1. In their appeal Nordspedizionieri di Danielis Livio & C. Snc, in liquidation (‘Nordspedizionieri’), Livio Danielis and Domenico d’Alessandro request the Court of Justice to set aside the judgment of the Court of First Instance of the European Communities of 14 December 2004 in Case T‑332/02 Nordspedizionieri di Danielis Livio and Others v Commission [2004] ECR II‑4405 (‘the judgment under appeal’). Legal context
2. The Community customs rules provide for the total or partial repayment of import or export duties which have been paid, or the remission of a customs debt. The conditions for the remission of the duties applicable to the present case were laid down by Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175, p. 1), as amended by Council Regulation (EEC) No 3069/86 of 7 October 1986 (OJ 1986 L 286, p. 1, ‘Regulation No 1430/79’).
3. The first subparagraph of Article 13(1) of Regulation No 1430/79 provides: ‘1. Import duties may be repaid or remitted in special situations … which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned.’
4. Under Article 36 of Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit (OJ 1977 L 38, p. 1): ‘1. When it is found that, in the course of a Community transit operation, an offence or irregularity has been committed in a particular Member State, the recovery of duties or other charges which may be chargeable shall be effected by that Member State in accordance with its provisions laid down by law, regulation or administrative action, without prejudice to the institution of criminal proceedings. 2. If the place of the offence or irregularity cannot be determined, it shall be deemed to have been committed: (a) when, in the course of a Community transit operation, the offence or irregularity is detected at an office of transit situated at an internal frontier: in the Member State which the means of transport or the goods have just left; (b) when, in the course of a Community transit operation, the offence or irregularity is detected at an office of transit within the meaning of the second indent of Article 11(d): in the Member State to which that office belongs; (c) when, in the course of a Community transit operation, the offence or irregularity is detected in the territory of a Member State elsewhere than at an office of transit: in the Member State in which it is detected; (d) when the consignment has not been produced at the office of destination: in the last Member State which the means of transport or the goods are shown by the transit advice note to have entered; (e) when the offence or irregularity is detected after the Community transit operation has been concluded: in the Member State in which it is detected.’
5. Article 1 of the Agreement on Mutual Administrative Assistance for the Prevention and Suppression of Customs Fraud concluded on 10 November 1965 between the Italian Republic and the Federal Socialist Republic of Yugoslavia (‘the bilateral agreement’) provides: ‘The customs administrations of the contracting parties shall afford each other mutual assistance, in the circumstances laid down in this present agreement, in order to prevent, detect and suppress breaches of their respective customs rules.’
6. Under Article 4 of that agreement: ‘The customs administration of each of the two contracting parties shall carry out, on its own initiative, or at the request of the customs administration of the other party, special surveillance in the area covered by its own service: … - in order to ensure protection of the customs and tax interests of the respective countries, each of the two customs administrations shall apply itself principally to preventing goods exported from its territory becoming the subject of smuggling to the financial detriment of the other contracting party. On request, extra vigilance will be observed in the case of export of those products which attract special, high fiscal charges in the territory of the other contracting party.’ Factual background to the dispute
7. On 30 October 1991, Nordspedizionieri, made up of customs brokers and having its registered office at Trieste, made to the customs office at Fernetti (Italy) an external Community transit declaration regarding cardboard boxes originating in Slovenia and bound for Spain. On 5 and 16 November 1991, Nordspedizionieri made two further Community transit declarations similar to that of 30 October.
8. Shortly after completion of the customs formalities relating to the third transit operation, the director of the customs office in Fernetti requested the Guardia di Finanza (finance police) to inspect the contents of the load. The lorry in question, which had already left the customs area, was followed and intercepted after travelling several kilometres and escorted back to the customs post. Inspection of the lorry revealed that the cardboard boxes were not empty, as stated in the transit declaration, but were filled with cigarettes. The driver of the lorry was arrested and the lorry and its load were impounded, together with the documents found in the driver’s possession.
9. The investigation carried out by the Italian customs authorities with the cooperation of the Slovenian authorities revealed that the driver of the lorry had taken part in three other similar cigarette-smuggling operations, using the transit declarations completed by Nordspedizionieri on 30 October and 5 November 1991. In the course of their investigation into the smuggling operations in question, the Italian authorities discovered a warehouse containing illegally imported goods, from which, during a search on 8 April 1992, they seized 8 010 kg of cigarettes, which were impounded.
10. On 16 October 1992, the revenue department of the central customs office in Trieste ordered the appellants, in their capacity as principal of the Community transit for the operations of 30 October and 5 November 1991, to pay ITL 2 951 462 300, in respect of duties on the foreign manufactured tobacco illegally imported and offered for sale in the Community customs territory. Since the consignment of 16 November 1991 had been seized by the Italian customs authorities before it was offered for sale no customs duties were imposed on the appellants in that regard.
11. On 14 November 2000, the appellants applied to the Commission of the European Communities for remission of the customs duties. That application was supported by the Italian authorities which, in June 2001, submitted to the Commission an application for remission of the customs duties in the sum of ITL 497 589 687.
12. On 28 June 2002, the Commission adopted a REM 1401 decision (‘the contested decision’) rejecting that application. It found that, in the present case, there was no special situation resulting from circumstances in which no deception or obvious negligence might be attributed to the appellants, within the meaning of Article 13 of Regulation No 1430/79, and therefore the remission of import duties was not justified. The proceedings before the Court of First Instance and the judgment under appeal
13. By application lodged at the Registry of the Court of First Instance on 30 October 2002, the appellants brought an action against the contested decision.
14. In support of their claim for annulment of that decision, the appellants put forward two pleas in law.
15. The first plea in law alleged several material errors in the contested decision, whilst the second plea in law alleged the existence of a special situation and the absence of deception or obvious negligence, within the meaning of Article 13 of Regulation No 1430/79. In the alternative, the appellants claimed partial remission of the customs duties.
16. Regarding the first plea in law, the Court of First Instance, first, found that the contested decision was not vitiated by any error of fact in its description of the way in which the inspection of the load took place. Secondly, it declared that the complaint alleging an error in the amount of the remission applied for was inadmissible on the ground that the power to calculate that amount belonged exclusively to the national authorities.
17. With regard to the second plea in law, the Court of First Instance stated, as a preliminary point, that the Commission had a discretion in the application of Article 13(1) of Regulation No 1430/79, which constitutes a general equitable provision. It also stated that two cumulative conditions are necessary for it to be applied: (i) the existence of a special situation and (ii) the absence of deception or obvious negligence on the part of the economic operator concerned.
18. Regarding the existence of a special situation, the Court of First Instance found that the appellants had not shown that the Italian authorities were aware of the cigarette smuggling beforehand. It also rejected the appellants’ argument that the smuggling operations of which they were the victims exceeded the commercial risks inherent in their professional activity. Before coming to the conclusion that the customs authorities were not guilty of serious failures, the Court of First Instance found, first, that they were not obliged physically to inspect all cross-border transport and, second, that the bilateral agreement did not require the Slovenian customs authorities to inform the Italian authorities without delay of all consignments of tobacco leaving their territory bound for Italy.
19. The Court of First Instance found, moreover, that the impossibility of inspecting the lorry, alleged by the appellants, does not constitute a factor liable to place the appellants in an exceptional situation as compared with other economic operators and, accordingly, cannot give rise to a special situation within the meaning of Article 13 of Regulation No 1430/79 (Case C‑61/98 De Haan [1999] ECR I‑5003, paragraph 52). As regards the balancing of the interests involved, the Court of First Instance found that the Commission had not merely excluded the application of Article 13 of Regulation No 1430/79, but had also assessed whether the facts of the case fell within the commercial risk normally faced by customs brokers, and concluded that they did not go beyond the normal commercial risk for that business.
20. The Court of First Instance concluded that the appellants had not succeeded in demonstrating that the Commission had made a manifest error of assessment in considering that the circumstances of the case did not constitute a special situation. In the absence of such a situation, it was not considered necessary to examine the second condition relating to the absence of deception or obvious negligence. Accordingly, the Court of First Instance rejected the second plea in law as unfounded.
21. Finally, the Court of First Instance also rejected the claim for partial remission of the customs duties relating to the confiscated manufactured tobacco, stating, in particular, that the question of the extinguishment of the customs debt by confiscation of part of the goods subject to customs duties did not arise under Article 13 of Regulation No 1430/79.
22. Their action having been dismissed, the appellants lodged an appeal on 10 February 2005. Forms of order sought
23. The appellants claim that the Court should: - annul the contested decision by which the Commission held that the remission of import duties in the amount of ITL 497 589 687 was unjustified; - declare, conversely, that, under Article 13(1) of Regulation No 1430/79, the remission of duties is justified in the present case, inasmuch as there are special circumstances in which no negligence or deception may be attributed to the appellants; - order the Commission to pay the costs both of the proceedings at first instance and of the present proceedings before the Court.
24. The respondent contends that the Court should: - dismiss the appeal brought by the appellants in its entirety; - order the appellants to bear their own costs and to pay those incurred by the Commission both in the proceedings at first instance and before the Court. The appeal
25. The appellants rely on four pleas in law in support of their appeal. The first plea in law
26. On the basis of Article 36(3) of Regulation No 222/77, the appellants deny the existence of a customs debt, since all the conditions for that debt to have been incurred are not present, in particular that resulting from the case‑law and linked to the notification of the principal (Case C-233/98 Lensing & Brockhausen [1999] ECR I‑7349, paragraph 31, and Case C‑300/03 Honeywell Aerospace [2005] ECR I‑689, paragraph 26). It is for this Court to raise of its own motion the absence of that precondition for the recovery of the customs debt since the Court of First Instance did not do so itself of its own motion.
27. The Commission contends that that plea in law is inadmissible inasmuch as it was not raised before the Court of First Instance.
28. According to settled case‑law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court’s jurisdiction is thus confined to review of the findings of law on the pleas argued before the Court of First Instance (see, in particular, Case C-68/05 P Koninklijke Coöperatie Cosun v Commission [2006] ECR I‑10367, paragraph 96, and Case C‑354/04 P Gestoras Pro Amnistía and Others v Council [2007] ECR I‑0000, paragraph 30).
29. In the present case, although the appellants, for reasons unconnected with the present plea in law, challenged before the Court of First Instance the exact amount of the customs debt, they never raised before it any argument as to the very existence of that debt.
30. In addition, regarding the appellants’ categorisation of the present plea as one concerning a matter of public interest, it must be borne in mind that the sole aim of Article 13 of Regulation No 1430/79 is to enable economic operators, 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 particular, Joined Cases C‑121/91 and C‑122/91 CT Control (Rotterdam) and JCT Benelux v Commission [1993] ECR I‑3873, paragraph 43). It follows that the appellants may properly rely, in relation to the contested decision, only on pleas seeking to show the existence in this case of special circumstances and the absence of negligence or deception on their part, and not on pleas seeking to show that the decisions of the competent national authorities requiring them to pay the duties at issue were unlawful (see CT Control (Rotterdam) and JCT Benelux v Commission , paragraph 44). The Court of First Instance did not therefore have to raise of its own motion a provision which it did not have the jurisdiction to apply.
31. Consequently, the first plea in law must be rejected as inadmissible. The second plea in law
32. The appellants submit that, by making incorrect and incomplete findings of fact as to the circumstances of the discovery of the load of cigarettes and by distorting the clear sense of the evidence, the Court of First Instance incorrectly applied Article 13 of Regulation No 1430/79 as regards the assessment of whether a special situation existed. At paragraph 29 of the judgment under appeal, the Court of First Instance used as a basis an inaccurate reconstruction of the facts inasmuch as it stated that the Fernetti customs office had requested that the Guardia di Finanza check the load corresponding to the declaration of 16 November 1991, whereas, in fact, the inspection had taken place outside the customs area, once the formalities had been completed, and after the lorry had driven a number of kilometres in Italian territory. The precise chronology of the facts and the reasons which actually led to the order to check the lorry’s load are however clear from the judgment of the Tribunale penale di Trieste (Trieste Criminal Court) of 4 November 1998, convicting the smugglers in question. That chronology is also confirmed by a written statement of Mr Portale, director of the Fernetti customs office at the material time, dated 15 January 2005.
33. Conversely, the Commission contends that the Court of First Instance did not make any error in its reconstruction of the facts or in its assessment, that the contested decision was not vitiated by any error of fact and that the Court was perfectly aware of the time at which the load of cigarettes had been checked. Moreover, it contends that Mr Portale’s statement amounts to a new piece of evidence in these proceedings and that it must, therefore, be declared inadmissible.
34. In that regard, suffice it to state that the presentation of the facts made by the Court of First Instance concerning the circumstances of the discovery of the load of cigarettes precisely agrees with the chronology of events according to the appellants. Paragraph 11 of the judgment under appeal reads as follows: ‘Upon completion of the customs formalities … the lorry was allowed to continue on its way. Shortly afterwards, the director of the customs office in Fernetti requested the customs police of the parking platform for that area to inspect that lorry’s load. The lorry, which had already left the customs zone, was followed and stopped by the customs police several kilometres after crossing the border.’
35. The second plea in law, alleging the inaccuracy or distortion of the findings of fact, is thus directed against a presentation of the facts by the Court of First Instance which, in fact, agrees with that which the appellants claim should be substituted for it. Therefore, it must be rejected. The third plea in law
36. The appellants allege that the Court of First Instance failed to take full account of Article 13 of Regulation No 1430/79. They break down their plea in law into a number of arguments which, in their opinion, support the finding that a special situation within the meaning of that provision existed, namely: - they were victims of a fraud which exceeded the commercial risk normally inherent in their business; - the Guardia di Finanza knew of the smuggling activity and did not intervene immediately to dismantle the smuggling ring; - they acted in good faith and had legitimate expectations regarding the documents received; - the customs authorities had not checked the loads; - it was impossible for them to oversee the transport operations; and - the contested decision did not balance the interests involved. The first complaint - Arguments of the parties
37. The principal complaint which the appellants put forward in a precise way concerns the alleged error of law made by the Court of First Instance when interpreting the bilateral agreement. Contrary to what was said at paragraph 79 of the judgment under appeal, the Slovenian customs authorities were, by virtue of that agreement, under an obligation to prevent acts of smuggling by indicating to the Italian authorities the passage of fiscally sensitive goods, failing which that agreement would be of no use.
38. The appellants invoke the bilateral agreement on several occasions, the incorrect interpretation of which, they allege, had consequences for the assessment of a number of their arguments. Thus, they assert that they acted in good faith in respect of the documents given to them and that they had a legitimate expectation that those documents were correct. They trusted unconditionally that the international obligations would be fulfilled by the Slovenian customs authorities who, upon the passage of sensitive goods, should have given an indication of it. Regarding the commercial risk borne by them, they assert that their situation is not analogous with that of all other customs brokers, but only with that of brokers able to trust in the fulfilment of an international obligation. The assertion that the fact of operating at the border and the impossibility of inspecting the lorry did not place them in an exceptional situation, since those circumstances affect an indefinite number of operators, is incorrect in view of the fact that the Court of First Instance should have taken into account, when making that assessment, the abnormal situation of failure to fulfil the obligation arising under the bilateral agreement.
39. In the context of their observations on the Guardia di Finanza’s alleged awareness of the smuggling activity, the appellants further submit that the principle established by the judgment in De Haan , cited at paragraph 19 of the present judgment, must be applied in any event in the present case, since the Slovenian authorities acted in breach of the bilateral agreement by not spontaneously informing their Italian counterparts of the passage of loads containing cigarettes.
40. The Commission contends that it is clear from the wording of the bilateral agreement, and in particular from the final indent of Article 4 thereof, that extra vigilance in respect of sensitive goods can be observed only at the request of the Italian authorities and that no obligation to inform can be inferred from this. That agreement does not provide for any general obligation for the Slovenian authorities to inform the Italian authorities of the nature of loads. The Commission is accordingly of the view that the appellants could not rely on their legitimate expectations, since those qualify for protection only if it was the competent authorities themselves which created the basis for the expectations of the persons liable, which could not be the case where the authorities were misled by incorrect declarations made by the persons liable (Joined Cases T‑186/97, T‑187/97, T‑190/97 to T‑192/97, T‑210/97, T‑211/97, T‑216/97 to T‑218/97, T‑279/97, T‑280/97, T‑293/97 and T‑147/99 Kaufring and Others [2001] ECR II-1337). - Findings of the Court
41. It is appropriate to point out that Article 13(1) of Regulation No 1430/79 includes a general fairness clause intended to cover the exceptional situation in which a declarant might find himself in comparison with other operators engaged in the same business ( De Haan , paragraph 52). The appellants submit that the existence of a special situation for the purpose of that case‑law may be justified by the failure to fulfil the obligations arising under the bilateral agreement, but which the Court of First Instance interpreted incorrectly. In order to be able to assess whether the present plea in law is well founded, it is, consequently, necessary to determine whether the bilateral agreement actually imposes on the customs authorities the obligation to indicate every consignment of fiscally sensitive goods, in particular cigarettes.
42. Admittedly, Article 1 of the bilateral agreement states in a general way the intention to prevent, detect and suppress infringements of the customs provisions, but the text of that article specifies that that mutual assistance will be given according to the procedures and conditions provided for by the agreement. It is, therefore, appropriate to refer to the more specific provisions which follow.
43. Under Article 4(1) of the bilateral agreement, the customs authorities are to carry out special surveillance with regard to the movement of persons, goods and vehicles considered to be suspect, and this is to be done in so far as is possible and either on their own initiative or at the request of the customs authorities of the other contracting party. That dual rider implies that there is no general obligation upon the customs authorities to carry out special surveillance on their own initiative.
44. The second indent of Article 4(2) deals more specifically with the export of products which attract special, high fiscal charges in the territory of the other contracting party. Since this is true of the export of cigarettes to Italy, that provision is relevant to the present case. It provides that extra vigilance will be observed on request in respect of those goods. However, there is nothing to indicate that such a request was made.
45. In addition, as the Advocate General stated at point 103 of his Opinion, it would exceed what may reasonably be expected of such a bilateral agreement to require a contracting State to carry out surveillance and systematically and without any special request to communicate all information connected with fiscally sensitive goods. The circular of 14 January 1985 issued by the Italian Ministry of Finance, which concerns the application of that agreement, does not, moreover, contain any indication which could suggest the existence of such a binding obligation.
46. It follows that the Court of First Instance was justified in finding that the bilateral agreement did not impose an obligation on the Slovenian customs authorities to indicate every consignment of cigarettes bound for Italy. The first complaint must, accordingly, be rejected as unfounded. The second complaint - Arguments of the parties
47. The appellants claim that, contrary to the finding of the Court of First Instance, the check on 16 November 1991 was not a chance occurrence, but a targeted check, carried out following information received as to the true nature of the load. Mr Portale’s statement, moreover, confirms that to be the case. Thus, according to the appellants, the Guardia di Finanza was aware of the smuggling of manufactured tobacco and deliberately allowed the smuggling operations to take place so as to dismantle the smuggling ring. This would explain, in particular, why very shortly after the discovery of the consignment of cigarettes the Italian authorities already had at their disposal the information necessary for them to arrest a number of other people connected with that operation and to carry out a search of the place where the cigarettes in question were warehoused. In De Haan , the Court held that similar facts constituted a special situation.
48. According to the Commission, it was only after the check on 16 November 1991 and the investigation which followed that the earlier irregularities were discovered. Consequently, the Court of First Instance was right to find that the preconditions for the application of the principle stated in the judgment in De Haan had not been fulfilled. - Findings of the Court
49. It should be recalled that, under Article 225(1) EC, an appeal lies on a point of law only. The Court of First Instance thus has sole jurisdiction to find and appraise the relevant facts and to appraise the evidence, save where those facts and that evidence have been distorted (see, to that effect, Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraphs 49 and 66, and Case C‑312/00 P Commission v Camar and Tico [2002] ECR I‑11355, paragraph 69).
50. In the present case, rather than seeking to establish that the Court of First Instance distorted the facts, the appellants’ arguments are limited to calling into question the facts as found by that Court.
51. Furthermore, and in any event, irrespective of whether Mr Portale’s statement was admissible, it does not contain any information capable of demonstrating that the Italian authorities were aware of the smuggling beforehand. Mr Portale claims, on the contrary, that it was following the information received informally by his Slovenian colleague that the Fernetti customs authorities immediately had the lorry in question checked. Consequently, that statement could not serve to establish that the Italian authorities had deliberately allowed the smuggling operations to take place in order to dismantle the smuggling ring.
52. The Court therefore finds that, inasmuch as the second complaint of the third plea in law criticises the finding of the facts by the Court of First Instance, it must be declared to be inadmissible. - The other arguments put forward by the appellants
53. It should also be pointed out that the appellants have put forward an entire series of other arguments relating, in particular, to the lack of any checking of loads by the customs authorities, the impossibility for the appellants of overseeing the transport operations and the balancing of the interests involved.
54. However, the Court finds that, in their argumentation, the appellants have not in that regard set out any complaint against the judgment under appeal but have merely repeated the arguments previously submitted to the Court of First Instance and channelled their thoughts against the contested decision. In their reply, they complain, for example, that the Commission did not take into account, when balancing the interests in question, the agreement which it had signed with the Philip Morris company, which undertook to pay USD 1 250 000 000 by way of compensation for the loss incurred by the Community due to smuggling offences committed prior to the agreement, but they do not state what is their complaint against the Court of First Instance.
55. It follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1), first subparagraph, (c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the order or judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the Court of First Instance. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake (Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraphs 34 and 35, and Case C‑76/01 P Eurocoton and Others v Council [2003] ECR I‑10091, paragraphs 46 and 47).
56. Consequently, since the arguments put forward by the appellants in the context of their third plea in law do not contain precise complaints against the judgment under appeal, those arguments must be rejected as inadmissible. The first and second complaints must be rejected as respectively unfounded and inadmissible. The fourth plea in law
57. By their fourth plea in law, the appellants submit that, if the Court were, as they request, to find that a special situation exists in the present case, within the meaning of Article 13 of Regulation No 1430/79, the second condition relating to the applicability of that provision, concerning the absence of any ‘negligence or deception’ on the part of the operator, is also fulfilled.
58. The Court finds that, since the third plea in law has been rejected and, consequently, the Court of First Instance was justified in finding that a special situation within the meaning of Article 13 of Regulation No 1430/79 did not exist in the present case, this plea in law must be rejected as ineffective.
59. It follows from all of the foregoing that the appeal is in part inadmissible, in part ineffective and in part unfounded. Accordingly, it must be dismissed. Costs
60. Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, 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 Commission has applied for costs against the appellants and the latter have been unsuccessful, they must be ordered to pay the costs.