11.

It is therefore necessary to examine whether, as the applicants contend, the reasons adduced are wrong in substance, in view of the existence of such great differences between the judgment in the Van Gend & Loos and Bosman cases and the present cases that that judgment cannot be cited in support of the argument that no ‘special circumstances’, within the meaning of Article 13, exist in the present cases. In the judgment in the Van Gend & Loos and Bosman cases the Court stated that recourse to the concept of ‘special circumstances’ 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 meet their obligations’. The Court then found that: ‘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 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. 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.’ (Paragraphs 16 and 17 of the judgment). In my view, the applicants are wrong to claim that the Commission cannot base its reasons for the decisions in the present cases on that judgment. The differences alleged by the applicants between the facts underlying the present cases and those underlying that judgment do not exist. It seems obvious to me that no importance can be attached to the fact that customs agencies vary in size and experience. The decisive point is that the persons concerned act as approved customs agents. Furthermore, it is unimportant that the post-clearance recovery of duties was prompted by the discovery that the document which served as the basis for exemption from duties proved to be false or had been withdrawn because an investigation showed that the conditions for its issuance had not been fulfilled. The decisive point in both cases is that the conditions for exemption from customs duty were not met and that this possibility is a risk to be borne by importers, even those acting in good faith. Moreover, it is clear from the judgment that the applicants' good faith regarding the correctness of the certificates of origin is not relevant in determining whether ‘special circumstances’ exist. No significance can be attached to the fact that it was not shown that the imported honey did not actually originate in Jamaica or another ACP State, if only because remission of duties can be obtained only if the importer has established that the imported goods originated in an ACP State. Moreover, this question concerns the legality of the withdrawal of the certificates of origin and cannot therefore be adduced in support of the claim that the Commission's decisions concerning the applications for remission of duty are illegal; see, in this regard, the judgment of the Court in the Italgrani case ( 10 ) concerning the application of Article 13 of the basic regulation, in which the Court held: ‘It follows from the foregoing that the applicants may only properly rely, in relation to the contested decision, on arguments seeking to show the existence in this case of special circumstances and the absence of negligence or deception on their part, and not on arguments seeking to show that the decision subjecting them to payment of the duty at issue was unlawful’ (paragraph 13 of the judgment).