CELEX: C2000/079/79
Language: en
Date: 2000-03-18 00:00:00
Title: Case T-355/99: Action brought on 13 December 1999 by Société Vatinel NV against Commission of the European Communities

18.3.2000              EN                   Official Journal of the European Communities                                        C 79/37
— in the alternative, declare that, in both the Lema and               Action brought on 13 December 1999 by Société Vatinel
     Consumer Electronic Service cases, the applicant is entitled        NV against Commission of the European Communities
     to remission of the duties in respect of which post-
     clearance recovery is sought;
                                                                                               (Case T-355/99)
— order the Commission to pay all costs.                                                        (2000/C 79/79)
Pleas in law and main arguments                                                           (Language of the case: French)
                                                                       An action against the Commission of the European Communi-
In 1993, pursuant to ATR-1 certificates issued by the Turkish          ties was brought before the Court of First Instance of the
authorities, the applicant imported a consignment of colour            European Communities on 13 December 1999 by Société
televisions from Turkey exempt from import duties. During              Vatinel NV, whose registered office is in Antwerp (Belgium),
an investigation in Turkey in 1993, the Commission’s services          represented by Mireille Famchon, of the Paris Bar, with an
established that the conditions for exemption had not been             address for service in Luxembourg at the Chambers of François
satisfied inasmuch as countervailing duties had not been levied        Prum, 13 Avenue Guillaume.
in Turkey on the components of the television sets which had
originated in third countries.
                                                                       The applicant claims that the Court should:
                                                                       — annul Decision No C(1999)2286 final of 22 July 1999.
In the contested decisions the Commission rejected the
requests by the Belgian authorities not to seek post-clearance
recovery in this case of the import duties owed, or in the
alternative to remit those duties. The Commission took the             Pleas in law and main arguments
view that a prudent importer ought to have had serious doubts
as to the validity of those ATR-1 certificates.                        The applicant company in the present case contests the
                                                                       Commission’s decision that post-clearance recovery should be
                                                                       made of import duties which the applicant was not required
According to the applicant, the Turkish authorities had in this        to pay in respect of television sets imported from Turkey and
case made an ‘active error’ which the applicant itself could not       that the remission of those duties was not justified in a specific
possibly have discovered. In its view therefore, this is an error      case.
within the meaning of Article 5(2) of Regulation No 1697/79,
in which case the duties cannot be the subject of post-clearance
recovery, or, alternatively, a special circumstance in which,          In support of its arguments, it claims that:
pursuant to the first paragraph of Article 13 of Regulation
No 1430/79, remission is granted. The fact that the Com-               — the right to a fair hearing and rights of the defence were
mission failed to detect these irregularities at an earlier stage          infringed, inasmuch as it had not received, to date, as
and failed to warn the undertakings concerned also points to               requested, the results of the investigation undertaken by
maladministration.                                                         the Commission in Turkey into the validity of the ATR1
                                                                           certificates submitted in support of the declarations in
                                                                           respect of the importation of television set from that
The applicant further argues that its rights of defence, in                country.
particular the principle of ‘equality of arms’, have not been
respected. The investigation in Turkey was conducted in a              — the disputed ATR certificates were not invalidated by the
one-sided manner, without the knowledge of the parties                     competent authorities of the issuing country, which is why
concerned and without any opportunity for them to reply.                   the Belgian customs authorities were not in a position to
                                                                           challenge the applicability of the ATR1 certificates at issue.
The applicant also submits that there is no longer any right to        — the Turkish authorities failed to bring their national
make post-clearance recovery, in accordance with Article 2 of              legislation into line with the decision of the Council of
Regulation No 1697/79.                                                     Association which required a countervailing export duty
                                                                           to be levied. Moreover, after being warned on several
                                                                           occasions by the Commission, the Turkish authorities
                                                                           cannot claim to have been unaware of the irregularity
The applicant concludes by referring to the pleas in law and
                                                                           under which it laboured.
arguments which it put forward in Case T-216/97.
                                                                       — contrary to what the Commission contends, the Turkish
                                                                           authorities were at no time taken advantage of by the
                                                                           exporters. Although third-country parts were used in
                                                                           the manufacture of television sets in Turkey, they were
 ---pagebreak--- C 79/38                 EN                    Official Journal of the European Communities                                      18.3.2000
     necessarily caught by the inward processing system and                  Community trade mark in the Community Trade Marks
     were thus constantly monitored by the Turkish customs                   Bulletin for the claimed services in Class 36 (insurance;
     authorities. It was the customs offices themselves which                financial affairs);
     stamped generally on the same day the export declarations
     which cleared the importation of duty-free components
                                                                         — in the alternative, annul the contested decision;
     and the ATRS. The Turkish offices themselves also dealt
     with clearance of licences, the recovery of securities, export
     formalities and the issuing of ATR certificates.                    — order the Office to pay such of the applicant’s costs as are
                                                                             recoverable.
— the Commission, despite being aware of the problem posed
     by the irregularities concerning the payment of the Turkish
     duties on components originating in third countries, did
     not consider that it should take appropriate measures to            Pleas in law and main arguments
     alert the operators concerned.
                                                                         Trade mark:                   Word mark ‘EuroHealth’ — appli-
— the error was not evident to the company, whose good                                                 cation no 293977
     faith was beyond reproach, and that they cannot be
     accused of being negligent.                                         Goods or services:            Goods and services in Class 36
                                                                                                       (insurance; financial affairs)
— it is justified in relying in the present case on a special
     circumstance within the meaning of Article 13 of Regu-              Decision         contested    Refusal by the examiner to regis-
     lation No 1430/79.                                                  before the Board of           ter
                                                                         Appeal:
Finally, the applicant takes the view that in any event, in the
operations in question, it acted as fiscal representative for the        Pleas in law:                 — infringement of Article 7(1)(b)
importer, which alone could be considered liable for any                                                   of Regulation (EC) No 40/94
customs debt.
                                                                                                       — misapplication of Article
                                                                                                           7(1)(c) of Regulation (EC)
                                                                                                           No 40/94
                                                                                                       — failure to take into account
                                                                                                           Article 12(b) of Regulation
                                                                                                           (EC) No 40/94
Action brought on 24 December 1999 by DKV Deutsche
Krankenversicherungs AG against the Office for Harmon-
 isation in the Internal Market (Trade marks and Designs)
                          (Case T-359/99)
                           (2000/C 79/80)
                                                                         Action brought on 30 December 1999 by Karl L. Meyer
                                                                         against the Commission of the European Communities
                                                                                      and the European Investment Bank
                   (Language of the case: German)
                                                                                                 (Case T-361/99)
An action against the Office for Harmonisation in the Internal
Market (Trade marks and Designs) was brought before the
Court of First Instance of the European Communities on                                            (2000/C 79/81)
24 December 1999 by DKV Deutsche Krankenversicherungs
AG, Cologne, Germany, represented by Stephan v. Peter-
dorff-Campen, of von Rospatt, von der Osten, Pross, of the                                  (Language of the case: French)
Düsseldorf Bar, with an address for service in Luxembourg at
the chambers of De Bandt, van Hecke, Lagae & Loesch, 11 Rue
Goethe, Luxembourg.                                                      An action against the Commission of the European Communi-
                                                                         ties and the European Investment Bank was brought before
                                                                         the Court of First Instance of the European Communities on
The applicant claims that the Court should:                              30 December 1999 by Karl L. Meyer, of Raiatea, French
                                                                         Polynesia, represented by Jean-Dominique des Arcis, of Uturoa,
— vary the contested decision and order the office to                    French Polynesia, with an address for service in Luxembourg
     publish the sign EuroHealth, application no 293977, as a            at the offices of Mr Pakowski, 20-22 Avenue Emile Reuter.