62014TJ0752
JUDGMENT OF THE GENERAL COURT (Second Chamber)
19 July 2017 (
*1
)
(Customs union — Association Agreement between the European Community and the Republic of Latvia — Article 239 of Regulation (EEC) No 2913/92 — Reimbursement and remission of import duties — Imports of linen fabrics from Latvia — Fairness clause — Special situation — Deception or obvious negligence — Commission decision finding that the remission of import duties is not justified)
In Case T‑752/14,
Combaro SA, established in Lausanne (Switzerland), represented by D. Ehle, lawyer,
applicant,
v
European Commission, represented by A. Caeiros and B.-R. Killmann, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2014) 4908 final of 16 July 2014 rejecting the applicant’s claim for a refund of import duties in the amount of EUR 461415.12,
THE GENERAL COURT (Second Chamber),
composed of M. Prek, President, F. Schalin (Rapporteur) and J. Costeira, Judges,
Registrar: S. Bukšek Tomac, Administrator,
having regard to the written stage of the procedure and further to the hearing on 6 December 2016,
gives the following
Judgment
Background to the dispute
The rules applicable to imports of textiles and the Association Agreement: the applicant’s imports
1
Commission Decision C(2014) 4908 final of 16 July 2014 finding that the remission of import duties is not justified in a particular case (REM 05/2013) (‘the contested decision’) concerns import duties on linen fabrics imported into the European Union via Germany between 10 December 1999 and 10 June 2002 (‘the relevant period’) and the Latvian preferential origin of which is not proved.
2
Linen fabrics are, as textiles, subject to import restrictions. During the relevant period, restrictive measures were applicable, in particular, to imports from China and from Russia, pursuant to Council Regulation (EEC) No 3030/93 of 12 October 1993 on common rules for imports of certain textile products from third countries (OJ 1993 L 275, p. 1).
3
Textiles of Latvian preferential origin were exempt from the import restrictions referred to in paragraph 2 above. That exemption resulted from the Europe Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Republic of Latvia, of the other part (OJ 1998 L 26, p. 3; ‘the Association Agreement’).
4
Like other goods of Latvian preferential origin, textiles benefited from the customs exemption only if the importer proved their original character to the customs authorities of the Member State of import by a movement certificate EUR.1 issued by the Latvian authorities at the time of export.
5
The applicant, Combaro SA, is an undertaking dealing in textiles and other goods, established in Switzerland since 1978.
6
The applicant bought linen fabrics from two Latvian undertakings. The deliveries from those two undertakings to the applicant were accompanied by goods movement certificates showing that the linen fabrics supplied were of Latvian preferential origin.
7
The goods movement certificates stated that the exporter was one or other of the two Latvian undertakings and that the importer was the applicant, but that Austria was the country of destination. The places of issue stated on the goods movement certificates were Jelgava (Latvia) and Bauska (Latvia) respectively.
8
During the relevant period, the applicant then imported those linen fabrics into the Union. It placed them in free circulation in Germany and requested, on presentation of the goods movement certificates, including the 51 goods movement certificates at issue in the present case (‘the certificates at issue’), an exemption from the import duties in accordance with the Association Agreement. The German customs authorities cleared the goods in accordance with the applicant’s request.
The post-clearance check and recovery proceedings
9
On 18 July 2002, the European Antifraud Office (OLAF) issued a report on an investigation which it had carried out in Latvia (‘the OLAF report’). According to the OLAF report, the Danish customs authorities had informed OLAF in February 2002 that it had doubts about the Latvian preferential origin of linen fabrics imported from Latvia, in spite of the submission of movement of goods certificates showing their origin. The OLAF report stated that, at the end of the investigation, OLAF and the Latvian customs authorities had established that the goods movement certificates submitted in respect of imports into Denmark were not entered in the Latvian customs authorities’ records. It was also established that the official whose signature appeared on the certificates had provided a written statement declaring that the signature on the certificates was not his. Last, the OLAF report stated that the investigations concerning the stamps on the certificates in question had not yet been completed.
10
Following the OLAF report, the European Commission sent the Member States, on 11 September 2002, a mutual assistance communication requesting an inspection of all imports of linen fabrics from Latvia.
11
The German customs authorities then requested the Latvian customs authorities to carry out a post-clearance check of the certificates at issue (‘the post-clearance check’). The Latvian customs authorities responded to the German customs authorities’ request on 7 April, 2 May and 7 May 2003, as follows:
‘… the certificates [at issue] were not entered in the customs records. They were not issued by the Latvian customs authorities and must therefore be regarded as invalid.’
12
Those replies were signed by the Deputy Director of the Latvian customs authorities, Mr R., who was subsequently convicted and the subject of disciplinary proceedings for having failed to recover tax debts from a Latvian undertaking.
13
As the Latvian customs authorities had declared the certificates at issue invalid, the German customs authorities considered that the applicant’s imports of linen fabrics from Latvia could no longer benefit from preferential treatment and, by decision of 3 July 2003, decided to initiate proceedings for the post-clearance recovery of the corresponding import duties (‘the post-clearance recovery proceedings’). The German customs authorities also initiated criminal proceedings against two directors of the applicant who were suspected of evading customs duty. In the case of one of those directors the proceedings were closed and no further action was taken and in the case of the other the proceedings were continued before the Landgericht München (Regional Court, Munich, Germany).
14
In the meantime, at OLAF’s request, expert comparisons of the stamp imprints and signatures on the goods movement certificates submitted in respect of the imports into Denmark were carried out. For the purposes of those expert comparisons, OLAF had to obtain comparison material which was in Latvia. It was established in the expert reports in question that some stamp imprints were the same as those of the authentic stamps used by the Latvian customs authorities, whereas other stamp imprints had, in the absence of reference material, been subjected to only a general assessment, from which it was apparent that they were probably genuine.
15
As regards the expert comparison of the signatures, it was established in the corresponding expert report that an assessment of the authenticity of the signatures on the goods movement certificates presented certain difficulties, since the comparison had to be made on the basis of copies of that signature, that there was no authentic signature of the official concerned, Mr O., dating from the period when the certificates had been signed and that the method consisting in asking for signatures ex post facto for the purposes of an expert comparison raised a problem of reliability. Consequently, the expert report concluded that the signature on the certificates examined was — slightly more likely than not — that of Mr O.
16
In order to defend its interests in the proceedings pending before the Germany criminal and customs authorities, the applicant contacted the Latvian customs authorities and OLAF. In answer to the applicant’s requests, the Latvian customs authorities confirmed, in a letter of 26 June 2007, their reply of 7 May 2003 to the German customs authorities, namely that the certificates at issue ‘must be regarded as invalid’, and OLAF informed the applicant of the status of its investigations.
17
Last, the applicant also sent the Commission a request for access to the correspondence between it and the Latvian authorities. That request was rejected in part. The applicant did not bring an action challenging that partial refusal of access to the correspondence in question.
18
On 30 April 2009, an order of the Landgericht München (Regional Court, Munich) closed the criminal proceedings against the applicant’s director. According to that order, it was not possible to find beyond doubt that the director had knowingly evaded import duties. More specifically, it followed from the order that irregularities might possibly have occurred within the Latvian customs authorities. The Landgericht München (Regional Court, Munich) also expressed doubts as to that director’s intention to evade customs duties for the benefit of the company which he represented, namely the applicant, independently of whether the objective criteria relating to the obligation to pay such duties could or could not be established.
19
The post-clearance recovery proceedings were referred to the Finanzgericht München (Finance Court, Munich, Germany). In that context, the applicant claimed, in particular, that its debt should be remitted, in accordance with Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1, ‘the CCC’).
20
By decision of 28 November 2012, the Finanzgericht München (Finance Court, Munich) found that, in essence, remission of the import duties payable by the applicant should be ‘seriously’ contemplated on the ground that there was evidence that the certificates at issue had been irregularly and deliberately issued by the Latvian customs authorities and that the Commission had not properly monitored Latvia’s compliance with the preferential regime in force. The Finanzgericht München (Finance Court, Munich) also found that there had been no fraudulent intent or obvious negligence on the applicant’s part. Consequently, the Finanzgericht München (Finance Court, Munich) stayed the post-clearance recovery proceedings and ordered the German customs authorities to ask the Commission to remit those duties.
The REM 05/2013 procedure
21
Following the decision of the Finanzgericht München (Finance Court, Munich), the Bundesministerium der Finanzen (Federal Ministry of Finance, Germany) requested the applicant to provide its opinion and on 3 September 2013 requested the Commission to remit the import duties, in application of Article 239 of the CCC. The Commission then initiated the REM 05/2013 procedure.
22
In the context of the REM 05/2013 procedure, the Commission, on the basis of Article 906a of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the CCC (OJ 1993 L 253, p. 1; ‘the Implementing Regulation’) and of the right to be heard, informed the applicant, by letter of 14 March 2014, of its objections and of its intention to adopt an unfavourable decision in respect of it, and gave it the opportunity to submit its comments. The applicant submitted its comments on the decision which the Commission proposed to adopt against it.
23
On 16 July 2014, the Commission adopted the contested decision.
24
In recital 32 of the contested decision, the Commission explained that there was no special situation, for the purposes of Article 239 of the CCC, attributable to failure on the part of the Latvian customs authorities, since it was unable to conclude that those authorities had been involved in issuing the certificates at issue.
25
The Commission also considered whether it had itself failed in monitoring the correct implementation of the Association Agreement. In recitals 36 to 41 of the contested decision, it concluded that its conduct did not give rise to a special situation.
26
In recitals 42 to 44 of the contested decision, the Commission also considered that the German customs authorities too could not be accused of any failure in the context of the post-clearance recovery proceedings.
27
The Commission concluded in recital 45 of the contested decision, that remission of the import duties was not justified in the absence of a special circumstance within the meaning of Article 239 of the CCC, and added, in recitals 48 to 52 of the contested decision, that the applicant had not shown the necessary diligence.
28
The applicant was notified of the contested decision on 4 September 2014.
Procedure and forms of order sought
29
By application lodged at the Court Registry on 12 November 2014, the applicant brought the present action.
30
On 17 February 2015, the Commission lodged its defence at the Court Registry.
31
The reply and the rejoinder were lodged at the Court Registry on 2 April and 18 May 2015 respectively.
32
On 12 October 2016, on a proposal from the Judge-Rapporteur, the Court (Second Chamber) decided to open the oral stage of the procedure and, in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure of the General Court, put a number of written questions to the Commission by letter of 19 October 2016, requesting it to reply by 3 November 2016. The Commission replied to the Court’s questions within the prescribed period. The Court asked the Commission, in particular, to provide clarification concerning the reports containing the results of the annual inspections which it was required to carry out pursuant to the Association Agreement and to state in which annexes lodged at the Court they appeared or, if appropriate, to provide copies. The Court also requested the Commission to provide it with communication COM(97) 402 of 23 July 1997, to which the applicant referred in paragraph 106 of the application. Last, the Court asked the Commission whether an expert comparison of the stamp imprints and signatures on the certificates at issue had been carried out and to provide the results or, if appropriate, to explain whether such an expert comparison had not been carried out.
33
The parties submitted oral argument and answered the questions put by the Court at the hearing on 6 December 2016.
34
The applicant claims that the Court should:
–
annul the contested decision;
–
order the Commission to pay the costs.
35
The Commission contends that the Court should:
–
dismiss the action as unfounded;
–
order the applicant to pay the costs.
Law
36
In support of its action, the applicant puts forward a single plea, alleging infringement of Article 239 of the CCC.
The implementation of the second indent of Article 239(1) of the CCC
37
The applicant claims that the Commission erred in assessing the conditions relating to the existence of a special situation and to circumstances in which there is no deception or obvious negligence within the meaning of Article 905 of the Implementing Regulation, read in conjunction with Article 239 of the CCC.
38
The Commission disputes the applicant’s arguments.
39
As a preliminary point, it should be borne in mind that Article 905 of the Implementing Regulation, which clarifies and develops the rule laid down in Article 239 of the CCC that import duties or export duties may be repaid or remitted in situations resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, is a general fairness clause intended to cover special situations which, in themselves, do not fall within any of the cases provided for in Articles 900 to 904 of the Implementing Regulation (judgment of 25 February 1999, Trans-Ex-Import, C‑86/97, EU:C:1999:95, paragraph 18). It is clear from the wording of Article 905 of the Implementing Regulation that the repayment of import duties is subject to two cumulative conditions, namely, first, the existence of a special situation and, second, the absence of deception or obvious negligence on the part of the person concerned (judgment of 12 February 2004, Aslantrans v Commission, T‑282/01, EU:T:2004:42, paragraph 53). Accordingly, repayment of duties must be refused if either of those conditions is not met (judgments of 5 June 1996, Günzler Aluminium v Commission, T‑75/95, EU:T:1996:74, paragraph 54, and of 12 February 2004, Aslantrans v Commission, T‑282/01, EU:T:2004:42, paragraph 53).
40
In order to determine whether the circumstances of the case constitute a special situation in which no deception or obvious negligence may be attributed to the person concerned within the meaning of Article 239 of the CCC, the Commission must assess all the relevant facts (see, to that effect, judgment of 15 May 1986, Oryzomyli Kavallas and Oryzomyli Agiou Konstantinou v Commission, 160/84, EU:C:1986:205, paragraph 16).
41
That obligation implies, in a case such as this one where the person liable has relied, in support of his application for repayment or remission of import duties, on the existence of serious errors on the part of the Latvian and German customs authorities and the Commission in the implementation of the Association Agreement, that the Commission must base its assessment, when examining that application for repayment or remission of import duties, on all the facts relating to the certificates at issue of which it was aware in the performance of its task of supervising and monitoring the proper implementation of that agreement (see, to that effect, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 90).
42
That finding is reinforced by Article 904(c) of the Implementing Regulation, which provides that import duties must not be repaid or remitted where the ‘only grounds’ relied on in the application for repayment or remission are presentation, for the purpose of obtaining preferential tariff treatment, of documents subsequently found to be forged, falsified or not valid for that purpose, even where such documents were presented in good faith. In other words, the presentation of forged, falsified or invalid certificates does not per se constitute a special situation for the purposes of Article 239 of the CCC (judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 91).
43
By contrast, other circumstances relied on in support of an application for repayment or remission of import duty, such as inadequate monitoring by the Commission of the proper implementation of the Association Agreement, may constitute such a special situation (see, to that effect, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 92).
44
Although the Commission has some discretion as regards the application of Article 239 of the CCC, it cannot disregard its duty to balance, on the one hand, the Union interest in full compliance with the provisions of customs legislation, whether that be EU legislation or other legislation binding on the Union, and, on the other hand, the interest of an importer acting in good faith not to suffer harm which goes beyond the normal commercial risk (judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 93).
45
That balancing underlies the scheme of Article 239 of the CCC, which is a general equitable provision. Consequently, when examining an application for repayment or remission of import duty, the Commission is not entitled merely to assess the behaviour and activities of the importer and the exporter. It must also take into account, in particular, the effect of its own behaviour on the specific situation in the course of its duty to supervise and monitor (judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 94).
46
As the conditions of Article 239 of the CCC are cumulative, it is appropriate to examine, first of all, the first condition, relating to the existence of a special situation, and then, should that be necessary, the second condition, relating to the absence of deception or obvious negligence.
The condition relating to the existence of a special situation
47
The applicant has divided the first part of its single plea, alleging breach of the condition relating to the existence of a special situation, into several complaints. However, the Court deems it appropriate to deal with those complaints together.
48
By way of preliminary observation, it should be pointed out that it has been held that, in order to ascertain whether failures by the authorities of third countries and the Commission to fulfil obligations are apt to constitute special situations within the meaning of Article 239 of the CCC, it is necessary to examine in each particular case the true nature of the obligations imposed on those authorities and the Commission, respectively, by the applicable legislation (see, to that effect, judgment of 11 July 2002, Hyper v Commission, T‑205/99, EU:T:2002:189, paragraph 117).
49
In that regard, it should be noted that the argument which the applicant puts forward in support of the first part of the single plea relies essentially on the hypothesis that the Latvian customs authorities did in fact issue the certificates at issue. The various failures which the applicant alleges to have been committed by the Latvian customs authorities are in its submission indicia of the merits of its hypothesis. Thus, the applicant claims that the special situation in which it finds itself is the result of all the facts of the present case, in particular those relating to the failures which it attributes to the Latvian customs authorities.
50
The applicant also takes issue with the German customs authorities for having breached their obligations under the additional protocols to the Association Agreement and Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters (OJ 1997 L 82, p. 1). Having regard, more particularly, to the content of the letters of 7 April and 7 May 2003 and to the reports of the German Office of Customs Investigations, the applicant takes issue with the German customs authorities for having lightly described the certificates at issue as ‘forged’. The applicant maintains that the German customs authorities failed to clarify the facts, whether directly with the Latvian customs authorities or through OLAF.
51
In the light of those circumstances, the applicant claims that the Commission made a manifest error of assessment, since it concluded that no special situation existed in the present case. The applicant also maintains, in essence, that that Commission breached its supervisory obligation under the Association Agreement and that, under certain provisions of that agreement, it ought to have taken action to clarify the facts of the present case.
52
The indicia and argument put forward by the applicant are, in particular, the following.
53
First, the applicant maintains that the imprints of the stamps on the certificates at issue show a ‘clear match’ with the imprints of the stamps used by the Latvian customs authorities. Furthermore, the expert examinations of the goods movement certificates presented for the imports into Denmark show that it was at least probable that the imprints of the stamps and signatures on those certificates were authentic.
54
Second, the applicant maintains, in essence, that the replies sent by the Latvian customs authorities, in the context of the post-clearance check, were irregular and ambiguous. In that regard, the applicant submits that the fact that the Latvian customs authorities stated that the certificates at issue were ‘not valid’ demonstrates that those authorities were involved in issuing those certificates. In the applicant’s submission, it is inconsistent that the Latvian customs authorities should express a view on the validity of the certificates at issue when they claimed, at the same time, that those certificates did not exist in their records. In addition, even if the certificates at issue did not appear in the Latvian customs authorities’ records, that would not demonstrate that they were forged. In fact, in the applicant’s submission, the Latvian customs authorities were not required to keep records; furthermore, those records were not defined in the Latvian customs authorities’ replies.
55
Third, the fact that the Latvian customs authorities’ replies were signed by the Deputy Director of the Latvian customs authorities, Mr R., who was subsequently convicted of offences committed in the course of his duties, calls into question the probative force of those replies. In that regard, the applicant refers to newspaper articles in which it was reported that Mr R. and another person in a senior position with the Latvian customs authorities were convicted in connection with unlawful conduct in the course of their duty.
56
The applicant also emphasises that a climate of corruption prevailed within the Latvian customs administration during the relevant period. It refers in that regard to a number of Commission reports referring to the state of corruption in Latvia (‘the Commission reports’).
57
Fourth, the applicant claims that it is no longer possible to clarify the facts. It maintains that the Latvian customs authorities did not respond to OLAF’s requests for documents or were late in doing so, which is apparent from their exchanges of letters. In the applicant’s submission, the Latvian customs authorities knowingly destroyed the stamp imprints in order to conceal the evidence of their involvement in issuing the certificates at issue.
58
In addition, in the applicant’s submission, the fact that the Latvian customs authorities or the Latvian prosecuting authorities did not carry out an investigation shows that the Latvian customs authorities were involved in issuing the certificates at issue.
59
The Commission disputes the applicant’s arguments. It contends, in essence, that the indicia put forward by the applicant do not prove that Latvian customs authorities were involved in issuing the certificates at issue. In addition, it maintains that it fulfilled its supervisory and monitoring obligations by properly implementing the Association Agreement. It submits that, contrary to the applicant’s contention, the Association Agreement did not allow it to take action with the Latvian customs administration involving supervision by reliable customs agents or the establishment of a centralised system for the issue of certificates of origin and the organisation of special visits in order to ensure the proper implementation of the Association Agreement.
60
The Commission does not deny that there was a ‘match’ between the imprints of the stamps on the certificates at issue and those used by the Latvian customs authorities. However, the Commission emphasises that the expert comparisons of the imprints of the stamps and also the signatures on the certificates submitted for the imports into Denmark were not carried out on the certificates at issue and did not lead to definitive findings, but merely indicated that the stamp imprints and the signatures were probably authentic. The similarities between the stamp imprints and the results of the expert comparisons do not allow a definitive conclusion to be drawn as to whether the certificates at issue were genuine or forged.
61
As regards the replies provided by the Latvian customs authorities in the context of the post-clearance check, the Commission maintains that they were clear and unambiguous.
62
As regards the criminal conviction of the Deputy Director of the Latvian customs authorities, Mr R., the Commission emphasises that his conviction has no connection with the issuing of the certificates at issue and that it cannot therefore be concluded that the Latvian customs authorities issued or were involved in issuing those certificates. In addition, the Commission emphasises that the replies sent by the Latvian customs authorities at a later date and signed by a different customs agent (see paragraph 16 above) confirmed Mr R.’s letters.
63
As regards the Commission reports referring to a climate of corruption within the Latvian customs authorities, the Commission contends that such a situation does not justify a presumption that the certificates at issue were issued by the Latvian customs authorities. Furthermore, the corruption referred to in those reports has no connection with the preferential tariff treatment.
64
The Commission contends, last, that, contrary to the applicant’s assertion, the Latvian customs authorities cooperated with OLAF and with the German customs authorities. In the context of the post-clearance check and OLAF’s investigation in Latvia, the Latvian customs authorities responded to the German customs authorities’ requests and to the Commission’s requests. The letters to which the applicant refers show that the Latvian customs authorities replied to the questions within a reasonable time. The Commission claims that although the Latvian customs authorities explained that they were unable to send genuine imprints of the stamps, there is no indication that that was because of a desire on their part to cover up unlawful conduct.
65
In the light of those considerations, the Commission maintains, in essence, that the Latvian customs authorities complied with the Association Agreement and that they sent satisfactory replies, in a timely manner, to OLAF and to the German customs authorities. Thus, the Commission had no reason to carry out more thorough investigations into the certificates at issue. It also maintains that it fulfilled its supervisory obligation as regards the correct implementation of the Association Agreement and points out that the rules on the origin of goods are based on mutual trust between the authorities of the importing Member States and those of the exporting State.
66
Likewise, the Commission maintains that the German customs authorities also fulfilled their obligations. They are bound by the replies given by the Latvian customs authorities in the context of the post-clearance check. It is also apparent from a letter sent by the German customs authorities in answer to a request from the applicant that they clarified the facts.
67
It should be borne in mind that the Commission, as guardian of the Treaty and of the agreements concluded under it, must ensure the correct implementation by a third country of the obligations it has assumed under an agreement concluded with the Union, using the means provided for by the agreement or by the decisions take pursuant thereto (see, to that effect, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 95).
68
That obligation is also apparent from the Association Agreement and from the protocols to that agreement. Article 110 of the Association Agreement provides that the Association Council, consisting of members of the Commission, of the Council of the European Union and of members appointed by the Government of Latvia, is to supervise the application of that agreement. It is apparent from Article 113 of the Association Agreement that each of the two Parties may refer to the Association Council any dispute relating to the application or interpretation of the agreement. It is also apparent from Article 14, ‘Implementation’, of Protocol 5 to the Association Agreement, on mutual assistance between administrative authorities in customs matters, that:
‘The management of this Protocol shall be entrusted to the central customs authorities of Latvia on the one hand and the competent services of the Commission … and, where appropriate, the customs authorities of the Member States of the European Union on the other. They shall decide on all practical measures and arrangements necessary for its application, taking into consideration rules in the field of data protection. They may recommend to the Joint Committee amendments which they consider be made to this Protocol.’
69
It should also be pointed out that, in the context of its obligation to supervise and monitor the correct implementation of the Association Agreement, the Commission has certain rights and powers.
70
Thus, the Commission may request from the Latvian customs authorities, in accordance with Article 3(1) of Protocol 5 to the Association Agreement, any information which may enable it to ensure that customs legislation is correctly applied (see, by analogy, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 100).
71
The Commission may also, according to Article 3(3)(a) of Protocol 5 to the Association Agreement, request that the Latvian customs authorities take the necessary steps to keep a special watch on natural or legal persons of whom there are reasonable grounds for believing that they are contravening or have contravened customs legislation (see, by analogy, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 101).
72
In addition, according to Article 7(3) and (4) of Protocol 5 to the Association Agreement, duly authorised officials of the Commission may, with the agreement of and within the conditions laid down by the Latvian customs authorities, obtain from the respective offices of those authorities, information relating to contraventions of the customs legislation and be present at inquiries carried out in Latvian territory (see, by analogy, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 102).
73
The same applies, moreover, to Article 31(2) of Protocol 3 to the Association Agreement, as amended by Decision No 4/98 of the Association Council between the European Communities and their Member States, of the one part, and the Republic of Latvia, of the other part, of 2 December 1998 adopting the modifications to Protocol 3 to the Europe Agreement included in Decision No 1/97 of the Joint Committee under the Agreement on free trade and trade-related matters between the European Community, the European Atomic Energy Community and the European Coal and Steel Community, of the one part, and the Republic of Latvia, of the other part (OJ 1999 L 6, p. 10, ‘Decision No 4/98’), which provides that ‘in order to ensure the proper application of this Protocol, the [European Union] and Latvia shall assist each other, through the competent customs administrations, in checking the authenticity of the movement certificates EUR.1 or the invoice declarations and the correctness of the information given in these documents’ (see, by analogy, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 103).
74
It follows that it is for the Commission to make full use of the rights and powers which it has under the provisions of the Association Agreement and the decisions and protocols adopted in respect of its implementation so as to fulfil its obligation of supervising and monitoring the correct implementation of the Association Agreement (see, by analogy, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 104).
75
Such use is all the more imperative in the present case, where there are indicia of the possible involvement of the Latvian customs authorities in issuing the certificates at issue, namely:
–
the post-clearance check of the certificates at issue was initiated as a result of the OLAF investigation concerning imports of linen fabrics into Denmark;
–
the OLAF report mentioned that while in transit the linen fabrics passed briefly through a Latvian bonded warehouse in order to conceal the origin of the goods in question;
–
the expert comparisons of the stamp imprints and signatures on the certificates used for imports into Denmark following the OLAF report show that the stamp imprints and signatures were probably authentic;
–
the stamp imprints on the certificates at issue are very similar to the authentic stamp imprints of the Latvian customs authorities;
–
the Deputy Director of the Latvian customs authorities, Mr R., who signed the certificates at issue and the correspondence in the context of the post-clearance check, was convicted of unlawful conduct in the course of his duties;
–
the Latvian customs authorities were unable to supply the original stamp imprints used by the customs offices concerned, namely the Jelgava and Bauska customs offices;
–
the Commission’s reports mention a climate of corruption, in particular, within the Latvian customs authorities;
–
imports of linen fabrics from Latvia increased and exceeded the production capacities of that country.
76
In the light of those indicia, the Latvian customs authorities’ replies are not sufficient to determine whether the certificates at issue were genuine or forged. It is true that, as the Commission observes, the indicia supplied by the applicant do not permit the conclusion that the Latvian customs authorities had been involved in issuing the certificates at issue. However, in the light of all the indicia set out in paragraph 75 above, it must be considered that the Commission ought to have made use of its rights and powers for the purposes of the correct implementation of the Association Agreement and to have carried out a more thorough investigation than it did in this case.
77
Consequently, it was for the Commission to request clarification concerning the investigations that had been carried out by the Latvian customs authorities in order to shed lights on the facts of the case.
78
First, the Commission ought to have asked to which documents the numbers on the certificates at issue corresponded, whether the signatures on the certificates at issue corresponded to persons working for the Latvian customs authorities and, if so, whether those persons had in fact signed the certificates at issue.
79
Second, it is apparent from the exchanges of letters between OLAF and the Latvian customs authorities that those authorities were not in a position to supply authentic stamp imprints relating to the certificates at issue, on the ground that they had destroyed them.
80
However, even if the Latvian customs authorities were not required to keep them, it is significant to note that it is the sending of specimen stamp imprints and signatures used in the customs offices concerned that makes it possible to supervise compliance with the customs rules relating to tariff preferences effectively (see, to that effect, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 117).
81
The Commission’s obligation to ensure that the Association Agreement is correctly implemented means that the Commission, and through it the customs authorities of the Member States, should always have all the information to enable it to carry out an effective check, and specimen stamp imprints and signatures unquestionably constitute such information (see, to that effect, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 118).
82
Yet in this case the Commission did not receive the stamp imprints requested in the context of the post-clearance check and neither requested nor examined the signatures on the certificates at issue.
83
Third, it should be observed that the file does not show whether or not the Latvian customs authorities carried out inspections at the exporters’ premises. In that regard, it should be borne in mind that it follows from Article 32(3) of Protocol 3 to the Association Agreement, as amended by Decision No 4/98, that the customs authorities of the exporting country ‘… shall have the right to call for any evidence and to carry out any inspection of the exporter’s accounts or any other check considered appropriate’. Consequently, the Commission, especially if it was unable to examine the stamp imprints and signatures, ought to have asked the Latvian customs authorities whether such inspections had been carried out and, if not, why.
84
It is true, admittedly, that Article 32(3) of Protocol 3 to the Association Agreement, concerning the definition of originating products and methods of administrative cooperation, does not specify in detail the way in which the exporting State must carry out a post-clearance check of the movement certificates. However, that provision assumes that, in the light of the financial consequences for the importer and of the facts of the present case, the Commission ought to have ensured that that inspection was carried out reliably and conscientiously, especially since, in paragraph 4 of the OLAF report, entitled ‘Conclusions’, the following is stated:
‘This case has shown, once again, that, in the context of complex fraud cases, it is more helpful and more effective not to rely solely on the applicable administrative procedures (as, in this case, the post-clearance check procedure) but to try to clarify all the aspects of the case in situ and in close cooperation with the competent authorities of the third country concerned. That approach has the effect, in particular, that the different countries learn the appropriate way to proceed in the context of such inspections and are aware of the information and documents necessary in order to shed light on and to prosecute offences in the Community, in order to be better capable of evaluating the needs of the Member States in case of similar events and to be able carry out their own inspections as a result.’
85
It follows from all of the foregoing considerations that the Commission failed to fulfil its obligations to supervise and monitor the correct implementation of the Association Agreement. If the Commission had made full use of the rights and powers which it has in the context of the Association Agreement for the purposes of the correct implementation of that agreement, it could have been established with greater certainty whether the certificates at issue were genuine or forged.
86
It is true that the Court of Justice has already held that the system of administrative cooperation established by a protocol setting out, in an annex to an agreement between the Union and a third State, rules concerning the origin of goods is based on mutual trust between the authorities of the importing Member States and those of the exporting State (see judgment of 15 December 2011, Afasia Knits Deutschland, C‑409/10, EU:C:2011:843, paragraph 28 and the case-law cited).
87
In the light of the circumstances of the present case, however (see paragraph 75 above), the Commission ought to have made use of its rights and powers for the purposes of the correct implementation of the Association Agreement in spite of the replies given by the Latvian customs authorities in the context of the post-clearance check. Indeed, the Commission had significant information that raised important questions as to the origin of the certificates at issue.
88
In the absence of replies to those questions, the Commission could not validly determine the present situation. Thus, the replies given by the Latvian customs authorities in the context of the post-clearance check were merely brief assertions that did not allow the Commission to draw conclusions as to whether or not the Latvian customs authorities had been involved in issuing the certificates at issue. That also applies to the confirmation of the answer sent to the applicant by the Latvian customs authorities (see paragraph 16 above), which, as the file shows, was not the result of a genuine re-examination of the file opened by the Latvian customs authorities concerning the certificates at issue. In fact, it is apparent from that reply that the file had already been sent to OLAF.
89
On that basis, it should be borne in mind, in particular, that the Commission could have arranged for expert comparisons of the stamp imprints and signatures on the certificates at issue and, if necessary, have requested clarification of the way in which the post-clearance check had been carried out, in order to determine whether it had sufficient information to determine the present situation or whether it needed to carry out more thorough investigations.
90
The Commission was therefore wrong to conclude, in recital 37 of the contested decision, that it had sufficient information to make an assessment of the situation.
91
The Commission was also wrong to state, in recital 38 of the contested decision, that it ‘[had] met all the general monitoring obligations under the Association Agreement by its annual checks, the results of which [had been] published in the [Commission’s] reports’. In fact, the Commission was required to take specific measures in this case.
92
In that regard, the Commission’s arguments that the investigation concerning the certificates at issue was the responsibility of the German customs authorities and that the matter had not been referred to OLAF by those authorities must be rejected. It is apparent from the file that the Commission was informed about the investigation carried out by the German customs authorities and that it could have requested them to carry out further investigations or carried out such investigations itself in order to ensure that it had a file containing sufficient information to make an assessment of the applicant’s special situation within the meaning of Article 239 of the CCC.
93
In any event, the fact that the national customs authorities that carried out the investigations did not adopt certain measures of inquiry does not mean that the Commission could conclude, in the absence of such measures, that the applicant was not in a special situation within the meaning of Article 239 of the CCC.
94
It follows from the foregoing that the first part of the single plea, alleging breach of the condition relating to the existence of a special situation, must be upheld.
95
Given the cumulative nature of the conditions referred to in Article 239 of the CCC, the Court must now examine the second condition, relating to the absence of deception or obvious negligence on the part of the applicant.
The condition relating to the absence of deception or obvious negligence on the part of the importer
96
The applicant maintains that it entered into its contracts with the Latvian exporters in accordance with normal commercial practice and that it carried out the imports at issue accordingly. It emphasises that the burden of proving obvious negligence is borne by the Commission.
97
The applicant also claims that it had no experience of imports from countries with preferential arrangements. However, it observes that it has never asserted that the provisions of the Association Agreement, including the protocols and annexes thereto, were complex and that it found them incomprehensible. It points out that it had no influence over the way in which the competent Latvian customs authorities actually implemented the Association Agreement in their day-to-day practice. Nor did it know whether, and to what extent, the Commission, in accordance with its obligations, monitored the correct implementation of the Association Agreement in Latvia. The applicant asserts that the serious failures and omissions on the part of the competent authorities that were established after the event were outside its knowledge and influence and that the notice determining the customs duties had astonished it.
98
The applicant submits that it displayed the necessary diligence. It maintains that it did not have the slightest doubt as to the lawfulness of the Latvian exports carried out under the preferential arrangements and that it was for that reason that the criminal investigations opened against its two directors for forgery and tax evasion proved to be unjustified. The applicant claims in particular, in the reply, that the expression ‘origin Russia’ in a letter concerning the linen fabrics imported under the certificates at issue does not demonstrate obvious negligence on its part. The Commission took that expression out of context. The delivery notes for the goods in question leave no doubt as to their Latvian origin. As regards the expression ‘origin Russia’ in the letter, that is a mistake made by one of the applicant’s employees. Furthermore, in the applicant’s submission, that expression was a normal way in the business of designating a particular quality of linen fabric.
99
The Commission claims that the applicant was aware that the linen fabrics which it imported were of Russian and not Latvian origin. That is clear from the order of the Landgericht München (Regional Court, Munich) of 30 April 2009 in the criminal proceedings against the applicant’s director. Obvious negligence can thus be imputed to the applicant. The Commission is unable to comment on the veracity of the applicant’s explanation relating to the expression ‘origin Russia’. The Commission contends, in any event, that the applicant did not display the requisite diligence, since there were indicia that gave it reason to suspect that the goods in question were not of Latvian origin and since, in spite of that, it had not verified the origin of the goods, but had continued to import them and to claim the exemption from duties under the preferential arrangements.
100
The Court must bear in mind that, where the customs authorities have concluded that it could not be established that there was deception or obvious negligence on the economic operator’s part, it is for the Commission, when it intends to depart from the position taken by the national authorities, to prove, on the basis of relevant facts, that there was in this case obvious negligence on the part of that operator (see judgment of 19 March 2013, Firma Van Parys v Commission, T‑324/10, EU:T:2013:136, paragraph 86 and the case-law cited). In the present case, the German customs authorities rejected the applicant’s application for remission of the import duties, relying solely on the condition relating to the special situation. That rejection decision was subsequently the subject matter of an appeal before the Finanzgericht München (Finance Court, Munich), which concluded that the applicant had not failed to fulfil its duty of diligence (see paragraph 20 above). The burden of proof is therefore borne by the Commission, in application of the case-law referred to above.
101
For the purposes of examining the conditions laid down in Article 239 of the CCC, read with Article 905(3) of the Implementing Regulation, and as pointed out in paragraph 40 above, the Commission must analyse all the relevant factors, including those connected with the conduct of the operator concerned, in particular its professional experience, its good faith and the diligence which it has displayed.
102
In that regard, it should be borne in mind that it has consistently been held that, in order to assess whether there is obvious negligence within the meaning of Article 239 of the CCC, account must be taken in particular of the complexity of the provisions non-compliance with which gave rise to the customs debt, as well as the professional experience of the economic operator and the diligence which it displayed (see judgment of 27 September 2005, Common Market Fertilizers v Commission, T‑134/03 and T‑135/03, EU:T:2005:339, paragraph 135 and the case-law cited).
103
In the light of those principles, it is appropriate to examine the factors taken into account by the Commission when it examined the second condition of Article 239 of the CCC.
104
It is apparent from the contested decision that, according to the Commission, the applicant had failed to fulfil its obligation of diligence on the ground that it had imported the goods in question although it was deemed to know that they were of other than Latvian origin. In the contested decision, there is also a reference to a meeting of the group of experts on 8 May 2014 within the framework of the CCC Committee, ‘Debts and Guarantee section’, in accordance with Article 907 of the Implementing Regulation, at which the applicant’s case had been discussed (‘the meeting of the group of experts’). According to the contested decision, Latvia stated that it had not issued the certificates at issue and that there were ‘strong’ indications that the goods in question were not of Latvian origin. In that respect, the Latvian customs authorities suggested at the meeting of the group of experts that the journey of the linen fabrics had been transported in several stages solely in order to disguise the real origin of the goods and to use freight documents issued in Latvia in order to certify falsely that the goods were of Latvian origin.
105
In the light of the foregoing, it must be held that the Commission did not examine the applicant’s conduct. Proof that the applicant was deemed to know that the goods which it imported were not of Latvian origin does not emerge from the contested decision. That question is, moreover, the principal question raised in the present case, since the applicant claims that it was not aware that the goods in question were of other than Latvian origin. The fact that the applicant sought to benefit from the preferential arrangements does not show that it acted with obvious negligence.
106
Nor, likewise, does the statement made by the Latvian customs authorities at the meeting of the group of experts show that the applicant had acted with obvious negligence. Indeed, it should be pointed out that that meeting took place on 8 May 2014, or more than 12 years after the end of the relevant period, which makes it doubtful that the import conditions during the relevant period, and in particular the applicant’s imports, were actually examined in the present case.
107
Furthermore, the fact that the goods in question were shipped via bonded warehouses in Latvia, as the Latvian customs authorities suggested at the meeting of the group of experts, is irrelevant, in so far as that was stated only in the OLAF report, or after the relevant period. In addition, that fact, even on the assumption that it is established, shows only irregularities that could just as well be imputed to the Latvian customs authorities as to the applicant or to other operators concerned.
108
In addition, the Commission has adduced no evidence to substantiate or to verify the statement made by the Latvian customs authorities at the meeting of the group of experts. It should be pointed out, moreover, that an identical statement may be found in the letter of 14 March 2014 in which the Commission informed the applicant of its intention to adopt an unfavourable decision in respect of it (see paragraph 22 above). In that letter, however, the Commission gives as its source not the Latvian customs authorities but the order of the Finanzgericht München (Finance Court, Munich) of 30 April 2009, which, in turn, refers to the OLAF report.
109
Accordingly, the Commission does not establish, in the contested decision, that the applicant’s conduct amounted to lack of diligence on its part.
110
As for the Commission’s argument in its defence, namely that the applicant was obviously negligent because one of its employees mentioned ‘origin Russia’ in a letter, it must be stated that that consideration constitutes a belated attempt to provide reasons for the contested decision and is therefore inadmissible before the Court. According to settled case-law, the statement of reasons must in principle be notified to the person concerned at the same time as the act adversely affecting him as a failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the act during the proceedings before the Courts of the European Union (judgments of 26 November 1981, Michel v Parliament, 195/80, EU:C:1981:284, paragraph 22; of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 463; and of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, EU:T:2006:384, paragraph 139).
111
In any event, that circumstance cannot in itself prove obvious negligence on the part of the applicant.
112
As the Commission has not adduced evidence, as required by the case-law referred to in paragraphs 100 and 102 above, of the absence of diligence on the part of the applicant and therefore of its obvious negligence, the second part of the single plea, alleging breach of the condition relating to the absence of obvious negligence on the part of the importer, must therefore also be upheld.
113
It follows from all of the foregoing that the applicant’s action must be allowed and that the contested decision must therefore be annulled.
Costs
114
Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
115
Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.
Annuls Commission Decision C(2014) 4908 final of 16 July 2014 rejecting Combaro SA’s request for remission of import duties in the amount of EUR 461415.12;
2.
Orders the Commission to bear its own costs and to pay those incurred by Combaro.
Prek
Schalin
Costeira
Delivered in open court in Luxembourg on 19 July 2017.
[Signatures]
(
*1
)	Language of the case: German.