CT Control (Rotterdam) BV and JCT Benelux BV v Commission of the European Communities.
Date: 1993-07-06
22 It should be noted that, according to consistent case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force (see, in particular, the judgment in Case 212/80 Amministrazione delle Finanze dello Stato v Salumi [1981] ECR 2735, paragraph 9).
23 It is common ground that the implementing provisions in question are procedural rules relating to the processing of applications for repayment or remission by the Commission. In accordance with the principle regarding the time at which procedural rules take effect, it is therefore the 1986 implementing regulation which applies in the present cases and not, as the applicants contend, the 1980 implementing regulation, which means that the Commission had six months within which to take the disputed decisions, a time-limit which it respected.
24 The applicants, who cite the Salumi II judgment, cited above, and the judgment in Case 113/81 Reichelt v Hauptzollamt Berlin-Sued [1982] ECR 1957, nevertheless maintain that the principle regarding the time at which procedural rules take effect does not apply in the present cases since the relevant procedural and substantive rules form an indivisible whole and cannot therefore be considered in isolation with regard to the time at which they take effect.
25 This argument cannot be accepted.
26 First, in the Salumi II and Reichelt judgments, cited above, the Court merely noted that the Community system for the post-clearance recovery of import and export duties (Salumi II judgment) and the Community system for the repayment or remission of import duties (Reichelt judgment) had replaced, without retroactive effect, the various corresponding national systems as regards both the procedural and substantive rules applicable.
29 The applicants maintain that the disputed decisions do not meet the requirement, laid down in Article 190 of the EEC Treaty, that they should state the reasons on which they are based in that the statement of reasons merely refers to the judgment of the Court in Joined Cases 98/83 and 230/83 Van Gend & Loos and Bosman v Commission [1984] ECR 3763 without taking account of either the facts or the special circumstances of the cases.
30 In this regard, they raise three different objections:
° the reasons for which the Van Gend & Loos and Bosman judgment is relevant are not stated;
° in the present cases the statement of reasons was wrongly based on that judgment;
° it has not been demonstrated that the imported honey did not originate in Jamaica or another ACP State.
31 It should be noted that, according to consistent case-law (see in particular the judgment in Case 323/88 SA Sermes v Directeur des Services des Douanes de Strasbourg [1990] ECR I-3027), the statement of reasons required by Article 190 of the Treaty must disclose clearly and unequivocally the reasoning followed by the adopting body in such a way as to allow the persons concerned to ascertain the reasons for the measure and thus enable them to defend their rights, and to enable the Court to exercise its review. It cannot, however, be required that the statement should go into all the relevant factual and legal points. The question whether the statement of grounds for a decision meets those requirements must be assessed with regard not only to its wording but also to the context of the decision and to all the legal rules governing the matter in question (see, in this regard, the judgment in Case 185/83 University of Groningen v Inspecteur der Invoerrechten en Accijnzen, Groningen [1984] ECR 3623, paragraph 38).
32 The statement of reasons for the disputed decisions meets those requirements. It covers all the facts and points of law underlying the decisions taken in relation to the applications for remission of duties. Indeed, it states that it is not decisive for the purposes of remission of the duties that recovery be undertaken by a customs agent (fourth recital of the disputed decisions), that the latter "assumed responsibility both for the payment of import duties and for the regularity of the documents which he presented to the customs authorities in support of the declaration of release into free circulation" (fifth recital of the disputed decisions) and that in accordance with the Van Gend & Loos and Bosman judgment, cited above, "the fact of having been furnished with certificates or documents that were subsequently cancelled by the competent authorities cannot be considered as a special circumstance within the meaning of Article 13 of Regulation (EEC) No 1430/79 that can justify repayment of import duties legally due, since good faith concerning the validity of such certificates and the accuracy of their contents is not generally protected" (sixth recital of the disputed decisions).
33 That conclusion cannot be invalidated by the three abovementioned objections raised by the applicants to support the plea that the statement of reasons given for the disputed decisions was insufficient.
34 As regards the first objection, it is sufficient to note that, contrary to what the applicants maintain, the grounds set out for the disputed decisions give the reasons for which reference is made to the judgment in Van Gend & Loos and Bosman v Commission. As indicated in the sixth recital of the disputed decisions, cited above, reference to that judgment of the Court is intended to demonstrate that the condition laid down by Article 13 of Regulation No 1430/79 requiring the existence of special circumstances is not met in situations such as those underlying the judgment cited above. This objection must therefore be rejected.
35 As their second objection the applicants state that in view of the considerable differences between the facts which gave rise to the judgment in the case of Van Gend & Loos and Bosman v Commission and the present cases this judgment cannot be invoked in support of the absence, in the present cases, of "special circumstances" within the meaning of Article 13 of Regulation No 1430/79.
36 This argument cannot be accepted.
37 The judgment in question contains an interpretation of the concept of "special circumstances" within the meaning of Article 13 of Regulation No 1430/79. It states that a customs agent, by the very nature of his functions, renders himself liable for the payment of import duties and for the validity of the documents which he presents to the customs authorities. Consequently, the fact that certificates are withdrawn by the competent customs authority after clearance does not constitute a "special circumstance" but a professional risk which any customs agent runs, even one acting in good faith. With regard to the latter point, the judgment clearly indicates that the good faith of the persons concerned regarding the information given on the certificates of origin cannot be considered a "special circumstance".
38 In the present cases, the applicants do not dispute the fact that they acted as customs agents, that they also assumed responsibility for the correctness of the customs documents and that the certificates produced by them subsequently proved to be invalid. The facts correspond exactly to the considerations which led the Court, in the judgment cited above, to conclude that "special circumstances" within the meaning of Article 13 of Regulation No 1430/79 did not exist. The Commission was therefore right to base the reasoning of the disputed decisions on that judgment.
39 As regards the applicants' third objection, which is that in the disputed decisions the Commission does not show that the imported honey did not originate in Jamaica or another ACP State, it is sufficient to state that it is for the importer and not the Commission to establish that imported goods originate in an ACP State in order to obtain remission of duty. In addition, this question concerns the legality of the withdrawal of the certificates of origin. As the Court stated in the judgment in Joined Cases 244 and 245/85 Cerealmangimi and Italgrani v Commission [1987] ECR 1303, this cannot be advanced as an argument to prove that Commission decisions on applications for remission of duties are unlawful. This objection must therefore also be rejected.
43 It must be borne in mind that the sole aim of Article 13 of Regulation No 1430/79 is to enable importers, when certain special conditions are satisfied and in the absence of negligence or deception, to be exempted from payment of duties due from them and not to enable them to contest the actual principle of an amount being due (see, in this regard, the Italgrani judgment, cited above, paragraph 11).
44 It follows that the applicants may only properly rely, in relation to the contested decisions, on arguments seeking to show the existence in this case of special circumstances and the absence of negligence or deception on their part, and not on arguments seeking to show that the decisions of the competent national authorities subjecting them to payment of the duties at issue were unlawful.
48 It should be recalled that in its judgment in Case 294/81 Control Data v Commission [1983] ECR 911, paragraph 17, and its judgment in Van Gend & Loos and Bosman, cited above, paragraph 9, the Court has already rejected this plea, put forward in the same legal context. In those judgments the Court held that the procedure for adopting the disputed decisions, which comprised several stages, some of which took place at national level (submission of the application by the undertaking concerned, preliminary examination of the application by the customs authorities) and some at Community level (submission of the application to the Commission, examination of it by the Committee on Duty-Free Arrangements, consultation of a group of experts, decision by the Commission, notification to the Member State concerned), afforded the persons concerned all the necessary legal safeguards.
49 Given that this procedure was followed in the present cases, a fact which the applicants do not contest, the plea of infringement of the rights of the defence is unfounded. The procedure followed enabled the applicants to submit all their arguments to the Netherlands authorities; their files were at the disposal of both the Committee on Duty-Free Arrangements and the Commission. Moreover, the applicants acknowledge that all the arguments which they could have put forward in favour of remission had been mentioned in their applications and that there was no new factor that they could have introduced into their arguments. At all events, they knew that their applications were being forwarded to the Commission and could have supplemented the arguments contained in them if they had so wished.
50 The applicants consider, however, that in view of recent developments in the case-law of the Court regarding the rights of the defence in the field of competition law and anti-dumping duties and in view of Article 6 of the European Convention on the Protection of Human Rights, respect for the rights of the defence should be maintained more strictly than in the cases which gave rise to the Control Data and Van Gend & Loos and Bosman judgments, cited above.
51 This argument cannot be accepted.
52 First, as the Commission has rightly pointed out, the procedures applicable with regard to competition law and anti-dumping duties differ considerably from that followed in the present cases. In the latter, traders lodge applications for remission of duty themselves, whereas in cases involving competition and anti-dumping duties it is the Community institutions which decide to institute the procedure which may lead to the punishment of an economic agent who has contravened the provisions of the Treaty. In the latter case, the principle of audi alteram partem, which represents the defence' s most essential right according to the case-law of the Court, assumes special importance. However, in cases such as those now before the Court it must be considered that the principle of audi alteram partem is respected at the Community level if the requirements set out in the judgment in the Control Data and Van Gend & Loos and Bosman cases are satisfied.