Case C-204/07 P: Appeal brought on 16 April 2007 by C.A.S. SpA against the judgment delivered on 6 February 2007 in Case T-23/03 C.A.S. SpA v Commission of the European Communities
Date: 2007-06-23
Institutions: Court of Justice
Subjects: European Commission, Türkiye, action for annulment (EU), appeal, customs formalities, export licence, transport document

23.6.2007

EN

Official Journal of the European Union

C 140/13

4. Such a general and preventive abandonment of any means of
VAT verification is likely seriously to distort the proper func-
tioning of the common VAT system. In particular, it would
undermine the principle of fiscal neutrality, which precludes
the different VAT treatment of traders effecting the same
transactions. Any exception to the rule that VAT should be
levied and collected effectively would result, on the one
hand, in inflicting serious damage to the detriment of both
Italian undertakings and those in other Member States which
are subject to ordinary value added tax rules and, on the
other hand, in seriously undermining the principle of ‘fair
competition’ within the common market, set out
in the
fourth recital in the Sixth Directive.

(1) OJ L 347 of 13.6.1977, p. 1.
(2) OJ L 145 of 11.12.2006, p. 1.

Council Directive 92/50/EEC (2) of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts, to be interpreted as precluding the possibility under
national law for an individual member of that consortium to
bring an action against the decision awarding the contract?

(1) OJ L 395, p. 33.
(2) OJ L 209, p. 1.

Appeal brought on 16 April 2007 by C.A.S. SpA against
the judgment delivered on 6 February 2007 in Case
the European
T-23/03 C.A.S. SpA v Commission of

Reference for a preliminary ruling from the Consiglio di
Stato (Italy) lodged on 4 April 2007 — SAVA e C. S.r.l.,
SIEME S.r.l. and GRADED S.p.A. v Mostra d'Oltremare S.p.
A. and Others

(Case C-194/07)

(2007/C 140/21)

Parties

Communities

(Case C-204/07 P)

(2007/C 140/22)

Language of the case: German

Language of the case: Italian

Appellant: C.A.S. SpA (represented by D. Ehle, Rechtsanwalt)

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Sava e C. s.r.l., Sieme s.r.l. and Graded S.p.A.

Defendants: Mostra d'Oltremare S.p.A. and Others

Question referred

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— set aside the judgment of the Court of First Instance of 6

February 2007 (1) in Case T-23/03;

— grant the form of order sought at first instance; in the alter-
native, refer the case back to the Court of First Instance for
a decision on the substance;

— allow the applications for measures of organisation of proce-
dure made by the appellant by documents of 28 January
2003, 4 August 2003 and 11 August 2003;

— order the defendant to pay the costs of the proceedings at

first instance.

Where a consortium without legal personality has participated
as such in a procedure for the award of a public contract and
has not been awarded that contract,
is Article 1 of Council
Directive 89/665/EEC (1) of 21 December 1989 on the coordi-
nation of the laws, regulations and administrative provisions
relating to the application of review procedures to the award of
public supply and public works contracts, as amended by

Pleas in law and main arguments

supports

The appellant
its appeal on the following nine
grounds, on the basis of which it regards the contested judg-
ment as erroneous:

C 140/14

EN

Official Journal of the European Union

23.6.2007

The first ground of appeal relates to the exclusive competence
which the Court of First Instance considered the Turkish autho-
rities to have to determine whether the A.TR.1 movement of
goods certificates issued by them and produced on import clear-
ance were ‘authentic’ or ‘false’, or ‘correct’ or ‘incorrect’. The
appellant takes the view that in cases in which there are suffi-
cient and conclusive objective indications that the competent
customs authorities of a country of export were involved in irre-
gularities in the issue (delivery of forms, stamps and signatures)
of movement certificates and the export clearance of the goods
on the basis of those certificates, the exclusive jurisdiction of
the customs authorities of the country of export ends. Later
explanations provided by the Turkish authorities concerning the
movement certificates could not be regarded as credible and
solely determinative.

By the second ground of appeal the appellant criticises the
view taken in the contested judgment of the extent of the right
of access to documents and the rights of defence of an appli-
cant. The right of access to documents cannot relate only to
documents on which the Commission, according to its internal
decision and its statements, based its contested decision. The
right of access to documents covers also all further confidential
and non-confidential documents which could be of importance
to the applicant's factual and legal submissions with respect to
the assessment of the facts.

The appellant's third ground of appeal is that the Court of
First Instance imposed on it the entire burden of proof for the
factual circumstances which justified a ‘special situation’ within
the meaning of Article 239 of the Customs Code and Article
905 of the implementation regulation. The appellant considers
that in certain cases the burden of proof is reversed or at least
the obligation to provide proof is reduced. In no case is the
burden on the applicant to prove certain facts, adduced by it, in
third countries (in this case Turkey) which can best be ascer-
tained, and must be ascertained, by the Commission/OLAF
within the framework of
the possibilities available to those
authorities. The same applies to facts which are within the
sphere of action and influence of the Commission.

As its fourth ground of appeal the appellant submits that the
Court of First Instance wrongly — also in view of the full
burden of proof imposed on it in the judgment — failed to
order the measures of organisation of procedure it applied for,
in particular
Instead the offers to
produce evidence were dismissed as immaterial.

the taking of evidence.

As fifth ground of appeal the appellant submits that the Court
of First Instance interpreted and classified wrongly in law all the
documentation produced and facts and evidence adduced by it
which pointed to the involvement of the Turkish authorities in
(allegedly) ‘false’ (but really ‘incorrect’) A.TR.1 movement certifi-
cates. As a result it reached incorrect legal conclusions. The
Court
clearly
submitted by the appellant.

also completely ignored essential

facts

as

As the sixth ground of appeal it is submitted that the Court of
First Instance failed to classify the Commission's failure to call
on the Customs Committee/Association Council as a fault on
the part of the Commission.

The seventh ground of appeal
the Court of First
Instance did not recognise the appellant's legitimate interest in
the annulment of the Commission's partly contested decision
with respect to a particular A.TR.1 movement certificate.

is that

The eighth ground of appeal complains that the Court of First
Instance erred in law by omitting to carry out a balancing of
fairness and risk related to the specific case. The Court thereby
failed to recognise that, even on the assumption that there were
false A.TR.1 movement certificates, in view of the gross miscon-
the Turkish authorities and the Commission it was
duct of
unfair, given the relationship between economic operators and
the administration,
to leave the appellant as an economic
operator to bear a loss it would not have incurred if things had
been done correctly.

As the ninth ground of appeal the appellant criticises the
contested judgment for finding pursuant to Article 220(2)(b) of
the Customs Code, on the basis of the facts submitted and ascer-
tained, that there was no active involvement of the Turkish
customs authorities in the issue and use of the 32 A.TR.1 certi-
ficates in question in this case.

(1) OJ C 82, 14.4.2007, p. 30.

Reference for a preliminary ruling from the Hof van
lodged on 19 April 2007 — Criminal
Beroep, Ghent
proceedings against Lodewijk Gysbrechts and Santurel
Inter BVBA

(Case C-205/07)

(2007/C 140/23)

Language of the case: Dutch

Referring court

Hof van Beroep, Ghent

Party to the main proceedings

Lodewijk Gysbrechts and Santurel Inter BVBA