JUDGMENT OF THE COURT (First Chamber)

22 March 2012 ( *1 )

‛Appeal — Customs union — Regulation (EEC) No 2913/92 and Regulation (EEC) No 2454/93 — Remission of import duties — Consignments of tobacco and ethyl alcohol for third countries — Fraud committed by an employee of the company liable’

In Case C-506/09 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 4 December 2009,

Portuguese Republic, represented by L. Inez Fernandes, acting as Agent,

appellant,

supported by:

Kingdom of Spain, represented by M. Muñoz Pérez, acting as Agent, with an address for service in Luxembourg,

intervener in the appeal,

the other parties to the proceedings being:

Transnáutica — Transportes e Navegação SA, established in Matosinhos (Portugal), represented by C. Fernández Vicién, abogada, D. Ortigão Ramos, advogado, I. Moreno-Tapia Rivas, abogada, P. Vidal Matos, advogado, and M. López Garrido, adogada,

applicant at first instance,

European Commission, represented by R. Lyal and L. Bouyon, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, A. Borg Barthet (rapporteur), M. Ilešič, J.-J. Kasel and M. Berger,

Advocate General: J. Mazák,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its appeal, the Portuguese Republic asks the Court to set aside the judgment of the Court of First Instance of the European Communities (now the ‘General Court’) of 23 September 2009 in Case T-385/05 Transnáutica v Commission (the ‘judgment under appeal’), by which that court annulled Commission Decision REM 05/2004 of 6 July 2005 refusing Transnáutica — Transportes e Navegação SA the reimbursement and remission of certain customs duties (the ‘contested decision’).

Legal context

External Community transit procedure

2 Under Articles 37, 91 and 92 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’), non-Community goods brought into the European Community which, instead of being subject to import duties immediately, are placed under the external Community transit procedure may, under customs supervision, move from one point to another within the customs territory of the Community and will be released for free circulation only at the customs office of destination.

3 The person in whom the rights and obligations in respect of the external Community transit procedure are vested is defined by the Customs Code as ‘the principal’. In that capacity, he must produce the goods intact at the customs office of destination by the prescribed time-limit and must observe the provisions relating to the Community transit procedure (Article 96 of the Customs Code). Those obligations end when the goods and the corresponding documents are produced at the customs office of destination (Article 92 of the Customs Code).

4 Under Articles 341, 346, 348, 350, 356 and 358 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1; ‘the Implementing Regulation’), the goods in question must first be presented at the customs office of departure together with a T1 declaration. The office of departure prescribes the period within which the goods must be presented at the office of destination, enters the necessary particulars on the T1 declaration, retains its own copy and returns the other copies to the principal. The goods are transported under cover of the T1 document. After presentation of the goods, the office of destination records on the copies of the T1 document the details of controls carried out and sends back a receipt without delay. Articles 361 et seq. of the Implementing Regulation, in the version applicable in the present case, state that the receipt issued by the office of destination, at the request of the person presenting Copies 4 and 5 of the transit declaration, is to be returned to the office of departure through a central office.

5 The customs supervision to which goods transported under the external Community transit procedure are subject comes to an end when the goods are released for free circulation, in particular as a result of the payment of import duties (Articles 37(2) and 79 of the Customs Code). If the goods are prematurely removed from customs supervision, a customs debt on importation is immediately incurred (Article 203(1) and (2) of the Customs Code). Liability for that debt lies not only with the person who removed the goods from customs supervision, but also with the person required to fulfil the obligations arising from the use of the customs procedure under which those goods were placed (Articles 203(3) and 213 of the Customs Code), namely, the principal.

6 Under Article 379(1) of the Implementing Regulation, where a consignment has not been presented at the office of destination and the place where the offence or irregularity occurred cannot be established, the office of departure is to notify the principal of this fact as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration.

Comprehensive security for the customs debt

7 Under Article 94(1) of the Customs Code, the principal must provide a guarantee in order to ensure payment of any customs debt or other charges which may be incurred in respect of the goods. In that connection, Article 191 of that code states that, at the request of the person who is liable or who may become liable, the customs authorities are to allow comprehensive security to be provided to cover two or more operations in respect of which a customs debt has been or may be incurred.

8 Under Article 198 of the Customs Code, where the customs authorities establish that the security provided does not ensure, or is no longer certain or sufficient to ensure, payment of the customs debt within the prescribed period, they are to require the person who is liable or may become liable, at his option, to provide additional security or to replace the original security with a new security.

9 In accordance with Article 361 of the Implementing Regulation, the amount of the comprehensive guarantee is to be set at least at 30% of the duties and other charges payable, or at a level equal to the full amount of duties and other charges payable, where the guarantee is intended to cover external Community transit operations concerning goods listed in Annex 53 of that regulation, which include cigarettes and alcohol. However, Article 361 provides that, in that situation, the customs authorities may in exceptional cases set the amount of the guarantee at 50% of the duties and other charges payable.

10 The comprehensive guarantee is to be lodged with an office of guarantee; that office is to determine the amount of the guarantee, accept the guarantor’s undertaking and issue an authorisation allowing the principal to carry out, within the limits of the guarantee, any Community transit operation irrespective of the office of departure. For that purpose, each person who has obtained authorisation is to be issued with a guarantee certificate (Article 362 of the Implementing Regulation). On issue of the certificate of guarantee or at any time during the validity thereof, the principal is, on his own responsibility, to designate on the reverse of the certificate the person or persons authorised to sign Community transit declarations on his behalf. The principal may at any time delete the name of an authorised person (Article 363 of the Implementing Regulation). Under Article 364 of the Implementing Regulation, any person named on the reverse of a guarantee certificate presented at an office of departure is to be deemed to be the authorised representative of the principal.

Remission of import duties

11 As the application for remission of import duties was lodged on 27 September 2004, the applicable legislation is Chapter 3 of Title IV of Part IV of the Implementing Regulation, which contains specific provisions relating to the application of Article 239 of the Customs Code, in the version in force at that date.

12 Article 239 of the Customs Code reads as follows: ‘1. Import duties or export duties may be repaid or remitted in situations other than those referred to in Articles 236, 237, and 238: — to be determined in accordance with the procedure of the committee; — resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the Committee procedure. Repayment or remission may be made subject to special conditions. 2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office …’.

Background to the dispute

13 Transnáutica — Transportes e Navegação, SA (‘Transnáutica’) is a Portuguese freight transportation company which had the status of authorised consignee during the period in which the operations in question, which were liable to customs duty, were carried out under the external Community transit procedure.

14 Between 14 April 1994 and 12 October 1994, the customs authorities of Xabregas (Portugal), as the customs office of departure, processed 68 transit declarations (in which Transnáutica was the designated principal) for the movement within the customs territory of the European Union of 64 consignments of tobacco and 4 consignments of denatured ethyl alcohol under the external Community transit procedure. In some cases, the ‘Copies No 5’ of the 68 T1 transit declarations were never returned to the customs office of departure while, in others, the T1 declarations were returned with stamps and signatures which were later discovered to be false.

15 From August 1994 the Portuguese authorities were ordered to keep under observation certain lorries and the movements of the goods they were carrying in order to discover the source of the false stamps on the Copies No 5 of the T1 declarations.

16 Between January 1995 and January 1996 the Portuguese authorities sent Transnáutica copies of the T1 declarations, asking it to provide evidence that it had acted duly and lawfully throughout the external Community transit procedure and demanding payment of the relevant customs debts, as the applicant had been designated as principal in respect of the external transit declarations in question. Furthermore, the guarantee certificate had been issued in its name.

17 In its reply of 23 March 1995, Transnáutica stated that it had been unaware of the transit operations, involving cigarettes and ethyl alcohol, carried out in its name. Following an internal investigation, it had found that one of its employees had been acting fraudulently by signing T1 declarations for smuggling operations, without the company’s knowledge.

18 The employee in question was dismissed and subsequently found guilty of repeated breach of trust by a judgment of the Tribunal Criminal de Lisboa (Criminal Court of Lisbon, Portugal) in December 1999. The criminal investigation opened in respect of Transnáutica was closed in September 2005, on the ground that the company had been unaware of its employee’s actions and that its representatives had had nothing to do with the fraud in question.

19 On 17 November 2003, Transnáutica applied to the Portuguese authorities for the repayment and remission of the customs debt. By letter of 27 September 2004, in accordance with Article 906 et seq. of the Implementing Regulation, the Portuguese Government forwarded that application to the Commission of the European Communities which, by letter of 23 December 2004, informed Transnáutica of its intention, following a preliminary examination of the file, to refuse the application. Transnáutica was given access to the file at the Commission’s offices on 19 January 2005 and, by letter of the same date to the Commission, Transnáutica made known its position on the Commission’s intention to refuse the application.

20 On 6 July 2005, pursuant to Article 907 of the Implementing Regulation, the Commission adopted the contested decision — notified to Transnáutica on 12 August 2005 by letter of the Portuguese Ministry of Finance and Public Administration — refusing the application and stating that there was no justification for repayment and remission of the customs debt, on the ground that Transnáutica was not in a special situation for the purposes of Article 239 of the Customs Code.

The procedure before the General Court and the judgment under appeal

21 By application lodged at the Registry of the General Court on 21 October 2005, Transnáutica brought an action for the annulment of the contested decision and the award of costs against the Commission.

22 In support of its action, Transnáutica relied on five pleas in law: (i) breach of essential procedural requirements; (ii) manifest error of assessment in the application of Article 239 of the Customs Code; (iii) failure to state sufficient reasons, contrary to Article 253 EC; (iv) breach of the principles of sound administration and respect for the rights of the defence; and (v) breach of the principle of proportionality.

23 First of all, it should be noted that, in its assessment, the General Court considered only the third part of the second plea in law relied on in support of the action, by which Transnáutica argued that the Portuguese customs authorities had failed to fulfil their obligations in relation to the comprehensive guarantee which it had lodged to cover its transit operations.

24 By the judgment under appeal, the General Court annulled the contested decision and ordered the Commission to pay the costs.

25 The General Court found, in paragraph 44 of the judgment under appeal, that, pursuant to Articles 191 and 198 of the Customs Code, where the customs authorities establish that the security provided does not ensure, or is no longer certain or sufficient to ensure, payment of the customs debt, they are to require the principal to provide additional security or to replace the original security with a new security.

26 In that connection, in paragraph 45 of the judgment under appeal, the General Court held as follows: ‘Action and supervision on the part of the competent national customs authorities are essential, not only at the time of the setting up of the guarantee certificate, but also each time a comprehensive guarantee, intended to cover several transit operations, is used to effect and cover those.’

27 In paragraphs 46 to 48 of the judgment under appeal, the General Court considered the facts of the present case concerning the comprehensive guarantee provided by Transnáutica and found that the customs authorities had accepted an insufficient guarantee for the 68 T1 declarations at issue. In paragraph 48, the General Court held as follows: ‘Clearly, the Portuguese customs authorities accepted an insufficient guarantee for the 68 T1 declarations at issue. As [Transnáutica] claimed at the hearing, without being contradicted by the Commission, taking into consideration all the T1 declarations made on the same day, the comprehensive guarantee never covered more than 7.29% of the duties and charges. On the other hand, if each declaration is analysed separately, the guarantee certificate would cover all the duties payable only in respect of three of the declarations at issue. In that case, however, other T1 declarations must be considered to have been issued on the same date without having sufficient guarantee coverage.’

28 In paragraph 49 of the judgment under appeal, the General Court concluded as follows: ‘Had the Portuguese customs authorities verified, at the time of issue of the T1 declarations, whether the amount of the duties and other charges that might be incurred for each cargo was covered by the comprehensive guarantee provided by the applicant, the 68 T1 declarations could not have been issued.’

29 In paragraph 50 of the judgment under appeal, the General Court rejected the Commission’s argument that there is no causal connection between a customs debt being incurred and acceptance of a comprehensive guarantee certificate that is invalid on account of its low amount, and then held, in the same paragraph, that ‘acceptance at the time when the T1 declarations are issued of too low a guarantee, the amount of which could clearly not cover all the duties and other charges payable, constitutes a defect in the T1 declaration issuing procedure’.

30 In paragraphs 51 and 52 of the judgment under appeal, the General Court confirmed the importance of the comprehensive guarantee for the proper functioning of the external Community transit system. In that connection, it found that intervention on the part of the competent national customs authorities when the T1 declarations are issued constitutes a fundamental step in the procedure which allows any irregularities to be detected.

31 The General Court found, in paragraphs 54 and 55 of the judgment under appeal, that Transnáutica had taken sufficient precautions to avoid transit operations of high value being carried out under a comprehensive guarantee and that the lack of monitoring on the part of the customs authorities at an initial and fundamental stage of the external Community transit procedure enabled 68 T1 declarations to be issued that were not covered by the guarantee certificate, and fraudulent acts to be carried out without that undertaking’s knowledge, the latter having put in place all the mechanisms necessary to prevent wrongful use of the guarantee.

32 In paragraphs 56 and 57 of the judgment under appeal, the General Court considered the obligations on the customs authorities in relation to assessing the amount of the guarantee. In that context, it found that the fact that the economic operator was known and that Transnáutica had never previously marketed sensitive goods such as tobacco and ethyl alcohol are circumstances which should have attracted closer scrutiny from the customs authorities and did not — as the Commission contended — justify an easing of the monitoring. Accordingly, in paragraph 58 of that judgment, the General Court held as follows: ‘...to burden [Transnáutica] with a customs debt resulting from the choice of those authorities, connected, as the case may be, with the prosecution of infringements, would be inimical to the objective of the fairness clause which underlies Article 905 of the Implementing Regulation, inasmuch as [Transnáutica] would find itself thus placed in a special situation that would go beyond the normal commercial risk relating to its business (see, to that effect, [Case C-61/98] De Haan [[1999] ECR I-5003, paragraph 53], Case C-62/05 P Nordspedizionieri di Danielis Livio and Others v Commission [2007] ECR I-8647, paragraph 51, and [Case T-205/99] Hyper v Commission [[2002] ECR II-3141, paragraph 95]).’

33 On the basis of those considerations, in paragraphs 59 to 61 of the judgment under appeal, the General Court held as follows: ‘59 The conclusion must therefore be drawn that the lack of diligence on the part of the Portuguese customs authorities when they carried out their monitoring task, which precedes the issue of T1 declarations, in particular, as regards the fixing and monitoring of the amount of the comprehensive guarantee, undermined the verification system provided for under the external Community transit system by the Customs Code and the Implementing Regulation and therefore denied [Transnáutica] any real opportunity to detect the fraud before it was committed. 60 That lack of diligence is the responsibility of the Portuguese customs authorities and puts [Transnáutica] in a special situation that goes beyond the normal commercial risk relating to its business. 61 It follows from the foregoing that the Commission committed a manifest error of assessment in finding that [Transnáutica] was not in a special situation as far as concerns the breach of the obligation to monitor the validity and amount of the comprehensive guarantee on the part of the Portuguese customs authorities.’

Proceedings parallel to the appeal and forms of order sought by the parties

34 At the same time as it lodged the present appeal, the Portuguese Republic instituted third-party proceedings, pursuant to Article 123 of the Rules of Procedure of the General Court, to contest the judgment under appeal. It also requested the Court of Justice to stay the appeal proceedings pending the decision of the General Court on the application initiating third-party proceedings.

35 By order of 29 April 2010 the Court of Justice granted the application to stay the appeal proceedings. The General Court dismissed the application initiating third-party proceedings by order of 6 September 2010 in Case T-385/05 TO Portugal v Transnáutica and Commission.

36 The Portuguese Republic claims that the Court should: — set aside the judgment under appeal, and — order Transnáutica to pay the costs.

37 Transnáutica contends that the Court should: — dismiss the appeal as manifestly inadmissible; — in the alternative, dismiss it as clearly unfounded, and — order the Portuguese Republic to pay the costs.

38 By application lodged at the Court Registry on 23 April 2010, the Kingdom of Spain sought leave to intervene in the present proceedings in support of the form of order sought by the Portuguese Republic. By order of the President of the Fifth Chamber of the Court of 20 September 2010, it was granted leave to intervene in these proceedings.

The appeal

Arguments of the parties

39 In support of its appeal, the Portuguese Republic puts forward a single ground of appeal, alleging infringement by the General Court of Article 239 of the Customs Code, on the ground that it erred in finding that there was a special situation fulfilling the conditions for repayment laid down by that article. That single ground of appeal is divided into three parts, by which the Portuguese Republic complains that the General Court: — infringed European Union law by finding that the Portuguese customs authorities had erred in the setting and subsequent monitoring of the comprehensive guarantee used in the transit operations at issue; — erred in finding that there is a causal link between those errors and the later fixing of the customs debt because of the removal of the goods from customs supervision; and — erred in finding that Transnáutica had taken the precautions necessary for the purpose of avoiding the use of the comprehensive guarantee in transit operations involving high values.

40 According to the Portuguese Republic, it must be borne in mind that, in the present case, the comprehensive guarantee was set in 1993, that is to say, at a date when the provisions for the implementation of the Customs Code were not yet applicable, as is apparent from Article 915(2) of the Implementing Regulation. At that date, the amount of the comprehensive guarantee had to be fixed according to the rules laid down by Article 34(B) of Commission Regulation (EEC) No 1214/92 of 21 April 1992 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure (OJ 1992 L 132, p. 1), as amended by Commission Regulation (EEC) No 3712/92 of 21 December 1992 (OJ 1992 L 378, p. 15).

41 As regards the monitoring of the comprehensive guarantee, the Portuguese Republic submits that the General Court infringed European Union law by holding that the Portuguese customs authorities were obliged to ascertain that the comprehensive guarantee provided covered the amount of import duties due. In addition, it disputes the General Court’s finding that, following that verification, the customs authorities ought to have required Transnáutica to provide additional security, having regard to the amount of the customs debt that might be incurred, which would have enabled that undertaking to discover the fraudulent acts of its employee.

42 The Portuguese Republic submits that Article 198 of the Customs Code requires only that the customs authorities ascertain whether the amount of import duties that might be incurred is greater than the amount of the guarantee provided. According to that Member State, the General Court contravened European Union law by considering that that article required the customs office of departure to establish, at the time of the transit operation, that the comprehensive guarantee covered not only the amount of customs duties involved but also other charges that might be incurred.

43 For those reasons, the Portuguese Republic submits, in the third part of its single ground of appeal, that it may legitimately be concluded that the measures taken by Transnáutica would not have prevented its employee being able to provide additional security by means of a cash deposit making it possible to cover the amount of import duties in question and, in consequence, to carry out the transit operations declared which have given rise to the present dispute.

44 In its response, Transnáutica contends, first, that the grounds of the appeal lodged by the Portuguese Republic are manifestly inadmissible.

45 In Transnáutica’s view, the arguments advanced by the Portuguese Republic must be rejected as, first, the Portuguese Republic does not prove that the General Court made an error which led to a substantive inaccuracy or distortion of the facts and, second, it is not the task of the Court of Justice to reconsider facts already reviewed by the General Court, much less to rule on a case on the basis of hypothetical facts which did not exist. Similarly, the appeal does not raise any questions of law.

46 In the alternative, Transnáutica contends that, should the Court of Justice consider, quod non, that the appeal as a whole is not manifestly inadmissible, the pleas in law raised by the Portuguese Republic should in any event be dismissed as clearly unfounded.

47 As regards the issues concerning the setting of the amount of the comprehensive guarantee, Transnáutica contends that — contrary to what the Portuguese Republic claims — since the Implementing Regulation was applicable as from 1 January 1994, it covered the T1 declarations in question which were issued between 14 April and 12 October 1994.

48 In addition, the Portuguese Republic’s argument that the General Court based its decision on the fact that the guarantee ought to have amounted to 100% of the customs debt must be regarded as clearly unfounded. For, in view of the amount actually accepted by the Portuguese authorities, the judgment under appeal would not have been altered even if Regulation No 1214/92, as amended by Regulation No 3712/92, were applicable to the present case. The Portuguese Republic’s negligence cannot be contested in this respect.

49 As regards the monitoring of the comprehensive guarantee, Transnáutica disputes the Portuguese Republic’s interpretation that the obligation to monitor the guarantee ‘has no legal basis whatsoever’.

50 In that connection, Transnáutica contends that the comprehensive guarantee is intended to ensure payment of the customs debt or other charges which may be incurred in respect of the goods in transit and, thus, needs to cover the amount of the customs debt not the value of the goods. There is therefore no need for any specific legal provision requiring the national customs authorities to monitor the comprehensive guarantee. Transnáutica contends that it is the duty of the customs authorities to ensure that the setting of a guarantee covers the payment of the debt to avoid any irregularities.

51 Transnáutica contends that Article 198 of the Customs Code must be interpreted in the light of the principle of cooperation in good faith, in accordance with which the Member States are to take any appropriate measure — whether general or specific in nature — to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the European Union. Consequently, even if the obligation to monitor the comprehensive guarantee is not expressly mentioned, national customs authorities must be able to monitor the adequacy of that guarantee. Transnáutica contends that, otherwise, the fulfilment of Article 198 of the Customs Code would not be ensured and the principle of cooperation in good faith would be circumvented.

52 Transnáutica contends that to uphold the ground of appeal relied on by the Portuguese Republic would be tantamount to conceding that Member States are obliged to apply European Union law only when a provision expressly requires them to do so. Such an interpretation would call in question the system of the division of powers within the European Union. For that reason alone the ground should be rejected as clearly unfounded.

53 Lastly, as regards the third part of the single ground relied on in support of the appeal, Transnáutica contends that the question of which national customs authorities were responsible for the lack of diligence in the setting and monitoring of the guarantee — the Portuguese, the Spanish and/or any other Member State’s customs authorities — never entails Transnáutica’s liability. The third part of the ground of appeal must therefore be rejected as clearly unfounded.

54 In its statement in intervention, the Kingdom of Spain submits that the General Court erred in law in converting an administrative power provided for under Articles 6 and 198 of the Customs Code, whose exercise by the authorities is optional, into an obligation on the part of the latter which affects the creation of a customs debt. In the Kingdom of Spain’s view, such an interpretation is possible only in those cases in which the legislation makes express provision to that effect and sets out the legal effects on the debt of the party concerned.

55 In the Kingdom of Spain’s submission, converting administrative monitoring powers into obligations affecting the creation of a customs debt would require customs authorities to work on the principle of the prior authorisation of each transaction, which would be contrary to the general principle applied in modern States, which is the principle of minimum intervention on the basis that the parties carry out their transactions lawfully.

56 In addition, bearing in mind that each customs transaction requires a prior request from the interested party, were the criterion of the judgment under appeal to be applied, the conclusion would be that, barring an exceptional case such as the introduction of goods into a customs territory without their being presented to customs, all fraud would be prevented if the monitoring power conferred on the customs authorities were exercised. Thus, in the event of fraud, the authorities would be liable and have to exempt the party which committed the fraud.

57 In the Kingdom of Spain’s submission, the relevant issue for the purposes of assessing the validity of the contested decision pursuant to Article 905 et seq. of the Implementing Regulation is the appraisal of the debtor’s conduct in relation to the circumstances underlying the taxable event giving rise to the customs debt.

58 In its response, the Commission states that it considered it desirable, for the sake of precision, to make certain observations regarding some of the arguments raised in the appeal, but that since it did not itself appeal against the judgment of the General Court, it did not wish to take a position on the appeal by the Portuguese Republic.

Findings of the Court

Admissibility

59 Transnáutica raises a plea of inadmissibility, contending that, by submitting exactly the same text in support of both its application initiating third-party proceedings and its appeal, the Portuguese Republic in actual fact requests the Court to re-examine points of fact, and not points of law, contrary to Article 256 TFEU.

60 In that connection, although it is true that the Portuguese Republic relies, in the present appeal, on the same arguments as those advanced in support of its application initiating third-party proceedings which it brought before the General Court, that fact is not sufficient of itself to find that the appeal is inadmissible without depriving that Member State of a legitimate means of seeking redress. That is particularly true since in the present case the General Court did not uphold the Portuguese Republic’s submissions and did not examine the arguments relied on by the Portuguese Republic in support of that application.

61 In addition, contrary to what Transnáutica claims, the Portuguese Republic’s appeal does not concern the General Court’s assessment of the facts but rather its assessment that the legal conditions for applying Article 239 of the Customs Code are fulfilled in circumstances such as those of the present case. That assessment of the General Court may be examined by the Court of Justice in an appeal (see, to that effect, Case C-204/07 P C.A. S. v Commission [2008] ECR I-6135, paragraph 83).

62 Consequently, the plea of inadmissibility raised by Transnáutica must be rejected.

Substance

63 By its appeal, the Portuguese Republic disputes the General Court’s findings that a special situation exists, for the purposes of Article 239 of the Customs Code, when the customs authorities of a Member State err in the setting and subsequent monitoring of the amount of the comprehensive guarantee which must be provided in relation to a particular group of transactions.

64 In support of its appeal the Portuguese Republic raises a single ground of appeal divided into three parts. First, it submits that the General Court’s statement that the Portuguese customs authorities erred in the setting and subsequent monitoring of the comprehensive guarantee is based on a misinterpretation of European Union law. Second, it submits that the General Court erred in finding that there is a causal link between those errors and the subsequent creation of a customs debt when the goods are removed from customs supervision. Lastly, the Portuguese Republic submits that the General Court erred in finding that Transnáutica had taken all the precautions necessary for the purpose of avoiding the use of the comprehensive guarantee in transit operations involving high values.

65 In that connection, it should be recalled that Article 905 of the Implementing Regulation — pursuant to which the Member State to which the authority belongs may apply to the Commission to determine, on the basis of the information placed before it, whether a special situation exists such as to justify the remission of duties — contains a general fairness clause intended to cover the exceptional situation in which a declarant might find himself in comparison with other operators engaged in the same business, where the customs authority has not itself been able, on the basis of the grounds adduced, to take a decision regarding the remission of duties (see C-86/97 Trans-Ex-Import [1999] ECR I-1041, paragraphs 18 to 21, and De Haan, paragraph 52).

66 That stated, it should be noted that the objections raised by the Portuguese Republic with regard to the General Court’s reasoning concern the different factual and legal stages of an analysis which led the latter to conclude that a special situation existed for the purposes of Article 239 of the Customs Code. In order to examine whether such reasoning is well founded, each of the stages must be considered in turn.

67 First of all, it should be noted — as the General Court pointed out in paragraph 43 of the judgment under appeal — that Article 94 of the Customs Code requires the principal to provide a guarantee in order to ensure payment of the customs debt or other charges which may be incurred in respect of the goods. It is also apparent from Articles 191 and 198 of the Customs Code that it is for the customs authorities to set a comprehensive guarantee which is adequate and to monitor the provision of the guarantee.

68 As the General Court correctly stated in paragraph 45 of the judgment under appeal, action and supervision on the part of the competent national customs authorities are essential, not only at the time of the setting up of the guarantee certificate, but also each time a comprehensive guarantee, intended to cover several transit operations, is used to effect and cover those operations. In that connection, although Article 198 of the Customs Code does not create a formal obligation to monitor the adequacy of the comprehensive guarantee, the fact remains that it is for the competent customs authorities to take all the necessary measures when they realise that there is a discrepancy between the amount of the guarantee provided and the total amount of the duties payable for a particular group of transit operations.

69 The Portuguese Republic disputes the scope of the obligation laid down by Article 198 of the Customs Code and submits that the General Court interpreted that provision too strictly by requiring a high degree of diligence from the customs authorities when monitoring the adequacy of the comprehensive guarantee. It also disputes the General Court’s findings concerning the legislation applicable for calculating that comprehensive guarantee.

70 It should be noted that, in their observations to the Court, the Portuguese Republic and the Commission provided contradictory interpretations as to the version of the legislation applicable to the present case. Depending on which version is applied, a different result is obtained — either 30% or 50% — for the proportion of the duties payable which must be covered by the comprehensive guarantee.

71 In that connection, it must be stated that, whatever the proportion required by the legislation applicable to the present case, the duty of diligence required of the customs authorities remains unchanged. It should also be noted that, in paragraph 48 of the judgment under appeal, the General Court held that, ‘[a]s [Transnáutica] claimed at the hearing, without being contradicted by the Commission, taking into consideration all the T1 declarations made on the same day, the comprehensive guarantee never covered more than 7.29% of the duties and charges’.

72 Therefore, it must be held that, regardless of whether the legislation applicable requires a comprehensive guarantee covering 30% or 50% of the duties payable, the General Court’s conclusion that the guarantee required by the customs authorities was inadequate is coherent. The fact that the comprehensive guarantee actually provided never covered more than 7.29% of those duties, whereas the amount of that guarantee ought to have covered at least 30% of the duties, justifies the General Court’s statement, in paragraph 55 of the judgment under appeal, that ‘the lack of monitoring on the part of the customs authorities at an initial and fundamental stage of the external Community transit procedure enabled 68 T1 declarations to be issued that were not covered by the guarantee certificate’.

73 As the General Court correctly held in paragraph 51 of the judgment under appeal, ‘in order for the system to function, it is essential that the guarantee provided is for an amount sufficient to cover the amount of customs debt which may be incurred, according to a 30, 50, or 100% rate, which is fixed on the basis of the nature of the goods transported. An error in the monitoring of the guarantee, at the time when the T1 declaration is issued, will have a definite impact on the capacity of the principal to ensure payment of the customs debt that may be incurred’.

74 The two remaining parts of the single ground of appeal relied on by the Portuguese Republic must be examined in the light of the foregoing. In the first place, the Portuguese Republic disputes the General Court’s reasoning concerning the causal link between the error made by the customs authorities in the setting of the comprehensive guarantee and the creation of a customs debt due to the removal of the goods from customs supervision.

75 In paragraph 49 of the judgment under appeal, the General Court held that, ‘[h]ad the Portuguese customs authorities verified, at the time of issue of the T1 declarations, whether the amount of the duties and other charges that might be incurred for each cargo was covered by the comprehensive guarantee provided by the applicant, the 68 T1 declarations could not have been issued’. That reasoning is based on the fact that, had those authorities fulfilled their obligations with regard to calculating the amount of the comprehensive guarantee to be provided, all of the transactions, which were subsequently adjudged to be fraudulent, could never have been carried out.

76 The causal link demonstrated by the General Court is not between (i) the incorrect calculation of the comprehensive guarantee and (ii) the customs debt being incurred, but between (i) the customs authorities’ lack of vigilance, which resulted in the transit operations not being subject to any of the monitoring measures laid down by the legislation applicable, and (ii) the existence of a special situation. Rather than ascertaining whether there is a causal link between the calculation error concerning the amount of the comprehensive guarantee and a debt being incurred, the General Court considered whether the facts at the origin of the dispute were likely to result in a ‘special situation’ for the purposes of Article 239 of the Customs Code.

77 In the second place, therefore, the third part of the single ground of appeal relied on by the Portuguese Republic should also be examined in the light of that consideration. The Portuguese Republic disputes the General Court’s statement that, had the customs authorities calculated an adequate comprehensive guarantee and monitored the provision of that guarantee, the internal procedures adopted by Transnáutica would have enabled the fraudulent operation to be avoided and, consequently, prevented the customs debt from being incurred.

78 In that connection, it suffices to note that the Portuguese Republic has adduced no evidence for finding that, in paragraph 52 of the judgment under appeal, the General Court was incorrect to hold that ‘[i]f the Portuguese customs authorities had refused to accept the guarantee on account of its insufficient amount and required the provision of additional security, not only would the T1 declarations at issue not have been issued but, as [Transnáutica] correctly asserts, it would have been able to uncover the fraudulent acts of its employee’.

79 Consequently, the General Court did not err in law, nor did it distort any evidence submitted to it, by holding, in paragraph 60 of the judgment under appeal, that ‘[t]hat lack of diligence is the responsibility of the Portuguese customs authorities and puts [Transnáutica] in a special situation that goes beyond the normal commercial risk relating to its business’.

80 As regards the argument advanced by the Portuguese Republic in support of the third part of the ground of appeal, concerning the likely conduct of Transnáutica’s employee had the Portuguese authorities asked him to provide an additional guarantee, it must be held that such an argument is purely hypothetical.

81 In the light of all of the foregoing, it must be held that in the specific circumstances of the present case the General Court was justified in finding, on the basis of the facts submitted to it and without distorting the evidence or erring in law, that the lack of diligence on the part of the Portuguese authorities, which rendered the monitoring procedures established by Transnáutica ineffective, gave rise to a special situation for the purposes of Article 239 of the Customs Code.

82 Since none of the parts of the single ground of appeal put forward by the Portuguese Republic in support of its appeal may be upheld, the appeal must be dismissed.

Costs

83 Under the first subparagraph of Article 69(2) of the Rules of Procedure of the Court, applicable to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Pursuant to the first subparagraph of Article 69(4) of those rules, Member States and institutions which have intervened in the proceedings are to bear their own costs.

84 Since Transnáutica has applied for costs against the Portuguese Republic and the latter has been unsuccessful, the Portuguese Republic must be ordered to pay the costs. The Kingdom of Spain, which has intervened in the present proceedings, must be ordered to bear its own costs.

On those grounds, the Court (First Chamber) hereby:

1. Dismisses the appeal;

2. Orders the Portuguese Republic to pay the costs;

3. Orders the Kingdom of Spain to bear its own costs.

[Signatures]

( *1 ) Language of the case: English.