Case T-329/00

Bonn Fleisch Ex- und Import GmbH

v

Commission of the European Communities

‛Customs duty — Import of beef from South America — Article 13(1) of Regulation (EEC) No 1430/79 — Application for remission of import duties — Rights of the defence — Special situation’

Judgment of the Court of First Instance (Third Chamber), 27 February 2003 II-291

Summary of the Judgment

Community law — Principles — Rights of the defence — Administrative procedure for the remission of import duties — Obligation of the Commission, acting on its own initiative, to grant the person concerned access to all the documents on which it based its decision — No such obligation — Person concerned must request such access — Obligation to exercise diligence

Observance of the right to be heard must be guaranteed in procedures for the remission of import duties, in particular 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 on the repayment or remission of import or export duties. (see para. 45)

In the context of an administrative procedure for the remission of import duties, the principle of respect for the rights of the defence implies only that the party concerned be placed in a position in which it may effectively make its views known as regards the evidence, including the documents, on which the Commission has based its decision. That principle therefore does not require the Commission, acting on its own initiative, to grant access to all the documents which may have some connection with the case at issue when an application for remission is referred to it. If the party concerned considers that such documents are relevant for establishing the existence of a special situation and/or the lack of deception or obvious negligence on its part, then it is for the party concerned itself to request access to those documents in accordance with the provisions adopted by the institutions under Article 255 EC. In effect, while the principle of respect for the rights of the defence imposes on the Commission a number of procedural obligations, it also implies a certain amount of diligence on the part of the party concerned. Accordingly, if the party concerned considers that its rights of defence have not been respected, or have not been adequately respected, in the administrative procedure, it is for that party to take the measures necessary to ensure that they are respected or, at the very least, to inform the competent administrative authority of that situation in good time. (see paras 46-47)

The right to access to the file in the context of a procedure for the remission of import duties does not imply, for the interested company, the right to make photocopies of confidential documents. An interested party does not, in principle, even have the right to consult the full text of confidential documents. Generally, regarding confidential documents, a party's right of access to the file is limited to access to a non-confidential version or summary of the documents in question. (see para. 59)

Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or export duties, according to which the person liable to pay customs duties who demonstrates both the existence of a special situation and the absence of obvious negligence and deception on his part is entitled to the remission of those duties, constitutes a general equitable provision intended to apply where the circumstances characterising the relationship between a trader and the administration are such that it would be inequitable to require the trader to bear a loss which it normally would not have incurred. 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. In order to determine whether the circumstances of the case in question constitute a special situation within the meaning of that provision, the Commission must assess all the relevant facts. Although in that regard it enjoys a power of discretion, 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 bona fide importer in not suffering harm which goes beyond normal commercial risk. Consequently, when considering whether an application for remission is justified, the Commission cannot take account simply of the conduct of importers. It must also assess the impact on the resulting situation of its own conduct and the conduct of the national customs authorities. (see paras 61-62, 64, 71)