Inadequate monitoring by the Commission of the proper implementation of an association agreement may constitute a special situation implying neither deception nor obvious negligence on the part of the person concerned within the meaning of Article 239 of Regulation No 2913/92 establishing the Community Customs Code. Whilst the Commission has a discretion in applying that provision, 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. 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.

Moreover, 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. That obligation is also apparent from the Association Agreement concluded between the European Communities and the Republic of Latvia and from the protocols to that agreement. In that regard, 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. Such use is all the more imperative where there are indications of the possible involvement of national customs authorities in issuing certificates for the circulation of goods attesting to their provenance. In such circumstances, it is for the Commission to request clarification concerning the investigations carried out by the national customs authorities concerned in order to shed lights on the facts of the case.

Moreover, 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. In that regard, it is clear from Article 32 of Protocol 3 to the Association Agreement, as amended by Decision No 4/98 of the Association Council between the European Communities and the Republic of Latvia, that the customs authorities of the exporting country 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, in the absence of information in that regard from the customs authorities concerned, the Commission must, especially if it is unable to examine stamp imprints and signatures, ask the said customs authorities whether such inspections have been carried out and, if not, why not.

It follows that the Commission fails to fulfil its obligations to supervise and monitor the correct implementation of the Association Agreement where, if it had made full use of its rights and powers under that agreement for the purposes of the correct implementation thereof, it could have been established with greater certainty whether the certificates for the circulation of the goods at issue were genuine or forged.

(see paras 43-45, 67, 68, 74, 75, 77, 80, 81, 83, 85)