Judgment of the Court of First Instance (Third Chamber) of 10 May 2001. - Kaufring AG and Others v Commission of the European Communities. - Action for annulment - Importation of television sets from Turkey - EEC-Turkey Association Agreement - Article 3(1) of the Additional Protocol - Compensatory levy - Article 13(1) of Regulation (EEC) No 1430/79 - Remission of import duty not justified - Rights of the defence. - Joined cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T-216/97, T-217/97, T-218/97, T-279/97, T-280/97, T-293/97 and T-147/99.



European Court reports 2001 Page II-01337



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1. Actions for annulment - Pleas in law - Breach of essential procedural requirements - Court may consider that question of its own motion

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC))

2. Procedure - Intervention - Application in support of the form of order sought by one of the parties but relying on a different argument - Whether admissible - Freedom to choose the pleas in law relied on - Scope of that freedom

(Rules of Procedure of the Court of First Instance, Art. 116(4))

3. Own resources of the European Communities - Repayment or remission of import or export duties - Article 13 of Regulation No 1430/79 - Commission's power to adopt decisions - Right of the trader concerned to be heard - Scope

(Council Regulation No 1430/79, Art. 13; Commission Regulation No 2454/93, Art. 905)

4. Community law - Observance of the rights of the defence - Fundamental principle - Field of application - Customs matters - Administrative procedure for the remission of import duties - Scope of that principle

(Commission Regulation No 2454/93, Art. 905)

5. Own resources of the European Communities - Repayment or remission of import or export duties - Special situation - Circumstances in which no deception or obvious negligence may be attributed to the person concerned - Definitions

(Council Regulation No 1430/79, Art. 13)

6. Own resources of the European Communities - Repayment or remission of import or export duties - Article 13 of Regulation No 1430/79 - Scope - Commission's power to adopt decisions - Detailed rules concerning the exercise of that power - Special situation - Definition - Serious deficiencies on the part of the contracting parties in implementing an agreement binding the Community - Commission seriously in default

(Council Regulation No 1430/79, Art. 13)

7. Own resources of the European Communities - Repayment or remission of import or export duties - Article 13 of Regulation No 1430/79 - Post-clearance recovery of import or export duties - Article 5(2) of Regulation No 1697/79 - Scope

(Council Regulations No 1430/79, Art. 13, and No 1697/79, Art. 5(2))

8. International agreements - EEC-Turkey Association Agreement - Obligations of contracting parties

(EEC-Turkey Association Agreement)

9. Commission - Obligations - Application of EEC-Turkey Association Agreement

(EC Treaty, Art. 155 (now Art. 211 EC))

10. International agreements - EEC-Turkey Association Agreement - Doubts as to the validity of movement of goods certificates - Requirement to make use of the procedure for settling disputes laid down in the Agreement before any other measure

(EEC-Turkey Association Agreement, Art. 25)

11. International agreements - Agreements concluded by the Community - Fulfilment by a third country of obligations undertaken - Existences of tensions between the Community and that country - Commission's obligations - Scope - Limits

(EC Treaty, Art. 155 (now Art. 211 EC))

12. Own resources of the European Communities - Post-clearance recovery of import or export duties - Conditions for the application of Article 5(2) of Regulation No 1697/79 - Error of the administration which could not reasonably have been detected by the person liable - Assessment criteria

(Council Regulation No 1697/79, Art. 5(2))

13. Own resources of the European Communities - Repayment or remission of import or export duties - Article 13 of Regulation No 1430/79 - Obvious negligence - Standard of proof

(Council Regulation No 1430/79, Art. 13)

Summary

1. As it concerns an essential procedural requirement the Court of First Instance may consider of its own motion a plea in law alleging the breach of the principle of observance of the rights of defence.

( see paras 134-135 )

2. As provided by Article 116(4) of the Rules of Procedure of the Court of First Instance, an intervener may not go beyond the form of order sought by the party in support of whom it is intervening, but it may freely choose its pleas and arguments in support of that form of order.

( see para. 137 )

3. Observance of the rights of the defence in all proceedings which are initiated against a person and are liable to culminate in a measure adversely affecting that person is a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question. That principle requires that any person who may be adversely affected by a decision be placed in a position in which he may effectively make his views known, at least as regards the evidence on which the Commission has based the contested decision. In view of the power of assessment enjoyed by the Commission when it adopts a decision pursuant to the general equitable provision contained in Article 13 of Regulation No 1430/79 relating to the remission or repayment of import or export duties, it is all the more important that observance of the right to be heard be guaranteed in procedures initiated pursuant to that regulation. That conclusion is particularly apt where, in exercising its exclusive authority under Article 905 of Regulation No 2454/93, the Commission proposes not to follow the opinion of the national authority as to whether the conditions laid down by Article 13 of Regulation No 1430/79 have been met, in particular as to whether any obvious negligence can be attributed to the person concerned.

( see paras 151-153, 155 )

4. Observance of the rights of the defence is a fundamental principle of Community law which requires not only that the person concerned be placed in a position in which he may effectively make known his views on the relevant circumstances, but also that he should at least be able to put his own case on the documents taken into account by the Community institution.

Observance of the rights of the defence requires that a person seeking remission of import duty must have had the opportunity to state his views on the documents on which the Commission based the contested decision.

It is not for the Commission to determine the relevance or interest which certain documents might have for a party's defence. It is possible that documents considered irrelevant by the Commission may be of interest to the applicant. If the Commission could unilaterally exclude from the administrative procedure documents which might be detrimental to it, that might constitute a serious breach of the rights of defence of a person seeking remission of import duties.

( see paras 179, 185 )

5. Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or export duties makes that repayment or remission subject to two cumulative conditions, namely the existence of a special situation and the absence of obvious negligence or deception on the part of the person concerned.

The existence of a special situation is established where it is clear from the circumstances of the case that the person liable is in an exceptional situation as compared with other operators engaged in the same business and that, in the absence of such circumstances, he would not have suffered the disadvantage caused by the entry in the accounts a posteriori of customs duties.

As regards the condition concerning the absence of obvious negligence or deception on the part of the interested party, it must be made clear that the question whether the error was detectable, within the meaning of Article 5(2) of Regulation No 1697/79, is linked to the existence of obvious negligence or deception within the meaning of Article 13(1) of Regulation No 1430/79, and therefore the conditions laid down by the latter provision must be assessed in the light of those laid down in Article 5(2) of Regulation No 1697/79.

( see paras 217-220 )

6. Article 13(1) of Regulation No 1430/79, which provides that import duties may be repaid or remitted in situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned constitutes a general equitable provision.

In order to determine whether the circumstances of the case constitute a special situation within the meaning of that provision the Commission must assess all the relevant facts. That obligation implies that, in cases in which reliance is placed, in support of applications for remission, on the existence of serious deficiencies on the part of the contracting parties in implementing an agreement binding the Community, the Commission must base its decision as to whether those applications are justified on all the facts relating to the disputed imports of which it gained knowledge in the performance of its task of supervising and monitoring the implementation of that agreement. Similarly, it cannot disregard relevant information of which it has gained knowledge in the performance of its tasks and which, although not forming part of the administrative file at the stage of the national procedure, might have served to justify remission for the interested parties.

Moreover, although the Commission enjoys a discretionary power in applying Article 13, it is required to exercise that power by genuinely balancing, on the one hand, the Community interest in ensuring that the customs provisions are respected and, on the other, the interest of the importer acting in good faith in not suffering harm which goes beyond normal commercial risks. Consequently, when considering whether an application for remission is justified, it cannot take account only of the conduct of importers. It must also assess the impact on the resulting situation of its own conduct, which may itself have been wrongful.

( see paras 216, 222-225 )

7. Article 5(2) of Regulation No 1697/79 provides that the competent authorities may refrain from taking action for the post-clearance recovery of import duties or export duties which were not collected as a result of an error made by the competent authorities themselves which could not reasonably have been detected by the person liable, the latter having for his part acted in good faith and observed all the provisions laid down by the rules in force as far as his customs declaration is concerned. Thus, the legitimate expectations of the person liable to pay qualify for the protection provided for by that provision only if it was the competent authorities themselves which created the basis for the expectations of the person liable. That condition cannot be regarded as fulfilled where the competent authorities have been misled, in particular as to the origin of the goods, by incorrect declarations made by the person liable, the validity of which those authorities do not have to check or assess. In such circumstances, it is the person liable to pay who must bear the risks arising from a commercial document which is found to be false when subsequently checked.

Although Article 5(2) of the above Regulation and Article 13(1) of Regulation No 1430/79, which provides that the competent authorities may repay or remit import duties in situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned, pursue the same aim the provisions are not the same. The first has a more limited objective than the second, in so far as it is intended solely to protect the legitimate expectation of the person liable to pay that all the elements on which the decision whether or not to proceed with the recovery of customs duties is based are correct while the second is a general equitable provision.

Thus, where the competent authorities did not enter the customs duties in the accounts because they were misled by statements made by exporters, the person liable cannot rely on Article 5(2) of Regulation No 1697/79. Similarly, as is clear from Article 4(2)(c) of Regulation No 3799/86 and Article 904(c) of Regulation No 2454/93, the person liable cannot argue that the presentation of invalid certificates and the consequent error of the competent authorities are sufficient to constitute a special situation within the meaning of Article 13 of Regulation No 1430/79. On the other hand, those provisions do not prevent the person liable to pay from relying on other matters in support of his application for remission under Article 13 of Regulation No 1430/79. For example, the error of the competent authorities may itself have been made possible by inadequate monitoring by the Commission of the implementation of the provisions of an association agreement and such circumstances may constitute a special situation.

( see paras 231-235 )

8. Under Article 7 of the Agreement establishing an Association between the EEC and Turkey the contracting parties are to take all appropriate measures, whether general or particular, to ensure the fulfilment of the obligations arising from the agreement and to refrain from any measures liable to jeopardise the attainment of its objectives. That provision expresses the pacta sunt servanda principle and the principle of good faith which must govern the conduct of the parties to an agreement in public international law.

( see para. 237 )

9. Pursuant to Article 155 of the EC Treaty (now Article 211 EC) and the principle of good administration, the Commission has a duty to ensure the proper application of the Agreement establishing an Association between the EEC and Turkey and of the Additional Protocol.

( see para. 257 )

10. As envisaged by the Agreement establishing an Association between the EEC and Turkey, it is for the Commission, in cases of doubt about the validity of A.TR.1 movement of goods certificates issued by the Turkish customs authorities to make use of the procedure for settling disputes laid down in Article 25 of that agreement before declaring those certificates invalid. That conclusion is borne out by the fact that the agreement does not provide for the possibility of a contracting party declaring invalid the certificates issued by the customs authorities of the other contracting party. Furthermore, such a manner of proceeding seems difficult to reconcile with the division of responsibility between the customs authorities of the parties to the agreement and the principle that the customs administration of the importing State accepts the determinations legally made by the authorities of the exporting State.

( see para. 270 )

11. The existence of tensions between the Community and a third country does not exonerate the Commission as guardian of the Treaty and of the agreements concluded under it from ensuring the correct implementation by that country of the obligations it has contracted to fulfil under an agreement concluded with the Community, using the means provided for by the agreement or by the decisions taken pursuant thereto. If, as a result of such tensions, it is unable to meet that obligation, inter alia because the means at its disposal prove to be inoperative or ineffective, it is incumbent upon it, at the very least, to inform the Member States as soon as possible of the measures to be taken to prevent damage to the Community and Community traders. In no case can the Commission use its exclusive authority as regards the recovery and remission of import duties to remedy failures in the implementation of an agreement concluded between the Community and a third country.

( see paras 271-272 )

12. In order to determine whether an error made by the competent authorities could not reasonably have been detected by the person liable within the meaning of Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties, account has to be taken inter alia of the precise nature of the error, the professional experience of and the care taken by the trader concerned. That assessment must be made in the light of the particular circumstances of the case. The nature of the error should be assessed inter alia in the light of the amount of time during which the competent authorities persisted in their error and the complexity of the provisions at issue.

( see paras 279, 282 )

13. Article 13 of Regulation No 1430/79 provides that import duties may be repaid or remitted in situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned. It is for the Commission to prove obvious negligence in a situation where it is clear that the manner in which the applicants entered into purchase contracts and carried out the imports at issue is in conformity with standard trade practice.

( see para. 297 )

Parties

In Joined Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T-216/97 to T-218/97, T-279/97, T-280/97, T-293/97 and T-147/99,

Kaufring AG, established in Düsseldorf, Germany, represented by D. Ehle and V. Schiller, lawyers, with an address for service in Luxembourg,

applicant in Case T-186/97,

Crown Europe GmbH, established in Gelsenkirchen, Germany, represented by D. Ehle and V. Schiller, lawyers, with an address for service in Luxembourg,

applicant in Case T-187/97,

Profex Electronic Verwaltungsgesellschaft mbH, established in Tiefenbach, Germany, represented initially by G. Sobotta and subsequently by E.O. Rau, lawyers, with an address for service in Luxembourg,

applicant in Case T-190/97,

Horten AG, established in Düsseldorf, represented by D. Ehle and V. Schiller, lawyers, with an address for service in Luxembourg,

applicant in Case T-191/97,

Dr. Seufert GmbH, established in Karlsruhe, Germany, represented by D. Ehle and V. Schiller, lawyers, with an address for service in Luxembourg,

applicant in Case T-192/97,

Grundig AG, established in Fürth, Germany, represented by D. Ehle and V. Schiller, lawyers, with an address for service in Luxembourg,

applicant in Case T-210/97,

Hertie Waren- und Kaufhaus GmbH, established in Frankfurt am Main, Germany, represented by D. Ehle and V. Schiller, lawyers, with an address for service in Luxembourg,

applicant in Case T-211/97,

Lema SA, established in Gennevilliers, France, represented by F. Goguel, lawyer, with an address for service in Luxembourg,

applicant in Case T-216/97,

Masco SA, formerly Seiga SA (High Tech Industries), established in Thiais, France, represented by F. Goguel, lawyer, with an address for service in Luxembourg,

applicant in Cases T-217/97 and T-218/97,

DFDS Transport BV, established in Venlo, Netherlands, represented by C. Grisart, lawyer, with an address for service in Luxembourg,

applicant in Case T-279/97,

Wilson Holland BV, established in Hoogvliet Rotterdam, Netherlands, represented by C. Grisart, lawyer, with an address for service in Luxembourg,

applicant in Case T-280/97,

Elta GmbH, established in Dreieich-Sprendlingen, Germany, represented by G. Breit and A. Breit, lawyers,

applicant in Case T-293/97,

Miller NV, established in Willebroek, Belgium, represented by Y. Van Gerven and I. Bernaerts, lawyers, with an address for service in Luxembourg,

applicant in Case T-147/99,

supported by

United Kingdom of Great Britain and Northern Ireland, represented, in Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T-279/97, T-280/97 and T-293/97, by M. Ewing, R.V. Magrill and D. Wyatt QC, acting as Agents, and, in Cases T-216/97 to T-218/97, by D. Cooper and D. Wyatt, acting as Agents, with an address for service in Luxembourg,

intervener in Cases T-186/97, T-187/97,

T-190/97 to T-192/97, T-210/97,

T-211/97, T-216/97 to T-218/97,

T-279/97, T-280/97 and T-293/97,

by

Federal Republic of Germany, represented initially by E. Röder and C.-D. Quassowski and subsequently by W.D. Plessing and C.-D. Quassowski, acting as Agents,

intervener in Cases T-186/97, T-187/97,

T-190/97 to T-192/97 and T-210/97,

and by

French Republic, represented initially by K. Rispal-Bellanger, G. Mignot and F. Pascal and subsequently by K. Rispal-Bellanger and C. Vasak, acting as Agents, with an address for service in Luxembourg,

intervener in Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97 and T-216/97 to T-218/97,

v

Commission of the European Communities, represented in Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97 and T-293/97 by R.B. Wainwright, assisted initially by K. Schreyer and subsequently by G. zur Hausen, acting as Agents, in Cases T-216/97 to T-218/97 initially by M. Nolin and subsequently by R. Tricot, acting as Agents, and by A. Barav, lawyer and Barrister, in Cases T-279/97 and T-280/97 by R.B. Wainwright and R. Tricot, acting as Agents, and in Case T-147/99 by R. Tricot, acting as Agent, and J. Stuyck, lawyer, with an address for service in Luxembourg,

defendant,

APPLICATION in Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T-279/97, T-280/97 and T-293/97 for annulment of the decisions of the Commission of 19 February, 25 March and 5 June 1997 finding that the remission of import duties is not justified, and in Cases T-216/97 to T-218/97 and T-147/99 for annulment of the decisions of the Commission of 24 April 1997 and 26 March 1999 finding that import duties must be recovered and that the remission of those duties is not justified,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: K. Lenaerts, President, J. Azizi and M. Jaeger, Judges,

Registrar: P. de Bandt, Legal secretary,

having regard to the written procedure and further to the hearing on 10 July 2000,

gives the following

Judgment

Grounds

Legal background

I - Legislation concerning the compensatory levy

A - EEC-Turkey Association Agreement

1 These cases arose in the context of the Agreement establishing an Association between the European Economic Community and Turkey (hereinafter the Association Agreement), signed in Ankara by the Republic of Turkey and the Member States of the EEC and the Community (hereinafter the contracting parties). The Association Agreement was approved by Council Decision 64/732/EEC of 23 December 1963 (OJ 1977 L 361, p. 29). It entered into force on 1 December 1964.

2 The aim of the Association Agreement, according to Article 2 in Title I, headed Principles, is to promote the continuous and balanced strengthening of trade and economic relations between the parties.

3 It provides for a preparatory stage to allow the Republic of Turkey to strengthen its economy with aid from the Community (Article 3), a transitional stage in which a customs union will be progressively established and economic policies will be aligned (Article 4), and a final stage which is based on the customs union and entails closer coordination of economic policies (Article 5). Under Article 28 the Association Agreement is in the long term to allow for examination of the possibility of the accession of the Republic of Turkey to the Community.

4 Under Article 7, the contracting parties are to take all appropriate measures, whether general or particular, to ensure the fulfilment of the obligations arising from the Association Agreement and are to refrain from any measures liable to jeopardise the attainment of the objectives of that agreement.

5 Articles 22 and 23 in Title III, which contains general and final provisions, provide for the establishment of an Association Council, consisting of members of the governments of the Member States, the Council and the Commission and members of the Turkish Government, and which, acting unanimously, has power to take decisions in order to attain the objectives of the Association Agreement. Article 25 gives the Association Council the power, on referral from any contracting party, to settle any dispute relating to the application or interpretation of the Association Agreement or to submit the dispute to the Court of Justice.

6 Finally, Article 1 of the agreement on measures to be taken and procedures to be followed to apply the Association Agreement (Journal Officiel 1964, p. 3703) lays down the rules for the adoption of the common position of the representatives of the Community and the Member States in the Association Council.

B - Article 3(1) of the Additional Protocol

7 To establish the conditions, arrangements and time-tables for the completion of the transitional stage provided for by the Association Agreement, the contracting parties signed an Additional Protocol on 23 November 1970 in Brussels. That protocol was approved by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1977 L 361, p. 60).

8 As the final stage envisaged by the Association Agreement did not begin until 31 December 1995 (Decision No 1/95 of the Association Council of 22 December 1995 on implementing the final phase of the Customs Union, OJ 1996 L 35, p.1), the provisions of the Additional Protocol were applicable at the time of the imports concerned by the Commission decisions annulment of which is sought in the present proceedings.

9 In particular, Article 3(1) of that protocol was applicable. It states that the provisions of the Additional Protocol on the elimination of customs duties and quantitative restrictions (hereinafter preferential treatment) are to likewise apply to goods obtained or produced in the Community or in Turkey, in the manufacture of which were used products coming from third countries and not in free circulation either in the Community or in Turkey.

10 However, it also states that such goods may be given preferential treatment only if the exporting State charges a compensatory levy, the rate of which is a percentage of the common customs tariff duties for third country products used in their manufacture (the compensatory levy).

11 It is also provided that the Association Council is to determine the percentage of the compensatory levy and the arrangements for its collection. Finally, the Association Council is to decide on methods of administrative cooperation to be used in implementing Article 3(1) of the Additional Protocol (Article 4 of the Additional Protocol).

12 In implementation of those provisions, the Association Council took a number of decisions concerning the compensatory levy.

13 By Decision No 2/72 of 29 December 1972 (not published in the Official Journal) the Association Council fixed the percentage of common customs tariff duties to be used in calculating the compensatory levy for goods obtained in Turkey at 100.

14 By Decision No 3/72 of 29 December 1972 (not published in the Official Journal), the Association Council established the rules relating to the procedure for the collection of the compensatory levy. The levy is to be calculated according to the type and customs value of products from third countries not members of the association (hereinafter components from third countries) used in the manufacture of goods on the territory of the contracting parties (Article 1). In the case of exemption or partial or complete abolition of customs duties on such components, a compensatory levy equivalent to the amount of the duties not collected must be paid (Article 3). The Community and Turkey are to inform one another and the Association Council of the measures they take to ensure the uniform implementation of the decision (Article 4).

15 Finally, the Association Council adopted Decision No 5/72 of 29 December 1972 on methods of administrative cooperation for implementation of Articles 2 and 3 of the Additional Protocol to the Ankara Agreement (OJ 1973 L 59, p. 74), under which the presentation of a certificate issued at the request of the exporter by the customs authorities of the Republic of Turkey or of a Member State is necessary in order to obtain preferential treatment. For goods transported directly from the Community to Turkey this is the A.TR.1 movement of goods certificate (hereinafter A.TR.1 certificate), a specimen of which is attached to the decision (Article 2). That specimen was replaced by the form attached to Decision No 1/78 of the Association Council of 18 July 1978 amending Decision No 5/72 (OJ 1978 L 253, p. 2).

16 The reverse of that form gives details of goods for which [an A.TR.1 certificate] may be endorsed. Under I(1)(c) these include goods obtained or produced within the exporting state, and in the manufacture of which have been used products on which the applicable customs duties or charges having an equivalent effect have not been levied or which have benefited from a total or partial drawback of such duties or charges, subject to the collection, where appropriate, of the compensatory levy prescribed for them.

17 Article 11 of Decision No 5/72 provides that the Member States and the Republic of Turkey are to assist each other, through their respective customs administrations, in checking the authenticity and accuracy of the certificates in order to ensure the proper application of the provisions of this decision. Article 12 of Decision No 5/72 goes on to provide:

[The Republic of] Turkey, the Member States and the Community shall each take the steps necessary to implement this decision.

C - The transposition of the legislation concerning the compensatory levy by the Turkish authorities

1. The period before the adoption of the decree of January 1994

18 Before 15 January 1994 the Turkish Government had not introduced any general legislation providing for the collection, pursuant to Article 3(1) of the Additional Protocol, of a compensatory levy for goods using components from third countries which were not in free circulation in Turkey. It had, however, set up a programme of export aid and, in June 1992, had adopted two decrees relating to the collection of a compensatory duty and the abolition of certain import duties respectively.

(a) The export aid programme

19 To encourage the export of Turkish products to the Community and to third countries, the Turkish authorities set up an export aid programme (the export incentive scheme) providing for exemption from customs duties on importation of components from third countries on condition that they were used in the manufacture of products which were then exported to the Community or third countries. Turkish companies who wished to benefit from the exemption had to have an export aid certificate issued by the Turkish authorities. The names of companies benefiting from the export incentive scheme were published annually in the Turkish Official Gazette. Exemption from customs duties on importation was available only if the products incorporating those components were exported within a certain time after their importation into Turkey. On importation the duties normally due were calculated and deposited at banking establishments. Subsequently, following manufacture and export, the company provided evidence of the exports in order to recover the money deposited.

(b) The decrees adopted by the Turkish Government in June 1992

20 By letter of 28 July 1992, the Turkish Permanent Delegation to the European Community informed the Association Council of the adoption of two decrees by the Turkish Government of 16 June 1992.

21 The first was Decree 92/3177 of 16 June 1992, published in Turkish Official Gazette No 21277 of 7 July 1992, which entered into force the same day. It provides that exporters wishing to export colour television sets using A.TR.1 certificates must obtain an expert's report from their Chamber of Commerce certifying that the value of components from third countries does not exceed 56% of the total fob (free on board) value of the television sets. The customs authorities must collect a compensatory levy if the expert's report shows that the value of components from third countries is more than that percentage. The compensatory levy thus collected is paid into the Support and Price Stabilisation Fund. The Minister to which the Undersecretariat for Treasury and External Commerce is attached is responsible for implementation of the decree.

22 On the same day the Turkish Government adopted Decree 92/3127, published in Turkish Official Gazette No 21277 of 7 July 1992, which entered into force on that date. It provides for the abolition of import duties on cathode ray tubes for colour television sets imported into Turkey, whatever their origin (EEC or third country) or destination (used in television sets intended for the domestic market or exported to the EEC or a third country).

2. Decree adopted by the Turkish Government in January 1994

23 On 12 January 1994, the Turkish Government adopted Decree 94/5168, published in Turkish Official Gazette No 21832 of 28 January 1994. Article 1 of that decree provides for the collection of a compensatory levy on components from third countries used in colour television sets determined for export to the Community. The amount of the levy corresponds to the rate set by the Community customs tariff for that type of product. The amounts collected are paid into the Fund for the Promotion of Investments and Foreign Exchange Earnings Services. Article 2 of the decree repeals Decree 92/3127, cited above. Decree 94/5168 was the subject of a notice in Turkish Official Gazette No 21845 of 10 February 1994.

24 In addition, the Turkish Government adopted on 16 August 1994 Decree 94/5782, published in the Turkish Official Gazette of 26 August 1994, which extends the collection of the compensatory levy to all products containing components from third countries which have not been released for free circulation in Turkey.

II - Legislation concerning remission or non-recovery of customs duties

A - Basic provisions on post-clearance remission or non-recovery of customs duties

1. The provisions applicable to the imports at issue

25 As stated in the second recital of the contested decisions, they concern imports of colour television sets from Turkey between 1991 and 1993 and early in 1994 (hereinafter the material time). Nearly all those imports were thus covered both by Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175, p. 1), as amended by Council Regulation (EEC) No 3069/86 of 7 October 1986 (OJ 1986 L 286, p. 1), and by Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (OJ 1979 L 197, p. 1).

26 As regards the imports made after the entry into force, on 1 January 1994, of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1, the Customs Code), the relevant provisions of Regulations No 1430/79 and No 1697/79 were replaced by the almost identical provisions of the Customs Code. For that reason, the case-law of the Court of Justice and the Court of First Instance regarding the former also applies to the latter (Case T-159/97 Kia Motors and Broekman Motorships v Commission [1998] ECR II-2907, paragraph 33, and Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 53). Accordingly it is not necessary to make a distinction in respect of imports subject to the Customs Code. The relevant provisions of that Code will therefore only be cited as necessary.

2. The difference between remission and non-recovery

27 The essential difference between remission and non-recovery of customs duties is that in the case of remission customs duties have already been entered in the accounts by the customs authorities, while that is not the case with non-recovery. Entered in the accounts is to be understood to mean the entry by the customs authorities of the amount of import duty or export duty resulting from a customs debt in the accounting records or in any other equivalent medium (Article 217 of the Customs Code).

3. The conditions for remission of customs duties

28 Until 1 January 1994 the conditions for the remission of customs duties were laid down by Article 13(1) of Regulation No 1430/79, as amended. That article provides:

Import duties may be ... remitted in situations ... which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned.

29 Under Article 4(2)(c) of Commission Regulation (EEC) No 3799/86 of 12 December 1986 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of Council Regulation (EEC) No 1430/79 (OJ 1986 L 352, p. 19), the production, even in good faith, for the purpose of securing preferential tariff treatment of goods entered for free circulation, of documents subsequently found to be forged, falsified or not valid for the purpose of securing such preferential tariff treatment is a situation which is not in itself a special situation within the meaning of Article 13 of Regulation No 1430/79.

30 With the entry into force of the Customs Code, Regulation No 1430/79 was repealed (Article 251 of the Customs Code). Article 13(1) of that regulation was reproduced in Article 239(1) of the Customs Code, which provides in almost identical terms:

Import duties or export duties may be ... remitted in situations ... resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned ....

31 Regulation No 3799/86 was repealed by Article 913 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the Customs Code (OJ 1993 L 253, p. 1).

32 Article 4(2)(c) of Regulation No 3799/86 was replaced by Article 904 of Regulation No 2454/93, which provides:

Import duties shall not be ... remitted where the only grounds relied on in the application for ... remission are:

... (c) presentation, for the purpose of obtaining preferential tariff treatment of goods declared for free circulation, of documents subsequently found to be forged, falsified or not valid for that purpose, even where such documents were presented in good faith.

4. Conditions for non-recovery of customs duties after clearance

33 Prior to the entry into force of the Customs Code the conditions for non-recovery of customs duties after clearance were laid down in Article 5(2) of Regulation No 1697/79, which provides:

The competent authorities may refrain from taking action for the post-clearance recovery of import duties or export duties which were not collected as a result of an error made by the competent authorities themselves which could not reasonably have been detected by the person liable, the latter having for his part acted in good faith and observed all the provisions laid down by the rules in force as far as his customs declaration is concerned ....

34 With the repeal of Regulation No 1697/79 following entry into force of the Customs Code, the wording of Article 5(2) of Regulation No 1697/79 was incorporated in Article 220(2)(b) of the Code, which provides in almost identical terms:

Except in the cases referred to in the second and third subparagraphs of Article 217 (1), subsequent entry in the accounts shall not occur where:

(b) the amount of duty legally owed failed to be 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 ... .

B - The procedural provisions relating to post-clearance remission or non-recovery of customs duties

1. The procedural provisions applicable to the imports at issue

35 Given that it has been consistently held that procedural rules apply to all the proceedings pending at the time when they enter into force (Joined Cases 212/80 to 217/80 Salumi and Others [1981] ECR 2735, paragraphs 9 to 14, and, specifically on the subject of remission and non-recovery, Joined Cases C-121/91 and C-122/91 CT Control (Rotterdam) and JCT Benelux v Commission [1993] ECR I-3873, paragraph 22), it is the procedural rules laid down in the Customs Code and in Regulation No 2454/93 which apply to applications for remission made after the entry into force of those regulations. The relevant rules here are Articles 236 to 239 of the Customs Code and Articles 878 to 909 of Regulation No 2454/93.

36 However, until the entry into force of the Customs Code, the procedure for the remission and repayment of customs duties was laid down, in almost identical terms, in Articles 16 and 17 of Regulation No 1430/79 and by Commission Regulation (EEC) No 1574/80 of 20 June 1980 laying down provisions for the implementation of Articles 16 and 17 of Council Regulation (EEC) No 1430/79 (OJ 1980 L 161, p. 3). The procedural rules for non-recovery were contained in Commission Regulation (EEC) No 2380/89 of 2 August 1989 laying down provisions for the implementation of Article 5(2) of Regulation No 1697/79 (OJ 1989 L 225, p. 30).

2. The procedure for remission of customs duties

37 Any remission of customs duties must be the subject of a specific application by the person concerned (application for remission) (Article 878(1) of Regulation No 2454/93), to be submitted to the appropriate customs office (Article 879(1) of Regulation No 2454/93). To facilitate processing the application must be made on the form shown in Annex 111 to the Customs Code. When the appropriate customs authority has all the necessary particulars, it gives its decision in writing on the application for remission (Article 886(1) of Regulation No 2454/93).

38 However, where the customs authority is unable to make a decision on the basis of Article 899 et seq. of Regulation No 2454/93, which describe a number of situations in which remission may or may not be granted, and the application is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the Member State to which the authority belongs is to transmit the case to the Commission (Article 905(1) of Regulation No 2454/93). The file sent to the Commission must include all the facts necessary for a full examination of the case (Article 905(2)). Within 15 days of receipt of the file the Commission must forward a copy to the Member States (first paragraph of Article 906). Subsequently, after consulting a group of experts composed of representatives of all the Member States, meeting within the framework of the Customs Committee to consider the case in question, the Commission shall decide whether or not the special situation which has been considered justifies ... remission (first paragraph of Article 907). That decision must be taken within six months of the date on which the file transmitted by the Member State is received by the Commission (second paragraph of Article 907) and the Member State concerned must be notified of that decision as soon as possible (Article 908(1)). Finally, the decision-making authority decides whether to grant or refuse the application made to it on the basis of the Commission's decision (Article 908(2)).

39 It should be noted that the procedural rules described in the proceeding paragraphs were modified somewhat following the entry into force, on 6 August 1998, of Commission Regulation (EC) No 1677/98 of 29 July 1998 amending Regulation No 2454/93 (OJ 1998 L 212, p. 18). The new rules were applied in the context of Case T-147/99 (Miller).

40 Regulation No 1677/98 inserts inter alia a new Article 906a, which provides:

Where, at any time in the procedure provided for in Articles 906 and 907, the Commission intends to take a decision unfavourable towards the applicant for repayment or remission, it shall communicate its objections to him/her in writing, together with all the documents on which it bases those objections. The applicant for repayment or remission shall express his/her point of view in writing within a period of one month from the date on which the objections were sent. If he/she does not give his/her point of view within that period, he/she shall be deemed to have waived the right to express a position. The period of six months prescribed in Article 907 of Regulation No 2454/93 is replaced by a period of nine months.

3. The procedure for non-recovery of customs duties after clearance

41 Unlike remission, non-recovery of customs duties is not necessarily the result of an application by an interested party. It is for the customs authorities to decide not to recover duties when the conditions laid down for each of the cases listed exhaustively in Article 869 of Regulation No 2454/93 are met.

42 However, where the competent authorities either consider that the conditions laid down in Article 220(2)(b) of the [Customs] Code are fulfilled or are in doubt as to the precise scope of the criteria of that provision with regard to a particular case, those authorities shall submit the case to the Commission, and the file submitted must contain all the information required for a full examination (first paragraph of Article 871 of Regulation No 2454/93). Within 15 days of receipt of the file, the Commission must forward a copy to the Member States (first paragraph of Article 872). Then, after consulting a group of experts composed of representatives of all the Member States, meeting within the framework of the Customs Committee to consider the case in question, the Commission shall decide whether the circumstances under consideration are, or are not, such that the duties in question need not be entered in the accounts (first paragraph of Article 873).

43 That decision must be taken within six months of the date on which the file submitted by the Member State is received by the Commission (second paragraph of Article 873) and the Member State concerned must be notified of the decision as soon as possible (first paragraph of Article 874).

44 It should be noted that the procedural rules for non-recovery described in the preceding paragraphs, like those applicable to the remission of customs duties, were amended following the entry into force of Regulation No 1677/98. The new rules were applied in the context of Case T-147/99 (Miller).

45 Thus, Regulation No 1677/98 inserts inter alia a new Article 872a, which provides:

Where, at any time in the procedure provided for in Articles 872 and 873 [of Regulation No 2454/93], the Commission intends to take a decision unfavourable towards the person concerned by the case presented, it shall communicate its objections to him/her in writing, together with all the documents on which it bases those objections. The person concerned by the case submitted to the Commission shall express his/her point of view in writing within a period of one month from the date on which the objections were sent. If he/she does not give a point of view within that period, he/she shall be deemed to have waived the right to express a position. The period of six months prescribed in Article 873 of Regulation No 2454/93 is replaced by a period of nine months.

Facts

I - General

46 These cases concern the importation into the Community of colour television sets assembled in Turkey at the material time. They were produced by various Turkish companies, including Vestel, Meta, Profilo, Bekoteknik and Cihan, which employed in their manufacture, besides components of Turkish origin, components of Community origin and components from third countries (generally from Korea, Japan, Hong Kong and Singapore).

47 At the material time, colour television sets manufactured in Turkey were imported into the Community under A.TR.1 certificates and thus qualified for the exemption from customs duties provided for by the Association Agreement and the Additional Protocol.

48 Following a number of complaints and notifications of irregularities, the Commission undertook a fact-finding mission to Turkey between 18 October and 9 November 1993 in which two representatives of the Commission and five representatives from the Belgian, French, Dutch, German and United Kingdom customs services took part. The mission produced a report (the mission report). In the course of the mission it was ascertained that the Turkish authorities were validating A.TR.1 certificates without any compensatory levy being collected.

49 The Commission concluded in the mission report that the certificates were invalid because they related in fact to colour television sets manufactured in Turkey in which the components originating in third countries had not been released for free circulation or made subject to a compensatory levy and, accordingly, they could not be released for free circulation on importation into the Community.

50 Accordingly, by letters of 2 March and 21 April 1994, it instructed the Member States concerned to seek payment of the customs duties laid down by the Common Customs Tariff (that is to say, 14% of the total value of the television sets at the time of their importation into the Community) from the companies which had imported the television sets from Turkey at the material time, taking account of the three-year time-limit for recovery. However, the Commission authorised the Member States who wished to do so to waive or postpone the recovery of duties until it had made a final appraisal of the result of the fact-finding mission.

51 Finally, the Commission confirmed, by letter of 25 November 1994, that it was necessary to proceed without delay to recover customs duties on imports of colour television sets made under A.TR.1 certificates issued before 15 January 1994, taking account of the three-year time-limit for recovery.

II - Specific

A - Facts in the German Cases (T-186/97, T-187/97, T-190/97, T-191/97, T-192/97, T-210/97, T-211/97 and T-293/97)

1. Orders for recovery issued by the German authorities

52 Kaufring AG (hereinafter Kaufring) (T-186/97), Crown Europe GmbH (hereinafter Crown) (T-187/97), Profex Electronic Verwaltungsgesellschaft mbH (hereinafter Profex) (T-190/97), Horten AG (hereinafter Horten) (T-191/97), Dr. Seufert GmbH (hereinafter Dr. Seufert) (T-192/97), Grundig AG (hereinafter Grundig) (T-210/97), Hertie Waren- und Kaufhaus GmbH (hereinafter Hertie) (T-211/97) and Elta GmbH (hereinafter Elta) (T-293/97), (hereinafter the German applicants), imported at the material time several consignments of colour television sets from Turkey. All the imports were accompanied by an A.TR.1 certificate and were therefore covered by the provisions on preferential treatment. The A.TR.1 certificates were all endorsed by the Turkish customs authorities.

53 Following the Commission's instructions (see paragraphs 50 and 51 above), the German customs authorities sent tax amendment notices (Steueränderungsbescheide) to the German applicants, claiming payment of customs duties amounting to DEM 545 727.35 from Kaufring, DEM 238 352.97 from Crown, DEM 2 269 866.84 from Profex, DEM 123 809.12 from Horten, DEM 126 828.26 from Dr. Seufert, DEM 6 596 210.31 from Grundig, DEM 593 110.16 from Hertie and DEM 113 875.49 from Elta.

2. Applications for remission and/or non-recovery made to the German authorities by the German applicants

54 The German applicants challenged those notices. They asked the customs offices concerned to grant them a remission of customs duties. Dr. Seufert, Crown and Grundig also requested that those duties should not be recovered.

3. Applications for remission sent to the Commission by the German authorities

55 After studying the applications made by the German applicants, the Bundesministerium der Finanzen (German Ministry of Finance), to which the customs offices concerned had forwarded the cases, decided that the conditions for remission of customs duties laid down in Article 13(1) of Regulation No 1430/79 and Article 239 of the Customs Code were met in those cases.

56 In accordance with Article 905 of Regulation No 2454/93, the Bundesministerium der Finanzen therefore submitted the cases to the Commission, informing it of its view that the conditions laid down for the remission of customs duties were met.

57 It should be noted that before the cases were submitted the Bundesministerium der Finanzen had asked each of the German applicants, first, to comment on the draft application it intended to send to the Commission and second, to provide a written declaration confirming that the application took account of all the circumstances of the case and all their arguments and that the file was complete.

58 Kaufring, Horten, Hertie, Profex and Elta agreed to provide such a written declaration. However, Grundig, Dr. Seufert and Crown informed the Bundesministerium der Finanzen that they would not do so. They asked for their applications for remission and enclosures to be attached to the files submitted by the Bundesministerium der Finanzen, which it agreed to do. The Bundesministerium der Finanzen also agreed, as regards those parties, to include the following passage in its covering letters to the Commission:

The interested party asks the Commission to take as the basis for its decision the detailed application for remission attached to this letter with its appendices. The interested party also asks to be heard directly by the Commission before the adoption of a decision, in order to safeguard its rights of defence vis-à-vis the Commission. The interested party considers that it should be informed by the Commission of the essential facts and documents on the basis of which the Commission intends to take its decision on the remission of customs duties.

59 Before taking a final decision on each of the applications for remission, the Commission consulted the group of experts provided for in the first paragraph of Article 907 of Regulation No 2454/93, which considered the cases at its meeting of 10 January 1997. All the representatives of the Member States present at that meeting, apart from those from the Republic of Austria and the Portuguese Republic, expressed themselves to be in favour of the remission.

60 Subsequently, by Decisions REM 14/96, REM 15/96, REM 16/96, REM 17/96, REM 18/96, REM 19/96 and REM 20/96 of 19 February 1997 relating to Horten, Kaufring, Elta, Grundig, Hertie, Crown and Profex respectively and REM 21/96 of 25 March 1997 relating to Dr. Seufert, the Commission found that the grant of the remissions applied for was not justified. Those individual decisions were notified to the German applicants by their national authorities.

B - Facts in the French cases (T-216/97 to T-218/97)

1. Orders for recovery issued by the French authorities

61 Lema SA (hereinafter Lema) (T-216/97) and Masco SA (hereinafter Masco) (T-217/97 and T-218/97), (hereinafter the French applicants), imported consignments of television sets from Turkey at regular intervals. All the imports were accompanied by an A.TR.1 certificate and therefore were covered by the provisions on preferential treatment. The A.TR.1 certificates were all endorsed on export by the Turkish customs authorities, and subsequently, on importation into France, by the French customs authorities.

62 Following the Commission's instructions (see paragraphs 50 and 51 above), the French customs authorities, in this instance the Direction Nationale du Renseignement et des Enquêtes Douanières (National Customs Information and Enquiries Directorate, hereinafter DNRED), found that Lema and Masco were in breach of the rules in importing television sets under A.TR.1 certificates. They therefore claimed payment of customs duties amounting to FRF 12 201 564 from Lema and to FRF 32 966 173 (Case T-217/97) and FRF 4 192 502 (Case T-218/97) from Masco.

2. Consideration by the French authorities of the applications for remission and non-recovery made by the French applicants

63 Lema and Masco challenged the claims for post-clearance recovery of customs duties. They asked DNRED either not to recover the duties in question, or to grant them a remission of them. Those individual applications were based, first, as regards non-recovery, on Article 5(2) of Regulation No 1697/79 and Article 220(2)(b) of the Customs Code and, second, as regards remission, on Article 13(1) of Regulation No 1430/79 and Article 239 of the Customs Code.

3. Applications for non-recovery and remission made to the Commission by the French authorities

64 After considering the various applications made by the French applicants, the French Ministry of Economic Affairs and Finance (hereinafter the Ministry) decided that the conditions laid down in Article 5(2) of Regulation No 1697/79 were met in this case. It sent to each of the French applicants a draft of the application for examination which it intended to make to the Commission on the subject. In their replies Lema and Masco asked for a copy of the full applications which they had sent to DNRED to be attached to the file. They pointed out that they had also made an application for remission on the basis of Article 13(1) of Regulation No 1430/79 and stated that they maintained that application in the alternative.

65 The Ministry then submitted the cases to the Commission, attaching the files sent by the French applicants to DNRED.

66 The Ministry pointed out that the conditions laid down for the non-recovery of duties were met in these cases.

67 It also asked the Commission to consider the applications in the alternative for remission of duties.

68 Before taking a final decision, the Commission consulted the group of experts provided for by Articles 873 and 907 of Regulation No 2454/93, which considered the cases at its meeting of 10 January 1997. All the representatives of the Member States present at that meeting, apart from those from the Republic of Austria and the Portuguese Republic, expressed themselves to be in favour of non-recovery and remission.

69 Subsequently, by Decisions REC 7/96 and REC 9/96, relating to Masco, and REC 8/96, relating to Lema, of 24 April 1997 the Commission declared that the customs duties should be recovered and that the remission of those duties was not justified.

70 Those decisions were forwarded by the General Secretariat of the Commission to the Permanent Representation of the French Republic to the European Union. The national authorities then notified them to the French applicants.

C - Facts in the Netherlands cases (T-279/97 and T-280/97)

1. Orders for recovery issued by the Netherlands authorities

71 DFDS Transport BV (hereinafter DFDS) (T-279/97) and Wilson Holland BV (hereinafter Wilson) (T-280/97), (hereinafter the Netherlands applicants), imported several consignments of colour television sets from Turkey. All the imports were accompanied by an A.TR.1 certificate and were therefore covered by the provisions on preferential treatment. The A.TR.1 certificates were all endorsed in Turkey by the Istanbul customs office, and subsequently in the Netherlands by the Rotterdam office.

72 Following the Commission's instructions (see paragraphs 50 and 51 above), the Netherlands customs authorities sent a collection notice (uitnodiging tot betaling) to DFDS and Wilson. They claimed payment of customs duties amounting in total to NLG 212 657 from DFDS and NLG 30 712.50 from Wilson.

2. Applications for remission made to the Netherlands authorities by the Netherlands applicants

73 The Netherlands applicants challenged the collection notices. They asked the customs offices concerned to grant remission of the customs duties.

3. Applications for remission made to the Commission by the Netherlands authorities

74 Having considered the applications submitted by the Netherlands applicants, the Belastingdienst (Netherlands tax administration), to which the customs offices concerned had forwarded the cases, decided that the conditions for remission of customs duties laid down in Article 13(1) of Regulation No 1430/79 and in Article 239 of the Customs Code had been met in those cases.

75 Accordingly the Belastingdienst transmitted the case to the Commission pursuant to Article 905 of Regulation No 2454/93, informing it of its view that the conditions laid down for the remission of customs duties were met.

76 It should be noted that before the cases were transmitted the Netherlands applicants had, at the request of their national authorities, informed the latter that they had taken note of the content of the file concerning them and that the file was complete.

77 Before taking a final decision, the Commission consulted the group of experts provided by the first paragraph of Article 907 of Regulation No 2454/93, which considered the cases at its meeting of 7 March 1997. All the representatives of the Member States present at that meeting, apart from those from the Republic of Austria and the Portuguese Republic, expressed themselves to be in favour of remission.

78 Finally, by Decisions REM 26/96 and REM 27/96 of 5 June 1997, relating to DFDS and Wilson respectively, it declared that the grant of the remissions applied for was not justified. Those decisions were forwarded to the national authorities, which notified them to the Netherlands applicants.

D - Facts in the Belgian case (T-147/99)

1. Order for recovery issued by the Belgian authorities

79 At the material time, Miller NV (hereinafter Miller) (T-147/99) imported several consignments of colour television sets from Turkey. All the imports were accompanied by an A.TR.1 certificate and were therefore covered by the provisions on preferential treatment. The A.TR.1 certificates were all endorsed in Turkey by the Istanbul customs office and subsequently in Belgium by the Antwerp office.

80 Following the instructions of the Commission (see paragraphs 50 and 51 above), the Belgian customs authorities issued a recovery notice (uitnodiging tot betaling) to Miller. They demanded payment of customs duties amounting in total to BEF 11 381 735.

2. The application for non-recovery made to the Belgian authorities by Miller

81 Miller challenged the recovery notice. It asked the customs office concerned not to recover the customs duties. The request was based on Article 5(2) of Regulation No 1697/79 and Article 220(2)(b) of the Customs Code.

3. Application for non-recovery and for remission made to the Commission by the Belgian authorities

82 Having considered the applications submitted by the applicant, the Customs and Excise Department of the Ministry of Finance, to which the customs office concerned had forwarded the case, decided that the conditions for non-recovery laid down in Article 5(2) of Regulation No 1697/79 and Article 220(2)(b) of the Customs Code were met in this case. In the alternative, the Ministry of Finance considered that the conditions for remission laid down in Article 13(1) of Regulation No 1430/79 and in Article 239 of the Customs Code were also met.

83 Accordingly, the Ministry of Finance forwarded the case to the Commission pursuant to Articles 871 and 905 of Regulation No 2454/93, informing the Commission that in its opinion the conditions laid down for non-recovery and for remission were met.

84 It should be noted that before the case was forwarded, the Belgian authorities had asked Miller for its observations on the draft of the application for non-recovery and remission which they intended to forward to the Commission and to confirm that the file was complete. Miller replied by letter of 24 April 1998 that the file was complete. Attached to that letter was a statement by its lawyer describing the various documents which had been forward to it by the Ministry of Finance attached to the draft letter to the Commission, summing up its essential arguments and reiterating its wish to be allowed to consult the institution's file.

85 The Commission considered the case pursuant to Articles 871 and 905 et seq. of Regulation No 2454/93.

86 By letter of 24 November 1998, the Commission sent Miller a copy of the case, in accordance with Articles 872a and 906a of Regulation No 2454/93. It also informed it of its intention to instruct the Belgian customs authorities to recover the customs duties at issue after clearance and to refuse remission of those duties. In that letter the Commission explained that it doubted that the conditions laid down in Article 5(2) of Regulation No 1697/79 had been met. Moreover, it took the view that the circumstances of the case did not constitute a situation resulting from special circumstances within the meaning of Article 13(1) of Regulation No 1430/79. However, the Commission asked Miller to inform it of its observations within a month of receiving the letter.

87 The applicant replied by letter of 2 December 1998, asking the Commission to allow it to consult all the documents on its file in order to be able to formulate its observations in full knowledge of the facts, referring to the case-law of the Court of First Instance (Case T-42/96 Eyckeler & Malt v Commission [1998] ECR II-401, paragraphs 78 to 88).

88 By letter of 22 December 1998, the Commission refused that request on the ground that Miller had already been able to acquaint itself with the file, which contained only the data forwarded by the Belgian authorities. It acknowledged that the mission report was not included in it but explained that, in so far as that report merely confirmed the facts and, therefore, the invalidity of the certificates at issue, it did not consider that there was any point in forwarding it to Miller.

89 By letter of 7 January 1999, the applicant objected to the Commission's refusal and stated that, in the event that the Commission's final decision was not in its favour, it reserved the right to bring an action for annulment of the decision before the Court of First Instance pleading breach of its rights of defence. It therefore requested, once again, access to the documents on which the Commission might base its final decision and to all other documents, including administrative documents, relating to the case.

90 Miller also replied to the Commission's letter of 24 November 1998 by letter of 22 January 1999, stating the reasons for its view that the conditions for the application of Article 5(2) of Regulation No 1697/79 were in fact met. It also stated that it considered that the situation was one resulting from special circumstances and that no deception or negligence within the meaning of Article 13(1) of Regulation No 1430/79 could be attributed to it.

91 The Commission noted Miller's observations, and before taking a final decision consulted the group of experts provided for by the first paragraphs of Articles 873 and 907 of Regulation No 2454/93, which examined the case at its meeting of 25 February 1999. All the representatives of the Member States present at that meeting, apart from those from the Republic of Austria and the Portuguese Republic, expressed themselves to be in favour of non-recovery and remission.

92 Subsequently, by Decision REC 3/98 of 26 March 1999 it declared that the import duties must be recovered and that remission of those duties was not justified. The Belgian authorities served that decision on Miller by letter of 21 April 1999.

III - The grounds for the contested decisions

93 The contested decisions are based on almost identical grounds. There is no substantive difference between the decisions solely concerning applications for remission on the basis of Article 13(1) of Regulation No 1430/79 and those concerning applications for remission made jointly with applications for non-recovery on the basis of Article 5(2) of Regulation No 1697/79.

94 Having observed that, according to settled case-law, the legitimate expectations of a trader warrant protection only if the competent authorities themselves created the basis for those expectations, the Commission went on to state in the contested decisions that the Turkish exporters had declared in section 13 of the A.TR.1 certificates that the goods described therein met the conditions for obtaining that certificate. That was in fact not the case, since, as was discovered during the fact-finding mission in Turkey, the television sets manufactured in Turkey contained components from third countries which had not been released for free circulation or made subject to a compensatory levy in accordance with Article 3(1) of the Additional Protocol.

95 The Commission accordingly took the view that the competent Turkish authorities were misled by the inaccurate statements made by the exporters. No positive error could thus be attributed to those authorities, and therefore the fact that the Turkish authorities had issued the contested certificates on the basis of statements made by the exporters was not sufficient to justify a legitimate expectation on the part of the importers as to the validity of those certificates.

96 The Commission also observed that the legislation at issue was well known and relatively simple as regards the conditions for issue of an A.TR.1 certificate and that the importers could not, therefore, have been unaware of it. It also pointed out that a diligent trader should have had doubts about the validity of the A.TR.1 certificates.

97 In the light of those findings, the Commission found that the conditions for remission and/or non-recovery of the customs duties were not met.

98 As regards the conditions for remission, the Commission also pointed out that the facts of the case and the alleged deficiencies in the application of the Additional Protocol did not constitute a special situation within the meaning of Article 13(1) of Regulation No 1430/79, since the free circulation regime could be obtained simply by releasing components from third countries into free circulation in Turkey.

Procedure

B99 By separate applications lodged at the Registry of the Court of First Instance between 20 June 1997 and 18 June 1999 the applicants brought these actions for annulment.

100 By orders of 25 May 1998, the Federal Republic of Germany was granted leave to intervene in support of the forms of order sought by the applicants in Cases T-186/97, T-187/97, T-190/97 to T-192/97 and T-210/97.

101 By orders of 25 May 1998, the United Kingdom of Great Britain and Northern Ireland was granted leave to intervene in support of the forms of order sought by the applicants in Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T-216/97 to T-218/97, T-279/97, T-280/97 and T-293/97.

102 By orders of 25 May 1998, the French Republic was granted leave to intervene in support of the forms of order sought by the applicants in Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97 and T-216/97 to T-218/97.

103 By separate letters lodged at the Registry of the Court of First Instance in May, June and July 1998, Grundig, Dr. Seufert, Crown, Hertie, Horten and Kaufring asked the Court of First Instance to order the Commission to produce a number of documents relating to the substance of the dispute. The Commission and the interveners were asked to submit their observations in that regard.

104 As a measure of organisation of procedure, the Court of First Instance asked the Commission on 29 October 1999 to produce a number of documents concerning the application of the provisions of the Association Agreement and the Additional Protocol to imports of colour television sets from Turkey. The Commission complied with that request by lodging, on 29 November 1999, a file made up of 24 folders containing approximately 7 000 pages. It supplemented that file by sending, on 22 December 1999, a number of additional documents and, on 13 January 2000, an unofficial translation into English of the Turkish import and export declarations included in the file.

105 At the request of the Court of First Instance, all the applicants (apart from Elta) and the Commission and the French Republic attended an informal meeting on 6 December 1999 with a view to arranging for the file lodged on 29 November 1999 to be consulted, and organising the hearing.

106 Subsequently, the parties having been heard on the matter, the President of the Third Chamber of the Court of First Instance joined the present cases for the purposes of the oral procedure and judgment by order of 10 January 2000.

107 The consultation of the file lodged on 29 November 1999 at the Registry of the Court of First Instance by the applicants and the French Republic began on 17 January 2000 and ended on 28 February 2000. Following that consultation, those parties lodged their observations in January, February and March 2000. The Commission replied to those observations in writing on 24 March 2000.

108 Following the report of the Judge-Rapporteur, the Court of First Instance (Third Chamber) decided to open the oral procedure. By way of measures of organisation of procedure, it asked the parties to reply to certain questions. The parties complied with those requests.

109 The parties presented oral argument and replied to the questions put by the Court of First Instance at the hearing on 10 July 2000.

Forms of order sought

110 Kaufring (T-186/97) claims that the Court should:

- annul Decision REM 15/96;

- order the Commission to pay the costs.

111 Crown (T-187/96) claims that the Court should:

- annul Decision REM 19/96;

- order the Commission to pay the costs.

112 Profex (T-190/97) claims that the Court should:

- annul Decision REM 20/96;

- order the Commission to grant the application for remission of duties;

- declare the judgment provisionally enforceable, if necessary on provision of security;

- order the Commission to pay the costs.

113 Horten (T-191/97) claims that the Court should:

- annul Decision REM 14/96;

- order the Commission to pay the costs.

114 Dr. Seufert (T-192/97) claims that the Court should:

- annul Decision REM 21/96;

- order the Commission to pay the costs.

115 Grundig (T-210/97) claims that the Court should:

- annul Decision REM 17/96;

- order the Commission to pay the costs.

116 Hertie (T-211/97) claims that the Court should:

- annul Decision REM 18/96;

- order the Commission to pay the costs.

117 Elta (T-293/97) claims that the Court should:

- annul Decision REM 16/96;

- order the Commission to pay the costs.

118 Lema (T-216/97) claims that the Court should:

- annul Decision REC 8/96;

- declare the applicant entitled to post-clearance non-recovery of the duties at issue;

- in the alternative, declare the applicant entitled to the remission of those duties;

- order the Commission to pay the costs.

119 Masco (T-217/97 and T-218/97) claims that the Court should:

- annul Decisions REC 7/96 and REC 9/96;

- declare the applicant entitled to post-clearance non-recovery of the duties at issue;

- in the alternative, declare the applicant entitled to the remission of those duties;

- order the Commission to pay the costs.

120 DFDS (T-279/97) claims that the Court should:

- annul Decision REM 26/96;

- order the Commission to pay the costs.

121 Wilson (T-280/97) claims that the Court should:

- annul Decision REM 27/96;

- order the Commission to pay the costs.

122 Miller (T-147/99) claims that the Court should:

- in the main:

- annul Decision REC 3/98;

- order the Commission to pay the costs;

- in the alternative, order the Commission to pay the costs;

- in the further alternative, order the Commission to bear its own costs.

123 The Federal Republic of Germany claims that the Court of First Instance should annul the decisions which are the subject of the actions in Cases T-186/97, T-187/97, T-190/97 to T-192/97 and T-210/97.

124 The United Kingdom of Great Britain and Northern Ireland claims that the Court should annul the decisions which are the subject of the actions in Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211-97, T-216/97 to T-218/97, T-279/97, T-280/97 and T-293/97.

125 The French Republic claims that the Court should annul the decisions which are the subject of the actions in Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97 and T-216/97 to T-218/97.

126 The Commission contends that the Court should:

- as regards Case T-190/97, dismiss as inadmissible the applicant's claims that the Court should order it to grant the application for remission and declare the judgment provisionally enforceable, if necessary on provision of security;

- as regards Cases T-216/97 to T-218/97, dismiss as inadmissible the claim that the Court should declare the applicants entitled to post-clearance non-recovery of customs duties or, in the alternative, to the remission of those duties;

- for the rest, dismiss as unfounded these actions for annulment;

- order the applicants to pay the costs.

127 At the hearing, Profex stated that it withdrew its claim that the Court should order the Commission to grant its application for remission and declare the judgment to be provisionally enforceable, if necessary on provision of security.

128 Similarly, Lema and Masco stated that they withdrew their claim that the Court should declare them entitled to post-clearance non-recovery of customs duties or, in the alternative, to the remission of those duties.

129 Accordingly, there is no need to rule on the admissibility nor, a fortiori, on the substance of those claims.

Law

130 In support of their actions the applicants raise numerous complaints relating to breach of both procedural and substantive rules. However, in view of the particular circumstances of the case the Court of First Instance has decided to consider in turn the plea of breach of the rights of the defence and the plea of breach of Article 13(1) of Regulation No 1430/79.

I - The plea of breach of the rights of the defence during the administrative procedure

A - Consideration of that plea in the context of the present actions

1. Arguments of the parties

131 Crown, Dr. Seufert, Grundig and Miller submit that their rights of defence were not observed in the course of the administrative procedure leading to the adoption of the decisions which they contest. At the hearing, Kaufring, Profex, Horten, Hertie and Elta stated that they were also relying on that plea of public interest in support of their actions.

132 The plea is also relied on by the French Republic in the cases in which it has lodged a statement in intervention, that is to say Cases T-186/97, T-187/97, T-191/97, T-192/97, T-210/97, T-211/97, T-216/97, T-217/97 and T-218/97.

133 However, the Commission raises an objection of inadmissibility in Cases T-186/97, T-191/97, T-211/97 and T-216/97 to T-218/97 on the ground that the plea was not raised by the applicants, so that the French Republic cannot rely on it without infringing Article 37 of the EC Statute of the Court of Justice. It also contends that it would be odd if an intervener were allowed to raise such a plea when it was not raised by the party which is supposed to be protected by the principle in question. In that regard it cites Case C-155/91 Commission v Council [1993] ECR I-939 and the Opinion of Advocate General Lagrange in Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, at 34.

2. Findings of the Court

134 It is sufficient to note in this regard that it is settled case-law that observance of the rights of the defence is an essential procedural requirement breach of which may be raised by the Court of its own motion (Case C-291/89 Interhotel v Commission [1991] ECR I-2257, paragraph 14, and Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 67; see also Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491, paragraph 487).

135 It therefore falls to the Court of First Instance to consider of its own motion, in all the cases, whether the Commission observed the applicants' rights of defence during the administrative procedure leading to the adoption of the contested decisions.

136 The Court also considers that the Commission's argument that the plea relating to breach of those rights relied on by the French Republic is inadmissible cannot be upheld.

137 As provided by Article 116(4) of the Rules of Procedure, an intervener may not go beyond the form of order sought by the party in support of whom it is intervening, but it may freely choose its pleas and arguments in support of that form of order (Case T-37/97 Forges de Clabecq v Commission [1999] ECR II-859, paragraph 92).

B - The plea of breach of the applicants' rights of defence in Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T-216/97 to T-218/97, T-279/97, T-280/97 and T-293/97

1. Arguments of the parties

138 Grundig, Dr. Seufert and Crown submit that the Commission breached their rights of defence inasmuch as in disregard of their express request it did not hear their views before adopting the decisions declaring that the remission of duties in their case was not justified. Observance of the rights of the defence is, in all proceedings liable to culminate in a measure adversely affecting a person, a general principle of Community law which the Commission must observe even in the absence of specific rules (Joined Cases C-48/90 and C-66/90 Netherlands and Others v Commission [1992] ECR I-565, paragraph 44, Case C-135/92 Fiskano v Commission [1994] ECR I-2885, paragraphs 39 and 40, and Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5373, paragraph 21).

139 The French Republic also considers that the Commission breached the rights of defence of Kaufring, Crown, Horten, Dr. Seufert, Grundig, Hertie, Lema and Masco inasmuch as, first, it did not indicate clearly to them in what respect it considered that they had not been diligent and, second, it did not give them an opportunity to express their views on that complaint. The intervener refers in that regard to Case T-346/94 France-Aviation v Commission [1995] ECR II-2841 and to Eyckeler & Malt, cited above at paragraph 87 (paragraph 78).

140 The Commission denies that it should have heard the applicants before adopting the contested decisions.

141 In the first place the procedure for remission of customs duties does not provide for formal participation by the interested party in the procedure for adopting the decision and in the second place the Court has confirmed on several occasions that the procedure affords the persons concerned all the necessary legal safeguards (Case 294/81 Control Data v Commission [1983] ECR 911, paragraph 17, Joined Cases 98/83 and 230/83 Van Gend and Loos and Bosman v Commission [1984] ECR 3763, paragraph 8 et seq., and CT Control (Rotterdam) and JCT Benelux, cited above at paragraph 35, paragraph 48). The reference to the procedures applicable in anti-dumping cases is likewise not such as to call into question the procedural rules applicable in this case, given the differences between these types of procedure.

142 Secondly, the Commission considers that the principles developed in Lisrestal (cited above at paragraph 138) are of no relevance to the present cases because they concern a different set of circumstances. The contested decision in that case was adopted by the Commission without the undertaking concerned having been heard beforehand either by the national administration or by the Commission. In the present cases the applicants were heard by their national administration and had access to all the essential factual data. Moreover, it based the contested decisions on the files forwarded by the national authorities, that is to say on factual elements which were known to the applicants and on which they could have given their views.

143 The Commission observes, thirdly, that in France-Aviation (cited above at paragraph 139) the Court of First Instance has already given thorough consideration to the question of the need for both parties to be heard in the course of the procedure for the remission of customs duties and did not find that the failure to provide for a hearing of the interested party by the Commission was improper. Moreover, in that judgment the Court of First Instance merely stated that the Commission is in breach of the audi alteram partem principle where it takes its decision on the basis of an incomplete file or where it does not take account of all the relevant facts because the national administration has not conducted a full hearing. According to the Commission such a situation did not arise in the various cases at issue here in so far as, first, the procedure prior to the adoption of the contested decisions was conducted properly, the applicants having been given every opportunity to express their views before the national administration, and second, all the elements which they considered essential were included in the files.

144 Following the judgment in France-Aviation, cited above in paragraph 139, the Commission introduced the system of declarations to be made by the interested party. Under that system, the national authorities must ask the interested party to confirm that he has taken cognisance of the file which they are to forward to the Commission and that he has nothing to add to it. In the absence of such a declaration, the application for remission cannot be considered. The Commission points out that in the present case all the applicants, apart from Grundig, Dr. Seufert and Crown, made such a declaration. As regards Grundig, Dr. Seufert and Crown, it is of no importance that they refused to make such a declaration since it is clear on comparison of the applications for remission which they submitted in the course of the administrative procedure and their applications for annulment of the decisions adopted following that procedure that, at the time of the adoption of those decisions, all the relevant facts were known both by the Commission and the national authority.

145 The Commission considers, fourthly, that the reference made by the French Republic to the principles outlined by the Court of First Instance in Eyckeler & Malt, cited above at paragraph 87, is not relevant because that judgment was based on facts different from those in the present cases. In that case the Court of First Instance found that the Commission was, in the event, the only party to have at its disposal all the necessary data to monitor the provisions on preferential treatment. That was not so in the present cases. Moreover, the Commission considers that observance of the rights of the defence does not necessarily require that a person who is likely to be adversely affected by the decision to be taken must be heard by the institution itself.

146 The Commission observes in that regard that there are many procedures in which the interested party is heard only by the national authorities and not by Commission staff. It cites by way of example the procedure for exemption from customs duties for imports of scientific apparatus and the case-law of the Court of Justice on observance of the rights of the defence in such a procedure (Control Data, cited above at paragraph 141, and Case 43/87 Nicolet Instrument [1988] ECR 1557).

147 The Commission observes, finally, that, as regards the remission of customs duties, observance of the rights of the defence during the national procedure should not be confused with observance of those rights during the Community procedure. If the interested party intends to contest the evidence forwarded by national authorities to the Commission, it is for that party to bring the matter before the national courts.

2. Findings of the Court

148 As a preliminary point, it should be noted that the administrative customs procedure for the remission of import duties, as laid down by Regulation No 2454/93, takes place initially at national level. The person liable must submit his application for remission to the national administration, which must take a decision pursuant to Articles 899 et seq. of Regulation No 2454/93, which define a number of situations in which remission may or may not be granted. Such a decision may be reviewed under Article 243 of the Customs Code by the national courts, which may refer questions to the Court of Justice under Article 177 of the EC Treaty (now Article 234 EC) (see in particular Case C-64/89 Deutsche Fernsprecher [1990] ECR I-2535, paragraph 13).

149 However, where the national authority considers that it is unable to make a decision on the basis of the above provisions and the application for remission is accompanied by evidence which might indicate the existence of a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, it transmits the case to the Commission (Article 905 of Regulation No 2454/93). In this second stage, which takes place exclusively at Community level, the Commission, after consulting a group of experts composed of representatives from all the Member States, decides whether remission is justified. That decision may be subject to review by the Court of Justice under the fourth paragraph of Article 173 of the EC Treaty (now, after amendment, the fourth paragraph of Article 230 EC).

150 Thus, Regulation No 2454/93 provides only for contact between the applicant for the remission and the national authority on the one hand and between the national authority and the Commission, on the other. There is no provision for direct contact between the applicant for remission and the Commission (France-Aviation, cited above at paragraph 139, paragraph 30).

151 However, it should be borne in mind that, according to settled case-law, observance of the rights of the defence in all proceedings which are initiated against a person and are liable to culminate in a measure adversely affecting that person is a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question (Netherlands, cited above at paragraph 138, paragraph 44, Fiskano, cited above at paragraph 138, paragraph 39, and Lisrestal, cited above at paragraph 138, paragraph 21).

152 In view of the power of assessment enjoyed by the Commission when it adopts a decision pursuant to the general equitable provision contained in Article 13 of Regulation No 1430/79, it is all the more important that observance of the right to be heard be guaranteed in procedures for the remission or repayment of import duties (France-Aviation, cited above at paragraph 139, paragraph 34, Eyckeler & Malt, cited above at paragraph 87, paragraph 77; Case T-50/96 Primex Produkte Import-Export and Others v Commission [1998] ECR II-3773, paragraph 60, and Case T-290/97 Mehibas Dordtselaan v Commission [2000] ECR II-15, paragraph 46; see also to that effect the Opinion of Advocate General Mischo in Case C-15/99 Hans Sommer [2000] ECR I-8989, paragraphs 78 to 86). That conclusion is particularly apt where, in exercising its exclusive authority under Article 905 of Regulation No 2454/93, the Commission proposes not to follow the opinion of the national authority as to whether the conditions laid down by Article 13 of Regulation No 1430/79 have been met (France-Aviation, cited above at paragraph 139, paragraph 36).

153 The principle of observance of the rights of the defence requires that any person who may be adversely effected by a decision be placed in a position in which he may effectively make his views known, at least as regards the evidence on which the Commission has based its decision (see to that effect Fiskano, cited above at paragraph 138, paragraph 40, and Lisrestal, cited above at paragraph 138, paragraph 21).

154 It is clear that in the present cases none of the applicants was placed in a position, before the contested decisions were adopted, to take a stance and make known its views adequately on the evidence relied upon by the Commission in deciding that remission was not justified.

155 That is all the more regrettable because the Commission proposed not to follow the view of the national authorities as to whether the conditions laid down in Article 13(1) of Regulation No 1430/79 had been met, in particular as to whether any obvious negligence could be attributed to the applicants.

156 In the file which they transmitted to the Commission, following the applications submitted by Masco and Lema, the French authorities made clear that the error could not have been detected by those importers, so that they had to be considered to have acted in good faith. Similarly, in Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97 and T-293/97 the German authorities had taken the view that no deception or obvious negligence could be attributed to the applicants. Finally, in Cases T-279/97 and T-280/97, the Netherlands authorities took the view that the applicants acted in good faith and no negligence could be attributed to them.

157 The Commission stated for the first time in the contested decisions both that the legislation in question was known and relatively straightforward concerning the conditions for the issue of an A.TR.1 certificate and the firm concerned could not therefore have been unfamiliar with it and that a diligent operator should have had serious doubts as to the validity of the [A.TR.1] certificates. In reply to a written question from the Court of First Instance the Commission indicated that it considered that all the applicants had clearly been negligent in that respect.

158 The Commission also stated for the first time in the contested decisions that it considered that the Turkish customs authorities which issued the A.TR.1 certificates had been misled by the erroneous declarations made by the Turkish exporters without the applicants in question having been informed beforehand of that key finding.

159 In adopting the contested decisions without the applicants in question here having been placed in a position beforehand to make known adequately their views regarding those complaints, the Commission breached their rights of defence.

160 That conclusion is not affected by the fact that most of the applicants made a declaration that the file which the national authorities transmitted to the Commission was complete and they had nothing to add. As the Court of First Instance held in Mehibas Dordtselaan (cited above at paragraph 152), paragraph 44, whilst that mechanism effectively enables the person concerned to exercise his right to be heard during the first stage of the administrative procedure, which takes place at national level, it in no way guarantees his rights of defence during the second stage of the procedure, which takes place before the Commission once the national authorities have communicated the case to it. The statement is made at a stage when the Commission has not yet had an opportunity to consider the position of the person concerned, let alone come to a provisional view on his application for repayment.

161 Further, it must be emphasised that it matters little whether, as the Commission contends, the contested decisions are solely based on the files forwarded by the national authorities, that is to say on facts which were known to the applicants and on which they had been able to express their views. Even if that contention is correct, the mere fact that the defendant proposed not to follow the view of the national authorities and to decide that the remission of duties was not justified in the case of the applicants placed it under an obligation to inform them of the reasons why it intended to make that decision and to place them in a position to make known their views on those reasons.

162 In the light of the foregoing, it must be concluded that, since none of the applicants was placed in a position to take a stance and to make known its views on the relevance of the evidence used against it, the procedure leading to the adoption of the contested decisions in Cases T-186/97, T-187/97, T-190/97, T-191/97, T-192/97, T-210/97, T-211/97, T-216/97, T-217/97, T-218/97, T-279/97, T-280/97 and T-293/97 was flawed.

163 The plea of breach of the rights of the defence is therefore well founded as regards those decisions.

C - On the breach of the rights of the defence as regards Case T-147/99

1. Arguments of Miller

164 It is common ground between Miller (T-147/99) and the Commission that, unlike the contested decisions in the other joined cases, the contested decision in this case was adopted under the new procedure laid down in Articles 872a (as regards non-recovery) and 906a (as regards remission) of Regulation No 2454/93, which provides for the interested party to be heard prior to the adoption of a decision which is not in its favour (see above, paragraphs 40 and 45). It was in accordance with those provisions that the Commission communicated to Miller, by letter of 24 November 1998, the evidence in the light of which the non-recovery and remission of the import duties claimed by that company appeared to it to be unjustified. By letter of 22 January 1999, the company made known its views on that evidence.

165 However, Miller submits that its rights of defence were breached in the administrative procedure in that the Commission refused it access to certain documents. This plea is in two parts.

166 In the first part, Miller submits that the Commission breached its rights of defence in so far as it did not give it access, in the administrative procedure, to the documents on which it was to base the contested decision.

167 Miller argues that in Eyckeler & Malt (cited above at paragraph 87), paragraph 80, the Court of First Instance confirmed that the principle of observance of the rights of the defence requires not only that the person concerned be placed in a position in which he may effectively make known his views on the relevance of the facts held against him to justify the contested decision, but also that he be able to put his own case on the documents on which the Community institution based that decision.

168 In particular, Miller takes the view that the Commission breached those requirements in not allowing it access to the mission report and the other documents relating to that mission. It submits that it is clear from the fourth and fifth recitals of the contested decision that it is based on the results of that mission. It observes, moreover, that the ground relied on in support of that refusal to allow access, that is to say that disclosure of the mission report was not necessary in that it merely confirmed that the A.TR.1 certificates were invalid, a fact which was not disputed by the national authorities, is not a valid one. Miller alleges that this ground is not based on fact. Contrary to what is suggested by the Commission, the facts on which it based its assessment (that is to say, that the Turkish customs authorities were misled by the false statements made by exporters) were not apparent from other documents which Miller might have seen and those facts were clearly disputed by the Belgian authorities. It was also mistaken in law in so far as it is settled case-law that it is not open to the Commi