Common Market Fertilizers SA v Commission of the European Communities.
Date: 2007-09-13
115. The concept of ‘implementation’ for the purposes of that article comprises both the drawing-up of implementing rules and the application of rules to specific cases by means of acts of individual application (Case C‑122/04 Commission  v Parliament and Council  [2006] ECR I‑2001, paragraph 37 and the case-law cited).
120. Thus, without prejudice to the possibility of recourse to the advisory procedure, measures of general scope may come under point (a) or point (b) of Article 2 of the comitology decision (see Commission  v Parliament and Council , paragraph 38).
121. They may be covered by the management procedure where they are closely linked to measures of individual application and part of a framework sufficiently developed by the basic instrument itself (see Commission  v Parliament and Council , paragraph 41).
122. By contrast, again without prejudice to the possibility of recourse to the advisory procedure, measures of individual application may be covered only by point (a) of Article 2 of the comitology decision ( Commission  v Parliament and Council , paragraph 38).
137. It follows from the foregoing that CMF’s complaint concerning one of the grounds of the judgment under appeal – that the possible illegality of the first paragraph of Article 907 of the implementing regulation is not a matter of public policy – is directed against a ground which was included in the judgment purely for the sake of completeness and which, being in consequence nugatory, cannot lead to the judgment being set aside (see, in particular, Case C‑164/01 P Van den Berg  v Council and Commission  [2004] ECR I‑10225, paragraph 60, and also Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others  v Commission  [2005] ECR I‑5425, paragraph 148).
145. It went on to note that natural or legal persons may not rely on an alleged breach of that rule, since it is not intended to ensure protection for individuals (see, to that effect, Case C‑69/89 Nakajima  v Council  [1991] ECR I‑2069, paragraphs 49 and 50).
174. The Court of First Instance correctly noted in paragraph 135 of the judgment under appeal that, in order to assess whether there is obvious negligence within the meaning of Article 239 of the Customs Code, account must be taken in particular of the complexity of the provisions non-compliance with which resulted in the customs debt being incurred, and the professional experience of, and care taken by, the trader ( Söhl & Söhlke , paragraph 56, and Case C‑156/00 Netherlands  v Commission  [2003] ECR I‑2527, paragraph 92).
175. It also rightly noted in paragraph 136 of the judgment under appeal that the repayment or remission of import or export duties, which may be made only under certain conditions and in cases specifically provided for, constitutes an exception to the normal import and export rules and, consequently, the provisions which provide for such repayment or remission are to be interpreted strictly ( Söhl & Söhlke , paragraph 52).
– First part: complexity of the second subparagraph of Article 1(3) of Regulation No 3319/94
177. In doing so, the Court of First Instance carried out a legal classification of the facts in order to determine whether the customs rules in question could be regarded as ‘complex’ for the purposes of applying Article 239 of the Customs Code (see, by analogy, Case C‑499/03 P Biegi Nahrungsmittel and Commonfood  v Commission  [2005] ECR I‑1751, paragraphs 42 and 43).
184. In that regard, it should be noted that, according to Article 5(2) of the Customs Code, representation of an operator for the performance of the acts and formalities laid down in the customs rules may be either direct, where the representative acts in the operator’s name and on his behalf, or indirect, where the representative acts in his own name but on behalf of another person.
186. It follows from those provisions that an operator who uses a customs agent, whether for direct or indirect representation, is in any event the debtor in respect of the customs debt as far as the customs authorities are concerned.
187. Therefore, the Court of First Instance did not err in law in ruling out any possibility that CMF could avoid liability on account of mistakes that may have been made by its customs agents, whose liability, if any, with regard to CMF relates only to their contractual relationship with CMF.
188. As regards the condition linked to the operator’s professional experience, the Court of First Instance rightly noted in paragraph 140 of the judgment under appeal that it is necessary to examine whether or not the operator is a trader whose business activities consist mainly in import and export transactions and whether he had already gained some experience in the conduct of such transactions ( Söhl & Söhlke , paragraph 57).
191. In paragraph 142 of the judgment under appeal, the Court of First Instance noted, principally, that where doubts exist as to the exact application of the provisions non-compliance with which may result in a customs debt being incurred, the onus is on the trader to make inquiries and seek all possible clarification to ensure that he does not infringe those provisions ( Söhl & Söhlke , paragraph 58).
195. In that regard, it should be noted first that, in doing so, the Court of First Instance carried out a legal classification of the facts in order to decide whether the ‘care’ requirement was fulfilled (see, by analogy, Biegi Nahrungsmittel and Commonfood  v Commission , paragraphs 42 and 43). Consequently, contrary to the Commission’s assertion, CMF’s challenge concerning the invoicing errors is admissible.