whole, do not constitute a special situation within the meaning of Article 13 of Regulation No 1430/79 (paragraph 36). 118. The present plea in law is therefore well founded. Consequently, the contested decision must be annulled. Costs 119. 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 Commission has been unsuccessful, it must, having regard to the form of order sought by the applicant, be ordered to pay the costs. On those grounds, THE COURT OF FIRST INSTANCE (Third Chamber), hereby: 1. Annuls the Commission's decision of 25 July 2000 finding that the remission of import duties is not justified in a particular case (REM 49/99); 2. Orders the Commission to pay the costs. Jaeger Lenaerts Azizi Delivered in open court in Luxembourg on 27 February 2003. H. Jung K. Lenaerts Registrar President 1: Language of the case: German.