CELEX: 62005CC0443
Language: en
Date: 2007-03-01 00:00:00
Title: Opinion of Mr Advocate General Mengozzi delivered on 1 March 2007. # Common Market Fertilizers SA v Commission of the European Communities. # Appeal - Anti-dumping duties - Article 239 of the Customs Code - Remission of import duties - First paragraph of Article 907 of Regulation (EEC) No 2454/93 - Interpretation - Legality - Commission decision - Group of experts meeting in the framework of the Customs Code Committee - Distinct entity in functional terms - Articles 2 and 5(2) of Council Decision 1999/468/EC - Article 4 of the rules of procedure of the Customs Code Committee - Conditions for the application of Article 239 of the Customs Code - No obvious negligence. # Case C-443/05 P.

OPINION OF ADVOCATE GENERAL
      MENGOZZI
      delivered on 1 March 2007 1(1)
      
      Case C-443/05 P
      Common Market Fertilizers SA
      v
      Commission of the European Communities
      (Appeal against a judgment of the Court of First Instance – Remission of import duties – Manner of adoption of decisions on applications for remission – Meaning of ‘group of experts’ in Article 907 of Regulation (EEC) No 2454/93 – ‘Obvious negligence’ within the meaning of Article 239 of Regulation (EEC) No 2913/92)1.        In these appeal proceedings, Common Market Fertilizers SA (‘CMF’) seeks to have set aside the judgment of the Court of First
         Instance of 27 September 2005 (‘the judgment under appeal’) (2) which dismissed the actions for annulment brought by that company against Commission decisions of 20 December 2002 (3) finding that remission of import duties was not justified in a particular case.
      
       Legislative background
      2.        Article 1(3) and (4) of Council Regulation (EC) No 3319/94 of 22 December 1994 imposing a definitive anti-dumping duty on
         imports of urea ammonium nitrate solution originating in Bulgaria and Poland, exported by companies not exempted from the
         duty, and collecting definitively the provisional duty imposed, (4) provides as follows:
      
      ‘3. The amount of anti-dumping duty for imports originating in Poland shall be the difference between the minimum import price
         of ECU 89 per tonne product and the cif Community frontier price plus the CCT duty payable per tonne product in all cases
         where the cif Community frontier price plus the CCT duty payable per tonne product is less than the minimum import price and
         where the imports put into free circulation are directly invoiced to the unrelated importer by the following exporters or
         producers located in Poland:
      
      … .
      For imports put into free circulation which are not directly invoiced by one of the above exporters or producers located in
         Poland to the unrelated importer the following specific duty is set:
      
      for the product originating in Poland: ECU 22 per tonne product ... with the exception of the product certified to be produced
         by Zakłady Azotowe Puławy for which the specific duty is ECU 19 per tonne product … .
      
      4. Unless otherwise specified, the provisions in force concerning customs duties shall apply.’
      3.        Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, (5) as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (6) ( ‘the Customs Code’), provides as follows:
      
      ‘1. Import duties or export duties may be repaid or remitted in situations other than those referred to in Articles 236, 237,
         and 238:
      
      –        to be determined in accordance with the procedure of the committee;
      –        resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations
         in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the
         Committee procedure. Repayment or remission may be made subject to special conditions.
      
      ...’
      4.        Article 4(24) of the Customs Code defines ‘Committee procedure’ as meaning either the procedure referred to in Articles 247
         and 247a, or in Articles 248 and 248a.
      
      5.        Article 247 of the Customs Code provides that ‘[t]he measures necessary for the implementation of [the Code] ... shall be
         adopted in accordance with the regulatory procedure referred to in Article 247a(2) ...’. 
      
      6.        Article 247a of the Customs Code provides as follows:
      
      ‘1. The Commission shall be assisted by a Customs Code Committee (hereinafter referred to as ‘the Committee’).
      2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply ... .
      3. The Committee shall adopt its rules of procedure.’
      7.        Article 4 of the rules of procedure of the Customs Code Committee provides:
      
      ‘1. The Chairman shall send the invitation to the meeting, the agenda and proposed measures about which the committee’s opinion
         is required and any other working documents to the Permanent Representations and committee members in accordance with Article
         14(2), as a general rule, no later than 14 calendar days before the date of the meeting.
      
      2. In urgent cases, and where the measures to be adopted must be applied immediately, the Chairman may, at the request of
         a committee member or on his or her own initiative, shorten the period laid down in the above paragraph to five calendar days
         before the date of the meeting.
      
      3. In cases of extreme urgency, the Chairman may depart from the periods laid down in paragraphs 1 and 2 above. If the placing
         of another point onto the agenda is requested during the course of a meeting, the approval of a simple majority of committee
         members is required.’
      
      8.        Article 2 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers
         conferred on the Commission (7) (‘the comitology decision’) provides:
      
      ‘The choice of procedural methods for the adoption of implementing measures shall be guided by the following criteria:
      (a) management measures, such as those relating to the application of the common agricultural and common fisheries policies,
         or to the implementation of programmes with substantial budgetary implications, should be adopted by use of the management
         procedure;
      
      (b) measures of general scope designed to apply essential provisions of basic instruments, including measures concerning the
         protection of the health or safety of humans, animals or plants, should be adopted by use of the regulatory procedure; where
         a basic instrument stipulates that certain non-essential provisions of the instrument may be adapted or updated by way of
         implementing procedures, such measures should be adopted by use of the regulatory procedure;
      
      (c) without prejudice to points (a) and (b), the advisory procedure shall be used in any case in which it is considered to
         be the most appropriate.’
      
      9.        Article 5 of the comitology decision provides as follows:
      
      ‘Regulatory procedure
      1. The Commission shall be assisted by a regulatory committee composed of the representatives of the Member States and chaired
         by the representative of the Commission.
      
      2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall
         deliver its opinion on the draft within a time-limit which the chairman may lay down according to the urgency of the matter.
         The opinion shall be delivered by the majority laid down in Article 205(2) [EC] in the case of decisions which the Council
         is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the Committee
         shall be weighted in the manner set out in that Article. The chairman shall not vote.
      
      3. The Commission shall, without prejudice to Article 8, adopt the measures envisaged if they are in accordance with the opinion
         of the committee.
      
      4. If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission
         shall, without delay, submit to the Council a proposal relating to the measures to be taken and shall inform the European
         Parliament.
      
      ...’
      10.      Article 905(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the
         Customs Code, (8) as amended by Commission Regulation (EC) No 1677/98 of 29 July 1998 (9) (‘the implementing regulation’), provides as follows:
      
      ‘Where the decision-making customs authority to which an application for repayment or remission under Article 239(2) of the
         Code has been submitted cannot take a decision on the basis of Article 899, but the application is supported by evidence which
         might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed
         to the person concerned, the Member State to which this authority belongs shall transmit the case to the Commission to be
         settled under the procedure laid down in Articles 906 to 909.
      
      However, except if the decision-making customs authority is in doubt, it can decide itself to grant repayment or remission
         of the duties in cases in which it considers that the conditions laid down in Article 239(1) of the Code are fulfilled, provided
         that the amount concerned per operator in respect of one or more import or export operations, but arising from one and the
         same special situation, is less than ECU 50 000.
      
      The term “the person concerned” shall be interpreted in the same way as in Article 899.
      In all other cases, the decision-making customs authority shall refuse the application.’
      11.      Article 906 of the implementing regulation provides:
      
      ‘Within 15 days of receipt of the case referred to in Article 905(2) the Commission shall forward a copy thereof to the Member
         States.
      
      Consideration of the case in question shall be included as soon as possible on the agenda of a meeting of the Committee provided
         for in Article 247 of the Code.’
      
      12.      After the events in this case, the second paragraph of Article 906 of the implementing regulation was amended as follows by
         Commission Regulation (EC) No 1335/2003 of 25 July 2003 amending the implementing regulation: (10)
      
      ‘Consideration of the case in question shall be included as soon as possible on the agenda of a meeting of the group of experts
         provided for in Article 907.’
      
      13.      The first paragraph of Article 907 of the implementing regulation provides:
      
      ‘After consulting a group of experts composed of representatives of all Member States, meeting within the framework of the
         Committee to consider the case in question, the Commission shall decide whether or not the situation which has been considered
         justifies repayment or remission.’
      
       Facts
      14.      The facts of the case, as found by the Court of First Instance, are set out in the following terms in paragraphs 14 to 28
         of the judgment under appeal:
      
      ‘14      The applicant, established in Belgium, is a wholesaler dealing in chemical products, in particular nitrogenous solutions (urea
         and ammonium nitrate). The applicant’s group of companies includes Rellmann GmbH in Hamburg (Germany), a wholly-owned subsidiary
         of the applicant, and Agro Baltic GmbH, based in Rostock (Germany), a wholly-owned subsidiary of Rellmann. In 1989 the applicant
         acquired the company Champagne Fertilisants, which is the applicant’s tax representative for all its operations in France.
      
      15      The exporter, the Polish company Zakłady Azotowe Puławy (“ZAP”), sells the goods to Agro Baltic. Within the applicant’s group
         of companies, the commercial chain is as follows: Agro Baltic sells the goods on to Rellmann, which in turn sells them on
         to the applicant. Corresponding invoices are drawn up.
      
      16      In Case T‑134/03 Agro Baltic bought three shipments of urea ammonium nitrate solution from ZAP between March and September
         1997. Those cargoes followed the commercial route described in paragraph 15 above.
      
      17      Cogema, an authorised customs agent, was appointed to put the goods into free circulation on behalf of Agro Baltic and to
         release them for consumption on the applicant’s behalf.
      
      18      The goods were thus initially put into free circulation on behalf of Agro Baltic using declaration EU0 with the ZAP invoices
         to Agro Baltic attached and the EUR.1 certificates declaring the goods to be of Polish origin. The goods were at the same
         time placed under a warehousing procedure, which they left some minutes later in order to be released for consumption on behalf
         of Champagne Fertilisants.
      
      19      In Case T‑135/03 Agro Baltic bought one shipment from ZAP in January 1995, which then followed the commercial route described
         in paragraph 15 above.
      
      20      Agro Baltic appointed SCAC Rouen (“SCAC”), an authorised customs agent, to put the goods into free circulation on behalf of
         Agro Baltic and to release them for consumption on the applicant’s behalf. In respect of the same goods, therefore, two customs
         import declarations were made to the same customs office, referring to two different consignees, so as to enable the payment
         of customs duties to be separated from that of VAT.
      
      21      SCAC used a simplified customs clearing procedure for putting the goods into free circulation and releasing them for consumption
         in the sole name of the applicant. To that end, SCAC lodged declaration IM4 in the applicant’s name, attaching the Rellmann
         invoice to the applicant and an EUR.1 certificate declaring the goods to be of Polish origin.
      
      22      Initially, the competent French authorities accepted the declarations relating to these two cases, granted exemption from
         customs duty on import on the basis of the EUR.1 certificates, and did not demand payment of anti-dumping duties.
      
      23      Following a subsequent check, however, the competent French authorities took the view that the specific duty of ECU 19 per
         tonne set by the second subparagraph of Article 1(3) of Regulation No 3319/94 should have been applied to all the shipments
         concerned in the present two cases. In their view, the real importer of the goods was the applicant, which had not been directly
         invoiced by ZAP, although ZAP had certified the goods at issue. More specifically, in the case which gave rise to Case T‑134/03,
         the competent French authorities took the view that the intermediate warehousing of the goods constituted a legal fiction
         due to its extremely short duration, and that the goods in the three operations concerned had been acquired by the applicant
         even before the declarations putting the goods into free circulation on behalf of Agro Baltic were lodged. More specifically,
         in the case which gave rise to Case T‑135/03, the relevant French authorities took the view that a single declaration had
         been made in order to put the goods into free circulation and release them for consumption on the applicant’s behalf.
      
      24      Accordingly, in the case which gave rise to Case T‑134/03, officials at the Centre du renseignement d’orientation et de contrôle
         de Poitiers (Poitiers Policy Information and Control Centre) drew up a minute on 4 December 1998 according to which a total
         of FRF 3 911 497 (EUR 564 855) in duties and taxes had been avoided. In the case which gave rise to Case T‑135/03, the Direction
         interrégionale des douanes de Rouen (Rouen Interregional Tax Office) drew up a minute on 13 November 1997 which showed that
         a total of FRF 840 271 (EUR 128 098) in duties and taxes should have been charged.
      
      25      In November and December 1999 the applicant applied to the French customs authorities for remission of duties on the basis
         of Article 239 of the Customs Code. On 14 February 2002 the authorities transmitted those applications to the Commission,
         which registered them under reference numbers REM 02/02 (Case T‑134/03) and REM 03/02 (Case T‑135/03).
      
      26      By letters dated 9 and 10 September 2002, to which the applicant replied on 11 October 2002, the Commission informed the applicant
         that it intended to take a negative decision in cases REM 02/02 and REM 03/02.
      
      27      On 12 November 2002 the REM/REC group of experts met within the framework of the customs committee’s repayments section. According
         to the report of that meeting which was drawn up on 29 November 2002, the final vote of the group of experts produced the
         following result as regards cases REM 02/02 and REM 03/02: “six delegations voted in favour of the Commission’s proposal,
         four delegations abstained and five delegations voted against the Commission’s proposal”.
      
      28      On 20 December 2002, being of the opinion that there had been obvious negligence on the part of the applicant and that there
         was no special situation and that therefore the conditions for the application of Article 239 of the Customs Code had not
         been fulfilled, the Commission adopted Decision C (2002) 5217 final (REM 02/02) and Decision C (2002) 5218 final (REM 03/02)
         declaring the remission of import duty not to be justified (“the contested decisions”). The Commission notified the French
         customs authorities of those decisions; the authorities in turn transmitted them to the applicant on 10 February 2003.’
      
       Proceedings before the Court of First Instance and the judgment under appeal 
      15.      By applications lodged at the Registry of the Court of First Instance on 18 April 2003, registered as T-134/03 and T-135/03,
         CMF sought the annulment of the contested decisions, relying on three pleas in law.
      
      16.      By the first plea, CMF alleged inter alia infringement of Article 7 EC and Article 5 of the comitology decision and infringement
         of Article 4(1) of the rules of procedure of the Customs Code Committee.
      
      17.      The second plea alleged manifest errors of assessment by the Commission in finding that the conditions were not met for remission
         of duties pursuant to Article 239 of the Customs Code.
      
      18.      The third plea alleged breach by the Commission of its duty to state reasons in accordance with Article 253 EC.
      
      19.      The Court of First Instance joined Cases T-134/03 and T-135/03 and, subsequently, by the judgment under appeal, dismissed
         the actions and ordered CMF to pay the costs.
      
      20.      As far as the alleged infringement of Article 7 EC and Article 5 of the comitology decision was concerned, the Court of First
         Instance first dismissed as inadmissible CMF’s plea of illegality in respect of the first paragraph of Article 907 of the
         implementing regulation, raised in the context of that plea in law. (11)
      
      21.      On this point, the Court of First Instance first observed that the plea of illegality was out of time since it had been raised
         only in the reply and was not based on any matter of law or of fact which came to light in the course of the procedure within
         the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance. (12)
      
      22.      The Court of First Instance then observed that it could not consider of its own motion the question of the possible illegality
         of the first paragraph of Article 907 of the implementing regulation because it was not a matter of public policy. (13) While conceding that it is bound to raise of its own motion any lack of competence on the part of the institution adopting
         the contested measure, the Court of First Instance held that in the case before it the Commission had acted within its powers
         when it adopted the contested decisions on the basis of the first paragraph of Article 907 of the implementing regulation,
         which had in turn been adopted in accordance with the opinion of the Customs Code Committee in conformity with the procedure
         referred to in Articles 239, 247 and 247a of that code. Furthermore, it did not follow from the case-law that the Court of
         First Instance must of its own motion consider whether the Commission had exceeded its powers by adopting the first paragraph
         of Article 907 of the implementing regulation, the legal basis for the contested decisions. (14)
      
      23.      Secondly, the Court of First Instance dismissed CMF’s argument to the effect that the group of experts which meets, pursuant
         to the first paragraph of Article 907 of the implementing regulation, ‘within the framework of the [Customs Code] Committee’
         constitutes a regulatory committee within the meaning of Article 5 of the comitology decision. (15)
      
      24.      In this regard, the Court of First Instance noted that it follows from the seventh recital in the preamble to the comitology
         decision and from Article 5 thereof that the regulatory procedure is to be used for ‘measures of general scope designed to
         apply essential provisions of basic instruments’, whereas the contested decisions were individual decisions and therefore
         not at all of general scope. In the view of the Court of First Instance, to consider that the regulatory committee within
         the meaning of Article 5 of the comitology decision was empowered to give an opinion on a proposal for an individual decision
         as to repayment or remission of customs duties would amount to conflating the notions of decision and measure of general scope,
         which are on the contrary fundamentally distinct, and would therefore be in breach of Article 249 EC as well as of Article
         7 EC and the comitology decision. (16)
      
      25.      The Court of First Instance added that if the legislature – in this case the Commission – had intended the Customs Code Committee
         to be consulted in the context of individual remission or repayment procedures, it would undoubtedly have used the phrase
         ‘after consulting the committee’ in the first paragraph of Article 907 of the implementing regulation. The phrase ‘within
         the framework of the Committee’ reflects the fact that the group of experts referred to in Article 907 is clearly an entity
         which is distinct in functional terms from the Customs Code Committee. (17)
      
      26.      As regards infringement of Article 4(1) of the rules of procedure of the Customs Code Committee (‘CCC’) – alleged on grounds
         of failure to comply with the time-limit laid down therein, in that the working documents had not been sent to the members
         of the committee no later than 14 days in advance of the meeting – the Court of First Instance rejected CMF’s plea. 
      
      27.      After finding that the members of the group of experts had had 13 calendar days to familiarise themselves with the letter
         sent by CMF in response to the Commission’s letters, the Court of First Instance held that natural or legal persons may not
         rely on an alleged breach of the provision in question since it is not intended to ensure protection for individuals but to
         ensure the internal working of that committee while fully respecting the prerogatives of its members. (18)
      
      28.      As regards the manifest errors of assessment alleged to have been committed in the application of Article 239 of the Customs
         Code, the Court of First Instance noted that it was common ground that CMF did not practise any deception, and accordingly
         considered the second plea only in so far as it related to the alleged absence of negligence on the part of CMF, holding that
         the Commission did not make any manifest error of assessment in the matter, which meant that it was not necessary to examine
         the claims relating to the existence of a special situation. (19)
      
      29.      The Court of First Instance noted as a preliminary that, according to the case-law, in order to assess whether there is obvious
         negligence within the meaning of Article 239 of the Customs Code, account must be taken in particular of the complexity of
         the provisions non-compliance with which gave rise to the customs debt, as well as the professional experience of the economic
         operator and the degree of care which it exercised. (20)
      
      30.      With regard to the complexity of the provisions, the Court of First Instance pointed out first that it had already held in
         a previous ruling (21) that there was no particular difficulty in interpreting the second subparagraph of Article 1(3) of Regulation No 3319/94
         and, secondly, that as the Commission had submitted, CMF could not avoid its own liability by relying on the mistake, genuine
         or otherwise, of its customs agents, having drawn up the arrangements for importing the goods itself and having freely chosen
         those customs agents. (22)
      
      31.      As regards CMF’s professional experience, the Court of First Instance found that the Commission was fully entitled to take
         the view that CMF had the requisite experience in carrying out import and export transactions. (23)
      
      32.      As regards, finally, the care taken by the operator, the Court considered that, taken as a whole, CMF’s conduct in the course
         of the transactions concerned could not be regarded as sufficiently careful. Despite claiming a lack of experience of customs
         clearing operations in respect of the goods concerned, as well as inherent difficulties in applying Regulation No 3319/94,
         CMF had not only failed to seek advice from its customs agents, but had also given them very precise instructions. The Court
         of First Instance further considered that CMF’s mistakes in drawing up its invoices also suggested a lack of care on its part. (24)
      
       Procedure before the Court of Justice and the forms of order sought
      33.      By application lodged at the Registry of the Court of Justice on 14 December 2005, CMF brought an appeal against the judgment
         in Joined Cases T‑134/03 and T‑135/03.
      
      34.      Counsel for the parties made oral submissions at the hearing held on 5 October 2006.
      
      35.      CMF claims that the Court should:
      
      –        set aside the judgment under appeal in its entirety;
      –        grant the forms of order sought by CMF at first instance;
      –        order the Commission to pay the costs both of the appeal and of the proceedings at first instance.
      36.      The Commission contends that the Court should:
      
      –        dismiss the appeal;
      –        order CMF to pay the costs.
       Legal analysis 
       Preliminary remarks on the grounds of appeal
      37.      CMF relies on four grounds of appeal. The first two grounds are that the Court of First Instance gave an ‘incomplete presentation
         of the legal context’ and an ‘incomplete presentation of the facts’ respectively. By the third ground, CMF alleges that the
         Court of First Instance made a number of errors in law in its examination of the merits of the first plea in the action for
         annulment alleging infringement of essential procedural requirements. The fourth ground concerns an allegedly incorrect application
         of Article 239 of the Customs Code by the Court of First Instance.
      
      38.      The first ground of appeal is clearly not capable of standing alone. In alleging an ‘incomplete presentation of the legal
         context’, CMF is claiming that the Court of First Instance erred by failing to mention, in the presentation of the relevant
         legal context at paragraphs 1 to 13 of the judgment under appeal, either recital 39 to Regulation No 3319/94 or Article 2
         of the comitology decision.
      
      39.      It seems to me quite clear that a failure to mention, in the part of the judgment that merely recites the legal background,
         one or more provisions which ought to be considered material to the case cannot in itself constitute a defect invalidating
         the judgment itself. The claim must therefore be construed instead as alleging failure by the Court of First Instance to take into consideration the recital and article in question, as well as errors of law in its judicial analysis consequent upon such failure.
      
      40.      And indeed in its submissions in the appeal in relation to the first ground CMF argues that as a result of the omissions in
         question the Court of First Instance had, in the first place, misinterpreted the second subparagraph of Article 1(3) of Regulation
         No 3319/94 in finding that the fact that CMF had not circumvented the anti-dumping measures did not preclude the imposition
         of the specific anti-dumping duty and, in the second place, mistakenly concluded that the regulatory procedure provided for
         in the comitology decision had to be followed only for the adoption of measures of general scope.
      
      41.      These are arguments, however, which are raised more specifically in the context of the fourth and third grounds of appeal
         respectively. (25) They will therefore be considered in the discussion of those grounds.
      
      42.      In relation to the alleged ‘incomplete presentation of the facts’, which is the second ground of appeal, CMF argues that in
         paragraphs 14 to 28 of the judgment under appeal the Court of First Instance made an ‘incomplete and inaccurate’ presentation
         of the facts, thereby distorting those facts and erring in law. (26) As a result of that distortion, the Court of First Instance had wrongly found a situation of indirect invoicing, which justified
         the application of the specific duty provided for under the second subparagraph of Article 1(3) of Regulation No 3319/94.
      
      43.      CMF claims that contrary to the view taken by the French customs authorities and the Commission there was not a situation
         of indirect invoicing. In support of that claim, however, it puts forward a series of arguments of a legal nature, but fails
         to demonstrate even the slightest error in terms of fact finding on the part of the authorities in question or the Commission, let alone by the Court of First Instance. 
      
      44.      But there is in any case no need, for the purposes of this case, to enter into these arguments.
      
      45.      In the first place, the Court of First Instance did not consider, in the judgment under appeal, the issue as to whether a
         situation of indirect invoicing had arisen in the case before it. It was entirely normal and proper for the Court of First Instance not to do so, since there is nothing on the record of
         the case at first instance to indicate that CMF had pleaded an infringement by the Commission of the second subparagraph of
         Article 1(3) of Regulation No 3319/94. That issue cannot therefore be raised for the first time on appeal, where the jurisdiction
         of the Court of Justice is confined to review of the findings of law in relation to the pleas argued before the Court of First
         Instance. (27)
      
      46.      In the second place, by denying that any customs debt is due, CMF is not only raising a new argument but one which is utterly
         inconsistent with the subject-matter of the action for annulment brought before the Court of First Instance.
      
      47.      It has to be remembered that by the contested decisions the Commission decided on applications by CMF for remission of duties
         pursuant to Article 239 of the Customs Code and Article 905 of the implementing regulation. 
      
      48.      But, as the Commission rightly pointed out, the sole aim of those provisions, which were conceived in the interests of fairness, (28) is to enable certain economic operators, in certain special situations and where there is no obvious negligence or deception
         involved, to be exempted from payment of duties due from them, not to enable them to contest the actual principle of a customs
         debt being due. (29) It follows that, in relation to the contested decisions, CMF could properly rely only on arguments seeking to show the existence
         in this case of a special situation and the absence of obvious negligence or deception on its part, and not on arguments seeking
         to show that the decisions of the competent national authorities requiring it to pay the duties at issue were unlawful. (30)
      
      49.      In other words, applications submitted to the Commission under Article 239 of the Customs Code in conjunction with Article
         905 of the implementing regulation are unrelated to the question whether or not the provisions of substantive customs law
         have been correctly applied by the national customs authorities. Under Article 236 of the Customs Code such a question falls
         within the competence of the national customs authorities, whose decisions may be challenged before the national courts, without
         prejudice to the possibility for those courts to make a reference to the Court of Justice pursuant to Article 234 EC. (31)
      
      50.      Since the making of such applications to the Commission presupposes the existence of a customs debt, (32) which CMF cannot dispute in an action for the annulment of the contested decisions, the legal arguments put forward in relation
         to the second ground of appeal must be dismissed for this reason also. (33)
      
      51.      The Court’s attention must therefore focus on the third and fourth grounds of appeal. 
      
       The alleged errors of law made in the examination as to whether essential procedural requirements had been infringed 
       The alleged errors of law on the part of the Court of First Instance in determining that there had been no breach of Article
         7 EC or of Article 5 of the comitology decision 
      
      –       CMF’s arguments 
      52.      By the first two parts of this ground of appeal, which concern, respectively, the ‘infringement of Article 7 EC and the issue
         of the illegality of the first paragraph of Article 907 of the [implementing] regulation’ and the ‘legal nature of the committee
         consulted by the Commission’, CMF claims that the Court of First Instance made a series of errors in law in dismissing the
         part of its first ground of annulment concerning the alleged infringement of Article 7 EC and Article 5 of the comitology
         decision. The two parts should be considered together, in my view, since both essentially concern the issue of the procedure
         that the Commission ought to have followed in dealing with CMF’s applications for remission of duty and accordingly the issue
         of whether the Commission exceeded its powers. 
      
      53.      The file shows that CMF’s argument before the Court of First Instance to the effect that the Commission had exceeded its powers
         rested essentially on the premiss that the committee that met on 12 November 2002 (see point 26 above) has to be regarded,
         in the light of Articles 247 and 247a of the Customs Code, as a regulatory committee within the meaning of Article 5 of the
         comitology decision. According to CMF, since it was the regulatory procedure governed by that article that therefore applied,
         the result of the vote by the representatives of the Member States at the meeting of the committee held on 12 November 2002
         meant, in terms of that article, that no opinion had been delivered, in consequence of which the Commission was not free to
         decide by itself on CMF’s applications for remission but was required to submit its legislative proposal to the Council without
         delay and to inform the European Parliament accordingly.
      
      54.      In its defence, however, the Commission pointed out that the first paragraph of Article 907 of the implementing regulation
         empowers it to decide by itself on applications for remission after consulting not a regulatory committee but a group of experts
         which it had freely chosen to set up, when it adopted the implementing regulation, to assist it in adopting decisions on the
         repayment or remission of duties. 
      
      55.      CMF countered, in its reply, that the interpretation of the first paragraph of Article 907 of the implementing regulation
         proposed by the Commission could not be upheld since it would render the provision in question invalid. According to the Commission’s
         own interpretation of Article 907, its adoption of that provision did not signify the adoption of a measure to implement the
         Customs Code, but rather the undue conferral of powers upon itself, in breach of Article 7 EC. In the alternative, if the
         first paragraph of Article 907 of the implementing regulation were interpreted as meaning that the group of experts mentioned
         there is not a regulatory committee, CMF argued – for the purposes of Article 241 EC – that the provision itself was illegal
         as contrary to Article 7 EC.
      
      56.      In the judgment under appeal, the Court of First Instance dismissed both CMF’s main argument, as unfounded, and the plea of
         illegality, as inadmissible, on the grounds I have summarised in points 20 to 25 above.
      
      57.      The arguments raised by CMF in the first two parts of this ground of appeal may be summarised as follows.
      
      58.      In the first place, the Court of First Instance, by holding that the first paragraph of Article 907 of the implementing regulation
         allowed the Commission to decide by itself – that is, without going through the regulatory committee procedure – on applications
         for remission, had misinterpreted that provision and, as a consequence, wrongly decided that the contested decisions were
         not invalidated by any lack of competence on the part of the adopting institution. That interpretation of the provision in
         question was incorrect as it would render it contrary to the basic regulation (the Customs Code) and to Article 7 EC because
         of the lack of a legal basis. 
      
      59.      In the second place, CMF argues that having interpreted the first paragraph of Article 907 of the implementing regulation
         to the effect that it empowered the Commission to decide on applications for remission without going through the regulatory
         committee procedure, the Court of First Instance had erred by failing to examine the merits of the plea alleging that that
         provision is illegal, being contrary to the basic regulation and to Article 7 EC.
      
      60.      On the one hand, CMF denies that the plea of illegality was raised only in the reply and argues that in any case it could
         properly be raised at the reply stage because of a matter of law which came to light in the course of the proceedings within
         the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance, that matter of law being the interpretation
         of the first paragraph of Article 907 of the implementing regulation put forward by the Commission in the defence.
      
      61.      On the other hand, CMF argues that the Court of First Instance was wrong to hold that the question of the possible illegality
         of the first paragraph of Article 907 of the implementing regulation was not a matter of public policy and could not therefore
         be raised by the Court of its own motion. The distinction drawn by the Court of First Instance – in relation to whether matters
         may be raised by the Court of its own motion – between lack of legislative competence in the party that adopted the contested
         measure and lack of legislative competence in the party that adopted the act which constitutes the legal basis for the contested
         measure is artificial and wrong, and the judgment cited by the Court of First Instance in support of that distinction (34) is not only rather dated now and in any event irrelevant, since it relates to the ECSC Treaty and not to the EC Treaty, but
         if anything is authority for the opposite of what the Court of First Instance inferred from it.
      
      62.      In the third place, CMF argues that the Court of First Instance wrongly decided, on the assumption that the contested decisions
         were individual in scope and in the light of the criteria set out in the comitology decision for the choice of procedures
         to be followed in the exercise of the implementing powers conferred on the Commission, that the regulatory procedure could
         not be used in that case. 
      
      63.      On that point, CMF maintains first that the Court of First Instance misinterpreted those criteria, having failed to have regard
         to Article 2 of the comitology decision which makes it clear that use of the regulatory procedure is not confined solely to
         the adoption of measures of general scope but is possible also for the adoption of measures adapting or updating non-essential
         provisions of basic instruments, in other words measures which, according to CMF, are by definition not of general scope.
         CMF also points out that, according to the case-law of the Court of Justice, (35) the criteria set out in Article 2 of the comitology decision for the choice of procedures are not binding.
      
      64.      Secondly, CMF denies that the contested decisions are individual decisions devoid of general scope. The decisions are not
         wholly individual but also have general scope since they relate to a customs debt and thus directly affect the Community’s
         own resources.
      
      65.      In the fourth place, CMF submits that Article 239 of the Customs Code, which it claims the Court of First Instance wrongly
         failed to take into account in its examination of the legal nature of the committee in question, makes clear that it was the
         intention of the Community legislature – more specifically, of the Council – that the regulatory procedure was to be required
         for the adoption of decisions on the repayment or remission of duties.
      
      66.      According to CMF, that is indicated by the dual reference in Article 239(1) to the ‘Committee procedure’ or the ‘procedure
         of the committee’ and the use, in the first and second indents respectively of that provision, of different expressions –
         ‘to be determined’ and ‘shall be defined’ – in relation to the situations which may give rise to repayment or remission. It
         is only by interpreting the first indent as referring to the taking of the decision as such and as requiring that to be done
         in accordance with the committee procedure that sense can be made of that dual reference, which otherwise would constitute
         a needless repetition by the legislature.
      
      67.      In the fifth place, CMF criticises the judgment under appeal on the ground that the Court of First Instance failed to rule
         on the issue raised by CMF during the course of the hearing as to the operation by the committee in question outside any budget
         line or, in consequence, on the issue of the non-compliance of the contested decisions with the Community budget rules. It
         cites case-law of the Court of Justice (36) to the effect that, in the system of the Treaty, any implementation of expenditure by the Commission presupposes the entry
         of the relevant appropriation in the budget and an act of secondary legislation from which the expenditure derives.
      
      68.      In the sixth place, CMF argues that the Court of First Instance again erred in law by making no ruling as to the precise legal
         nature of the committee in question and thus failing to rule on the legal basis on which that committee could legitimately
         have been established.
      
      –       Discussion
      69.      Having thus identified the various arguments put forward in the first two parts of the present ground of appeal, all of which
         the Commission maintains are unfounded, I now turn to consider them together, leaving to last the argument concerning the
         failure to consider on the merits the issue of the possible illegality of the first paragraph of Article 907 of the implementing
         regulation.
      
      70.      Chapter 3 of the implementing regulation sets out ‘[s]pecific provisions relating to the application of Article 239 of the
         [Customs] Code’. It is common cause that this case falls within the scope of Section 2 of that chapter, which deals with ‘[d]ecisions
         to be taken by the Commission’, not that of Section 1, which concerns ‘[d]ecisions to be taken by the customs authorities
         of the Member States’.
      
      71.      In accordance with Article 905(1) of the implementing regulation, the decision on CMF’s applications for remission had therefore
         to be adopted ‘under the procedure laid down in Articles 906 to 909 [of that regulation]’. 
      
      72.      The second paragraph of Article 906, in the version that was in force at least up to the adoption of the contested decisions,
         provides, inter alia, that ‘[c]onsideration of the case in question shall be included as soon as possible on the agenda of
         a meeting of the Committee provided for in Article 247 of the [Customs] Code’. Article 907 then provides that the Commission
         is to decide on the application for repayment or remission ‘[a]fter consulting a group of experts composed of representatives
         of all Member States, meeting within the framework of the Committee to consider the case in question’.
      
      73.      CMF’s argument is that the body which the Commission is required to consult under the procedure set out in Articles 906 to
         909 of the implementing regulation is the committee referred to in Article 247 of the Customs Code and that this is a regulatory
         committee within the meaning of Article 5 of the comitology decision.
      
      74.      I would first observe, as did the Court of First Instance, that the wording of Article 907 – and in particular the phrase
         ‘within the framework of the Committee’ – already suggests that the group of experts referred to in that article is not the
         Customs Code Committee as such, but an entity distinct from that committee, at least in terms of its function. (37)
      
      75.      The obligation, relied upon by CMF, of construing Article 907 in a manner consistent with the basic regulation (the Customs
         Code) does not, in my view, lead to a different conclusion.
      
      76.      As far as Article 239 of the Customs Code is concerned, there is nothing therein to support CMF’s submission that it prescribes
         the use of the regulatory procedure for the adoption of decisions on individual applications for repayment or remission. Although
         the article is not clearly drafted, it is none the less plain, to my mind, that both of the references there to the ‘committee
         procedure’ [one of those references is to the ‘procedure of the committee’] relate in any case to the ‘determining’ or ‘defining’
         of the ‘situations’ in which duties may be repaid or remitted, in other words to the determination in the abstract of the circumstances in which repayment or remission is permitted. Article 239 therefore, when it mentions the ‘committee
         procedure’ [or the ‘procedure of the committee’], is referring, as with respect to defining ‘the procedures to be followed’,
         to an exercise of a legislative nature rather than to decision-making.
      
      77.      Nor is there in Articles 247 and 247a of the Customs Code, on a proper construction, anything to lend weight to CMF’s submissions.
         Granted, Article 247 states that the ‘measures necessary for the implementation of [the Customs Code]’ are to be adopted in
         accordance with the regulatory procedure referred to in Article 247a(2), in other words the procedure set out in Article 5
         of the comitology decision. It is also true that the phrase ‘measures necessary for the implementation of [the Customs Code]’
         could, on a broad interpretation, be taken to cover inter alia the adoption of decisions in individual cases. It is clear
         from the legislative context, however, that that phrase has to be construed more narrowly, that is to say, as referring to
         the detailed provisions designed to complement the rules laid down in the Customs Code itself.
      
      78.      I would point out in this regard that the wording of Articles 247 and 247a of the Customs Code that is material to this case
         – in other words, the version in force at the time of the administrative procedure – is the result of amendments made to the
         Customs Code by Regulation No 2700/2000, the 14th recital to which states that ‘[t]he measures necessary for the implementation
         of [the Customs Code] should be adopted in accordance with [the comitology decision]’.
      
      79.      It is therefore in the light of the comitology decision that the scope of Articles 247 and 247a has to be determined.
      
      80.      I also note that the comitology decision was adopted on the basis of the third indent of Article 202 EC, under which the Council
         may impose certain procedural requirements in respect of the exercise of powers for the implementation of the rules that the
         Council lays down, and those procedures must be consonant with the principles and rules that the Council lays down in advance
         (an example being the comitology decision). Those principles and rules, the Court has pointed out, may also apply to the methods
         for choosing between the various procedures to which the Commission’s exercise of the implementing powers conferred on it
         may be subject. (38)
      
      81.      It is certainly true that, according to the Court, the concept of implementation for the purposes of the third indent of Article
         202 EC covers both the drawing-up of implementing rules and the application of rules to specific cases by means of acts of
         individual application. The Court has noted in this regard that since the Treaty uses the term ‘implementation’ without restricting
         it by the addition of any further qualification, that term cannot be interpreted as excluding acts of individual application. (39)
      
      82.      It is also true that, as CMF pointed out, the Court has explained that the criteria laid down in Article 2 of the comitology
         decision for the choice of procedures are not binding, even though the Community legislature must give reasons for its choice
         if it departs from those criteria in the choice of a committee procedure. (40)
      
      83.      However, it was the Court itself which also explained that acts of individual application can be covered only by point (a)
         of Article 2 of the comitology decision, which provides for the use of the management procedure, while measures of general
         application may come under either point (a) or point (b) of that article and may therefore be adopted, as the case may be,
         in accordance with the management procedure or the regulatory procedure. (41)
      
      84.      This refutes CMF’s argument that use of the regulatory procedure is not confined by Article 2 of the comitology decision solely
         to the adoption of measures of general scope.
      
      85.      Thus, if Article 247 of the Customs Code is to be interpreted in conformity with the comitology decision, the reference in
         that article to ‘measures necessary for the implementation of [the Customs Code]’ must be construed as a reference to measures
         of general scope only.
      
      86.      CMF’s other argument, to the effect that the contested decisions are not measures of individual application, appears manifestly
         unfounded. It is quite obvious, as noted by the Commission, that those decisions concerned whether or not the conditions laid
         down in Article 239 of the Customs Code for remission of duties were satisfied in a specific case relating to CMF and are not measures applicable to objectively determined situations and vis-à-vis categories of persons viewed in a general
         and abstract manner. (42) The fact, argued by CMF, that the contested decisions have an impact on the Community’s own resources is clearly of no relevance
         and does not turn those decisions into measures of general application.
      
      87.      The Court of First Instance did not err in law therefore in holding that the contested decisions were ‘individual decisions
         and therefore ... not of general scope’ and that they could not, under the comitology decision, be adopted in accordance with
         the regulatory procedure set out in Article 5 of that decision.
      
      88.      Articles 247 and 247a of the Customs Code, interpreted in the light of and in conformity with the comitology decision, thus
         offer no support for CMF’s argument that in order to interpret the first paragraph of Article 907 of the implementing regulation
         in conformity with those higher-ranking rules of the Customs Code, the group of experts mentioned in the latter provision
         must be regarded as a regulatory committee within the meaning of Article 5 of the comitology decision.
      
      89.      The pleas to the effect that the Court of First Instance failed to rule, first, on the precise legal nature of the group of
         experts referred to in the first paragraph of Article 907 of the implementing regulation or, in consequence, on the legal
         basis on which that group of experts was established and, secondly, on the alleged operation of that group of experts outside
         any budget line should also, in my view, be dismissed.
      
      90.      In the first case, I would point out – as does the Commission – that having correctly concluded that the group of experts
         is not a regulatory committee within the meaning of Article 5 of the comitology decision (43) and that it is ‘a distinct entity in functional terms from the Customs Code Committee’, (44) the Court of First Instance was not required to specify further the legal nature of the group, given that CMF’s reasoning
         was predicated on that group being classified as a regulatory committee. Moreover, it is made sufficiently clear in the judgment
         under appeal (45) that the legal basis for the establishment of the group of experts under the first paragraph of Article 907 of the implementing
         regulation is provided by the combined provisions of Articles 239, 247 and 247a of the Customs Code, from which it follows,
         in effect, that the ‘procedures to be followed’ for the purposes of repayment or remission under Article 239 are defined in
         accordance with the regulatory procedure set out in Article 5 of the comitology decision. The Court of First Instance did
         not even omit to point out that Article 907 of the implementing regulation was in fact approved in accordance with the above
         procedure, (46) a fact which was not disputed by CMF.
      
      91.      In the second case, suffice it to note, along with the Commission, that the issue as to whether the group of experts operates
         on a proper accounting basis has not the slightest bearing on the legality of the contested decisions, but, if anything, goes
         to the validity of decisions on expenditure appropriations which are not the subject of CMF’s action for annulment.
      
      92.      I turn finally to the pleas concerning the failure to consider on the merits the plea of illegality entered in respect of
         the first paragraph of Article 907 of the implementing regulation.
      
      93.      At the outset, I would point out that the unfoundedness on the merits of that plea of illegality is already clearly evident
         from the above discussion, in which I have shown that the establishment of the group of experts did not lack a legal basis
         and was not contrary to the provisions of the Customs Code relied upon by CMF.
      
      94.      I have some doubts, however, as to whether the Court may for that reason, by substituting other grounds, (47) refrain from ruling on the plea concerning the failure to consider the plea of illegality. A substitution of grounds in the
         judgment on appeal would appear to presuppose a prior finding of an error in law on the part of the Court of First Instance.
      
      95.      It is therefore only in that perspective that I will now also consider the above plea, in relation to which I would make the
         following points.
      
      96.      First, while disputing the view of the Court of First Instance that the plea of illegality was raised only at the reply stage,
         CMF does not actually put forward any argument to rebut that view. CMF confines itself, in effect, to stating that the discussion
         as to the legality of the first paragraph of Article 907 of the implementing regulation came about as a result of the interpretation,
         with which CMF disagreed, given by the Commission to that provision in its defence and that that discussion would not have
         arisen if the interpretation given by CMF itself in its originating application had been followed. Those comments thus confirm,
         as a matter of fact, that the plea of illegality was indeed raised only at the reply stage. I would also note that it is in
         fact incorrect of CMF to state that it put forward its own interpretation of the first paragraph of Article 907 of the implementing
         regulation in its originating application. A simple perusal of that document reveals that the provision in question is not
         even mentioned there. (48)
      
      97.      Secondly, I find equally unfounded CMF’s argument that the plea of illegality entered in respect of the first paragraph of
         Article 907 of the implementing regulation should be regarded as an issue based on a matter of law which came to light in
         the course of the procedure, within the meaning of Article 48(2) of the Rules of Procedure of the Court of First Instance.
         In my view, the interpretation of the first paragraph of Article 907 of the implementing regulation set out by the Commission
         in the notice of defence that it lodged with the Court of First Instance cannot constitute a matter of law which came to light
         during the procedure, within the meaning of Article 48(2), since it did not have the effect of altering the legal situation
         as it existed on the date on which the action for annulment was brought, (49) contrary to what might be concluded, for example, in the event of a supervening amendment, repeal, annulment or declaration
         of illegality of a measure having a bearing on the outcome of the case.
      
      98.      Thirdly, I believe, on the other hand, that the Court of First Instance did indeed err in law in holding that the issue raised
         by CMF as to the possible illegality of the first paragraph of Article 907 of the implementing regulation was not a matter
         of public policy.
      
      99.      In this regard, I first of all agree with CMF that the judgment in Société des fonderies de Pont-à-Mousson v High Authority, (50) cited as authority by the Court of First Instance, does not offer any support for its conclusion on the matter. 
      
      100. In the passage of that judgment referred to by the Court of First Instance, the Court stated that in its second submission
         the applicant could have attacked the individual High Authority decision affecting it only by pleading the illegality of a
         particular measure of general scope of which that decision was an application. The defect complained of was, if at all, to
         be found in that measure and not in the individual decision complained of. The Court held that, although ‘[t]he applicant
         ha[d] not expressly [pleaded illegality] and it could only with difficulty be accepted that such a complaint has been made
         by implication’, it was nevertheless ‘inappropriate to allow doubt as to the legality of [the measure of general scope] to
         persist, in so far as the answer to [that] question [was] relevant to [those] proceedings’ and for this reason was ‘of the
         opinion that … the merits of the second submission must be considered’. I therefore fail to see how the Court of First Instance
         could have found a basis in that judgment for the view that the possible illegality of the first paragraph of Article 907
         of the implementing regulation was not a matter of public policy. I would add, moreover, in order to demonstrate further the
         irrelevance of the precedent cited by the Court of First Instance, that in the case decided by that judgment the doubt as
         to the legality of the measure of general scope did not arise in relation to the legislative competence of the body which
         adopted the act, but in relation to other matters, concerning the act’s internal legitimacy. 
      
      101. Nor does the argument that Laboratoires Servier v Commission, (51) which was relied upon by CMF at first instance, concerns the lack of competence of the institution which adopted the contested
         measure, not the lack of competence of the institution which adopted the act on the basis of which the contested measure was
         adopted, (52) constitute a valid basis for refusing to treat as a matter of public policy the question of the possible illegality – on
         the ground that the Commission did not possess the requisite competence – of the first paragraph of Article 907 of the implementing
         regulation. There was an obligation on the Court of First Instance to state the reasons why, aside from the absence of a precedent
         in point, the lack of competence of the institution which adopted the act on the basis of which the contested measure was
         adopted cannot be regarded as a matter of public policy. 
      
      102. As regards the criteria for determining whether an issue is one of public policy, I think it appropriate to refer to those
         identified by Advocate General Jacobs in points 141 and 142 of his Opinion in Salzgitter v Commission. (53) According to these criteria, it must be determined:
      
      –        ‘whether the rule infringed is designed to serve a fundamental objective of the Community legal order and whether it plays
         a significant role in the achievement of that objective’ 
      
      –        and ‘whether the rule infringed was laid down in the interest of third parties or the public in general and not merely in
         the interest of the persons directly concerned’. (54)
      
      103. As the Court of First Instance itself rightly observed in the judgment under appeal, (55) the lack of competence of the institution which adopted the contested measure must, according to the case-law, be raised
         by the Community judicature of its own motion. (56) That is a matter of public policy. (57) The defect in question appears to me in principle to satisfy both of the above criteria: the rules on competence are designed to serve a fundamental objective, or in any case
         a fundamental value, of the Community legal order – institutional balance – and are normally adopted in the interest of the
         public in general. I say in principle because the better approach would seem to be to consider case by case, with reference to the particular rule on competence
         suspected of having been infringed, whether the above criteria, including therefore that of the significant role of the rule
         in the achievement of the fundamental objective or value in question, are satisfied. (58)
      
      104. I do not believe that, for the purposes of determining whether a plea alleging infringement of the rules on competence is
         one of public policy, there is any merit in the distinction, made in the judgment under appeal, between the competence of
         the institution which adopted the contested measure and the competence of the institution which adopted the measure implemented
         by the contested measure. 
      
      105. What needs to be asked in this case is instead whether the criteria stated in point 102 above are met by the rules of the
         Customs Code which, according to CMF, the Commission infringed by establishing, by the first paragraph of Article 907 of the
         implementing regulation, a procedure different to that laid down in those rules, moreover a procedure which allows the Commission
         to decide by itself, in a case such as this, on an application for remission of duties pursuant to Article 239 of the Customs
         Code and Article 905 of the implementing regulation.
      
      106. I would point out in this regard that Articles 239, 247 and 247a of the Customs Code have to be taken into account as the
         rules which lay down the procedures for the exercise of the implementing powers in relation to the substantive provisions
         on repayment and remission of duties established by the Council in Article 239 of the Customs Code. As such, they play a significant
         role in maintaining the institutional balance (in relations between the Community institutions inter se and between those
         institutions and the Member States), that is to say, in safeguarding a fundamental value of the Community legal order, and
         they were certainly laid down in the interest of the public in general and not merely in the interest of the persons directly
         concerned.
      
      107. The issue of the possible illegality of the first paragraph of Article 907 of the implementing regulation, which was raised
         out of time by CMF at first instance, is therefore, in my view – contrary to the view taken by the Court of First Instance
         in the judgment under appeal – a matter of public policy.
      
      108. That does not, however, of itself mean that there was an obligation on the Court of First Instance to examine the issue of
         its own motion. It is my view that such an obligation arises only in particular circumstances. In particular, an obligation
         for the Court to raise of its own motion grounds of public policy can arise only in the light of the factual evidence adduced
         before it. (59) A requirement that the alleged breach should be manifest, meaning that the Community Court can easily detect it and identify
         it as such, (60) could constitute a further condition for such an obligation to arise. The question could also arise – for the purposes of
         identifying the circumstances in which a court is bound to raise of its own motion a matter of public policy in relation not
         to the contested measure itself but to the measure it implements – as to whether or not it is essential for both measures
         to have been adopted by the same institution, in other words, whether the institution which adopted the ‘senior’ act must
         already be a party to the proceedings as defendant.
      
      109. It is not necessary, however, to examine the question as to whether there was an obligation on the Court of First Instance,
         in the circumstances of the case before it, to raise of its own motion the public policy issue as to whether the first paragraph
         of Article 907 of the implementing regulation was illegal on grounds of lack of competence. If the Court arrives at the conclusion
         – as I would propose – that the Court of First Instance erred in law in holding that the issue was not a matter of public
         policy, it could simply confine itself, by substituting alternative grounds, to holding that the issue was unfounded on the
         merits. A finding to that effect, as pointed out above, follows from the correct interpretation of the relevant rules of the
         Customs Code, and it is necessary in any case to arrive at that interpretation in the course of examining the other issues
         raised by CMF, along with the issue now under discussion, in the first two parts of the present ground of appeal.
      
      110. I therefore take the view that, if alternative grounds are substituted in respect of the point that has just been considered,
         the judgment under appeal does not fall to be set aside on the strength of the first two parts of the present ground of appeal.
      
       The alleged error of law on the part of the Court of First Instance in rejecting the plea alleging infringement of Article
         4(1) of the CCC rules of procedure
      
      111. By the third part of the present ground of appeal, CMF claims that the Court of First Instance erred in law in that, having
         established that the members of the group of experts had only 13 calendar days to familiarise themselves with CMF’s response
         to the Commission’s letters, it went on to rule that CMF could not successfully plead the resulting breach of Article 4(1)
         of the CCC rules of procedure. CMF argues that, in focusing on the fact that the provision was not one intended to ensure
         protection for individuals, the Court of First Instance disregarded the inferences to be drawn from the judgment of the Court
         of Justice in Commission v BASF and Others, (61) which makes it clear that rules of procedure contained in internal regulations constitute essential procedural requirements
         breach of which may be relied upon by the parties directly concerned by the relevant decision.
      
      112. For my part, I would first note that in stating, at paragraph 77 of the judgment under appeal, that ‘the members of the group
         of experts had 13 calendar days (from 6 to 18 November 2002) to familiarise themselves with CMF’s response’, the Court of
         First Instance does not make clear whether by this it means that the time-limits laid down in Article 4(1) of the CCC rules
         of procedure were none the less observed. Furthermore, I do not quite understand how that statement can be reconciled with
         the actual date on which, according to the judgment under appeal, the meeting of the group of experts took place, that is,
         12 November 2002. (62)
      
      113. However, it is not necessary to establish whether the time-limits laid down in Article 4(1) of the CCC rules of procedure
         were complied with in the present case (or what, in fact, the finding of the Court of First Instance was on the matter), given
         that the Court of First Instance based its rejection of the plea alleging breach of Article 4(1) of the CCC rules of procedure
         on the ground that the provision was not one that may be relied upon by individuals.
      
      114. I agree with the Commission that this conclusion is legally correct. CMF disputes it by relying on Commission v BASF and Others, which, however, in no way implies that breach of any formal requirement laid down in the rules of procedure of an institution
         or of a committee means that the decision adopted is tainted with illegality which can be relied upon by individuals in court
         proceedings. In that judgment, the Court held that the authentication of acts referred to in the first paragraph of Article
         12 of the Commission’s Rules of Procedure constitutes an essential procedural requirement breach of which may provide the
         grounds on which an individual can bring an action for annulment, inasmuch as it is intended to guarantee legal certainty by ensuring that the text adopted by the College of Commissioners becomes fixed in the authentic language versions, so that,
         in the event of a dispute, it is possible to verify that the texts notified or published correspond precisely to that text. (63)
      
      115. It was therefore in the light of the nature and purpose of the formal requirements infringed that the Court examined, in Commission v BASF and Others, whether those requirements were essential within the meaning of Article 230 EC and whether individuals could rely on an
         infringement thereof in an action for annulment.
      
      116. In the judgment under appeal, the Court of First Instance noted that the purpose of Article 4(1) of the CCC rules of procedure
         is to ensure the internal working of that committee while fully respecting the prerogatives of its members and that it is
         not therefore intended to ensure protection for individuals. CMF does not put forward any argument in its appeal to refute
         that statement, apart from a vague assertion as to the ‘particular importance’ of compliance with the rules on consultation
         of the committee and the unfounded assumption that every rule of procedure amounts to an essential procedural requirement.
         The view expounded by the Court of First Instance is in any case in accordance with the rule – which is to be regarded as a principle and is certainly applicable by analogy to a committee such as the Customs Code Committee – stated by the Court of Justice
         in Nakajima v Council, (64) according to which, given that ‘the purpose of the rules of procedure of a Community institution is to organise the internal
         functioning of its services in the interests of good administration’, ‘[t]he rules laid down ... have ... as their essential
         purpose to ensure the smooth conduct of the procedure while fully respecting the prerogatives of each of the members of the
         institution’ and ‘are not intended to ensure protection for individuals’. 
      
      117. The time-limits specified in Article 4(1) of the CCC rules of procedure are obviously intended to afford the committee members
         ample time to study the cases submitted for their consideration. It is, in my view, a matter solely for the Member States,
         which are represented on the committee, to assess whether or not a period of time shorter than that laid down in that provision
         may yet be sufficient to enable their representatives on the committee to carry out an appropriate examination of the case
         on which they have been called to express an opinion.
      
      118. I therefore take the view that the Court of First Instance correctly held that CMF was not entitled to rely on the breach
         of the provision in question. 
      
      119. The third part of this ground of appeal must therefore also be dismissed, in my opinion.
      
       The alleged misapplication of Article 239 of the Customs Code
      120. CMF argues that the Court of First Instance erred in law in holding that the condition of no obvious negligence laid down
         in Article 239 of the Customs Code was not satisfied.
      
      121. By the first part of this ground of appeal, CMF argues that the Court of First Instance misinterpreted the second subparagraph
         of Article 1(3) of Regulation No 3319/94 and consequently concluded that it did not involve particular difficulties of interpretation.
      
      122. Essentially, CMF claims that, contrary to the view taken by the Court of First Instance and in line with recital 39 to Regulation
         No 3319/94, (65) the provision in question does not require the imposition of a specific duty in all cases of indirect invoicing because of
         the attendant risk of circumvention of the anti-dumping measures, but only in cases in which circumvention is found to have
         taken place.
      
      123. According to CMF, the misinterpretation by the Court of First Instance of the second subparagraph of Article 1(3) of Regulation
         No 3319/94 also shows that, contrary to the view taken in the judgment under appeal, that provision is difficult to interpret.
      
      124. I share the Commission’s view that these pleas cannot be upheld.
      
      125. In the first place, it must be pointed out that the alleged misinterpretation of the second subparagraph of Article 1(3) of
         Regulation No 3319/94 cannot be given consideration as a separate plea – for the reasons I have set out in points 45 to 50
         above – but only as a point in support of the plea impugning the appraisal made by the Court of First Instance as to the degree
         of complexity of the provision. The latter is one of the factors which, according to the case-law, is relevant for the purposes
         of determining whether or not the condition of no obvious negligence within the meaning of Article 239 of the Customs Code
         is met. (66)
      
      126. I am of the opinion, however, that this plea is inadmissible, on the basis that the appraisal of a provision’s complexity
         is in the nature of a finding of fact which is not open to review by the Court of Justice in an appeal against a judgment
         of the Court of First Instance. (67)
      
      127. I would add, moreover, that the plea is also in any case manifestly unfounded. It rests solely on a rejection of the interpretation
         by the Court of First Instance of the second subparagraph of Article 1(3) of Regulation No 3319/94, an interpretation which
         seems to me to be absolutely correct. It is perfectly clear from a reading of the provision – even taking account of recital
         39 as relied upon by CMF – that a prerequisite for the application of the specific duty imposed by that provision is the existence
         of indirect invoicing, but not also proof that the purpose or effect of the indirect invoicing was circumvention of the variable
         duty imposed by the preceding subparagraph. CMF therefore fails utterly to show that, contrary to what was held in the judgment
         under appeal, the second subparagraph of Article 1(3) of Regulation No 3319/94 was difficult to interpret.
      
      128. By the second part of this ground of appeal, CMF argues, first, that the ruling by the Court of First Instance that CMF could
         not avoid its own liability by relying on the mistake, genuine or otherwise, of its customs agents is at variance with Community
         case-law, according to which customs agents have professional liability, and, secondly, that the Court of First Instance was
         wrong to uphold the Commission’s contention that CMF possessed the requisite professional experience.
      
      129. The relevance or otherwise, for the purposes of verifying the absence of obvious negligence within the meaning of Article
         239 of the Customs Code, of a mistake made by a customs agent is a question of law which may accordingly be raised on appeal.
      
      130. In this regard, I would point out that CMF does no more than assert that in two judgments – in Van Gend & Loosand Bosman v Commission (68) and Mehibas Dordtselaan v Commission (69) – it was stated that ‘a customs agent, by the very nature of his work, assumes liability for the payment of import duties
         and for the validity of the documents which he presents to the customs authorities’. 
      
      131. In the first place, however, the relevance of that case-law appears to me doubtful, since in the present case it was from
         CMF and not from its customs agents that the French customs authorities sought payment of the relevant duty. I would note,
         in this regard, that the facts as found in the judgment under appeal disclose that CMF’s customs agents carried out the customs
         clearance operations not in their own names but in the names of Agro Baltic and CMF. (70) According to paragraph 5 of Van Gend & Loosand Bosman v Commission, however, the customs agent (who was the applicant in that case) had declared the goods with a view to putting them into
         free circulation in its own name but on behalf of another (71) and on that account the Commission had concluded that the agent had assumed an obligation to pay any import duty which might
         be payable in respect of the goods. (72)
      
      132. In any event, even if it were to be assumed that the customs agent is liable for the payment of the import duties and for
         the veracity of the documents submitted to the customs authorities even where he has made the customs declarations not in
         his own name but in that of the importer, that would not of itself relieve the importer of the same liability. And it was
         in fact CMF’s liability that the French customs authorities relied upon. Moreover, CMF has not in any way stated or implied
         that the French customs authorities ought to have sought payment of the specific anti-dumping duty from its customs agents.
         In any case, if ever such a claim were to be made, it would have to be made in the context of an action before the national
         courts challenging the decisions made by those authorities to charge CMF the relevant duty.
      
      133. Since CMF puts forward no other argument, other than a brief reference to the case-law cited in point 130 above, to dispute
         the view taken by the Court of First Instance that CMF could not avoid its own liability by relying on the mistake, genuine
         or otherwise, of its customs agents, the judgment under appeal cannot be set aside in respect of that issue.
      
      134. A further argument in favour of that conclusion, which I think it worthwhile mentioning even if it was not mentioned in the
         judgment under appeal, is that the third subparagraph of Article 905(1) of the implementing regulation states that ‘the term
         “the person concerned”’ – in other words, the person in respect of whom it has to be decided, for the purposes of Article
         239 of the Customs Code and the first subparagraph of Article 905(1) of the implementing regulation, whether there was deception
         or obvious negligence – ‘shall be interpreted in the same way as in Article 899’ of that regulation. That article specifies
         in this regard that ‘“[t]he person concerned” shall mean the person or persons referred to in Article 878(1) [that is, the
         person who paid or is liable to pay those duties, or the persons who have taken over his rights and obligations], or their
         representatives, and any other person who was involved with the completion of the customs formalities relating to the goods
         concerned or gave the instructions necessary for the completion of these formalities’. Now that list would certainly seem
         to include the customs agents who completed the customs formalities for CMF. Even supposing, therefore, that, as CMF maintains,
         the imposition of the duty is attributable to mistakes made by its customs agents in completing those formalities, the obvious
         negligence on the part of those customs agents would still have the effect of precluding any entitlement to remission of duty
         on the part of CMF.
      
      135. As regards the requisite professional experience, CMF claims that while it is certainly an economic operator with expertise
         in the import and export of nitrogenous solutions, it is definitely not a specialist in customs clearance procedures in France
         for such goods.
      
      136. That criticism is also admissible on appeal as it raises, in effect, a question of law concerning the scope of the activity
         in relation to which the degree of professional experience of an operator seeking remission of duties under Article 239 of
         the Customs Code has to be appraised.
      
      137. To me it seems obvious that the scope in question cannot be that of actual customs clearance operations, since otherwise the
         condition as to the operator’s professional experience – which is one of the factors to be taken into account in deciding
         whether or not there is obvious negligence within the meaning of Article 239 of the Customs Code (73) – would be automatically satisfied by every importer who was not a customs agent.
      
      138. The Court of First Instance was perfectly correct, therefore, and fully in line with the judgment of the Court of Justice
         in Söhl & Söhlke, (74) in stating that it must be decided whether the economic operator concerned is one whose business activities consist mainly
         in import and export transactions and whether it has already gained some experience in the conduct of such transactions.
      
      139. It seems to me, therefore, that the present plea is also unfounded. 
      
      140. By the third part of the present ground of appeal, CMF submits that the Court of First Instance was wrong in holding that
         CMF’s conduct in the course of the transactions concerned could not be regarded as sufficiently careful.
      
      141. The Court of First Instance based this view on an assessment of CMF’s conduct as a whole, giving particular weight, on the
         one hand, to the fact that CMF – despite claiming to be inexperienced in customs clearance operations for the goods concerned,
         and alleging difficulties in applying Regulation No 3319/94 – had not only failed to seek advice from its customs agents but
         had actually given them very precise instructions, and, on the other hand, to the errors made by CMF in its invoices. (75)
      
      142. In relation to the first point, CMF submits that, contrary to the view taken by the Court of First Instance, it had indeed
         sought clarification as to the application of the provisions of the regulation concerned. 
      
      143. However, the arguments put forward by CMF on that point fail to show any distortion of the facts or of the clear sense of
         the evidence on the part of the Court of First Instance. CMF does no more than assert that by letter of 7 March 2000 it enquired
         of the French customs authorities whether the manner in which it was proposing to carry out customs clearance operations of
         the same kind as those carried out in 1997 constituted a situation of direct or indirect invoicing in terms of the second
         subparagraph of Article 1(3) of Regulation No 3319/94. 
      
      144. It is thus CMF itself which confirms that the operations which gave rise to the present dispute were carried out in 1997.
         CMF’s enquiry to the French customs authorities was therefore made long after those operations took place and was even subsequent
         to the minutes establishing the circumvention of duties (76) and CMF’s applications for remission. (77)
      
      145. The fact relied upon by CMF is therefore manifestly irrelevant for the purposes of determining the degree of care exercised
         by it in carrying out the operations which are the subject of this dispute.
      
      146. As regards the invoice errors, CMF submits that the Court of First Instance implied, by its vague reference to such errors,
         that they were numerous, which was not in fact the case. It points out that there were just two errors over a total of four
         customs clearance operations, each of which involved three separate transactions, and that the errors related solely to Case
         T-134/03.
      
      147. I would point out in this regard that the Court of First Instance in no way stated or implied that the invoice errors detected
         were numerous. It merely asserted, at paragraph 144 of the judgment under appeal, that ‘CMF’s mistakes in drawing up its invoices
         also suggest[ed] a lack of care on its part’. 
      
      148. CMF thus fails to show that the Court of First Instance distorted the facts or the clear sense of the evidence in this matter.
         As regards the significance which the Court of First Instance attached to the invoice errors in question – which even at the
         appeal stage CMF itself accepts were made – I would point out that this is a matter of fact within the purview of the Court
         of First Instance and not amenable to review by the Court of Justice on appeal.
      
      149. In the light of the foregoing considerations, I am therefore led to conclude that CMF has failed to show any defects such
         as would invalidate the finding by the Court of First Instance that the Commission did not make a manifest error of assessment
         in the contested decisions when it found that CMF did not satisfy the condition of no obvious negligence. 
      
      150. I therefore propose that the Court reject this ground of appeal also.
      
       Costs 
      151. Under the first paragraph of Article 122 of the Rules of Procedure, where an appeal is unfounded the Court has to make a decision
         as to costs. Under Article 69(2) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for. 
      
      152. Since I am proposing to the Court that the appeal be dismissed and since the Commission sought an order as to costs against
         CMF, I am of the opinion that CMF should be ordered to pay the costs.
      
       Conclusion
      153. In the light of the foregoing, I propose that the Court should:
      
      1)         dismiss the appeal;
      2)         order Common Market Fertilizers SA to pay the costs.
      1 –	Original language: Italian.
      
      2 –	Joined Cases T-134/03 and T-135/03 Common Market Fertilizers v Commission [2005] ECR II‑3923.
      
      3 –	C(2002) 5217 final and C(2002) 5218 final.
      
      4 –	OJ 1994 L 350, p. 20.
      
      5 –	OJ 1992 L 302, p. 1.
      
      6 –	OJ 2000 L 311, p. 17.
      
      7 –	OJ 1999 L 184, p. 23.
      
      8 –	OJ 1993 L 253, p. 1.
      
      9 –	OJ 1998 L 212, p. 18.
      
      10 –	OJ 2003 L 187, p. 16.
      
      11 –	Judgment under appeal, paragraph 51.
      
      12 –	Ibidem.
      
      13 –	The Court of First Instance cited to that effect Case 14/59 Société des fonderies de Pont-à-Mousson v High Authority [1959] ECR 215, 230. 
      
      14 –	Judgment under appeal, paragraph 52.
      
      15 –	Ibidem, paragraphs 54 and 58.
      
      16 –	Ibidem, paragraphs 55 to 57.
      
      17 –	Ibidem, paragraph 59.
      
      18 –	Ibidem, paragraphs 77 to 79.
      
      19 –	Ibidem, paragraphs 115, 147 and 149.
      
      20 –	Ibidem, paragraph 135.
      
      21 –	Case T‑104/02 Gondrand Frères v Commission [2004] ECR II‑3211, paragraphs 59 to 62 and 66.
      
      22 –	Judgment under appeal, paragraphs 137 to 139.
      
      23 –	Ibidem, paragraphs 140 and 141.
      
      24 –	Ibidem, paragraphs 142 to 144.
      
      25 –	The fact that the allegation of failure to take into account recital 39 to Regulation No 3319/94 pertains to the fourth
         ground of appeal is even made explicit in paragraphs 10 and 151 of the notice of appeal. Similarly, the fact that the allegation
         of failure to take into account Article 2 of the comitology decision pertains to the third ground of appeal is made explicit
         in paragraphs 16 and 75 of the notice of appeal.
      
      26 –	Notice of appeal, paragraphs 18, 20, 21, 38 and 39.
      
      27 –	Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraph 59.
      
      28 –	Case C-86/97 Trans-Ex-Import [1999] ECR I‑1041, paragraph 21, and Case C-253/99 Bacardi [2001] ECR I‑6493, paragraph 56.
      
      29 –	See, with reference to the provision equivalent to Article 239 of the Customs Code formerly in force – Article 13(1) of
         Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175,
         p. 1), as amended by Article 1(6) of Council Regulation (EEC) No 3069/86 of 7 October 1986 (OJ 1986 L 286, p. 1) – Joined
         Cases 244/85 and 245/85 Cerealmangimi and Italgrani v Commission [1987] ECR 1303, paragraph 11, and Joined Cases C‑121/91 and C-122/91 CT Control (Rotterdam) and JCT Benelux v Commission [1993] ECR I‑3873, paragraph 43.
      
      30 –	See Cerealmangimi and Italgrani v Commission, paragraph 13, and CT Control (Rotterdam) and JCT Benelux v Commission, paragraph 44.
      
      31 –	As held by the Court of First Instance in Case T-195/97 Kia Motors and Broekman Motorships v Commission [1998] ECR II‑2907, paragraph 36. See also Gondrand Frères v Commission, paragraph 25, and Case T-53/02 Ricosmos v Commission [2005] ECR II-3173, paragraph 165.
      
      32 –	Gondrand Frères v Commission, paragraph 25.
      
      33 –	CMF stated at the hearing that it could accept that a customs debt existed in the present case, adding that it had applied
         for the remission as a matter of fairness on the basis of Article 239 of the Customs Code. Incongruously, however, CMF continued
         at the hearing to dispute the lawfulness of the specific anti-dumping duty imposed on it, arguing that, in its opinion, there
         had been no indirect invoicing and that no circumvention had been found.
      
      34 –	Société des fonderies de Pont‑à‑Mousson v High Authority.
      
      35 –	Case C-378/00 Commission v Parliament and Council (‘LIFE’) [2003] ECR I‑937, paragraphs 43 to 48.
      
      36 –	Case C-106/96 United Kingdom v Commission [1998] ECR I‑2729, paragraph 22.
      
      37 –	Judgment under appeal, paragraph 59. The reference in Article 906 to the meeting of the committee provided for in Article
         247 of the Customs Code is not incompatible with that conclusion. That reference in effect concerns only a formal requirement
         – the inclusion of the case on the agenda for consideration – and appears to be the result of a drafting error, duly corrected
         by Regulation No 1335/2003 (see point 12 above).
      
      38 –	LIFE, paragraph 41.
      
      39 –	Case 16/88 Commission v Council [1989] ECR 3457, paragraph 11, and Case C‑122/04 Commission v Parliament and Council [2006] ECR I-2001, paragraph 37.
      
      40 –	LIFE, paragraphs 43 to 48 and 50 to 55, and Commission v Parliament and Council, paragraph 32.
      
      41 –	Commission v Parliament and Council, paragraph 38.
      
      42 –	See, in relation to the concept of a measure of general application, among the many judgments in point, Joined Cases 16/62
         and 17/62 Confédération nationale des producteurs de fruits et légumes and Others v Council [1962] ECR 471 (see, in particular, p. 478), cited in the judgment under appeal itself at paragraph 57.
      
      43 –	Judgment under appeal, paragraph 58.
      
      44 –	Ibidem, paragraph 59.
      
      45 –	Ibidem, paragraph 52.
      
      46 –	Ibidem.
      
      47 –	According to the case-law of the Court of Justice, where the grounds of a judgment of the Court of First Instance disclose
         an infringement of Community law but the operative part of the judgment is shown to be well founded for other legal reasons,
         an appeal against that judgment must be dismissed (of the many cases in point, see Case C-30/91 P Lestelle v Commission [1992] ECR I-3755, paragraph 28; Case C-320/92 P Finsider v Commission [1994] ECR I-5697, paragraph 37; and Case C‑210/98 P Salzgitter v Commission [2000] ECR I‑5843, paragraph 58).
      
      48 –	In its notice of appeal, however, CMF does not raise the issue as to whether the plea of illegality of the first paragraph
         of Article 907 of the implementing regulation might be deemed admissible as merely ‘amplifying a submission made previously
         … in the original application’, within the meaning of Case 108/81 Amylum v Council [1982] ECR 3107, paragraph 25, and Case 306/81 Verros v Parliament [1983] ECR 1755, paragraph 9. The Court is therefore not required to rule on the issue.
      
      49 –	See Case 11/81 Dürbeck v Commission [1982] ECR 1251, paragraph 17.
      
      50 –	Cited above.
      
      51 –	Case T‑147/00 [2003] ECR II‑85, paragraph 45.
      
      52 –	Judgment under appeal, paragraph 52.
      
      53 –	Cited above.
      
      54 –	I do not believe, however, that the condition as to the breach of Community law being manifest, described in point 143
         of Advocate General Jacobs’s Opinion, pertains properly to the question of whether an issue is one of public policy. It is,
         in my view, a condition rather for the existence of an obligation on the Court to raise a matter of public policy of its own
         motion. See, to that effect, Vesterdorf, B., ‘Le relevé d’office par le juge communautaire’, in Une Communauté de droit: Festschrift für G. C. Rodríguez Iglesias, Nomos, 2003, p. 551, in particular pp. 560 and 561.
      
      55 –	Paragraph 52.
      
      56 –	To that effect, see Case 19/58 Germany v High Authority [1960] ECR 225, at  233; Amylum v Council, paragraph 28; Salzgitter v Commission, paragraphs 56 and 57; Joined Cases T-79/89, T-84/89 to T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89
         and T-104/89 BASF and Others v Commission [1992] ECR II-315, paragraph 31; Case T-182/94 Marx Esser and Del Amo Martinez v Parliament [1996] ECR-SC I-A-411 and II-1197, paragraph 44; Laboratoires Servier v Commission, paragraph 45; and Case T-315/01 Kadi v Council and Commission [2005] ECR II‑3649, paragraph 61.
      
      57 –	To that express effect, see the Opinion of Advocate General Lagrange in Case 66/63 Netherlands v High Authority [1964] ECR 533, at 553, and the judgments of the Court of First Instance cited in the preceding footnote.
      
      58 –	The Court has held, for example, in an action between the Commission and one of its agents, that the powers of a head of
         department to adopt management decisions do not fall within the category of questions which the Court can raise of its own
         motion (Case 280/87 Hecq v Commission [1988] ECR 6433, paragraph 12).
      
      59 –	See Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 212, and Case C-199/92 P Hüls v Commission [1999] ECR I‑4287, paragraph 134.
      
      60 –	Opinion of Advocate General Jacobs in Salzgitter v Commission, point 143.
      
      61 –	Case C‑137/92 P [1994] ECR I‑2555.
      
      62 –	Judgment under appeal, paragraphs 27, 37, 44 and 98.
      
      63 –	Commission v BASF and Others, paragraphs 75 and 76.
      
      64 –	Case C‑69/89 [1991] ECR I‑2069, paragraphs 49 and 50, expressly referred to by the Court of First Instance at paragraph
         79 of the judgment under appeal.
      
      65 –	That recital states inter alia that ‘… it is considered appropriate to impose a variable duty at the level which would
         permit the Community industry to raise its prices to profitable levels for imports invoiced directly by Bulgarian or Polish
         producers or by parties which have exported the product concerned during the investigation period and a specific duty on the
         same basis for all other imports in order to avoid the circumvention of the anti-dumping measures’.
      
      66 –	Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 56, and Case C-156/00 Netherlands v Commission [2003] ECR I‑2527, paragraphs 92 to 95.
      
      67 –	In my Opinion delivered on 11 January 2007 in Case C-282/05 P Holcim (Deutschland) v Commission [2007] ECR I‑2941, point 65, I made a similar point in relation to the appraisal of the difficulty of applying or interpreting
         legislative provisions, which is important when seeking to establish, for the purposes of determining the non-contractual
         liability of the Community within the meaning of the second paragraph of Article 288 EC, whether or not an infringement of
         Community law by an institution is sufficiently serious. I must point out, however, that a different approach was taken by
         the Court in Case C-499/03 P Biegi Nahrungsmittel and Commonfood v Commission [2005] ECR I‑1751 (see, in particular, paragraphs 42 to 44 and 49 to 55), in relation to the appraisal of the complexity
         of the relevant customs rules in the context of establishing, for the purposes of Article 220(2)(b) of the Customs Code, whether
         a person liable for payment acting in good faith could have detected an error made by the competent customs authority.
      
      68 –	Joined Cases 98/83 and 230/83 [1984] ECR 3763, paragraph 16.
      
      69 –	Case T-290/97 [2000] ECR II‑15, paragraph 83.
      
      70 –	It is therefore a case of direct representation, within the meaning of Article 5(2) of the Customs Code.
      
      71 –	It was therefore a case of indirect representation, within the meaning of Article 5(2) of the Customs Code.
      
      72 –	It is not specified in Mehibas Dordtselaan v Commission, on the other hand, whether the customs agent in that case had made the customs declarations in its own name and on the importer's
         behalf or both in the name and on behalf of the importer. The fact remains, however, that it was from the customs agent and
         not from the importer that the Dutch customs authorities demanded payment of the supplementary agricultural levies of which
         the agent was seeking repayment under Article 13 of Regulation No 1430/79.
      
      73 –	See the case-law cited in footnote 66 above.
      
      74 –	Paragraph 57.
      
      75 –	Judgment under appeal, paragraphs 143 and 144.
      
      76 –	According to the judgment under appeal (paragraph 24), those minutes were drawn up on 13 November 1997 in respect of the
         operations at issue in Case T-135/03, and on 4 December 1998 in respect of the operations at issue in Case T-134/03.
      
      77 –	According to the judgment under appeal (paragraph 25), those applications were made in November and December 1999.