Case C-420/05 P: Appeal brought on  28 November 2005  by Ricosmos B.V. against the judgment delivered by the Court of First Instance of the European Communities (First Chamber) on  13 September 2005  in Case T-53/02 Ricosmos v Commission of the European Communities
Date: 2006-02-25
Institutions: Court of Justice
Subjects: CCT duties, General Court (EU), appeal, customs drawback, customs regulations, principle of proportionality

C 48/12

EN

Official Journal of the European Union

25.2.2006

The appellants claim that the Court should:

1. set aside the judgment of the Court of First Instance of 21

September 2005 in Case T-306/01,

2. annul Regulation (EC) No 881/2002,

3. order the Council of the European Union and the Commis-
sion of the European Communities to pay the costs of the
actions before the Court of First Instance and the Court of
Justice.

Pleas in law and main arguments

The applicants submit that the Court of First Instance erred in
finding that the Council was competent to adopt Regulation
(EC) No 881/2002 on the basis of Articles 60 EC, 301 EC and
308 EC. In addition, they submit as follows:

The Court of First Instance erred in finding that Regulation (EC)
No 881/2002 fulfils the requirement under Article 249 EC that
it be of general application.

The Court of First Instance wrongly limited its assessment of
whether the applicants' fundamental rights had been infringed
by Regulation (EC) No 881/2002 merely to considering the
question whether the Security Council resolution is compatible
with the superior rules of international law falling within the
ambit of
Instance has not
assessed whether the regulation was valid in accordance with
Community law or whether the Security Council resolution
was implemented pursuant to Community law and national
laws.

jus cogens. The Court of First

The Court of First Instance erred in finding that neither the
applicants' rights of defence nor right
to an effective legal
remedy were infringed by Regulation (EC) No 881/2002.

04 to T-297/04: Centro Provincial de Jóvenes Agricultores de
Jaén (ASAJA), Salvador Contreras Gila,
José Ramiro López,
Antonio Ramiro López, Cristobal Gallego Martínez, Benito
García Burgos and Antonio Parras Rosa v Council of the Euro-
pean Union was brought before the Court of Justice of the
European Communities on 25 November 2005 by Centro
Provincial de Jóvenes Agricultores de Jaén (ASAJA), Salvador
Contreras Gila,
José Ramiro López, Antonio Ramiro López,
Cristobal Gallego Martínez, Benito García Burgos and Antonio
Parras Rosa, represented by J.F. Vásquez Medina, lawyer.

The appellants claim that the Court should:

(1) Annul the judgment of the Court of First Instance of 8
September 2005 in its entirety on the ground that
it
infringes Community law (Article 173 of the EEC Treaty;

(2) Grant in their entirety the forms of order sought at first
instance relating to the merits of the case in order to
comply with Community law;

(3) Order the respondent to pay the costs.

Pleas in law and main arguments

— Infringement of Article 173 of the EEC Treaty

The appellants claim to have locus standi to bring appeals since
they are clearly and entirely different
from other olive oil
producers by reason of the particular legal situation which
affects them.

All the appellants are owners of olive groves planted in 1998,
and all had an olive production of 0 Kg of olives in the 1999
marketing year. Those circumstances are particular to them and
distinguish them from the rest of the olive sector.

Appeal brought on 25 November 2005 by Centro Provin-
cial de Jóvenes Agricultores de Jaén (ASAJA), Salvador
Contreras Gila,
José Ramiro López, Antonio Ramiro
López, Cristobal Gallego Martínez, Benito García Burgos
and Antonio Parras Rosa against the judgment of the
Court of First Instance (Third Chamber) of 8 September
2005 in Joined Cases T-295/04 to T-297/04: Centro Provin-
cial de Jóvenes Agricultores de Jaén (ASAJA), Salvador
Contreras Gila,
José Ramiro López, Antonio Ramiro
López, Cristobal Gallego Martínez, Benito García Burgos
and Antonio Parras Rosa v Council of the European Union

(Case C-418/05 P)

(2006/C 48/24)

(Language of the case: Spanish)

An appeal against the judgment of the Court of First Instance
(Third Chamber) of 8 September 2005 in Joined Cases T-295/

Appeal brought on 28 November 2005 by Ricosmos B.V.
against the judgment delivered by the Court of First
Instance of the European Communities (First Chamber) on
13 September 2005 in Case T-53/02 Ricosmos v Commis-
sion of the European Communities

(Case C-420/05 P)

(2006/C 48/25)

(Language of the case: Dutch)

An appeal was brought before the Court of Justice of the Euro-
pean Communities on 28 November 2005 by Ricosmos B.V.,
represented by J.J.M. Hertoghs and J.H. Peek, of the law firm
Hertoghs Advocaten-Belastingkundigen, Parkstraat 8, (4818 SK)
Breda, Netherlands, against the judgment of the Court of First
Instance of
the European Communities (First Chamber) of
13 September 2005 in Case T-53/02 Ricosmos B.V. v Commis-
sion of the European Communities.

25.2.2006

EN

Official Journal of the European Union

C 48/13

The appellant claims that the Court should:

— declare the present appeal

to be admissible and well

founded;

— set aside the judgment delivered by the Court of First

Instance on 13 September 2005;

— grant the application made at first instance for the annul-
ment of Commission Decision REM 09/00 of 16 November
2001 stating that remission of import duties in favour of
the present appellant was not justified;

— alternatively, remit the case to the Court of First Instance

for further consideration;

— order the Commission to pay the costs of
proceedings and of those at first instance.

the present

Pleas in law and main arguments

In support of its appeal against the aforementioned judgment,
the appellant makes the following submissions:

interpretation of,

1. The appellant takes the view that the Court of First Instance
proceeded on the basis of an incorrect, or at any rate
unduly restricted,
in particular, Articles
905 to 909 of the regulation implementing the Community
Customs Code (1) with regard to the procedure for the
repayment and/or remission of customs duties. The prin-
ciple of legal certainty requires that the legal situation of
Ricosmos should have been foreseeable in this particular
case. Ricosmos takes the view that, because of suspensions
of the proceedings of which it was not informed, that was
not the case here. The Court of First Instance also proceeded
incorrectly on the basis of an overly restricted view of the
rights of the defence, reflected in its excessively circum-
scribed interpretation of the right to timeous and full access
to the case files (both that of the national customs authori-
ties and that of the Commission):

2. The appellant considers that the decision of the Court of
First Instance is also at variance with Community law. It
takes the view that the principle of
legal certainty also
implies that the criteria for determining that there was no
obvious negligence must be clear and readily identifiable. It
is precisely because of the considerable flexibility of the
term 'obvious negligence' that those criteria ought in prin-
ciple to be construed restrictively and individually. The
negligence must be evident and essential and must also be
in a clear causal relationship with the special situation
which has been established. In this case, the Court of First
Instance wrongly attached in this regard no, or not enough,
weight to the complexity of the legislation and to the signif-
icant professional experience of
the appellant, and also
misconstrued a number of obligations on the appellant, or
at any rate appraised them in an overly formalistic manner;

3. The appellant

the Commission
infringed the principle of proportionality and that the Court

is also of the view that

of First Instance also attached no, or at any rate insufficient,
weight to new facts which suggested that the customs duties
charged ought to have been cancelled;

4. In conclusion, the appellant expresses the view that the
establishment by the Court of First Instance of the facts
underlying the dispute was in part erroneous or in any
event incomplete.

(1) 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 (OJ
1993 L 253, p. 1).

Action brought on 28 November 2005 by the Commission
of the European Communities against the Kingdom of
Belgium

(Case C-422/05)

(2006/C 48/26)

(Language of the case: French)

Justice of

An action against the Kingdom of Belgium was brought before
the Court of
the European Communities on 28
November 2005 by the Commission of the European Commu-
nities, represented by Frank Benyon and Mikko Huttunen,
acting as Agents, with an address for service in Luxembourg.

The Commission of the European Communities claims that the
Court should:

1. Declare that, by adopting the Royal Decree of 14 April
2002 regulating night
flights of certain types of civil
subsonic jet aircraft, the Kingdom of Belgium has failed to
its obligations under Directive 2002/30/EC (1) and
fulfil
under the second paragraph of Article 10 EC in conjunction
with the third paragraph of Article 249 EC;

2. Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Decree specifies certain types of aircraft which cannot
operate in Belgian airports between 11 pm and 6 am. As it is
based on the by-pass ratio, the Royal Decree takes a different
approach to that of Directive 2002/30/EC, which is based on a
certification procedure. This approach corresponds to that
taken in Regulation (EC) No 925/1999, which was repealed by
Directive 2002/30/EC.