Case C-552/08 P: Appeal brought on 12 December 2008 by Agrar-Invest-Tatschl GmbH against the judgment delivered by the Court of First Instance (Eighth Chamber) on 8 October 2008 in Case T-51/07 Agrar-Invest-Tatschl GmbH v Commission of the European Communities
Date: 2008-12-12
Institutions: Court of Justice
Subjects: CCT duties, Croatia, European Commission, appeal, customs regulations, import, sugar

C 55/10

EN

Official Journal of the European Union

7.3.2009

Appeal brought on 12 December 2008 by Agrar-Invest-
Tatschl GmbH against the judgment delivered by the Court
of First Instance (Eighth Chamber) on 8 October 2008 in
Case T-51/07 Agrar-Invest-Tatschl GmbH v Commission of
the European Communities

(Case C-552/08 P)

(2009/C 55/16)

Language of the case: German

Parties

Appellant: Agrar-Invest-Tatschl GmbH (represented by: U.
Schrömbges and O. Wenzlaff, Rechtsanwälte)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— set aside the contested judgment delivered by the Court of
First Instance of the European Communities on 8 October
2008 in Case T-51/07 Agrar-Invest-Tatschl GmbH v Commis-
sion;

Article 220(2)(b) of
It submits that the
the Customs Code.
Court's interpretation is wrong in law in that, according to the
Court, the Commission notice published in the Official Journal
concerning doubt as to the proper application of the preferential
arrangements by the beneficiary country has the effect of
excluding good faith even where, as in the present case, the rele-
vant certificates issued in connection with the securing of prefer-
ential treatment were subject after publication of the warning
notice to a verification procedure that confirmed their authenti-
city and accuracy.

The Court of First Instance fails to recognise that the effect of a
warning notice that is laid down in the fifth subparagraph of
Article 220(2)(b) of the Customs Code is restricted by the prin-
ciple under which decisions of third-country customs authorities
within the framework of a system of administrative cooperation
should be recognised. The provision of the Customs Code at
issue involves a legal fiction of bad faith which is rebuttable,
indeed — as in the present case — precisely by carrying out a
verification procedure. The appellant's good faith is therefore
restored by the subsequent confirmation of the authenticity and
accuracy of the movement certificates, that is to say, the appel-
lant could rely on the fact that the grounds for doubt on the
basis of which the Commission's warning notice was published
were removed in the course of the verification procedure. The
appellant's good faith is therefore dependent not on proper
the movement certificates at issue by the Croatian
issue of
authorities but on the proper verification of those certificates by
the customs authorities on the basis of the doubts, disclosed by
the Commission's warning notice, as to whether they were
properly issued.

— in accordance with the first claim set out in the application
of 22 February 2007 in Case T-51/07 before the Court of
First
annul
Article 1(2) and Article 1(3) of Commission Decision
C(2006) 5789 final (REC 05/05) of 4 December 2006.

the European Communities,

Instance of

Pleas in law and main arguments

This appeal contests the judgment of the Court of First Instance
which dismissed the appellant's action challenging Commission
Decision C(2006) 5789 final of 4 December 2006 on the
subsequent entering in the accounts of import duties owed by
the appellant for the import of sugar from Croatia.

The Court of First Instance's basis for dismissing the appellant's
action was the absence of good faith, one of the four require-
ments that must all be met if import duties are not to be subse-
quently entered in the accounts. The Court stated that, under
the fifth subparagraph of Article 220(2)(b) of Council Regu-
lation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code (‘the Customs Code’), the person
liable cannot plead his good faith if the European Commission,
as in the case in point, has published in the Official Journal a
notice to importers stating that there are grounds for doubt
concerning the proper application of the preferential arrange-
ments by the beneficiary country. Nor, according to the Court
of First Instance, is it material that the appellant acted in good
faith with regard to the subsequent confirmation of the authen-
ticity and accuracy of the movement certificates, since it in any
event did not act in good faith when the imports took place.

Reference for a preliminary ruling from the Hoge Raad der
Nederlanden lodged on 17 December 2008 — Portakabin
Limited and Portakabin BV v Primakabin BV

(Case C-558/08)

(2009/C 55/17)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellants in cassation: Portakabin Limited and Portakabin BV

The appellant bases its appeal on an incorrect interpretation by
the fifth subparagraph of
the Court of First

Instance of

Respondent in cassation: Primakabin BV