Case T-385/05: Action brought on  21 October 2005  — Transnáutica/Commission
Date: 2005-12-24
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), carrier, customs drawback, customs fraud, customs regulations

C 330/24

EN

Official Journal of the European Union

24.12.2005

Form of order sought

Defendant(s): Commission of the European Communities

The applicant claims that the Court should:

— annul the Commission's decision set out in its letter of 9
August 2005 and, insofar as necessary, the decision in the
Commission's letter of 12 August 2005, and declare that
the Commission should award the applicant the grant in
issue on the basis that it meets all of the other award
criteria;

— order the Commission to pay the costs.

Form of order sought

— Annul in its entirety the Decision of the Commission of 6
July 2005 (process REM 05/2004) regarding a procedure of
remission and repayment of customs duties;

— order the Commission to pay the costs generated by this

Pleas in law and main arguments

procedure.

This action is brought against the decision of the Commission
of the European Communities of 9 August 2005, received by
the applicant on 12 August 2005, informing the applicant that
its application for financial assistance under Regulation (EC) No
814/2000 from appropriations in the 2005 budget was not
selected on the ground that it was alleged to lack financial
capacity.

Contrary to the reasons put forward by the Commission in
support of its refusal to grant the application for funding, the
applicant submits that its financial capacity and that of its part-
ners in the initiative far exceeded that required by the call for
proposals, even on a strict
the liquidity
criterion laid down by the Commission.

interpretation of

Moreover, the applicant submits that this liquidity criterion, as
interpreted by the Commission, is clearly illogical and out of
proportion to the intended objectives, and thus artificially
limits the number of prospective candidates. In this regard, the
applicant maintains that the condition of financial capacity was
fully met in that its liquidity far exceeded 100 % of the total
grant applied for (EUR 263 895,50 ) and that, during each of
the three financial years for which the balance sheets and
annual accounts were approved and closed,
the applicant's
liquidity and that of its partners clearly exceeded this figure.

Action brought on 21 October 2005 — Transnáutica/
Commission

(Case T-385/05)

(2005/C 330/59)

Language of the case: English

Parties

Applicant(s): Transnáutica — Transportes e Navegação, SA
(Matosinhos, Portugal) [represented by: C. Fernández Vicién, I.
Moreno-Tapia, D. Ortigão Ramos, B. Aniceto Silva, lawyers]

Pleas in law and main arguments

The applicant is a Portuguese company, primarily engaged in
freight transportation. In 1994 another Portuguese company
dispatched a certain number of consignments of tobacco and
ethyl alcohol from Portugal to countries then outside the Com-
munity under the external Community transit procedure. The
applicant was named as principal, in the terms of Article 96 of
the Community Customs Code (‘CCC’), for these consignments.
It was later revealed that, in fact, the applicant's management
was fully unaware of these transactions, as one of its employees
had been acting fraudulently, using the applicant's guarantee
certificate in violation of internal instructions.

Because there was no evidence that the consignments in ques-
tion had reached the customs office of their destination, the
applicant, as principal, was requested to pay the relevant
customs debts. The applicant later applied under Article 239
CCC for the repayment and remission of these debts, alleging
that, being unaware of
its
employee, it was not involved in any fraudulent activities and
had collaborated with the authorities and that,
further, the
Portuguese customs authorities had never informed it about
their suspicions of fraud in relation to the transactions in ques-
tion. This application was rejected by the contested Decision.

the unauthorised activities of

In support of its application, the applicant contends that the
Commission infringed essential procedural requirements, as it
failed to consult the Customs committee and only requested
the applicant to intervene in the procedure at a very late stage.
The applicant also invokes an alleged manifest error of assess-
ment by the Commission of the facts in question, as well as an
infringement of the Commission's duty to state reasons for its
decisions. The applicant further refers to alleged infringements
of the principle of good administration and its rights of defence
on the grounds that the Commission has failed to examine
carefully and impartially all relevant aspects of the case. Finally,
the applicant invokes an alleged infringement of the principle
of proportionality, since its application was rejected even
though the Commission and the Portuguese authorities had
started an investigation to discover whether the operations in
questions constituted smuggling.