61983CJ0098_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 98 AND 230/83
VAN GEND & LOOS NV, A COMPANY INCORPORATED UNDER NETHERLANDS LAW, WHOSE REGISTERED OFFICE IS AT UTRECHT, REPRESENTED BY S . L . BURUMA AND L . J . HOPMANS, ADVOCATEN AT THE HOGE RAAD ( SUPREME COURT ) OF THE
NETHERLANDS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . LOESCH, 2 RUE GOETHE ( CASE 98/83 ),
AND
EXPEDITIEBEDRIJF WIM BOSMAN BV, A PRIVATE COMPANY INCORPORATED UNDER NETHERLANDS LAW, WHOSE REGISTERED OFFICE IS AT ' S-HEERENBERG, REPRESENTED BY L . J . HOPMANS, ADVOCAAT AT THE HOGE RAAD OF THE NETHERLANDS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . LOESCH, 2 RUE GOETHE ( CASE 230/83 ),
APPLICANTS,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY AUKE HAAGSMA, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL, A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT, JEAN MONNET BUILDING,
DEFENDANT,
Subject of the case
APPLICATIONS TO HAVE DECLARED VOID TWO DECISIONS ADOPTED BY THE COMMISSION ON 10 JANUARY 1983 CONCERNING REQUESTS MADE BY THE APPLICANTS TO THEIR NATIONAL AUTHORITIES FOR REMISSION OF IMPORT DUTIES ON THE BASIS OF, IN PARTICULAR, ARTICLE 13 OF COUNCIL REGULATION NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES ( OFFICIAL JOURNAL L 175, P . 1 ) AND COMMISSION REGULATION NO 1575/80 OF 2 JUNE 1980 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF ARTICLE 13 OF REGULATION NO 1430/79 ( OFFICIAL JOURNAL L 161, P . 13 ),
Grounds
1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 30 MAY AND 10 OCTOBER 1983 RESPECTIVELY VAN GEND & LOOS NV, WHOSE REGISTERED OFFICE IS AT UTRECHT, AND EXPEDITIEBEDRIJF WIM BOSMAN BV, WHOSE REGISTERED OFFICE IS AT ' S-HEERENBERG, REQUESTED THE COURT PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY TO DECLARE VOID TWO DECISIONS ADOPTED BY THE COMMISSION ON 10 JANUARY 1983 CONCERNING APPLICATIONS MADE BY THE UNDERTAKINGS TO THEIR NATIONAL AUTHORITIES FOR REMISSION OF IMPORT DUTIES PREVIOUSLY COLLECTED BY THE NETHERLANDS AUTHORITIES .
2 THE APPLICANTS, BOTH CUSTOMS AGENTS, IMPORTED INTO THE NETHERLANDS TEXTILE PRODUCTS SAID TO HAVE ORIGINATED IN EGYPT, MOROCCO AND TURKEY AT THE PREFERENTIAL RATE OF DUTY APPLICABLE FOR THOSE COUNTRIES . ON INVESTIGATION, THE NETHERLANDS CUSTOMS AUTHORITIES FOUND THAT THE GOODS HAD NOT ORIGINATED IN
THE ABOVE-MENTIONED COUNTRIES, AND THAT CONSEQUENTLY A HIGHER RATE OF DUTY SHOULD HAVE BEEN PAID . THEY THEREFORE ISSUED A DEMAND FOR ADDITIONAL DUTY TO THE APPLICANTS .
3 THE APPLICANTS DENIED THAT ADDITIONAL DUTY WAS PAYABLE AND APPLIED TO THE MINISTRY OF FINANCE OF THE KINGDOM OF THE NETHERLANDS FOR A REMISSION OF IMPORT DUTIES ON THE BASIS OF, IN PARTICULAR, ARTICLE 13 OF COUNCIL REGULATION NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES ( OFFICIAL JOURNAL L 175, P . 1 ) AND COMMISSION REGULATION NO 1575/80 OF 20 JUNE 1980 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF ARTICLE 13 OF REGULATION NO 1430/79 ( OFFICIAL JOURNAL L 161, P . 13 ). BOTH APPLICATIONS WERE SUBMITTED TO THE COMMISSION IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN REGULATION NO 1575/80 .
4 ARTICLE 13 OF REGULATION NO 1430/79 PROVIDES THAT IMPORT DUTIES MAY BE REPAID OR REMITTED ' ' IN SITUATIONS RESULTING FROM SPECIAL CIRCUMSTANCES IN WHICH NO NEGLIGENCE OR DECEPTION MAY BE ATTRIBUTED TO THE PERSON CONCERNED ' ' . IN SUPPORT OF THEIR REQUEST FOR REMISSION, THE APPLICANTS RELIED IN PARTICULAR ON THE FACT THAT THE CERTIFICATES OF ORIGIN WERE ISSUED BY THE CUSTOMS AUTHORITIES OF THE COUNTRIES INDICATED UPON THEM AND THAT THE APPLICANTS BELIEVED, IN GOOD FAITH, THAT THOSE CERTIFICATES WERE VALID .
5 IN THE TWO DECISIONS OF 10 JANUARY 1983 WHICH ARE BEING CHALLENGED IN THIS CASE, THE COMMISSION HELD, FOR REASONS STATED IN IDENTICAL TERMS, THAT ' ' THE CUSTOMS AGENT, BY DECLARING THE GOODS WITH A VIEW TO PUTTING THEM INTO FREE CIRCULATION IN HIS OWN NAME BUT ON BEHALF OF ANOTHER, ASSUMED AN OBLIGATION TO PAY ANY IMPORT DUTY WHICH MIGHT BE PAYABLE IN RESPECT OF THE GOODS . THE FACT THAT THE CUSTOMS AGENT, IN GOOD FAITH, PRESENTED MOVEMENT CERTIFICATES AND T 2 L DOCUMENTS WHICH WERE SUBSEQUENTLY FOUND TO BE INVALID DOES NOT CONSTITUTE SPECIAL CIRCUMSTANCES WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 13 OF REGULATION NO 1430/79, SUCH AS TO JUSTIFY REMISSION OF IMPORT DUTY LEGALLY DUE . THE CONCEPT OF SPECIAL CIRCUMSTANCES IS INDEPENDENT OF THE CONCEPT OF GOOD FAITH REFERRED TO IN THE FIRST PARAGRAPH OF ARTICLE 13 OF THE SAID REGULATION . BOTH CONDITIONS MUST BE MET BEFORE THE REMISSION APPLIED FOR MAY BE GRANTED . FURTHERMORE, REMISSION IN THOSE CIRCUMSTANCES WOULD NULLIFY THE EFFECT, WHEN THE DECLARATION WITH A VIEW TO PUTTING THE GOODS INTO FREE CIRCULATION IS MADE BY THE CUSTOMS AGENT IN HIS OWN NAME, OF SUBSEQUENT CHECKS CARRIED OUT BY THE CUSTOMS AUTHORITIES OF THE MEMBER STATES WHICH SHOW THAT A MOVEMENT CERTIFICATE OR A T 2 L DOCUMENT ON THE BASIS OF WHICH A PREFERENTIAL RATE OF DUTY HAS BEEN LEVIED IS NOT VALID ' ' . AS REGARDS VAN GEND & LOOS, THE COMMISSION STATED FURTHER THAT ' ' NO FAULT WHATSOEVER CAN BE FOUND WITH THE WAY IN WHICH THE NETHERLANDS CUSTOMS AUTHORITIES CARRIED
OUT THE INVESTIGATION WHICH LED TO THE DISCOVERY OF THE OFFENCE WHICH HAD BEEN COMMITTED ' ' . CONSEQUENTLY, THE COMMISSION REFUSED BOTH APPLICATIONS .
6 THE APPLICANTS CHALLENGE BOTH DECISIONS ON TWO GROUNDS, NAMELY BREACH OF THE COMMISSION ' S OBLIGATION TO STATE REASONS FOR ITS DECISIONS AND WRONGFUL REFUSAL TO GRANT A REMISSION OF DUTY .
THE STATEMENT OF REASONS FOR THE COMMISSION ' S DECISIONS
7 THE APPLICANTS '
FIRST SUBMISSION IN THIS REGARD IS THAT THERE WAS A BREACH OF THE PROCEDURAL REQUIREMENTS . THEY CONTEND THAT SINCE THE CONTESTED DECISIONS REFERRED NEITHER TO THE EXISTENCE NOR TO THE CONTENTS OF A PROPOSAL OR AN OPINION OF THE COMMITTEE ON DUTY-FREE ARRANGEMENTS, THEY ARE UNABLE TO ASCERTAIN WHETHER THE DECISIONS WERE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN REGULATION NO 1430/79 . MOREOVER, THE PROCEDURE FOLLOWED BY THE COMMISSION GAVE THE APPLICANTS NO OPPORTUNITY OF BEING HEARD EVEN THOUGH THE DECISIONS AT ISSUE HAD SIGNIFICANT FINANCIAL CONSEQUENCES FOR THEM .
8 IN THAT CONNECTION, IT SHOULD BE POINTED OUT FIRSTLY THAT THE DECISIONS AT ISSUE WERE ADOPTED PURSUANT TO ARTICLE13 ( 1 ) OF REGULATION NO 1430/79 . THE PROCEDURE FOR ADOPTING SUCH DECISIONS IS GOVERNED BY REGULATION NO 1575/80 . IT COMPRISES SEVERAL STAGES, SOME OF WHICH TAKE PLACE AT NATIONAL LEVEL ( SUBMISSION OF THE APPLICATION BY THE UNDERTAKING CONCERNED, PRELIMINARY EXAMINATION OF THE APPLICATION BY THE CUSTOMS AUTHORITIES ), AND SOME AT COMMUNITY LEVEL ( SUBMISSION OF THE APPLICATION TO THE COMMISSION, EXAMINATION OF IT BY THE COMMITTEE ON DUTY-FREE ARRANGEMENTS, CONSULTATION OF A GROUP OF EXPERTS, DECISION BY THE COMMISSION, NOTIFICATION TO THE MEMBER STATES CONCERNED ).
9 IT MAY BE SEEN FROM THE PREAMBLES TO THE DECISIONS AT ISSUE, WHICH ARE NOT CONTESTED ON THIS POINT, THAT THE REQUIRED PROCEDURE WAS FOLLOWED IN THIS CASE . THAT PROCEDURE ALLOWED THE APPLICANTS TO PUT ALL THEIR ARGUMENTS TO THE NETHERLANDS AUTHORITIES . ALL THE DOCUMENTS ON THE FILE WERE AVAILABLE BOTH TO THE COMMITTEE ON DUTY-FREE ARRANGEMENTS AND TO THE COMMISSION . IN THOSE CIRCUMSTANCES, THE COMPLAINT BASED ON A BREACH OF THE PROCEDURAL REQUIREMENTS MUST BE DISMISSED .
10 NEXT, THE APPLICANTS CONTEND THAT THE CONTESTED DECISIONS DID NOT DISPUTE THE EXISTENCE OF THE SPECIAL CIRCUMSTANCES RELIED ON BY THE APPLICANTS TO JUSTIFY
THE REMISSION OF CUSTOMS DUTY . IN PARTICULAR, THE STATEMENT OF REASONS FOR THE DECISIONS MAKES NO REFERENCE TO THE FRAUD COMMITTED BY THE APPLICANT ' S CLIENTS, NOR DOES IT REFER TO THE FACT THAT THE FALSE CERTIFICATES WERE ISSUED BY THE CUSTOMS AUTHORITIES OF THE COUNTRIES OF ORIGIN AND THAT THE APPLICANTS THUS HAD NO REASON TO SUSPECT THAT THOSE CERTIFICATES WERE INVALID .
11 THOSE ARGUMENTS ARE, HOWEVER, IRRELEVANT . THE DECISIONS AT ISSUE ARE BASED ON THE GROUND THAT THERE WERE NO ' ' SPECIAL CIRCUMSTANCES ' '
IN THIS CASE WITHIN THE MEANING OF ARTICLE 13 OF REGULATION NO 1430/79 . THE PREAMBLES TO THE DECISIONS STATE THAT THE CONCEPT OF SPECIAL CIRCUMSTANCES IS INDEPENDENT OF THE CONCEPT OF GOOD FAITH REFERRED TO IN THE SAME PROVISION AND THAT BOTH CONDITIONS MUST BE MET IN ORDER TO QUALITY FOR A REMISSION OF DUTY . IN THE LIGHT OF THAT ARGUMENT, THEREFORE, IT WAS NOT NECESSARY TO DISPUTE THE EXISTENCE OF CIRCUMSTANCES LIKELY TO PROVE THE GOOD FAITH OF THE APPLICANTS, SINCE THAT GOOD FAITH WAS NOT AT ISSUE . MOREOVER, EVEN IF THE ARGUMENTS PUT FORWARD BY THE APPLICANTS PROVED NOT ONLY THEIR GOOD FAITH BUT ALSO THE EXISTENCE OF SPECIAL CIRCUMSTANCES WITHIN THE MEANING OF THE AFOREMENTIONED ARTICLE 13, THE COMMISSION HAS INDICATED IN A WAY WHICH IS SUFFICIENT FOR THE PURPOSES OF COMMUNITY LAW WHY THOSE CIRCUMSTANCES DO NOT JUSTIFY A REMISSION .
12 THE APPLICANTS ALSO CONTEST THE STATEMENT IN THE PREAMBLES TO THE TWO DECISIONS TO THE EFFECT THAT GRANTING A REMISSION ON THE BASIS OF THE GOOD FAITH OF THE UNDERTAKINGS CONCERNED WOULD NULLIFY THE EFFECT OF SUBSEQUENT INVESTIGATIONS CARRIED OUT BY THE CUSTOMS AUTHORITIES FOR THE PURPOSE OF CHECKING THE VALIDITY OF THE DOCUMENTS ON THE BASIS OF WHICH A PREFERENTIAL RATE OF DUTY HAD BEEN LEVIED . THEY EMPHASIZE THAT REMISSION OF IMPORT DUTY GENERALLY TAKES PLACE ON THE BASIS OF FACTS WHICH ONLY EMERGE DURING A SUBSEQUENT INVESTIGATION .
13 THE COURT SHARES THE COMMISSION ' S OPINION ON THAT POINT . IT CANNOT BE DENIED THAT VERIFICATIONS CARRIED OUT AFTER IMPORTATION WOULD BE LARGELY DEPRIVED OF THEIR USEFULNESS IF THE USE OF FALSE CERTIFICATES COULD, OF ITSELF, JUSTIFY GRANTING A REMISSION .
14 THE SUBMISSION BASED ON BREACH OF THE COMMISSION ' S OBLIGATION TO GIVE REASONS FOR ITS DECISIONS MUST THEREFORE BE REJECTED .
THE SUBSTANCE OF THE CASE
15 THE APPLICANTS '
PRINCIPAL ARGUMENT CONTESTS THE INTERPRETATION PUT FORWARD BY THE COMMISSION OF THE ' ' SPECIAL CIRCUMSTANCES ' '
REFERRED TO IN ARTICLE 13 OF REGULATION NO 1430/79 . ACCORDING TO THE APPLICANTS, THE MEANING OF THAT TERM IS THE SAME AS THAT GIVEN BY THE COURT TO THE TERM FORCE MAJEURE IN COMMUNITY LAW . THE APPLICANTS SUBMIT THAT THE COURT HAS HELD THAT THAT TERM IS NOT LIMITED TO ABSOLUTE IMPOSSIBILITY BUT MUST BE UNDERSTOOD IN THE SENSE OF UNUSUAL CIRCUMSTANCES, OUTSIDE THE CONTROL OF THE IMPORTER OR EXPORTER, THE CONSEQUENCES OF WHICH, IN SPITE OF THE EXERCISE OF ALL DUE CARE, COULD NOT HAVE BEEN AVOIDED EXCEPT AT THE COST OF EXCESSIVE SACRIFICE . IN THIS CASE, THEY CONTEND, THE FACT THAT THE CERTIFICATES ISSUED WERE INVALID WAS DUE TO AN UNLAWFUL ACT ON THE PART OF THE CUSTOMS AUTHORITIES OF THE COUNTRY OF CONSIGNMENT AND ONLY BECAME APPARENT AFTER A PARTICULARLY LONG INVESTIGATION CARRIED OUT BY THE NETHERLANDS AUTHORITIES AND WHICH A CUSTOMS AGENT WOULD HAVE HAD NO MEANS OF CARRYING OUT .
16 WITH REGARD TO THAT ARGUMENT, IT IS SUFFICIENT TO NOTE THAT EVEN IF ARTICLE 13 OF REGULATION NO 1430/79 CAN BE INTERPRETED AS BEING IDENTICAL IN MEANING TO THE CONCEPT OF FORCE MAJEURE, RECOGNITION OF A CASE OF FORCE MAJEURE NONE THE LESS PRESUPPOSES THAT THE EXTERNAL CAUSE RELIED UPON HAS IRRESISTIBLE AND INEVITABLE CONSEQUENCES TO THE POINT OF MAKING IT OBJECTIVELY IMPOSSIBLE FOR THE PERSONS CONCERNED TO FULFIL THEIR OBLIGATIONS . IN THIS CASE, SINCE THE APPLICANTS ARE COMPETENT PROFESSIONALS, THE FACT OF HAVING BEEN FURNISHED WITH INVALID CERTIFICATES OF ORIGIN CANNOT BE REGARDED AS AN UNFORESEEABLE AND INEVITABLE CIRCUMSTANCE WHICH OCCURRED IN SPITE OF THE EXERCISE OF ALL DUE CARE . A CUSTOMS AGENT, BY THE VERY NATURE OF HIS FUNCTIONS, RENDERS HIMSELF LIABLE BOTH FOR THE PAYMENT OF IMPORT DUTY AND FOR THE VALIDITY OF THE DOCUMENTS WHICH HE PRESENTS TO THE CUSTOMS AUTHORITIES . AS REGARDS THE ARGUMENT THAT THE APPLICANTS WERE NOT ABLE TO RECOVER THEIR LOSS FROM THEIR CLIENTS BECAUSE THE LATTER HAD GONE INTO LIQUIDATION, IT SHOULD BE OBSERVED THAT ARTICLE 13 OF REGULATION NO 1430/79 IS MANIFESTLY NOT INTENDED TO PROTECT CUSTOMS AGENTS AGAINST THE CONSEQUENCES OF THEIR CLIENTS GOING INTO LIQUIDATION .
17 THE APPLICANTS '
ARGUMENT THAT THE FACT THAT THE CERTIFICATES OF ORIGIN WERE ISSUED BY THE CUSTOMS AUTHORITIES OF THE COUNTRIES NAMED IN THEM CONSTITUTES A ' ' SPECIAL CIRCUMSTANCE ' '
WITHIN THE MEANING OF THE AFOREMENTIONED ARTICLE 13 MUST ALSO BE REJECTED . THE COMMISSION DID NOT EXCEED THE DISCRETION GRANTED TO IT BY ARTICLE 13 OF REGULATION NO 1430/79 IN DECIDING THAT THAT FACT WAS ONE OF THE PROFESSIONAL RISKS WHICH A CUSTOMS AGENT, BY THE VERY NATURE OF HIS FUNCTIONS, RUNS .
18 WITH REGARD TO THE APPLICANTS '
COMPLAINT THAT THE COMMISSION WAS OBLIGED BY THE SECOND PARAGRAPH OF ARTICLE 13 TO INDICATE AT THE OUTSET IN ITS DECISION THE CRITERIA WHICH IT INTENDED TO USE IN APPLYING THE AFOREMENTIONED ARTICLE, IT MUST BE OBSERVED THAT IT IS CLEAR FROM THE FIRST PARAGRAPH OF THE ABOVE-MENTIONED ARTICLE 13 THAT UNTIL SUCH TIME AS A LIST OF THE SPECIAL CIRCUMSTANCES WITHIN THE MEANING OF THAT PROVISION CAN BE DRAWN UP, IT IS FOR THE COMMISSION TO INDICATE IN EACH CASE WHETHER OR NOT SUCH CIRCUMSTANCES EXIST AND TO GIVE REASONS FOR ITS DECISION ON THAT POINT . THE DEFENDANT HAS IN FACT DONE SO . THE DEFENDANT WAS THEREFORE NOT OBLIGED, IN THAT SITUATION, TO DRAW UP A LIST OF CRITERIA PURSUANT TO THE SECOND PARAGRAPH OF THAT PROVISION .
19 FINALLY, VAN GEND & LOOS COMPLAINS THAT THE NATIONAL AUTHORITIES SHOWED A LACK OF DUE DILIGENCE IN NOT VERIFYING THE CERTIFICATES AT ISSUE WHEN THE DECLARATION WAS MADE AT THE TIME OF IMPORTATION . BECAUSE THEY DID NOT DO SO, THE AUTHORITIES ALLOWED THE APPLICANT TO ENTERTAIN A LEGITIMATE EXPECTATION THAT THE DOCUMENTS FURNISHED WERE AUTHENTIC . THE COMMISSION SHOULD HAVE TAKEN ACCOUNT OF THAT FACT .
20 THAT COMPLAINT MUST ALSO BE REJECTED . A CUSTOMS AGENT CANNOT ENTERTAIN A LEGITIMATE EXPECTATION WITH REGARD TO THE VALIDITY OF CERTIFICATES BY VIRTUE OF THE FACT THAT THEY WERE INITIALLY ACCEPTED BY THE CUSTOMS OFFICERS OF A MEMBER STATE . THE ROLE OF THOSE OFFICERS IN REGARD TO THE INITIAL ACCEPTANCE OF DECLARATIONS IN NO WAY PREVENTS THE CUSTOMS AUTHORITIES OF THE MEMBER STATES FROM SUBSEQUENTLY CHECKING THEIR VERACITY, NOR DOES IT PREVENT EFFECT BEING GIVEN TO THE CONSEQUENCES OF THOSE CHECKS, AS IS CLEAR IN PARTICULAR FROM ARTICLE 10 ( 2 ) OF COUNCIL DIRECTIVE 79/695 OF 24 JULY 1979 ON THE HARMONIZATION OF PROCEDURES FOR THE RELEASE OF GOODS FOR FREE CIRCULATION ( OFFICIAL JOURNAL L 205, P . 19 ).
21 CONSEQUENTLY, THE SUBMISSION THAT THE REMISSIONS WERE WRONGFULLY REFUSED CANNOT BE ACCEPTED . THE APPLICATIONS MUST THEREFORE BE DISMISSED IN THEIR ENTIRETY .
Decision on costs
COSTS
22 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS, THEY MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATIONS ;
2 . ORDERS THE APPLICANTS TO PAY THE COSTS .