Action brought on 10 November 2011 — Schenker Customs Agency v Commission

(Case T-576/11)

(2012/C 25/109)

Language of the case: Dutch

Parties

Applicant: Schenker Customs Agency BV (Rotterdam, Netherlands) (represented by: A. Jansen and J. Biermasz, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the European Commission’s decision of 27 July 2011 in Case REM 01/2010;

— declare that the remission of the post-clearance duties is well founded.

Pleas in law and main arguments

Between 19 February 1999 and 19 July 2001, the applicant, as a customs agent, submitted 52 declarations in its own name for the release for free circulation of the product glyphosate. ‘Taiwan’ is referred to as the country of origin on all the declarations. It appeared, following an investigation by OLAF, that the glyphosate declared was of Chinese rather than Taiwanese origin. Consequently, anti-dumping duties claimed by the Netherlands customs authorities are due.

The applicant claims that the European Commission was wrong to decide that remission of the import duties was not well founded.

In support of the action, the applicant relies on six pleas in law.

1. In the applicant’s submission, the European Commission was wrong to consider that breach of the rights of the defence, the late post-clearance recovery of duties and the fact that Schenker was not able to make declarations as a direct representative are arguments that relate to the existence of the customs debt itself. According to the applicant, those arguments could well constitute a specific situation as referred to in Article 239 of Regulation No 2913/92 (1) and ought therefore to have been assessed on the substance.

2. In the applicant’s submission, the European Commission was wrong to take the view that the issue of certificates of incorrect origin by the Taiwanese Chambers of Commerce could not constitute a specific situation for the purposes of Article 239 of Regulation No 2913/92.

3. The European Commission was wrong to take the view that its conduct in this case does not constitute a specific situation for the purposes of Article 239 of Regulation No 2913/92. The applicant submits however that the European Commission did not exercise any effective control over the fraud investigation and did not coordinate the case.

4. The European Commission was wrong to take the view that the conduct of the Netherlands authorities did not result in the applicant being placed in a specific situation. The applicant states that the European Commission failed to have regard to the fact that the Netherlands authorities did not act properly given that they were aware of the commission of fraud through the importation of glyphosate from Taiwan.

5. The European Commission was moreover wrong to consider that the applicant did not exercise all the diligence that can normally be expected of a customs agent and that remission is not therefore justified. The applicant states that no fraudulent conduct or obvious negligence can be alleged against it and refers in that regard to the decision of the Customs Chamber of the Gerechtshof Amsterdam of 18 December 2008 (see paragraph 5.2.3 of the decision).

6. The European Commission erred in not investigating all the relevant facts and circumstances.

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).