Judgment — ECLI:EU:T:2001:133
Date: 2001-05-10
Language of the case: German;English;French;Dutch
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Financial provisions;Free movement of goods;Customs Union;Own resources
Concepts: Own resources of the Communities;Pleas in law;Effects. Scope and limits;The various agreements concluded by the Community;Intervention;Rights of the defence and procedural guarantees;Commission;General
Procedure: Action for annulment - successful
Origin: Belgium;Germany;France;Netherlands

Summary of the Judgment 
1. Actions for annulment — Pleas in law — Breach of essential procedural require­
ments — Court may consider that question of its own motion 
(EC Treaty, Art. 173 (now, after amendment. Art. 230 EC)) 
II - 1337 
SUMMARY - JOINED CASES T-186/97, T-187/97, T-190/97 TO T-192/97, T-210/97, T-211/97, T-216/97 TO T-218/97, T-279/97, 
T-280/97, T-293/97 AND T-147/99 
2. Procedure — Intervention — Application in support of the form of order sought by 
one of the parties but relying on a different argument — Whether admissible — 
Freedom to choose the pleas in law relied on — Scope of that freedom 
(Rules of Procedure of the Court of First Instance, Art. 116(4)) 
3 Own resources of the European Communities — Repayment or remission of import 
or export duties — Article 13 of Regulation No 1430/79 — Commission's power to 
adopt decisions — Right of the trader concerned to be heard — Scope 
(Council Regulation No 1430/79, Art. 13; Commission Regulation No 2454/93, 
Art. 905) 
4. Community law — Observance of the rights of the defence — Fundamental princi­
ple — Field of application — Customs matters — Administrative procedure for the 
remission of import duties — Scope of that principle 
(Commission Regulation No 2454/93, Art. 905) 
5. Own resources of the European Communities — Repayment or remission of import 
or export duties — 'Special situation' — Circumstances in which 'no deception or 
obvious negligence' may be attributed to the person concerned — Definitions 
(Council Regulation No 1430/79, Art. 13) 
6 Own resources of the European Communities — Repayment or remission of import 
or export duties — Article 13 of Regulation No 1430/79 — Scope — Commission's 
power to adopt decisions — Detailed rules concerning the exercise of that power — 
'Special situation' — Definition — Serious deficiencies on the part of the contracting 
parties in implementing an agreement binding the Community — Commission 
seriously in default 
(Council Regulation No 1430/79, Art. 13) 
7 Own resources of the European Communities — Repayment or remission of import 
or export duties — Article 13 of Regulation No 1430/79 — Post-clearance recovery 
of import or export duties — Article 5(2) of Regulation No 1697/79 — Scope 
(Council Regulations No 1430/79, Art. 13, and No 1697/79, Art. 5(2)) 
8. International agreements — EEC-Turkey Association Agreement — Obligations of 
contracting parties 
(EEC-Turkey Association Agreement) 
9. Commission — Obligations — Application of EEC-Turkey Association Agreement 
(EC Treaty, Art. 155 (now Art. 211 EC)) 
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KAUFRING AND OTHERS v COMMISSION 
10. International agreements — EEC-Turkey Association Agreement — Doubts as to the 
validity of movement of goods certificates — Requirement to make use of the 
procedure for settling disputes laid down in the Agreement before any other measure 
(EEC-Turkey Association Agreement, Art. 25) 
11. International agreements — Agreements concluded by the Community — Fulfilment 
by a third country of obligations undertaken — Existences of tensions between the 
Community and that country — Commission's obligations — Scope — Limits 
(EC Treaty, Art. 155 (now Art. 211 EC)) 
12. Own resources of the European Communities — Post-clearance recovery of import or 
export duties — Conditions for the application of Article 5(2) of Regulation 
No 1697/79 — Error of the administration which could not 'reasonably have been 
detected by the person liable' — Assessment criteria 
(Council Regulation No 1697/79, Art. 5(2)) 
13. Own resources of the European Communities — Repayment or remission of import 
or export duties — Article 13 of Regulation No 1430/79 — 'Obvious negligence' — 
Standard of proof 
(Council Regulation No 1430/79, Art. 13) 
1. As it concerns an essential procedural 
requirement the Court of First Instance 
may consider of its own motion a plea 
in law alleging the breach of the 
principle of observance of the rights 
of defence. 
(see paras 134—135) 
2. As provided by Article 116(4) of the 
Rules of Procedure of the Court of First 
Instance, an intervener may not go 
beyond the form of order sought by 
the party in support of whom it is 
intervening, but it may freely choose its 
pleas and arguments in support of that 
form of order. 
(see para. 137) 
3. Observance of the rights of the defence 
in all proceedings which are initiated 
against a person and are liable to 
culminate in a measure adversely 
affecting that person is a fundamental 
principle of Community law which 
must be guaranteed even in the absence 
of any rules governing the procedure in 
question. That principle requires that 
any person who may be adversely 
affected by a decision be placed in a 
position in which he may effectively 
make his views known, at least as 
regards the evidence on which the 
II- 1339 
SUMMARY - JOINED CASES T-186/97, T-187/97, T-190/97 TO T-192/97, T-210/97, T-211/97, T-216/97 TO T-218/97, T-279/97, 
T-280/97, T-293/97 AND T-147/99 
Commission has based the contested 
decision. In view of the power of 
assessment enjoyed by the Commission 
when it adopts a decision pursuant to 
the general equitable provision con­
tained in Article 13 of Regulation 
No 1430/79 relating to the remission 
or repayment of import or export 
duties, it is all the more important that 
observance of the right to be heard be 
guaranteed in procedures initiated pur­
suant to that regulation. That conclu­
sion is particularly apt where, in exer­
cising its exclusive authority under 
A r t i c l e 905 of R e g u l a t i o n 
No 2454/93, the Commission proposes 
not to follow the opinion of the 
national authority as to whether the 
conditions laid down by Article 13 of 
Regulation No 1430/79 have been met, 
in particular as to whether any obvious 
negligence can be attributed to the 
person concerned. 
(see paras 151—153, 155) 
4. Observance of the rights of the defence 
is a fundamental principle of Commu­
nity law which requires not only that 
the person concerned be placed in a 
position in which he may effectively 
make known his views on the relevant 
circumstances, but also that he should 
at least be able to put his own case on 
the documents taken into account by 
the Community institution. 
Observance of the rights of the defence 
requires that a person seeking remis­
sion of import duty must have had the 
opportunity to state his views on the 
documents on which the Commission 
based the contested decision. 
It is not for the Commission to deter­
mine the relevance or interest which 
certain documents might have for a 
party's defence. It is possible that 
documents considered irrelevant by 
the Commission may be of interest to 
the applicant. If the Commission could 
unilaterally exclude from the adminis­
trative procedure documents which 
might be detrimental to it, that might 
constitute a serious breach of the rights 
of defence of a person seeking remis­
sion of import duties. 
(see paras 179, 185) 
5. A r t i c l e 13(1) of R e g u l a t i o n 
No 1430/79 on the repayment or 
remission of import or export duties 
makes that repayment or remission 
subject to two cumulative conditions, 
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KAUFRING AND OTHERS v COMMISSION 
namely the existence of a special situa­
tion and the absence of obvious negli­
gence or deception on the part of the 
person concerned. 
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 situa­
tion as compared with other operators 
engaged in the same business and that, 
in the absence of such circumstances, 
he would not have suffered the disad­
vantage caused by the entry in the 
accounts a posteriori of customs duties. 
As regards the condition concerning 
the absence of obvious negligence or 
deception on the part of the interested 
party, it must be made clear that the 
question whether the error was detect­
able, within the meaning of Arti­
cle 5(2) of Regulation No 1697/79, is 
linked to the existence of obvious 
negligence or deception within the 
meaning of Article 13(1) of Regulation 
No 1430/79, and therefore the condi­
tions laid down by the latter provision 
must be assessed in the light of those 
laid down in Article 5(2) of Regulation 
No 1697/79. 
(see paras 217—220) 
6. A r t i c l e 1 3 ( 1 ) of R e g u l a t i o n 
No 1430/79, which provides that 
import duties may be repaid or remit­
ted in situations which result from 
circumstances in which no deception 
or obvious negligence may be attribu­
ted to the person concerned constitutes 
a general equitable provision. 
In order to determine whether the 
circumstances of the case constitute a 
special situation within the meaning of 
that provision the Commission must 
assess all the relevant facts. That obli­
gation implies that, in cases in which 
reliance is placed, in support of appli­
cations for remission, on the existence 
of serious deficiencies on the part of the 
contracting parties in implementing an 
agreement binding the Community, the 
Commission must base its decision as 
to whether those applications are jus­
tified on all the facts relating to the 
disputed imports of which it gained 
knowledge in the performance of its 
task of supervising and monitoring the 
implementation of that agreement. 
Similarly, it cannot disregard relevant 
information of which it has gained 
knowledge in the performance of its 
tasks and which, although not forming 
part of the administrative file at the 
stage of the national procedure, might 
have served to justify remission for the 
interested parties. 
Moreover, although the Commission 
enjoys a discretionary power in apply-
I I - 1 3 4 1 
SUMMARY - JOINED CASES T-186/97, T-187/97, T-190/97 TO T-192/97, T-210/97/T-211/97, T-216/97 TO T-218/97, T-279/97, 
T-280/97, T-293/97 AND T-147/99 
ing Article 13, 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 risks. Con­
sequently, when considering whether 
an application for remission is justified, 
it cannot take account only of the 
conduct of importers. It must also 
assess the impact on the resulting 
situation of its own conduct, which 
may itself have been wrongful. 
(see paras 216, 222—225) 
7. Article 5(2) of Regulation No 1697/79 
provides that the competent authorities 
may refrain from taking action for the 
post-clearance recovery of import 
duties or export duties which were 
not collected as a result of an error 
made by the competent authorities 
themselves which could not reasonably 
have been detected by the person liable, 
the latter having for his part acted in 
good faith and observed all the provi­
sions laid down by the rules in force as 
far as his customs declaration is con­
cerned. Thus, the legitimate expecta­
tions of the person liable to pay qualify 
for the protection provided for by that 
provision only if it was the competent 
authorities themselves which created 
the basis for the expectations of the 
person liable. That condition cannot be 
regarded as fulfilled where the compe­
tent authorities have been misled, in 
particular as to the origin of the goods, 
by incorrect declarations made by the 
person liable, the validity of which 
those authorities do not have to check 
or assess. In such circumstances, it is 
the person liable to pay who must bear 
the risks arising from a commercial 
document which is found to be false 
when subsequently checked. 
Although Article 5(2) of the above 
Regulation and Article 13(1) of Regu­
lation No 1430/79, which provides 
that the competent authorities may 
repay or remit import duties in situa­
tions which result from circumstances 
in which no deception or obvious 
negligence may be attributed to the 
person concerned, pursue the same aim 
the provisions are not the same. The 
first has a more limited objective than 
the second, in so far as it is intended 
solely to protect the legitimate expec­
tation of the person liable to pay that 
all the elements on which the decision 
whether or not to proceed with the 
recovery of customs duties is based are 
correct while the second is a general 
equitable provision. 
Thus, where the competent authorities 
did not enter the customs duties in the 
accounts because they were misled by 
statements made by exporters, the 
person liable cannot rely on Aiti­
I I - 1342 
KAUFRING AND OTHERS v COMMISSION 
cle 5(2) of Regulation No 1697/79. 
Similarly, as is clear from Arti­
cle 4(2)(c) of Regulation No 3799/86 
and Article 904(c) of Regulation 
No 2454/93, the person liable cannot 
argue that the presentation of invalid 
certificates and the consequent error of 
the competent authorities are sufficient 
to constitute a special situation within 
the meaning of Article 13 of Regula­
tion No 1430/79. On the other hand, 
those provisions do not prevent the 
person liable to pay from relying on 
other matters in support of his applica­
tion for remission under Article 13 of 
Regulation No 1430/79. For example, 
the error of the competent authorities 
may itself have been made possible by 
inadequate monitoring by the Commis­
sion of the implementation of the 
provisions of an association agreement 
and such circumstances may constitute 
a special situation. 
(see paras 231—235) 
8. Under Article 7 of the Agreement 
establishing an Association between 
the EEC and Turkey the contracting 
parties are to take all appropriate 
measures, whether general or particu­
lar, to ensure the fulfilment of the 
obligations arising from the agreement 
and to refrain from any measures liable 
to jeopardise the attainment of its 
objectives. That provision expresses 
the pacta sunt servanda principle and 
the principle of good faith which must 
govern the conduct of the parties to an 
agreement in public international law. 
(see para. 237) 
9. Pursuant to Article 155 of the EC 
Treaty (now Article 211 EC) and the 
principle of good administration, the 
Commission has a duty to ensure the 
proper application of the Agreement 
establishing an Association between 
the EEC and Turkey and of the Addi­
tional Protocol. 
(see para. 257) 
10. As envisaged by the Agreement estab­
lishing an Association between the 
EEC and Turkey, it is for the Commis­
sion, in cases of doubt about the 
validity of A.TR.1 movement of goods 
certificates issued by the Turkish cus­
toms authorities to make use of the 
procedure for settling disputes laid 
clown in Article 25 of that agreement 
before declaring those certificates inva­
lid. That conclusion is borne out by the 
fact that the agreement does not pro­
vide for the possibility of a contracting 
party declaring invalid the certificates 
issued by the customs authorities of the 
other contracting party. Furthermore, 
such a manner of proceeding seems 
difficult to reconcile with the division 
of responsibility between the customs 
II - 1343 
SUMMARY — JOINED CASES T-186/97, T-187/97, T-190/97 TO T-192/97, T-210/97, T-211/97, T-216/97 TO T-218/97, T-279/97, 
T-280/97, T-293/97 AND T-147/99 
authorities of the parties to the agree­
ment and the principle that the customs 
administration of the importing State 
accepts the determinations legally 
made by the authorities of the export­
ing State. 
(see para. 270) 
11. The existence of tensions between the 
Community and a third country does 
not exonerate the Commission as guar­
dian of the Treaty and of the agree­
ments concluded under it from ensur­
ing the correct implementation by that 
country of the obligations it has con­
tracted to fulfil under an agreement 
concluded with the Community, using 
the means provided for by the agree­
ment or by the decisions taken pur­
suant thereto. If, as a result of such 
tensions, it is unable to meet that 
obligation, inter alia because the means 
at its disposal prove to be inoperative 
or ineffective, it is incumbent upon it, 
at the very least, to inform the Member 
States as soon as possible of the 
measures to be taken to prevent 
damage to the Community and Com­
munity traders. In no case can the 
Commission use its exclusive authority 
as regards the recovery and remission 
of import duties to remedy failures in 
the implementation of an agreement 
concluded between the Community 
and a third country. 
(see paras 271—272) 
12. In order to determine whether an error 
made by the competent authorities 
'could not reasonably have been 
detected by the person liable' within 
the meaning of Article 5(2) of Regula­
tion No 1697/79 on the post-clearance 
recovery of import duties or export 
duties which have not been required of 
the person liable for payment on goods 
entered for a customs procedure invol­
ving the obligation to pay such duties, 
account has to be taken inter alia of the 
precise nature of the error, the profes­
sional experience of and the care taken 
by the trader concerned. That assess­
ment must be made in the light of the 
particular circumstances of the case. 
The nature of the error should be 
assessed inter alia in the light of the 
amount of time during which the 
competent authorities persisted in their 
error and the complexity of the provi­
sions at issue. 
(see paras 279, 282) 
13. Article 13 of Regulation No 1430/79 
provides that import duties may be 
repaid or remitted in situations which 
result from circumstances in which no 
deception or obvious negligence may 
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KAUFRING AND OTHERS v COMMISSION 
be attributed to the person concerned. 
It is for the Commission to prove 
obvious negligence in a situation where 
it is clear that the manner in which the 
applicants entered into purchase con­
tracts and carried out the imports at 
issue is in conformity with standard 
trade practice. 
(see para. 297) 
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