Keywords

Summary



Keywords

Own resources of the European Communities – Repayment or remission of import or export duties – Existence of a special situation

(Art. 211 EC; EEC-Turkey Association Agreement, Art. 7; Council Regulation No 2913/92, Art. 239)

Summary

A special situation for the purposes of Article 239 of Regulation No 2913/92 establishing the Community Customs Code 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 subsequent entry in the accounts of customs duties.

Inadequate monitoring by the Commission of the proper implementation of an Association Agreement may constitute such a special situation. In order to determine whether the circumstances of a particular case constitute a special situation, the Commission must assess all the relevant facts. Accordingly, although the Commission has some discretion as regards the application of Article 239 of the Community Customs Code, it cannot disregard its duty to balance, on the one hand, the Community interest in full compliance with the provisions of customs legislation, whether that be Community legislation or other legislation binding on the Community, and, on the other hand, the interest of an importer acting in good faith not to suffer harm which goes beyond the normal commercial risk. Consequently, when examining an application for repayment or remission of import duty, the Commission is not entitled merely to assess the behaviour and activities of the importer and the exporter, but must also take into account, in particular, the effect of its own behaviour on the specific situation in the course of its duty to supervise and monitor.

Furthermore, it follows from Article 211 EC and from Article 7 of the EEC-Turkey Association Agreement and the many decisions adopted in respect of its implementation that the Commission, as guardian of the EC Treaty and of the agreements concluded under it, must ensure the correct implementation by a third State of the obligations it has assumed under an agreement concluded with the Community, using the means provided for by the agreement or by the decisions taken pursuant thereto. In that regard, it is for the Commission to make full use of the rights and powers which it has under those provisions so as to fulfil its obligation of supervising and monitoring the proper implementation of the Association Agreement, particularly in a situation in which exports to the same Community port by the same export company in the same reference period took place under cover of both irregular and inauthentic certificates.

As regards the sending of specimen impressions of the stamps and signatures used in those customs offices that makes it possible to supervise compliance with the customs rules relating to tariff preferences effectively, the Commission’s obligation to ensure that the Association Agreement is properly implemented means that the Commission, and through it the customs authorities of the Member States, should always have all the information to enable it to carry out an effective check, and specimen impressions of the stamps and signatures unquestionably constitute such information. In that regard, the registration of certificates issued by the customs authorities is indispensable in international trade whilst as regards the EEC-Turkey Association Agreement, the obligation on the Turkish authorities to register A.TR.1 certificates stems from the implementing provisions of that agreement so that, confronted with a case of double importation into the Community under cover of A.TR.1 certificates with the same registration number, one authentic and the other inauthentic, the Commission must check whether such importation has actually taken place.

Where, in a particular case, the Commission has not made full use of the supervising and monitoring rights and powers which it has under the Association Agreement with a view to ensuring the proper implementation thereof, its failure to fulfil obligations constitutes a special situation for the purposes of Article 239 of the Community Customs Code, which justifies the repayment or remittance of import duty levied on the basis of irregular or inauthentic certificates.

(see paras 82, 88-89, 92-96, 99, 104-105, 117-118, 123-124, 126, 130-131, 136)