Case T-299/01: Action brought on 27 November 2001 by Furness Intercontinental Services B.V. against the Commission of the European Communities
Date: 2002-02-16
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), customs duties, customs transit, fraud, redemption

16.2.2002

EN

Official Journal of the European Communities

C 44/23

Action brought on 27 November 2001 by Furness Inter-
continental Services B.V. against the Commission of the
European Communities

(Case T-299/01)

(2002/C 44/42)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 November 2001 by Furness
Intercontinental Services B.V., established in Rotterdam, rep-
resented by Johannes Wilhelmus Lambertus Maria ten Braak,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul decision REM 12/00 of the Commission on the

grounds stated, pursuant to Article 230 EC;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant operates as a customs agent, storing goods
under customs control on behalf of third parties and dealing
with customs declarations. In that connection,
it drew up
declarations in respect of the external Community transit of
ethyl alcohol from the Netherlands to Morocco. On behalf of
the same client, the applicant also drew up declarations in
respect of other shipments under the external Community
transit procedure. It subsequently became apparent, however,
that there had been irregularities in relation to those shipments.
The goods were not
in fact delivered to their declared
destination, and the Spanish customs authorities’ documents
relating to the clearance of the goods appeared to be forgeries.
The applicant states that it was not aware of this.

The applicant was required to pay the import duties still due
in that regard. The applicant subsequently applied to the
Netherlands authorities for a refund of those import duties
pursuant to Article 239(2) of Regulation (EEC) No 2913/92 (1).
The Netherlands authorities in turn submitted an application
in this regard to the European Commission pursuant to
Article 13 of Regulation (EEC) No 1430/79 (2) and Article 905
of Regulation No 2454/93 (3). That application was rejected
by the Commission in the contested decision.

In support of its claim, the applicant pleads, first of all,
violation of the right to a fair hearing, as well as infringement
of Articles 906a and 907 of Regulation No 2454/93 and
misunderstanding of the principle of legal certainty. In particu-
lar, the applicant was not given access to all the documents on
the file. As a result, it was unable to express its comments on
the matter in a similar way, and could not validly put forward
its point of view in accordance with Article 906a of Regulation
No 2454/93. In addition, the Commission’s decision was given
out of time, inasmuch as the time-limit for adoption of the
decision could not be extended pursuant to Article 907 of that
regulation.

The applicant further pleads infringement of Article 905 et
seq. of Regulation No 2454/93 and the absence of a statement
of reasons for the contested decision. According to the
applicant, the Commission should have carried out an indepen-
dent investigation into the question whether or not the Spanish
customs authorities were involved in the fraud. The applicant
maintains that the possible involvement of customs officials in
the fraud constitutes a special circumstance justifying the
repayment of the customs duties.

that

the fact

The applicant also pleads a misunderstanding of the facts on
the part of the Commission. Thus, the Commission failed to
take any or any sufficient account of
the
competent authorities were already aware of the fraud even
before the transportation in question took place. Moreover,
those authorities thereafter requested the applicant’s assistance
in their investigation of that fraud. The applicant further states
that the simple declaration by the Spanish authorities that false
stamps were used in that fraud is not supported by sufficient
evidence. In addition, according to the applicant, the decision
does not contain an adequate statement of reasons on those
points.

Lastly, the applicant claims that the Commission, in adopting
the contested decision, misconstrued its own responsibility in
the matter. According to the applicant, the Commission is
responsible for the proper functioning of the customs system.
At the time of the shipments in question, it was not possible
for the applicant to avoid or trace the fraud, which was
perpetrated by third parties, even by taking all possible
precautionary measures.

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992

establishing the Community Customs Code.

(2) Council Regulation (EEC) No 1430/79 of 2 July 1979 on the

repayment or remission of import or export duties.

(3) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
down provisions for the implementation of Council Regulation
(EEC) No 2913/92 establishing the Community Customs Code.