Order — ECLI:EU:C:2009:605
Date: 2009-10-01
Language of the case: German
Court formation: Sixth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union
Concepts: Appeals;Own resources of the Communities
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Austria

Summary of the Order 1. Appeals – Grounds – Incorrect assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of the facts put before the Court of First Instance – Possible only where the clear sense of the evidence has been distorted (Art. 225 EC; Statute of the Court of Justice, Art. 58) 2. Appeals – Grounds – Plea submitted for the first time in the context of the appeal – Inadmissibility – Alteration of the subject-matter of the dispute – Excluded (Rules of Procedure of the Court of Justice, Art. 113(2)) 3. European Communities’ own resources – Post-clearance recovery of import or export duties (European Parliament and Council Directive 2700/2000, recital 11; Council Regulation No 2913/92, Art. 220(2)(b), fourth and fifth subparas.) 1. It follows from Article 225 EC and Article 58 of the Statute of the Court of Justice that an appeal is limited to points of law. The Court of First Instance therefore has exclusive jurisdiction to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in an appeal. (see para. 46) 2. In accordance with Article 113(2) of the Rules of Procedure of the Court of Justice, the subject-matter of the proceedings before the Court of First Instance may not be changed in the appeal. The jurisdiction of the Court of Justice is confined to review of the findings of law on the pleas argued before the Court of First Instance. (see para. 49) 3. Under the fourth subparagraph of Article 220(2)(b) of Regulation No 2913/92 establishing the Community Customs Code, the person liable may plead good faith, in order to be eligible for repayment or remission of import or export duties, 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. This is not the case, as follows from the clear and unequivocal wording of the fifth subparagraph of Article 220(2)(b) of that regulation, corroborated by recital 11 in the preamble to Regulation No 2700/2000, when the Commission has published a notice in the Official Journal, stating that there are grounds for doubt concerning the proper application of the preferential arrangements by the beneficiary country. As regards the relevant date for taking into account the good faith of the person liable, it is expressly stated in the fourth subparagraph of Article 220(2)(b) that the demonstration by the operator of his good faith, where such demonstration is allowed, applies to his behaviour ‘during the period of the trading operations concerned’. Consequently, the relevant date for taking into account the good faith of the person liable is that on which the import transactions were carried out. (see paras 55-58, 60)