C.A.S. SpA v Commission of the European Communities.
Date: 2008-07-25
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).
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.
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.
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.
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.
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.
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.