62008CO0552_EN
Parties
Grounds
Operative part
Parties
In Case C‑552/08 P,
APPEAL under Article 56 of the Statute of the Court of Justice, brought on 9 December 2008,
Agrar-Invest-Tatschl GmbH,
established in St. Andrä im Lavanttal (Austria), represented by O. Wenzlaff, Rechtsanwalt,
appellant,
the other party to the proceedings being:
Commission of the European Communities,
represented by S. Schønberg, acting as Agent, assisted by B. Wägenbaur, Rechtsanwalt, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Sixth Chamber),
composed of J.‑C. Bonichot, President of Chamber, K. Schiemann and C. Toader (Rapporteur), Judges,
Advocate General: M. Poiares Maduro,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order
Grounds
1. By its appeal, Agrar-Invest-Tatschl GmbH (‘Agrar-Invest-Tatschl’) seeks to have set aside the judgment of the Court of First Instance of the European Communities of 8 October 2008 in Case T-51/07 Agrar-Invest-Tatschl v Commission
[2008] ECR II-2825 (‘the judgment under appeal’) dismissing its action for annulment of Decision C(2006) 5789 final of 4 December 2006, by which the Commission of the European Communities decided, in particular, that waiver of post-clearance recovery and remission of import duties were not justified in a particular case (‘the contested decision’).
Legal context
2. By Council Decision 2001/868/EC of 29 October 2001 (OJ 2001 L 330, p. 1), the Council of the European Union authorised the signature on behalf of the Community and the provisional application 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 (‘the Interim Agreement’).
3. According to Article 4(1) of the Interim Agreement, customs duties on imports into the Community of products originating in Croatia were to be abolished upon its entry into force.
4. Article 220(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), 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; ‘the Customs Code’), provides:
‘… subsequent entry in the accounts shall not occur where:
…
(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.’
5. Recital 11 in the preamble to Regulation No 2700/2000 explains, in the following terms, the introduction into the Customs Code of the second to fifth subparagraphs of Article 220(2)(b) of that code:
‘It is necessary, for the particular case of preferential arrangements, to define the concepts of error by the customs authorities and of the good faith of the person liable for payment. The person liable for payment should not be held responsible for a malfunction of the system due to an error made by the authorities of a third country. The issue of an incorrect certificate by such authorities should not, however, be considered an error if the certificate is based on an application which contains incorrect information. The incorrect nature of the information provided by the exporter in his application must be assessed on the basis of all the factual elements which are contained in that application. 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 .’
6. Article 239 of the Customs Code 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 …
…’
7. On 26 June 2002, the Commission published in the Official Journal of the European Communities
a Notice to importers on imports of sugar into the Community from countries in the western Balkans (OJ 2002 C 152, p. 14; ‘the Notice to importers’). That notice reads as follows:
‘The European Commission informs the Community operators that there is reasonable doubt as to the proper application of the preferential arrangements for sugar of headings CN 1701 and CN 1702, which is declared at import as originating in Albania, Bosnia-Herzegovina, Croatia, the Federal Republic of Yugoslavia, including Kosovo as defined by the United Nations Security Council Resolution 1244 of 10 June 1999, and the Former Yugoslav Republic of Macedonia in order to benefit from preferential tariff measures.
A significant and rapid increase in preferential imports of sugar into the Community from certain countries in the western Balkans has been registered since the beginning of 2001, while the countries concerned have in the recent past shown a deficit in sugar production. At the same time, exports of sugar from the Community to the countries in the region have increased by roughly the same level. This development of trade in both directions appears to be highly artificial and there are indications pointing to the possibility of fraud.
Community operators presenting documentary evidence of origin with a view to securing preferential treatment for sugar of tariff headings CN 1701 and CN 1702 are therefore advised 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.’
Facts of the dispute as set out in the judgment under appeal
8. Agrar-Invest-Tatschl 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. Among those transactions, nine took place between 1 July and 8 August 2002 (‘the contested imports’).
9. Those imports were carried out on the basis of the Interim Agreement and received, in that respect, preferential treatment on presentation to the customs authorities of an EUR.1 movement certificate (‘EUR.1 certificate’) issued by the Croatian customs authorities.
10. 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.
11. The Commission then published the Notice to importers. The contested imports took place after the publication of that notice in the Official Journal of the European Communities .
12. 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 Agrar-Invest-Tatschl in respect of the contested imports.
13. Following those verifications, the Croatian customs administration confirmed, on 18 February and 16 September 2003, the authenticity and accuracy of the EUR.1 certificates issued in respect of the contested imports.
14. After the publication of the Notice to importers, OLAF analysed, in Greece, some sugar of purportedly Croatian origin. OLAF discovered that it consisted of a mixture of beet and cane sugar, which completely ruled out Croatian origin. On 28 October 2002, OLAF informed the Member States of this.
15. 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 Agrar-Invest-Tatschl 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.
16. The Croatian customs authorities therefore withdrew all the EUR.1 certificates drawn up between 14 September 2001 and 17 September 2002. On 30 June 2004, the Austrian customs authorities informed the importers concerned of the withdrawal of those certificates.
17. Following that withdrawal, the Austrian authorities sent Agrar-Invest-Tatschl, on 9 August 2004, a notice for post-clearance recovery of EUR 916 807.21.
18. That company appealed against that notice to the competent Austrian authority and applied, under Article 220(2)(b) of the Customs Code, for the amount of the duties referred to in the recovery notice not to be entered subsequently in the accounts and, in the alternative, on the basis of Article 239 of the Customs Code, for those duties to be remitted.
19. By letter of 1 June 2005, the Republic of Austria requested the Commission to decide, under the abovementioned articles of the Customs Code, if it was justified, in Agrar-Invest-Tatschl’s case, to waive subsequent entry of the amount of the import duties in the accounts and, in the alternative, to decide whether the remission of those duties was justified.
20. In the contested decision, the Commission stated that it was appropriate to waive subsequent entry in the accounts of the customs duties for the imports prior to the publication of the Notice to importers. On the other hand, regarding the contested imports, it refused such waiver and to grant remission of those duties, which amounted to a total of EUR 110 937.60.
21. 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 Customs Code. However, after the publication of the Notice to importers, Agrar-Invest-Tatschl could no longer plead its good faith with regard to imports carried out after the date of that publication. The fact that the Croatian authorities confirmed the validity of certain EUR.1 certificates after the publication of that notice is not relevant in that regard, since, when it carried out the contested imports, that company 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 Customs Code completely meaningless.
The proceedings before the Court of First Instance and the judgment under appeal
22. By application lodged at the Registry of the Court of First Instance on 22 February 2007, Agrar-Invest-Tatschl brought an action seeking, in particular, annulment of the contested decision in so far as it dismissed its applications concerning the waiver of subsequent entry in the accounts of customs duties relating to the contested imports and the remission of those duties.
23. In support of its action, it argued, in essence, that the publication of the Notice to importers did not preclude it being considered as having acted in good faith, within the meaning of Article 220(2)(b) of the Customs Code, since the confirmation by the Croatian customs authorities of the authenticity of the EUR.1 certificates which took place after the contested imports, was specifically obtained at the Austrian authorities’ request made just following that publication.
24. Agrar-Invest-Tatschl also submitted that, even if that provision of the Customs Code ruled out its good faith with regard to the authenticity and accuracy of the original documents lodged at the time of the contested imports, that provision did not however preclude its good faith from being ‘restored’ by a subsequent check undertaken jointly by the authorities of the States of import and export.
25. By the judgment under appeal, the Court of First Instance dismissed in its entirety the action brought by Agrar-Invest-Tatschl and ordered it to pay the costs.
26. As regards the determination as to the condition concerning the importer’s good faith, as required by Article 220(2)(b) of the Customs Code for the purposes of the waiver of subsequent entry of customs duties in the accounts, the Court of First Instance held, in paragraph 42 of the judgment under appeal, that the wording of its fifth subparagraph is clear and unequivocal. Accordingly, first, the importer may not plead its good faith if the Commission has published in the Official Journal of the European Communities a notice to importers stating that there are grounds for doubt and, second, it is not possible for it to prove its good faith by taking supplementary measures in order to ensure the authenticity and accuracy of the certificates required in order to receive preferential treatment.
27. The Court of First Instance held, in paragraph 43 of the judgment under appeal, that the absolute exclusion of good faith where such a notice has been published would ensure a very high level of legal certainty. However, it noted in that regard, in paragraph 44 of the judgment, that in the present case the notice published by the Commission, which contains no reference to the fifth subparagraph of Article 220(2)(b) of the Customs Code, was not very clear as to its legal consequences.
28. In paragraph 45 of the judgment under appeal, the Court of First Instance noted that the Commission had conceded, at the hearing, that it was not impossible that, in exceptional circumstances, it could adopt a more moderate position regarding the absolute effect of a notice to importers where an importer, following publication of such a notice, but before importation, carried out supplementary measures which confirmed the origin of the goods.
29. Whilst pointing out, in paragraph 48 of the judgment under appeal, that Agrar‑Invest-Tatschl had provided no information concerning any steps for that purpose undertaken by it before or, at the latest, at the time of the cont ested imports, the Court of First Instance held, in paragraph 46 of that judgment, that it was not in the least necessary to examine that possible exception, because, in any case, that company had not acted in good faith in the circumstances of the case.
30. Indeed, the Court of First Instance observed that, since Agrar-Invest-Tatschl claimed that the confirmation of the Croatian customs administration had ‘restored’ its good faith, it was implicitly acknowledging that it was not acting in good faith at the time of the contested imports. According to the Court of First Instance, the decisive date for taking into account the good faith of the person liable for payment is the date of importation of the goods and, in addition, Article 220(2)(b) of the Customs Code does not provide for any possibility at all that subsequent checks confirming certificates’ authenticity can retrospectively affect the determination as to the importer’s good faith at the time when it carried out the imports.
31. With regard to Agrar-Invest-Tatschl’s argument seeking to challenge the contested decision in so far as it refused the remission of the customs duties under Article 239 of the Customs Code, the Court of First Instance held, in paragraph 56 of the judgment under appeal, that that company could not confine itself in its pleadings to referring back to the explanations it had provided in the part of its application relating to the refusal of waiver of subsequent entry of the customs duties in the accounts.
32. In paragraph 58 of the judgment under appeal, the Court of First Instance pointed out particularly in that respect that, while it is true that Article 220(2)(b) of the Customs Code pursues the same goal as Article 239 thereof, the two provisions are not coterminous. The former has a more limited objective than the latter, since it aims only to protect the legitimate expectation of the person liable for payment that all the information and criteria used in the decision whether or not to make a subsequent entry of customs duties in the accounts are correct. By contrast, Article 239 is a general hardship clause.
33. Considering that Articles 220(2)(b) and 239 of the Customs Code are two discrete provisions the criteria for the application of which are different, the Court of First Instance, in paragraph 59 of the judgment under appeal, deduced that, applying Article 44(1)(c) of its Rules of Procedure, Agrar-Invest-Tatschl could not confine itself to referring back to the explanations relating to Article 220(2)(b) of the Customs Code in order to justify its arguments regarding Article 239 thereof.
34. In those circumstances, the Court of First Instance held, in paragraph 60 of the judgment under appeal, that the application for annulment of the contested decision in so far as it refused remission of the customs duties under Article 239 of the Customs Code must be dismissed as inadmissible and, consequently, in paragraph 61 of the same judgment, it dismissed the action before it in its entirety.
The appeal
35. Agrar-Invest-Tatschl asks the Court of Justice to set aside the judgment under appeal, grant the form of order sought by it at first instance and order the Commission to pay the costs, while the Commission contends that the appeal should be dismissed and the appellant ordered to pay the costs.
36. Under Article 119 of the Rules of Procedure, where the appeal is clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order dismiss the appeal.
Arguments of the parties
37. In support of its appeal, Agrar-Invest-Tatschl claims, principally, that the Court of First Instance erred in law in its interpretation of the fifth subparagraph of Article 220(2)(b) of the Customs Code, in that it held that the publication in the Official Journal of the European Communities
of a notice to importers results in the operator being excluded from pleading his good faith for the purposes of waiver of subsequent entry in the accounts of customs duties owed, even if the certificates of origin presented at the time of the contested imports were the subject of a subsequent check, carried out by the customs authorities of the non‑member country of export at the request of the customs authorities of the Member State of import, confirming the authenticity of those certificates.
38. According to Agrar-Invest-Tatschl, there can be no doubt that a negligent importer which took no steps to ensure the correct application of the system of preferential treatment could not plead its good faith. However, that would not be the case where, as in this instance, the customs authorities of the Member State of import, following the publication of a notice to importers, appeal to their counterparts in the non-member country of export to carry out a subsequent check on the authenticity and accuracy of the certificates of origin. If, following such checks, that authenticity is confirmed by the customs authorities of the non-member country of export, the protection of the importer’s legitimate expectation would be restored on the ground that it could legitimately think that the result of those subsequent checks dispelled the doubts and suspicions which had made the publication of that notice to importers necessary.
39. Agrar-Invest-Tatschl thus submits that, in circumstances such as those in the present case, Article 220(2)(b) of the Customs Code is intended to protect the importer’s good faith as regards subsequent checks of the certificates of origin and not as regards the regularity of those certificates at the time the contested imports were carried out, that is to say when the documents required were presented to customs. Accordingly, the publication in the Official Journal of the European Communities
of a notice to importers has the effect of subjecting them to a presumption of bad faith, which can however be rebutted by showing that checks carried out after those transactions, such as subsequent checks carried out by the customs authorities of the non-member country of export, have been adopted.
40. In addition, in holding that, for the purposes of determination as to an importer’s good faith within the meaning of Article 220(2)(b) of the Customs Code, the relevant time was the period before or at the time of the contested imports, the Court of First Instance wrongly failed to consider the impact of the steps taken by Agrar-Invest-Tatschl, after the publication of the Notice to importers, with a view to ensuring that its imports satisfied the conditions required in order to receive preferential treatment. In that regard, that company points out that the withdrawal by the Croatian customs authorities of the EUR.1 certificates, which took place after those authorities had confirmed their authenticity, can be explained by the fact that those authorities suspected that the imported sugar was cane sugar from Latin America. Agrar-Invest-Tatschl observes that the contested imports concerned beet sugar.
41. Finally, Agrar-Invest-Tatschl seems to complain that the Court of First Instance did not take sufficiently into account, in the judgment under appeal, the fact that the Notice to importers could not have retrospective effect on the import transactions carried out before its publication.
42. The Commission for its part contends that the Court should dismiss the appeal, whilst pointing out that Agrar-Invest-Tatschl challenges the judgment under appeal only in so far as it concerns waiver of subsequent entry of the customs duties in the accounts, thereby abandoning its other claims made at first instance, particularly those concerning the refusal of the application for remission under Article 239 of the Customs Code.
43. The Commission submits that Agrar-Invest-Tatschl is trying, by its arguments, to circumvent the unequivocal wording of the fifth subparagraph of Article 220(2)(b) of the Customs Code, by attempting to rely on the alleged good faith which it acquired in relation to the checks carried out, after the contested imports, by the Croatian customs authorities. However, in the Commission’s submission, the intention on the part of the Community legislature was sufficiently clear in so far as it decided that the publication of a notice to importers precluded the possibility for operators to plead their good faith at the time of the import transactions affected by that notice. Moreover, by alleging that the confirmation, by those authorities, of the certificates’ authenticity had ‘restored’ retrospectively its legitimate expectation at the time of the contested imports, Agrar-Invest-Tatschl implicitly recognises that it is the date of those imports which is decisive for the determination as to good faith within the meaning of that provision.
44. In addition, certain arguments raised by Agrar-Invest-Tatschl seek to challenge findings of fact made by the Court of First Instance and are, in the Commission’s submission, for that reason inadmissible.
45. Finally, with regard to Agrar-Invest-Tatschl’s argument about the retrospective effect of the Notice to importers on the imports carried out before its publication in the Official Journal of the European Communities, the Commission notes that the point was not argued before the Court of First Instance and that, in the present case, under the contested decision, the waiver of subsequent entry of the customs duties in the accounts was properly granted in relation to the transactions carried out prior to that publication and that it was refused only with regard to the contested imports, which took place after the publication of that notice. Consequently, in the circumstances of this case, the Commission submits that there can be no question of the retrospective effect of such publication on the import transactions which preceded it, so that the Commission expresses doubts as to the admissibility, on this appeal, of such an argument.
Findings of the Court
46. It should be recalled, at the outset, that 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. According to settled case-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 (Case C‑499/03 P Biegi Nahrungsmittel and Commonfood
v Commission [2005] ECR I‑1751, paragraph 40 and the case-law cited).
47. Consequently, the Court must reject as clearly inadmissible Agrar‑Invest‑Tatschl’s argument seeking to show that, contrary to the Court of First Instance’s finding in paragraph 12 of the judgment under appeal and what it held in paragraphs 56 and 57 thereof, having rejected the evidence offered by that company, Agrar-Invest-Tatschl imported only beet sugar and not cane sugar.
48. Regarding the point about the legal consequences of the publication in the Official Journal of the European Communities of the Notice to importers on the import transactions prior to that publication, it is clear that the issue was not argued in the proceedings before the Court of First Instance, that the Court expressed no view whatsoever with regard to that issue and that, moreover, in the contested decision, the Commission rejected the application for waiver of subsequent entry of the customs duties in the accounts, by reason of that publication, only as regards the contested imports, namely those which took place after that publication.
49. However, Article 113(2) of the Rules of Procedure provides that the subject‑matter of the proceedings before the Court of First Instance may not be changed in the appeal. In fact, the jurisdiction of the Court of Justice is confined, on appeal, to review of the findings of law on the pleas argued before the Court of First Instance (see the order of 13 February 2008 in Case C‑212/07 P Indorata‑Serviços e Gestão
v OHIM, paragraph 49, and Case C‑295/07 P Commission
v Département du Loiret
[2008] ECR I‑9363, paragraphs 94 and 95).
50. In those circumstances, Agrar-Invest-Tatschl’s argument, apparently complaining that the Court of First Instance did not take sufficiently into account the fact that the publication in the Official Journal of the Notice to importers could not have a retrospective effect on the import transactions prior to that publication, must also be rejected as clearly inadmissible.
51. Regarding finally the errors of law pleaded by Agrar-Invest-Tatschl concerning the determination as to its good faith within the meaning of Article 220(2)(b) of the Customs Code, it should be noted that, according to the first subparagraph of that provision, subsequent entry in the accounts shall not occur where 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.
52. The procedures set out in Articles 220 and 239 of the Customs Code pursue the same aim, namely to limit the post-clearance payment of import and export duties to cases where such payment is justified and is compatible with a fundamental principle such as that of the protection of legitimate expectations (see Case C‑250/91 Hewlett Packard France
[1993] ECR I-1819, paragraph 46, and Case C‑375/07 Heuschen & Schrouff Oriëntal Foods Trading
[2008] ECR I-8691, paragraph 57).
53. The repayment or remission of import and export duties, which may be made only under certain conditions and in cases specifically provided for, constitutes an exception to the normal import and export procedure and, consequently, the provisions which provide for such repayment or remission must be interpreted strictly. Since ‘good faith’ is an essential condition of being able to claim repayment or remission of import or export duties, it follows that that term must be interpreted in such a way that the number of cases of repayment or remission remains limited (see, to that effect, Case C-48/98 Söhl & Söhlke
[1999] ECR I‑7877, paragraph 52, and Case C‑38/07 P Heuschen & Schrouff Oriëntal Foods Trading v Commission
[2008] ECR I‑8599, paragraph 60).
54. Such considerations carry even more weight when, as in the present case, the Commission has published a notice to importers in the Official Journal of the European Communities.
55. Indeed, under the fourth subparagraph of Article 220(2)(b) of the Customs Code, it is true that the person liable for payment 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 required to receive preferential treatment have been fulfilled.
56. However, as the Court of First Instance correctly held in paragraph 42 of the judgment under appeal, it follows from the clear and unequivocal wording of the fifth subparagraph of Article 220(2)(b) of the Customs Code that the person liable for payment may not plead his good faith if 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 non‑member country.
57. That interpretation is also borne out by recital 11 in the preamble to Regulation No 2700/2000, which introduced into the Customs Code, among other provisions, the fifth subparagraph of Article 220(2)(b) of that code. It follows from that recital that the Community legislature, with the aim of defining the concept of ‘good faith’ in the particular case of preferential arrangements, sought to give the person liable for payment the possibility of pleading his good faith when 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 ’.
58. The Court of First Instance was therefore right in holding, in paragraph 42 of the judgment under appeal, that the person liable for payment cannot plead his good faith if the Commission has published a notice to importers in the Official Journal, so that Agrar-Invest-Tatschl’s argument in that regard must be rejected as clearly unfounded.
59. It also follows that, for the same reasons, the Court cannot accept its argument that the confirmation by the Croatian customs authorities of the authenticity of the EUR.1 certificates, which were subsequently withdrawn by those same authorities, retrospectively ‘restored’ its good faith at the time of the contested imports.
60. As regards Agrar-Invest-Tatschl’s claim challenging the Court of First Instance’s interpretation, in paragraph 47 of the judgment under appeal, that in the context of Article 220(2)(b) of the Customs Code the operator’s good faith must be determined in the light of the period before or at the time of the import transactions, it is expressly stated in the fourth subparagraph of that provision that the demonstration by the person liable of his good faith, where such demonstration is allowed, applies to his behaviour ‘during the period of the trading operations concerned’.
61. Consequently, the Court cannot but hold that the Court of First Instance did not err in law in ruling, in paragraph 47 of the judgment under appeal, that the relevant date for taking into account the good faith of the person liable for payment is that on which the import transactions were carried out.
62. It follows that the arguments put forward by Agrar-Invest-Tatschl in that regard must also be rejected as clearly unfounded.
63. Lastly, as regards its argument concerning the possibility, which was conceded by the Commission at the hearing before the Court of First Instance, that the adoption by an importer of supplementary measures, after the publication of a notice to importers but before or at the time of the contested import transactions, might lead that institution, in exceptional circumstances, to recognise the operator’s good faith, it must be noted that the Court of First Instance, in paragraph 46 of the judgment under appeal, expressly stated that it did not propose to rule on that question, because, in any case, the appellant had not acted in good faith in the present case.
64. Consequently, since the Court of First Instance made no reference at all to that question, it is appropriate, in accordance with the statements in paragraph 49 of this order, that Agrar-Invest-Tatschl’s argument on that point be rejected as clearly inadmissible.
65. None the less, it must be pointed out in that regard that, as stated in paragraph 48 of the judgment under appeal, Agrar-Invest-Tatschl failed, in any event, to adduce any evidence before the Court of First Instance that it had, at the time of the contested imports, adopted such supplementary measures following the publication of the Notice to importers. In reality, the alleged supplementary measures upon which it relied in its appeal correspond to those undertaken by the competent authorities of the Member State of import and of the non-member country of export, measures which, in addition, were subsequent to the contested imports.
66. In the light of the foregoing considerations, the appeal must be dismissed as being in part clearly inadmissible and in part clearly unfounded.
Costs
67. Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has applied for costs against Agrar-Invest-Tatsch l and the latter has been unsuccessful, Agrar-Invest-Tatschl must be ordered to pay the costs.
Operative part
On those grounds, the Court (Sixth Chamber) hereby orders:
1. The appeal is dismissed;
2. Agrar-Invest-Tatschl GmbH shall pay the costs.