CELEX: 62007CJ0204
Language: en
Date: 2008-07-25
Title: Judgment of the Court (Third Chamber) of 25 July 2008. # C.A.S. SpA v Commission of the European Communities. # Appeals - EEC-Turkey Association Agreement - Regulation (EEC) No 2913/92 - Community Customs Code - Repayment and remission of import duty - Fruit juice concentrate from Turkey - Movement certificates - Falsification - Special situation. # Case C-204/07 P.

Case C-204/07 P
      C.A.S. SpA
      v
      Commission of the European Communities
      (Appeals – EEC-Turkey Association Agreement – Regulation (EEC) No 2913/92 – Article 239 – Community Customs Code – Repayment and remission of import duty – Fruit juice concentrate from Turkey – Movement certificates – Falsification – Special situation)
      Summary of the Judgment
      Own resources of the European Communities – Repayment or remission of import or export duties – Existence of a special situation
      (Art. 211 EC; EEC-Turkey Association Agreement, Art. 7; Council Regulation No 2913/92, Art. 239)
      A special situation for the purposes of Article 239 of Regulation No 2913/92 establishing the Community Customs Code is established
         where it is clear from the circumstances of the case that the person liable is in an exceptional situation as compared with
         other operators engaged in the same business and that, in the absence of such circumstances, he would not have suffered the
         disadvantage caused by the subsequent entry in the accounts of customs duties.
      
      Inadequate monitoring by the Commission of the proper implementation of an Association Agreement may constitute such a special
         situation. In order to determine whether the circumstances of a particular case constitute a special situation, the Commission
         must assess all the relevant facts. Accordingly, although the Commission has some discretion as regards the application of
         Article 239 of the Community Customs Code, it cannot disregard its duty to balance, on the one hand, the Community interest
         in full compliance with the provisions of customs legislation, whether that be Community legislation or other legislation
         binding on the Community, and, on the other hand, the interest of an importer acting in good faith not to suffer harm which
         goes beyond the normal commercial risk. Consequently, when examining an application for repayment or remission of import duty,
         the Commission is not entitled merely to assess the behaviour and activities of the importer and the exporter, but must also
         take into account, in particular, the effect of its own behaviour on the specific situation in the course of its duty to supervise
         and monitor.
      
      Furthermore, it follows from Article 211 EC and from Article 7 of the EEC-Turkey Association Agreement and the many decisions
         adopted in respect of its implementation that the Commission, as guardian of the EC Treaty and of the agreements concluded
         under it, must ensure the correct implementation by a third State of the obligations it has assumed under an agreement concluded
         with the Community, using the means provided for by the agreement or by the decisions taken pursuant thereto. In that regard,
         it is for the Commission to make full use of the rights and powers which it has under those provisions so as to fulfil its
         obligation of supervising and monitoring the proper implementation of the Association Agreement, particularly in a situation
         in which exports to the same Community port by the same export company in the same reference period took place under cover
         of both irregular and inauthentic certificates.
      
      As regards the sending of specimen impressions of the stamps and signatures used in those customs offices that makes it possible
         to supervise compliance with the customs rules relating to tariff preferences effectively, the Commission’s obligation to
         ensure that the Association Agreement is properly implemented means that the Commission, and through it the customs authorities
         of the Member States, should always have all the information to enable it to carry out an effective check, and specimen impressions
         of the stamps and signatures unquestionably constitute such information. In that regard, the registration of certificates
         issued by the customs authorities is indispensable in international trade whilst as regards the EEC-Turkey Association Agreement,
         the obligation on the Turkish authorities to register A.TR.1 certificates stems from the implementing provisions of that agreement
         so that, confronted with a case of double importation into the Community under cover of A.TR.1 certificates with the same
         registration number, one authentic and the other inauthentic, the Commission must check whether such importation has actually
         taken place.
      
      Where, in a particular case, the Commission has not made full use of the supervising and monitoring rights and powers which
         it has under the Association Agreement with a view to ensuring the proper implementation thereof, its failure to fulfil obligations
         constitutes a special situation for the purposes of Article 239 of the Community Customs Code, which justifies the repayment
         or remittance of import duty levied on the basis of irregular or inauthentic certificates.
      
      (see paras 82, 88-89, 92-96, 99, 104-105, 117-118, 123-124, 126, 130-131, 136)
JUDGMENT OF THE COURT (Third Chamber)
      25 July 2008 (*)
      
      (Appeals – EEC-Turkey Association Agreement – Regulation (EEC) No 2913/92 – Community Customs Code – Repayment and remission of import duty – Fruit juice concentrate from Turkey – Movement certificates – Falsification – Special situation)
      In Case C‑204/07 P,
      APPEAL under Article 56 of the Statute of the Court of Justice, brought on 16 April 2007,
      C.A.S. SpA, represented by D. Ehle, Rechtsanwalt,
      
      appellant,
      the other party to the proceedings being:
      Commission of the European Communities, represented by M. Patakia and S. Schønberg, acting as Agents, assisted by M. Núñez Müller, Rechtsanwalt, with an address
         for service in Luxembourg,
      
      defendant at first instance,
      THE COURT (Third Chamber),
      composed of A. Rosas, President of the Chamber, J.N. Cunha Rodrigues, J. Klučka, P. Lindh and A. Arabadjiev (Rapporteur),
         Judges,
      
      Advocate General: V. Trstenjak,
      Registrar: Katarzyna Sztranc-Sławiczek, Administrator,
      having regard to the written procedure and further to the hearing on 10 January 2008,
      after hearing the Opinion of the Advocate General at the sitting on 13 March 2008,
      gives the following
      Judgment
      1        By its appeal, C.A.S. SpA (‘the appellant’) seeks to have set aside the judgment of the Court of First Instance of the European
         Communities of 6 February 2007 in Case T-23/03 CAS v Commission [2007] ECR II‑289 (‘the judgment under appeal’) which dismissed its action for annulment of Article 2 of the Commission’s
         decision of 18 October 2002 (REC 10/01) (‘the contested decision’) concerning an application for remission of import duty.
      
       Legal context
       Legislation relating to the Association Agreement
      2        This appeal is brought in the context of the Association Agreement establishing an Association between the European Economic
         Community (EEC) and Turkey, signed on 12 September 1963 in Ankara by the Republic of Turkey, of the one part, and the Member
         States of the EEC and the Community, of the other part. The Association Agreement was concluded, approved and confirmed on
         behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 OJ 1973 C 113, p. 1) (‘the Association Agreement’).
         It entered into force on 1 December 1964.
      
      3        The Association Agreement involves a preparatory phase to enable the Republic of Turkey, in accordance with Article 3, to
         strengthen its economy with the aid of the European Community, a transitional phase during which, in accordance with Article
         4, a customs union is progressively to be established and economic policies more closely aligned, and a final phase which,
         in accordance with Article 5, is to be based on the customs union and to entail closer coordination of economic policies.
      
      4        The final phase provided for by the Association Agreement came into force on 31 December 1995 (Decision No 1/95 of the EC-Turkey
         Association Council of 22 December 1995 on implementing the final phase of the customs union (OJ 1996 L 35, p. 1)) The decisions
         adopted by the Association Council during the transitional phase were also applicable to the imports covered by the contested
         decision, given that those imports took place between 5 April 1995 and 20 November 1997. 
      
      5        Those decisions include, in particular, Decision No 5/72 of 29 December 1972 on methods of administrative cooperation for
         implementation of Articles 2 and 3 of the Additional Protocol to the Association Agreement (OJ 1973 L 59, p. 74).
      
      6        Article 11 of Decision No 5/72 provides that the Member States and the Republic of Turkey are to assist each other, through
         their respective customs administrations, in checking the authenticity and accuracy of the certificates in order to ensure
         the proper application of the provisions of the decision.
      
      7        Article 12 of Decision No 5/72 provides that ‘[the Republic of] Turkey, the Member States and the Community shall each take
         the steps necessary to implement this Decision’.
      
      8        Decision No 1/95 lays down detailed rules for the implementation of the final phase of customs union and Annex 7 to that decision
         concerns mutual assistance on customs matters between the competent administrative authorities of the Community and those
         of the Republic of Turkey.
      
      9        Articles 3 and 7 of that Annex set out the rules governing respectively the assistance which those authorities have a duty
         to provide at the request of one or other of them and the execution of such a request for assistance.
      
      10      Furthermore, under Article 15 of Decision No 1/96 of the EC-Turkey Customs Cooperation Committee of 20 May 1996 laying down
         detailed rules for the application of Decision No 1/95 (OJ 1996 L 200, p. 14), in order to ensure the proper application of
         the provisions of that decision the Member States and the Republic of Turkey are to assist each other, through their respective
         customs administrations and within the framework of mutual assistance provided for in Annex 7 to Decision No 1/95, in checking
         the authenticity and accuracy of the certificates.
      
      11      In addition, Article 13(2) of Decision No 1/96 states:
      
      ‘The office at which the division shall take place shall issue an extract of the A.TR. certificate for each part of the divided
         consignment, using for this purpose an A.TR. certificate.
      
      Box 12 of the extract shall show the registration number, date, office and country of issue of the initial certificate …’
       Legislation on repayment and remission of customs duty
      12      Article 239(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992
         L 302, p. 1) (‘the CCC’) states:
      
      ‘Import duties … may be repaid or remitted in situations …:
      –        …
      –        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 …’
      
      13      Article 905(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation
         No 2913/92 (OJ 1993 L 253, p. 1) (‘the CCC implementation regulation’) provides:
      
      ‘Where the decision-making customs authority to which an application for repayment or remission under Article 239(2) of the
         [CCC] 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 …’
      
      14      Article 904(c) of the CCC implementation regulation provides:
      
      ‘Import duties shall not be repaid or remitted where the only grounds relied on in the application for repayment or remission
         are, as the case may be:
      
      …
      (c)      presentation, for the purpose of obtaining preferential tariff treatment of goods declared for free circulation, of documents
         subsequently found to be forged, falsified or not valid for that purpose, even where such documents were presented in good
         faith.’
      
      15      Article 220(2)(b) of the CCC provides that subsequent entry in the accounts of duty resulting from a customs debt is not to
         occur where the amount of duty legally owed failed to be entered in the accounts as a result of an error on the part of the
         customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part
         having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs
         declaration. 
      
       Background to the dispute
      16      The appellant is a company incorporated under Italian law and a 95.1% subsidiary of Steinhauser GmbH, established in Ravensburg.
         The appellant’s core business consists in processing imported fruit juice concentrates and it is also an importer of such
         products in Italy. 
      
      17      According to the facts as stated by the Court of First Instance, between 5 April 1995 and 20 November 1997 the appellant imported
         and put into free circulation in the Community apple and pear juice concentrates declared as being from and originating in
         Turkey. That type of product was imported into the Community using A.TR.1 certificates with the effect that those products
         qualified for the exemption from customs duties provided for by the Association Agreement and the Additional Protocol to that
         agreement, signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council
         Regulation (EEC) No 2760/72 of 19 December 1972 (JO 1972 L 293, p. 1).
      
      18      The customs services in Ravenna (Italy) carried out a post-clearance documentary check on the authenticity of A.TR.1 certificate
         D 141591 submitted by the appellant in the course of one of the import operations for the abovementioned period. In accordance
         with the relevant provisions, the request for verification of the authenticity of that certificate was sent to the Turkish
         authorities.
      
      19      By letter of 15 May 1998, the Turkish authorities notified the Ravenna customs services that the checks carried out showed
         that that certificate was not authentic since it had not been issued by the Turkish customs authorities. They stated, moreover,
         that further checks were to be carried out. 
      
      20      Consequently, the Italian authorities carried out post-clearance checks on 103 A.TR.1 certificates submitted by the appellant
         in the course of various import operations.
      
      21      By letter of 10 July 1998, the Permanent Representation of the Republic of Turkey to the European Union (‘the Turkish Permanent
         Representation’) notified the Commission that 22 A.TR.1 certificates submitted by the appellant, listed in an annex to that
         letter and concerning exports by the Turkish company Akman to Italy, were ‘false’.
      
      22      Following that letter, between 12 and 15 October 1998 and between 30 November and 2 December 1998, the European Commission’s
         Unit for the Coordination of Fraud Prevention (UCLAF), the predecessor to the European Anti-Fraud Office (OLAF), carried out
         checks in Turkey.
      
      23      By letter of 8 March 1999, the Turkish Permanent Representation notified the customs services in Ravenna that 32 A.TR.1 certificates
         submitted by the appellant (‘the certificates at issue’), including 18 of the certificates listed in the annex to the letter
         of 10 July 1998, were not in order and had been neither issued nor validated by the Turkish authorities. Those certificates
         were identified in the annex to that letter.
      
      24      Thereafter, the inauthentic or irregular nature of a significant number of A.TR.1 certificates was the subject-matter of a
         large amount of correspondence between the Commission, the Turkish authorities and the Italian authorities, correspondence
         which included, inter alia, the Turkish authorities’ letters of 22 April 1999 and 16 July 1999.
      
      25      The Italian authorities took the view that it was clear from all the correspondence that the Turkish authorities considered
         48 A.TR.1 certificates, including the certificates at issue, to be either inauthentic or irregular. 
      
      26      In the present case, the certificates at issue were considered to be ‘forged’, given that they had been neither issued nor
         validated by Turkish customs offices. On the other hand, the 16 other certificates (corresponding to customs duties totalling
         ITL 1 904 763 758 or EUR 983 728.38) were classified as invalid, given that, whilst they had been issued by the Turkish customs
         authorities, the goods concerned did not originate in Turkey. 
      
      27      Since all 48 certificates had been classified as either ‘forged’ or ‘invalid’, the goods to which they related could not qualify
         for the preferential treatment accorded to imported Turkish agricultural products. Accordingly, the Italian customs administration
         demanded the sum of ITL 5 200 954 129 or EUR 2 686 068.63 from the appellant by way of unpaid customs duties.
      
      28      By letter of 28 March 2000 to the Ravenna customs services, the appellant, relying on Articles 220(2)(b), 236 and 239 of the
         CCC, claimed that import duties should not have been entered in the accounts post-clearance and that the import duties claimed
         should be ‘repaid’. In support of its claim, the appellant pleaded its good faith, errors on the part of the competent authorities
         that could not have been detected and deficiencies attributable to those authorities.
      
      29      Following the appellant’s claim, the Italian Republic asked the Commission to decide whether it was appropriate to waive subsequent
         entry in the accounts of the import duties claimed from the appellant pursuant to Article 220(2)(b) of the CCC, or to ‘repay’
         those duties under Article 239 of the CCC.
      
      30      By letter of 3 June 2002, the Commission requested certain additional information from the Italian authorities, which replied
         by letter of 7 June 2002.
      
      31      By letter of 25 July 2002, the Commission informed the appellant of its intention not to consent to its claim. Before taking
         a final decision, however, the Commission invited the appellant to advise it of any observations it may have and to have access
         to the file so that it could inspect the non-confidential documents.
      
      32      On 6 August 2002, the appellant’s representatives consulted the administrative file at the Commission’s offices. They also
         signed a declaration confirming that they had had access to the documents listed in an annex to that declaration.
      
      33      On 18 October 2002, the Commission adopted the contested decision, which was notified to the appellant on 21 November 2002.
         Firstly, the Commission concluded that it was appropriate to enter in the accounts the import duties that were the subject-matter
         of the claim.
      
      34      Secondly, the Commission concluded that it was appropriate to ‘repay’ import duties in respect of the part of the claim relating
         to the 16 invalid certificates since, in that regard, the appellant was in a special situation for the purposes of Article
         239 of the CCC.
      
      35      Thirdly, with regard to the certificates at issue, the Commission concluded, on the other hand, that the circumstances relied
         on by the appellant could not give rise to a special situation for the purposes of Article 239 of the CCC. Consequently, in
         Article 2 of the contested decision, the Commission decided that it was not appropriate to ‘repay’ the import duties relating
         to those certificates, amounting to EUR 1 702 340.25.
      
       The proceedings before the Court of First Instance and the judgment under appeal
      36      By application lodged at the Registry of the Court of First Instance on 29 January 2003, the applicant sought the annulment
         of Article 2 of the contested decision.
      
      37      In support of its action, the applicant put forward three pleas in law, alleging infringement of its rights of defence, of
         Article 239 of the CCC and of Article 220(2)(b) of the CCC respectively.
      
      38      The Court of First Instance dismissed the action in its entirety.
      
       The first plea
      39      By it first plea, the applicant maintained that its rights of defence were infringed during the administrative procedure in
         that, although it had access to the file containing the documents on which the Commission had based the contested decision,
         it did not have access to documents which had a decisive influence on the Commission’s overall assessment of the situation.
      
      40      However, the Court of First Instance dismissed that plea on the grounds set out in paragraphs 87 to 102 of the judgment under
         appeal.
      
       The second plea
      41      The second plea, alleging infringement of Article 239 of the CCC, is composed of four parts. The first part concerns incorrect
         classification of A.TR.1 movement of goods certificate D 437214. The second and third parts set out, respectively, serious
         deficiencies attributable to the Turkish authorities and to the Commission in order to establish that there was a special
         situation for the purposes of that article. Lastly, the fourth part concerns lack of obvious negligence on the part of the
         applicant and the assessment of commercial risks.
      
      42      As regards the first part of that plea, after pointing out that determination of the origin of goods is based on a division
         of powers between the authorities of the exporting country and those of the importing country, inasmuch as origin is established
         by the authorities of the exporting country, the Court of First Instance first examined the correspondence exchanged between
         the Commission and the Italian and Turkish authorities.
      
      43      In this connection, the Court of First Instance noted, in paragraph 122 of the judgment under appeal, that, with regard to
         the part of the contested decision concerning the certificates at issue, the Commission based its decision essentially on
         the Turkish authorities’ letter of 8 March 1999 to the Ravenna customs services.
      
      44      However, in comparing the wording of that letter and the wording of subsequent communications from the Turkish authorities,
         the Court of First Instance pointed out, in paragraphs 124 to 128 of the judgment under appeal, that there were ambiguities
         as to the classification of certificate D 437214 and that the Commission had not been in a position properly to conclude that
         that certificate had been forged prior to the adoption of the contested decision.
      
      45      However, on the basis of a letter of 22 August 2003, and thus subsequent to the contested decision, in which the Turkish authorities
         confirmed the conclusions set out in their letter of 8 March 1999, the Court of First Instance held that that consideration
         did not, of itself, suffice to annul the contested decision because the applicant had no legitimate interest in the annulment
         of a decision on the ground of a procedural defect, where annulment of the decision could only lead to the adoption of another
         decision identical in substance to the decision annulled.
      
      46      Next, the Court of First Instance examined the second part of the second plea relating to various claims that there were deficiencies
         attributable to the Turkish authorities which are essentially based on the proposition that those authorities did in fact
         issue and endorse the certificates at issue. 
      
      47      In that regard, the Court of First Instance, after observing, in paragraphs 150 to 152 of the judgment under appeal that,
         firstly, it lay within the exclusive competence of the Turkish authorities to determine whether documents they had issued
         were original or forged and that, secondly, those authorities had concluded that the certificates at issue were forged, rejected
         the applicant’s argument that the impressions of the stamps and signatures applied to the certificates at issue demonstrate
         that they were in all likelihood issued and authenticated by the Turkish authorities.
      
      48      Lastly, the Court of First Instance also observed that neither the Association Agreement nor the implementation provisions
         expressly provide that registers of certificates issued by the Turkish authorities are to be kept.
      
      49      The Court of First Instance did in fact acknowledge that paragraph 12 of Point II of Annex II to Decision No 1/96 requires
         the document number to be entered in Box 12 of A.TR.1 certificates and that Article 13 of that decision provides that, where
         a certificate is divided, Box 12 of the extract is to show, inter alia, the registration number of the initial certificate.
      
      50      However, it considered that that did not mean that the certificates were authentic because forgers would have every interest
         in using on forged certificates a registration number which corresponded with a lawful certificate.
      
      51      As regards the third part of the second plea, relating to a raft of claims in respect of failings attributable to the European
         Commission, the Court of First Instance relied on investigations carried out by UCLAF in Turkey to come to the conclusion
         that the Commission had in fact ensured that the Association Agreement was properly implemented.
      
      52      The Court of First Instance also stated, in paragraph 240 of the judgment under appeal, that the applicant had not been able
         to establish that the Commission had encountered difficulties concerning the administrative assistance agreed upon with the
         Turkish authorities which would have justified bringing the matter before the Association Council or the EC-Turkey Customs
         Union Joint Committee (‘the Joint Committee’).
      
      53      Thereafter, the Court of First Instance held that the Association Agreement, the decisions of the Association Council and
         the applicable Community legislation did not lay down any obligation for specimens of stamps and signatures to be sent from
         one Contracting Party to another, for importers to be warned of doubts as to the validity of customs transactions effected
         by those importers under the system of preferential treatment and for UCLAF to adopt a particular method of investigation.
      
      54      As for the fourth part of the second plea, relating to the lack of obvious negligence on the part of the applicant, the Court
         of First Instance rejected it as being of no consequence after pointing out that the Commission did not, in the part of the
         contested decision dealing with the certificates at issue, express its view on the issue of the applicant’s due care or negligence.
      
       The third plea
      55      The Court of First Instance also rejected the third plea, alleging infringement of Article 220(2)(b) of the CCC, given that
         the applicant had not been able to demonstrate that the acts of the competent authorities contributed to the issue or acceptance
         of the certificates at issue which had proved to be forged.
      
       Measures of organisation of procedure and measures of inquiry required
      56      Lastly, the Court of First Instance rejected the evidence offered in support and the measures of inquiry sought by the applicant
         such as, inter alia, its request to call upon the Commission to produce all the documents which the applicant considers it
         was not able to consult when it was given access to the administrative file. 
      
       Forms of order sought by the parties
      57      By its appeal the appellant claims that the Court should:
      
      –        set aside the judgment under appeal;
      –        allow the claims made at first instance, or in the alternative, refer the case back to the Court of First Instance for it
         to rule on the substance of the case;
      
      –        allow the requests for measures of organisation of procedure made by the appellant in its written pleadings of 28 January
         2003, 4 August 2003 and 11 August 2003, and 
      
      –        order the defendant at first instance to pay the costs.
      58      The Commission contends that the Court should:
      
      –        dismiss the appeal in its entirety;
      –        uphold the form of order which the Commission sought at first instance; and
      –        order the appellant to pay the costs, including the costs incurred at first instance.
       The appeal
      59      The appellant puts forward nine grounds of appeal.
      
      60      First, it submits that the Court of First Instance made an error of law in determining the division of powers between the
         exporting country and the importing country in so far as the Turkish authorities do not, contrary to what was held by the
         Court of First Instance, have exclusive competence to determine whether the certificates at issue are authentic or not.
      
      61      Secondly, the appellant submits that there was infringement of its right of access to the file, which cannot be restricted
         to only the documents on which the Commission based the contested decision.
      
      62      The appellant’s third and fourth grounds of appeal allege that the burden of proof was wrongly allocated because the Court
         of First Instance imposed on it the entire burden of proof but rejected its offers of evidence and the measures of inquiry
         it requested. 
      
      63      Errors in the legal classification of the failings alleged against the Turkish authorities and the Commission form the subject-matter
         of the fifth ground of appeal. In that regard, the appellant puts forward a number of heads of complaints concerning the assessment
         of the certificates at issue as irregular or inauthentic, failure to send specimens of stamps or signatures, breach of the
         obligation to warn importers, the way in which the investigations in Turkey were carried out and the non-disclosure of the
         registration of the certificates at issue. 
      
      64      By its sixth ground of appeal, the appellant criticises the statement in the judgment under appeal that the Commission was
         not required to bring the matter before the Joint Committee or the Association Council.
      
      65      The seventh ground of appeal alleges that the Court of First Instance failed to have regard to the appellant’s legitimate
         interest in the annulment of the contested decision with respect to A.TR.1 certificate D 437214, and the eighth ground of
         appeal alleges that the Court of First Instance failed to assess considerations of equity and risks in the judgment under
         appeal.
      
      66      Lastly, in the ninth ground of appeal, the appellant complains that the Court of First Instance infringed Article 220(2)(b)
         of the CCC.
      
       Initial observations
      67      First, it must be pointed out that the appellant submitted at the hearing that the implementation of Article 2 of the contested
         decision was only partly suspended and that it has paid a part of the import duty relating to the certificates at issue. Consequently,
         the situation is one of both repayment of import duty, as regards the sums which were paid by the appellant, and remission
         of such duty, as regards the duty which was subsequently entered in the accounts, but which the appellant did not pay.
      
      68      Secondly, it must be stated that the appellant has put forward, in support of its appeal, a number of complaints relating
         both to infringement of essential procedural requirements and infringement of substantive rules. However, in view of the specific
         circumstances of the present case, and apart from the grounds of appeal alleging infringement of the right of access to the
         file and of Article 220(2)(b) of the CCC, those complaints in essence challenge the Court of First Instance’s application
         of Article 239 of the CCC, in particular as regards the existence of a special situation within the meaning of that article.
         Therefore, those complaints as a whole must be examined at the outset.
      
       Infringement of Article 239 of the CCC
       Arguments of the parties
      69      In essence, the appellant criticises the legal classification by the Court of First Instance of the failings attributable,
         first, to the Turkish authorities and, secondly, to the Commission.
      
      70      As regards the failings alleged against the Turkish authorities, the appellant submits that the Court of First Instance erred
         in law in respect of a number of aspects: 
      
      –        during the assessment of the certificates at issue, in particular of certificate A.TR.1 D 437214, in so far as those certificates
         were found to be forgeries;
      
      –        as regards the failings of those authorities in relation to their obligations regarding specimens of the stamps and signatures
         which they use and the registration of certificates issued by them;
      
      –        in connection with mutual assistance, regarding whether assistance was provided by the Turkish authorities in issuing the
         certificates at issue, and
      
      –        in respect of other evidence which, in the appellant’s opinion, shows that there were failings on the part of the Turkish
         authorities constitutive of a special situation with regard to the appellant. 
      
      71      With regard to the failings alleged against the Commission, the appellant submits that there were sufficient objective indications
         of systematic and deliberate infringements by the Turkish authorities, which should have justified an intensified review of
         the system of preferential arrangements by the Commission.
      
      72      The appellant is also of the opinion, taking as its basis Article 93 of the CCC implementing regulation and Article 4 of Decision
         No 1/96, that the Republic of Turkey and the Commission were legally obliged during the period in question, namely 1995 to
         1997, to send to the competent customs officials or demand specimens of the stamps used by the Turkish customs authorities.
      
      73      The appellant maintains that the Court of First Instance also made an error of law when it did not conclude that the Commission
         was obliged to warn importers of fruit juice concentrates, by the end of 1994 or the beginning of 1995 at the latest, of irregularities
         in Turkey in the issuing of A.TR.1 certificates and it maintains that the Commission was also obliged to bring the matter
         before the Joint Committee or the Association Council.
      
      74      Moreover, UCLAF failed to comply with its obligations to carry out a proper investigation in Turkey, since it did not implement
         certain methods of investigation.
      
      75      Lastly, the appellant alleges that the Court of First Instance failed to have regard to the fact that it is contrary to the
         principle of equity which underlies Article 239 of the CCC, given the relationship between economic operators and the administration,
         to leave the appellant to bear the loss which stems from the contested decision. 
      
      76      The Commission submits, first, that the grounds of appeal raised by the appellant as regards the failings which are alleged
         against it and the Turkish authorities do not concern points of law, but are assessments of fact which cannot be challenged
         on appeal. 
      
      77      Furthermore, it maintains that neither the Republic of Turkey nor the Commission was obliged, under the provisions applicable
         here, to send specimens of stamps or signatures or to keep registers of A.TR.1. certificates. 
      
      78      With regard to the duty to warn importers, the Commission points out that the imports at issue here dated from the period
         between April 1995 and November 1997, whereas doubts regarding the authenticity and the accuracy of the A.TR.1 certificates
         arose only subsequently, namely as of 1998.
      
      79      It also contends that, in view of the Turkish authorities’ impeccable willingness to cooperate, it had no reason to bring
         the matter before the Joint Committee or the Association Council.
      
       Findings of the Court
      –       Admissibility
      80      Under Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal to the Court
         of Justice is limited to points of law and shall lie on the grounds of lack of competence of the Court of First Instance,
         a breach of procedure before it which adversely affects the interests of the appellant or the infringement of Community law
         by the Court of First Instance (see, inter alia, Case C-17/07 P Neirinck v Commission [2008] ECR I-0000, paragraph 73).
      
      81      In support of its appeal, the appellant relies on a number of circumstances which, in its opinion, constitute a special situation
         for the purposes of Article 239 of the CCC. 
      
      82      It is settled case-law that such a special situation is established where it is clear from the circumstances of the case that
         the person liable is in an exceptional situation as compared with other operators engaged in the same business (see, to that
         effect, Case C-86/97 Trans-Ex-Import [1999] ECR I-1041, paragraphs 21 and 22, and Case C-61/98 De Haan [1999] ECR I-5003, paragraphs 52 and 53). It is in the light of those circumstances that the question whether they constitute
         a special situation for the purposes of Article 239 of the CCC must be examined.
      
      83      The complaints put forward in the appeal thus effectively criticise the application of Article 239 of the CCC by the Court
         of First Instance in the judgment under appeal, in that it held that the circumstances of the present case do not constitute
         a special situation. That legal characterisation is a point of law which it is for the Court to examine in an appeal.
      
      84      Consequently, the objection of inadmissibility raised by the Commission must be rejected.
      
      –       Substance
      85      It must be pointed out at the outset that, according to settled case-law, Article 239 of the CCC is a general equitable provision
         (see, inter alia, Case C-230/06 Militzer & Münch [2008] ECR I-0000, paragraph 50). 
      
      86      Under Article 239 of the CCC, the person liable is entitled to repayment or remission of customs duty provided that two conditions
         are met, namely the existence of a special situation and the absence of obvious negligence or deception on his part.
      
      87      As regards the appellant’s due care and the absence of deception on its part, it must be pointed out that they are not the
         subject-matter of this appeal. As the Court of First Instance stated in paragraph 295 of the judgment under appeal, the Commission
         did not, in the part of the contested decision dealing with the certificates at issue, express its view on the issue of the
         appellant’s due care or negligence.
      
      88      As regards the existence of a special situation for the purposes of Article 239 of the CCC, that situation is established,
         as has been pointed out in paragraph 82 of this judgment, where it is clear from the circumstances of the case that the person
         liable is in an exceptional situation as compared with other operators engaged in the same business and that, in the absence
         of such circumstances, he would not have suffered the disadvantage caused by the subsequent entry in the accounts of customs
         duties (see, to that effect, Case 58/86 Coopérative agricole d’approvisionnement des Avirons [1987] ECR 1525, paragraph 22).
      
      89      Therefore, in order to determine whether the circumstances of the case constitute a special situation in which no deception
         or obvious negligence may be attributed to the person concerned within the meaning of Article 239 of the CCC, the Commission
         must assess all the relevant facts (see, to that effect, Case 160/84 Oryzomyli Kavallas and Oryzomyli Agiou Konstantinou v Commission [1986] ECR 1633, paragraph 16).
      
      90      That obligation implies, in a case such as this one where the person liable has relied, in support of his application for
         repayment or remission of import duties, on the existence of serious errors on the part of the Turkish authorities and the
         Commission in the implementation of the Association Agreement, that the Commission must base its assessment, when examining
         that application for repayment or remission of import duties, on all the facts relating to the certificates at issue of which
         it was aware in the performance of its task of supervising and monitoring the proper implementation of that agreement.
      
      91      Furthermore, that finding is reinforced by Article 904(c) of the CCC implementing regulation which provides that import duties
         must not be repaid or remitted where the ‘only grounds’ relied on in the application for repayment or remission are presentation,
         for the purpose of obtaining preferential tariff treatment, of documents subsequently found to be forged, falsified or not
         valid for that purpose, even where such documents were presented in good faith. In other words, the presentation of forged,
         falsified or invalid certificates does not per se constitute a special situation for the purposes of Article 239 of the CCC.
      
      92      By contrast, other circumstances relied on in support of an application for repayment or remission of import duty, such as
         inadequate monitoring by the Commission of the proper implementation of the Association Agreement, may constitute such a special
         situation.
      
      93      Although the Commission has some discretion as regards the application of Article 239 of the CCC, it cannot disregard its
         duty to balance, on the one hand, the Community interest in full compliance with the provisions of customs legislation, whether
         that be Community legislation or other legislation binding on the Community, and, on the other hand, the interest of an importer
         acting in good faith not to suffer harm which goes beyond the normal commercial risk.
      
      94      That balancing underlies the scheme of Article 239 which, as has been pointed out in paragraph 85 of this judgment, is a general
         equitable provision. Consequently, when examining an application for repayment or remission of import duty, the Commission
         is not entitled merely to assess the behaviour and activities of the importer and the exporter. It must also take into account,
         in particular, the effect of its own behaviour on the specific situation in the course of its duty to supervise and monitor.
      
      95      In that regard, it must be pointed out that it follows from Article 211 EC that the Commission, as guardian of the EC Treaty
         and of the agreements concluded under it, must ensure the correct implementation by a third country of the obligations it
         has assumed under an agreement concluded with the Community, using the means provided for by the agreement or by the decisions
         taken pursuant thereto.
      
      96      That obligation is also apparent from the Association Agreement itself and from the many decisions adopted in respect of its
         implementation. Thus, Article 7 of that agreement, in conjunction with Article 211 EC, requires that the Commission take all
         appropriate measures, whether general or particular, to ensure the fulfilment of the obligations arising from that agreement.
      
      97      Furthermore, according to Article 24 of the Association Agreement, the Commission is represented on the Association Council
         and participates, as the representative of the Community, in the various committees set up by the Association Council, to
         ensure the continuing cooperation necessary for the proper functioning of the Agreement. Thus, under Article 52(2) of Decision
         No 1/95, the Commission may call upon the Joint Committee where difficulties arise for the Community or the Republic of Turkey
         in the implementation of that decision.
      
      98      Moreover, the Commission has a permanent representation in Turkey which enables it, at the very least, to be reliably informed
         of legal developments in that State and, in particular, of the stage which the implementation of that agreement has reached.
      
      99      The Commission also has significant rights and powers available to it in connection with its obligation of supervising and
         monitoring the proper implementation of the Association Agreement.
      
      100    Thus, under the provisions of Article 3 of Annex 7 to Decision No 1/95, the Commission may request from the Turkish authorities
         any information which may enable it to ensure that customs legislation is correctly applied. 
      
      101    Under paragraph 4(a) of the same article, the Commission may also request that the Turkish authorities take the necessary
         steps to keep a special watch on natural or legal persons of whom there are reasonable grounds for believing that they are
         breaching or have breached customs legislation.
      
      102    Furthermore, according to Article 7(3) and (4) of that annex, duly authorised Commission officials may, with the agreement
         and within the conditions laid down by the Turkish customs authorities, obtain from the respective offices of those authorities
         information relating to breaches of customs legislation or be present at inquiries carried out in Turkish territory. 
      
      103    The same is true of Article 15 of Decision No 1/96 according to which, in order to ensure the proper application of the provisions
         of that decision, the Member States and the Republic of Turkey must assist each other, through their respective customs administrations
         and within the framework of mutual assistance provided for in Annex 7 of Decision No 1/95, in checking the authenticity and
         accuracy of the certificates.
      
      104    Consequently, the Commission cannot reasonably claim, as it did at the hearing, that it is in the same position as the appellant
         as regards the checking of events which occurred in a third country, namely in Turkey. On the contrary, it is for the Commission
         to make full use of the rights and powers which it has under the provisions of the Association Agreement and the decisions
         adopted in respect of its implementation so as to fulfil its obligation of supervising and monitoring the proper implementation
         of the Association Agreement. 
      
      105    Such use of its rights and powers is particularly necessary in a situation in which exports to the same Community port, namely
         that of Ravenna, by the same Turkish export company in the same reference period took place, according to the findings in
         the judgment under appeal, under cover of both irregular and inauthentic certificates.
      
      106    The full use of the rights and powers which the Commission has in connection with its duty of supervising and monitoring the
         proper implementation of the Association Agreement is also called for because the assessments made by the Turkish authorities
         as regards the inauthentic or irregular nature of the certificates at issue show some ambiguities or, at the very least, some
         inconsistencies.
      
      107    Therefore, as the Court of First Instance stated in paragraphs 120 to 128 of the judgment under appeal, a comparison between
         the wording of the letter of the Turkish authorities of 8 March 1999 and that of subsequent communications from those authorities,
         such as the letter from the Turkish Permanent Representation to UCLAF of 22 April 1999, discloses ambiguities as to the allegedly
         inauthentic nature of certificate D 437214.
      
      108    As regards two other A.TR.1 certificates whose authenticity was assessed by the Turkish authorities in the course of the same
         post-clearance check, even though they are not amongst the certificates at issue, the Court of First Instance also found,
         in paragraphs 198 to 201 of the judgment under appeal, some inconsistencies in that the Turkish authorities had classified
         them, at different stages of the procedure, as falsified, incorrect and also partially incorrect.
      
      109    Furthermore, as is apparent from the judgment under appeal, the use by those authorities of a variety of terms to describe
         the outcome of their checks of the certificates, such as, inter alia ‘false’ (letter from the Turkish Permanent Representation
         to UCLAF of 10 July 1998, mentioned in paragraph 41 of the judgment under appeal), ‘not correct and … not issued and endorsed
         by [the Turkish] customs office’ (letter from the Turkish General Directorate of Customs of 8 March 1999, mentioned in paragraph
         123 of the judgment under appeal), ‘not correct and … not issued according to the rules’ (letter from the Turkish Permanent
         Representation to UCLAF of 22 April 1999, mentioned in paragraph 124 of the judgment under appeal) and ‘incorrect’ (letter
         from the Turkish General Directorate of Customs of 16 July 1999, mentioned in paragraph 200 of the judgment under appeal),
         also gave rise to ambiguities.
      
      110    What is more, the different terms used by the Turkish authorities in their correspondence with the Commission and the Italian
         customs authorities do not tally with the notions of ‘authenticity’ and ‘accuracy’ set out in Article 11 of Decision No 5/72
         and Article 15 of Decision No 1/96.
      
      111    The ambiguities and inconsistencies described above should have led the Commission to question the assessments made by the
         Turkish authorities. In those circumstances, it was the task of the Commission to satisfy itself, in the course of its task
         of supervising and monitoring the proper implementation of the Association Agreement, that the Turkish authorities had correctly
         classified those certificates as either irregular or inauthentic.
      
      112    However, clearly the Commission did not make full use of the rights and powers conferred upon it by the Association Agreement
         and its implementing provisions.
      
      113    First, although it is true that UCLAF carried out two investigations in Turkey from 12 to 15 October 1998 and from 30 November
         to 2 December 1998, clearly the Court of First Instance erred in holding, in paragraph 218 of the judgment under appeal, that
         there was no conclusive evidence which would give grounds for assuming that UCLAF was not able to carry out a thorough investigation,
         in particular at the customs administration in Mersin. It is clear from UCLAF’s mission reports of 9 and 23 December 1998
         that the customs office from which the goods at issue were exported to the Community, namely that of Mersin, was not one of
         the organisations visited by its investigators in Turkey. Therefore, they were not able to check whether the certificates
         at issue were authentic or not. UCLAF’s two mission reports of 9 and 23 December 1998 do not deal with whether the certificates
         at issue were in fact falsified or, by contrast, incorrectly issued by the Turkish authorities. 
      
      114    That finding is borne out by a letter of 9 December 1998, that is to say subsequent to the investigations carried out by UCLAF
         in Turkey, in which UCLAF’s Director, Mr Knudsen, ‘urged’ the Turkish authorities to agree to a joint investigation in the
         Mersin customs office in order to obtain details of all the exports of fruit juice concentrates Akman had made since the end
         of 1993.
      
      115    In that regard, it cannot be disputed that in order to carry out an investigation in the respective offices of the Turkish
         customs authorities, the Commission had to have the agreement of those authorities pursuant to Article 7(3) of Annex 7 to
         Decision No 1/95. It is sufficient to point out that the Commission has not referred to any lack of agreement on the part
         of the Turkish authorities which prevented it from carrying out such an on-the-spot check. 
      
      116    Moreover, it is apparent from paragraphs 244 to 259 of the judgment under appeal that the Commission did not request specimen
         impressions of the stamps used in the Mersin customs offices from the Turkish authorities and did not send them to the customs
         authorities of the Member States. The Court of First Instance found in that regard that, during the entire period covering
         the importations at issue, the Republic of Turkey and the Commission were not under any obligation to provide each other with
         specimen impressions of the stamps used by the customs offices.
      
      117    However, it is the sending of specimen impressions of the stamps and signatures used in those offices that makes it possible
         to supervise compliance with the customs rules relating to tariff preferences effectively.
      
      118    The Commission’s obligation to ensure that the Association Agreement is properly implemented means that the Commission, and
         through it the customs authorities of the Member States, should always have all the information to enable it to carry out
         an effective check, and specimen impressions of the stamps and signatures unquestionably constitute such information.
      
      119    Moreover, contrary to what was held by the Court of First Instance in paragraph 255 of the judgment under appeal, it is unambiguously
         apparent from the wording of Article 15(1) of Decision No 1/96, as amended by Decision No 2/97 of the EC‑Turkey Customs Cooperation
         Committee of 30 May 1997 (OJ 1997 L 249, p. 18), which entered into force on 1 September 1997, namely during the period covering
         the imports at issue, that ‘the customs authorities of the Member States of the Community and of [the Republic of] Turkey
         shall provide each other, through the Commission …, with specimen impressions of stamps used in their customs offices for
         the issue of A.TR. movement certificates’. 
      
      120    In any event, even before the entry into force of that decision, the Commission should, in order to facilitate the proper
         implementation of the Association Agreement, have requested that the Turkish authorities provide it with those specimens on
         the basis of Article 7(3) of Decision No 1/95 which authorises it to request ‘any information which may enable it to ensure
         that customs legislation is correctly applied’.
      
      121    The fact that the Republic of Turkey sent the impressions of stamps used for A.TR.1 certificates voluntarily, as stated by
         the Court of First Instance in paragraph 258 of the judgment under appeal, does not call in question the finding that the
         Commission failed to fulfil its obligation to request that the Turkish authorities provide it with specimen impressions of
         the stamps and signatures used in the Mersin customs office and to send them, in turn, to the customs authorities of the Member
         States.
      
      122    Lastly, it is also apparent from paragraphs 153 to 160 of the judgment under appeal that the Commission merely observed that
         neither the Association Agreement nor the implementing provisions expressly required registers to be kept in Turkey for the
         entry of customs certificates and that, in any case, the possible existence of such registers did not imply that certificates
         were authentic, given that forgers would have every interest in using on forged certificates a registration number which corresponded
         with a lawful certificate. That reasoning was accepted by the Court of First Instance in paragraphs 161 and 162 of the judgment
         under appeal.
      
      123    That argument cannot, however, succeed. In that regard, it must be stated that the registration of certificates issued by
         the customs authorities is indispensable in international trade. Failure to keep such registers is likely to render worthless
         the effectiveness of any post-clearance check on certificates issued by the respective customs authorities.
      
      124    Furthermore, the obligation on the Turkish authorities to register A.TR.1 certificates stems, contrary to what was held by
         the Court of First Instance in paragraph 161 of the judgment under appeal, from the implementing provisions of the Association
         Agreement. Article 13 of Decision No 1/96 provides that, where there is division of certificates, box 12 of the extract must
         show, in particular, the registration number of the ‘initial certificate’. Even though Article 13 applies to the specific
         case of division of certificates, it is clear that the registration number of the ‘initial certificate’ must appear in box
         12 of the A.TR.1 certificate, that is to say that the initial certificate must, in any event, also be registered in the customs
         registers of the country of export.
      
      125    The Court of First Instance’s statement in paragraph 162 of the judgment under appeal, that forgers would have every interest
         in using a registration number which corresponded with a lawful certificate which had already been registered, is not such
         as to relieve the Commission of its obligation to ensure that the Association Agreement is properly implemented.
      
      126    On the contrary, given that that statement implies a double importation into the Community under cover of A.TR.1 certificates
         with the same registration number, one authentic and the other inauthentic, the Commission should have checked whether such
         a double importation into the Community under cover of A.TR.1 certificates bearing the same registration number had actually
         taken place. It may be inferred from the Commission’s arguments both before the Court of First Instance and before the Court
         of Justice that it did not do so.
      
      127    Furthermore, given that neither of UCLAF’s two missions was carried out at the Mersin customs office, as was pointed out in
         paragraph 113 of this judgment, they were also not able to check whether there were such registers and whether the certificates
         at issue were entered in those registers or not.
      
      128    It follows from all of the above considerations that the Commission failed to fulfil its obligations to supervise and monitor
         the proper implementation of the Association Agreement. 
      
      129    Had the Commission not failed to fulfil its obligations, the forgeries of the certificates at issue could have been discovered
         and elucidated as soon as the first imports into the Community were made and the scale of the financial loss, both for the
         Community budget and for the appellant, could have been limited. Furthermore, the Commission could, as soon as those forgeries
         were discovered, have warned importers in good time and, if necessary, have brought the matter before the Joint Committee.
         
      
      130    In any event, if the Commission had made full use of the rights and powers which it has under the Association Agreement, the
         doubts as to the inauthentic or irregular nature of the certificates at issue could have been dispelled and their authenticity
         or inauthenticity could have been established with certainty.
      
      131    It follows that that failure to fulfil obligations on the part of the Commission constitutes a special situation for the purposes
         of Article 239 of the CCC.
      
      132    Therefore, in holding that it had not been proved that a special situation for the purposes of Article 239 of the CCC existed,
         the Court of First Instance misapplied that article and thus erred in law. 
      
      133    Consequently, this plea is well founded.
      
      134    Having regard to the above, there is no need to examine the pleas alleging infringement of the right of access to the file
         and infringement of Article 220(2)(b) of the CCC. 
      
       The consequences of the setting aside of the judgment under appeal
      135    In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice, if the appeal is well founded,
         the Court of Justice must quash the decision of the Court of First Instance. It may then itself give final judgment in the
         matter, where the state of the proceedings so permits. That is the case here.
      
      136    It follows from all the considerations set out in paragraphs 85 to 133 of this judgment that the Commission made a manifest
         error of assessment in finding that the conditions set out in Article 239 of the CCC had not been met and that, consequently,
         there was no need to repay or remit the import duty relating to the certificates at issue. Article 2 of the contested decision
         must therefore be annulled. 
      
       Costs
      137    Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court of Justice
         itself gives final judgment in the case, the Court is to make a decision as to costs.
      
      138    Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 of those rules,
         the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings.
         Since the appellant has applied for costs and the Commission has been unsuccessful, it must be ordered to pay the costs at
         both instances.
      
      On those grounds, the Court (Third Chamber) hereby:
      1.      Sets aside the judgment of the Court of First Instance of 6 February 2007 in Case T-23/03 CAS v Commission;
      2.      Annuls Article 2 of the Decision of the Commission of 18 October 2002 (REC 10/01);
      3.      Orders the Commission of the European Communities to pay the costs at both instances.
      [Signatures]
      * Language of the case: German.