1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 5 AUGUST 1985 CEREALMANGIMI SPA AND ITALGRANI SPA, WHOSE REGISTERED OFFICES ARE IN ROME, BROUGHT ACTIONS UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT THE COMMISSION' S DECISION OF 22 MARCH 1985 BY WHICH, IN RESPONSE TO A REQUEST SUBMITTED BY THE ITALIAN REPUBLIC ON THE BASIS OF THE FIRST PARAGRAPH OF ARTICLE 13 OF COUNCIL REGULATION ( EEC ) NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES ( OFFICIAL JOURNAL 1979, L*175, P . 1 ), IT REFUSED TO ALLOW THE REMISSION OF MONETARY COMPENSATORY AMOUNTS IN A PARTICULAR CASE, IS VOID . BY AN ORDER DATED 4 JUNE 1986 THE COURT JOINED THE TWO CASES .
2 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE FACTS OF THE CASE, THE PROVISIONS OF COMMUNITY LAW IN QUESTION AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
3 BETWEEN 5 OCTOBER 1981 AND 8 JUNE 1982 THE APPLICANTS CARRIED OUT A NUMBER OF COMMERCIAL OPERATIONS UNDER AUTHORIZATIONS GRANTED UNDER INWARD PROCESSING ARRANGEMENTS AND INCLUDING THE POSSIBILITY OF HAVING RECOURSE TO THE SYSTEM OF EQUIVALENT COMPENSATION AND TO THE SYSTEM OF PRIOR EXPORTATION . THEY CARRIED OUT PRIOR EXPORTATIONS OF PROCESSED CEREAL PRODUCTS FROM ITALY TO NON-MEMBER COUNTRIES AND FINALLY DISCHARGED THOSE INWARD PROCESSING OPERATIONS BY IMPORTING PRIMARY PRODUCTS, NAMELY DURUM WHEAT, RELEASED FOR FREE CIRCULATION IN ITALY . HOWEVER, AT THE SAME TIME AS THE DURUM WHEAT WAS RELEASED FOR FREE CIRCULATION IT WAS THE SUBJECT OF A DECLARATION OF EXPORTATION TO TWO OTHER MEMBER STATES .
4 INITIALLY THE ITALIAN CUSTOMS AUTHORITIES TOOK THE VIEW THAT THE LATTER OPERATION FELL WITHIN THE SCOPE OF ARTICLE 20 OF COMMISSION REGULATION ( EEC ) NO 1371/81 OF 19 MAY 1981 LAYING DOWN DETAILED RULES FOR THE ADMINISTRATIVE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1981, L*138, P . 1 ) AND THAT THEREFORE NO MONETARY COMPENSATORY AMOUNTS COULD BE LEVIED . SUBSEQUENTLY THOSE AUTHORITIES ADOPTED A DIFFERENT VIEW ON THE COMMISSION' S REQUEST AND REQUIRED THE APPLICANTS TO PROVIDE A SECURITY FOR THE TOTAL MONETARY COMPENSATORY AMOUNTS PAYABLE .
5 ON 23 NOVEMBER 1984 THE ITALIAN GOVERNMENT INVOKED THE FIRST PARAGRAPH OF ARTICLE 13 OF COUNCIL REGULATION NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES, WHICH WAS IN FORCE AT THAT TIME AND WHICH PROVIDED AS FOLLOWS : "IMPORT DUTIES MAY BE REPAID OR REMITTED IN SITUATIONS RESULTING FROM SPECIAL CIRCUMSTANCES IN WHICH NO NEGLIGENCE OR DECEPTION MAY BE ATTRIBUTED TO THE PERSON CONCERNED ." ON THE BASIS OF THAT PARAGRAPH IT REQUESTED THE COMMISSION TO STATE WHETHER THERE WERE GROUNDS FOR GRANTING THE REMISSION OF MONETARY COMPENSATORY AMOUNTS IN THIS CASE . ON 22 MARCH 1985 THE COMMISSION STATED THAT THERE WAS NO JUSTIFICATION FOR GRANTING A REMISSION OF MONETARY COMPENSATORY AMOUNTS IN RESPECT OF EXPORTS OF DURUM WHEAT BY TWO ITALIAN UNDERTAKINGS IN THE AFOREMENTIONED CIRCUMSTANCES .
6 THAT DECISION IS THE SUBJECT OF THESE PROCEEDINGS . IT IS CLEAR FROM THE STATEMENTS SUBMITTED BY THE APPLICANTS AND FROM THE OBSERVATIONS PRESENTED BY THEM AT THE HEARING THAT IN THEIR FINAL FORM THEIR ARGUMENTS MAY BE SUMMARIZED AS FOLLOWS : ( A ) IN THE FIRST PLACE THEY SUBMIT THAT CHARGING THEM MONETARY COMPENSATORY AMOUNTS IN RESPECT OF THE OPERATION AT ISSUE WAS UNLAWFUL : IN THEIR VIEW ARTICLE 20 OF REGULATION NO 1371/81 EXEMPTS THEM FROM PAYMENT OF SUCH AMOUNTS . ( B ) SECONDLY, THEY MAINTAIN THAT THREE SETS OF FACTS SHOULD BE REGARDED BY THE COMMISSION AS CONSTITUTING "SPECIAL CIRCUMSTANCES" CAPABLE OF ENTITLING THEM TO BENEFIT FROM THE REMISSION OF DUTIES PROVIDED FOR BY THE FIRST PARAGRAPH OF ARTICLE 13 OF REGULATION NO 1430/79 . IN THE FIRST PLACE THEY RELY ON THE FACT THAT OTHER COMMUNITY UNDERTAKINGS HAVE BENEFITED FROM EXEMPTION FROM MONETARY COMPENSATORY AMOUNTS IN SIMILAR SITUATIONS IN BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION . SECONDLY, THEY REFER TO THE VACILLATION OF THE ITALIAN CUSTOMS AUTHORITIES AND OF THE COMMISSION ITSELF, WHO MODIFIED THEIR INTERPRETATION OF THE RELEVANT RULES . THIRDLY, THEY REFER TO THE DISRUPTION OF THE CONTRACTUAL AND COMMERCIAL RELATIONSHIPS ESTABLISHED BETWEEN THE APPLICANTS AND THE TRADERS TO WHOM THEY DELIVERED THE DURUM WHEAT . ( C ) FINALLY, THEY DISPUTE THE REASONS ON WHICH THE DECISION AT ISSUE WAS BASED, ACCORDING TO WHICH THE COMMISSION CHARGES THEM WITH NEGLIGENCE .
7 THE AFOREMENTIONED SUBMISSIONS MUST EACH BE EXAMINED IN TURN . ILLEGALITY OF THE DECISION SUBJECTING THE APPLICANTS TO THE PAYMENT OF MONETARY COMPENSATORY AMOUNTS
8 THE APPLICANTS MAINTAIN IN THE FIRST PLACE THAT ARTICLE 20 OF REGULATION NO 1371/81 EXEMPTS THE OPERATION IN QUESTION FROM PAYMENT OF MONETARY COMPENSATORY AMOUNTS .
9 IT IS NECESSARY TO EXAMINE WHETHER THE APPLICANTS MAY PROPERLY RELY IN RELATION TO A COMMISSION DECISION REFUSING TO ALLOW THE REMISSION OF DUTY UNDER THE FIRST PARAGRAPH OF ARTICLE 13 OF REGULATION NO 1430/79 ON A SUBMISSION BASED ON THE ALLEGED ILLEGALITY OF THE DECISION SUBJECTING THEM TO PAYMENT OF MONETARY COMPENSATORY AMOUNTS IN RESPECT OF THE OPERATION IN QUESTION .
10 THE COURT HAS HELD THAT ARTICLE 13 OF REGULATION NO 1430/79 CONSTITUTES "A GENERAL EQUITABLE PROVISION DESIGNED TO COVER SITUATIONS OTHER THAN THOSE WHICH HAD MOST OFTEN ARISEN IN PRACTICE AND FOR WHICH SPECIAL PROVISION COULD BE MADE WHEN THE REGULATION WAS ADOPTED" ( JUDGMENT OF 15 DECEMBER 1983 IN CASE 183/82 PAPIERFABRIK SCHOELLERSHAMMER H . A . SCHOELLER V COMMISSION (( 1983 )) ECR 4219; JUDGMENT OF 15 MAY 1986 IN CASE 160/84 ORYZOMYLI KAVALLAS V COMMISSION (( 1986 )) ECR 1633 ).
11 IT FOLLOWS FROM THOSE DECISIONS THAT THE SOLE AIM OF ARTICLE 13 OF REGULATION NO 1430/79 IS TO ENABLE IMPORTERS TO BE EXEMPTED FROM PAYMENT OF THE DUTY PAYABLE WHEN CERTAIN SPECIFIC CONDITIONS ARE SATISFIED AND IN THE ABSENCE OF NEGLIGENCE OR DECEPTION, AND NOT TO ENABLE THEM TO CONTEST THE VERY PRINCIPLE THAT THE AMOUNT IS DUE .
12 THE APPLICANTS OUGHT THEREFORE TO HAVE REFERRED THE DECISION OF THE ITALIAN CUSTOMS AUTHORITIES REQUESTING PAYMENT OF THE MONETARY COMPENSATORY AMOUNTS IN QUESTION TO THE ITALIAN COURTS IF THEY CONSIDERED THAT SUCH A DEMAND WAS CONTRARY TO COMMUNITY LAW, AND THEY OUGHT STILL TO DO SO IF IN THEIR VIEW THE CONDITIONS ARE STILL SATISFIED . IN THE COURSE OF SUCH PROCEEDINGS THE NATIONAL COURT MAY IN ANY CASE REFER TO THIS COURT ANY QUESTION CONCERNING THE INTERPRETATION OR VALIDITY OF COMMUNITY LAW IF IT CONSIDERS THAT THE REPLY WOULD BE USEFUL IN ORDER FOR IT TO GIVE JUDGMENT .
13 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANTS MAY ONLY PROPERLY RELY, IN RELATION TO THE CONTESTED DECISION, 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 DECISION SUBJECTING THEM TO PAYMENT OF THE DUTY AT ISSUE WAS UNLAWFUL, EVEN THOUGH THE COMMISSION DECISION IN QUESTION DEALT AT LENGTH, AND UNNECESSARILY, WITH THAT QUESTION . THE SPECIAL CIRCUMSTANCE THAT UNDERTAKINGS IN OTHER MEMBER STATES WERE TREATED MORE FAVOURABLY
14 THE APPLICANTS MAINTAINED THAT EXEMPTION FROM PAYMENT OF MONETARY COMPENSATORY AMOUNTS WAS GRANTED IN SIMILAR CIRCUMSTANCES AND AT THE SAME TIME BY THE CUSTOMS AUTHORITIES OF OTHER MEMBER STATES . THAT RESULTED IN DISCRIMINATION BETWEEN THE TRADERS CONCERNED IN THOSE COUNTRIES AND THE APPLICANTS, AMOUNTING TO A SPECIAL CIRCUMSTANCE WITHIN THE MEANING OF ARTICLE 13 OF REGULATION NO 1430/79 . THE FAILURE TO TAKE THAT FACTOR INTO ACCOUNT RENDERED THE COMMISSION' S DECISION UNLAWFUL .
15 THAT SUBMISSION CANNOT BE ACCEPTED . IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT THE INTERPRETATION APPLIED BY THE CUSTOMS AUTHORITIES OF THE TWO MEMBER STATES IN QUESTION CANNOT BE RELIED UPON AGAINST THE COMMISSION, WHICH TOOK THE VIEW THAT THE OPERATIONS WERE CONTRARY TO COMMUNITY LAW AND REQUESTED THAT THE CORRESPONDING OWN RESOURCES BE MADE AVAILABLE . IN JULY 1985, HAVING FAILED TO OBTAIN SATISFACTION, THE COMMISSION INSTITUTED PROCEEDINGS AGAINST THE MEMBER STATES IN QUESTION UNDER ARTICLE 169 OF THE EEC TREATY . FURTHERMORE, IT HAS NOT BEEN SHOWN THAT THE COMMISSION AGREED TO EXEMPTION FROM PAYMENT OF MONETARY COMPENSATORY AMOUNTS IN FAVOUR OF TRADERS IN A SITUATION SIMILAR TO THAT OF THE APPLICANTS . THE SPECIAL CIRCUMSTANCE CONCERNING THE CONDUCT OF THE ITALIAN CUSTOMS AUTHORITIES AND THE COMMISSION
16 ACCORDING TO THE APPLICANTS THE FACT THAT THE ITALIAN CUSTOMS AUTHORITIES DECIDED NOT TO LEVY MONETARY COMPENSATORY AMOUNTS IN THIS CASE AND SUBSEQUENTLY ADOPTED A DIFFERENT VIEW ON THE COMMISSION' S REQUEST CONSTITUTES A SPECIAL CIRCUMSTANCE WITHIN THE MEANING OF ARTICLE 13 OF REGULATION NO 1430/79 . AS A RESULT OF THAT CHANGE OF MIND THEY HAD HAD TO PROVIDE A SECURITY AND THERE WAS A RISK THAT THEY WOULD HAVE TO PAY THE DUTY . IN ADDITION, THE COMMISSION ITSELF WAS HESITANT AS REGARDS THE POSITION TO BE ADOPTED AND CAME TO A DECISION ONLY AFTER SOME DELAY .
17 AS A PRELIMINARY POINT IT SHOULD BE OBSERVED THAT ERRORS OR OMISSIONS ON THE PART OF ADMINISTRATIVE AUTHORITIES CANNOT GIVE RISE TO THE APPLICATION OF THE GENERAL EQUITABLE PROVISION PROVIDED FOR IN THE FIRST PARAGRAPH OF ARTICLE 13 OF REGULATION NO 1430/79 UNLESS SUCH ERRORS OR OMISSIONS IMPOSED UPON A TRADER A FINANCIAL OBLIGATION WHICH HE HAD NO LEGAL MEANS OF CONTESTING .
18 AS REGARDS IN THE FIRST PLACE THE CONDUCT OF THE ITALIAN CUSTOMS AUTHORITIES, IT IS NECESSARY TO POINT OUT FIRST, AS HAS ALREADY BEEN STATED, THAT THE APPLICANTS MAY REFER TO THE ITALIAN COURTS THE DECISION OF THE CUSTOMS AUTHORITIES BY WHICH THEY WERE SUBJECTED TO PAYMENT OF THE MONETARY COMPENSATORY AMOUNTS IN QUESTION OR THE DECISION REQUIRING THEM TO LODGE A SECURITY, AND THAT THEY MAY BE EXEMPTED PAYMENT IN THAT MANNER .
19 IN ADDITION, IT MUST BE POINTED OUT THAT ON 12 OCTOBER 1983 THE ITALIAN GOVERNMENT ASKED THE COMMISSION WHETHER OR NOT THERE WERE GROUNDS IN THIS CASE FOR SEEKING POST-CLEARANCE RECOVERY OF THE MONETARY COMPENSATORY AMOUNTS IN QUESTION, HAVING REGARD TO ARTICLE 2 OF COUNCIL REGULATION NO 1697/79 OF 24 JULY 1979 IN CONJUNCTION WITH ARTICLE 5 ( 2 ) THEREOF . THOSE PROVISIONS ENABLE THE MEMBER STATES TO REFRAIN FROM RECOVERING DUTIES WHICH, AS A RESULT OF AN ERROR, WERE NOT REQUIRED AT THE TIME OF IMPORTATION OR EXPORTATION IF THE FAILURE TO COLLECT THEM WAS DUE TO AN ERROR MADE BY THE COMPETENT NATIONAL AUTHORITIES WHICH COULD NOT HAVE BEEN DETECTED BY THE PERSON LIABLE AND IF THE LATTER FOR HIS PART ACTED IN GOOD FAITH AND OBSERVED ALL THE PROVISIONS LAID DOWN BY THE RULES IN FORCE AT THE RELEVANT TIME . IN A DECISION NOTIFIED TO THE ITALIAN REPUBLIC ON 6 FEBRUARY 1984 THE COMMISSION STATED THAT THE AFOREMENTIONED CONDITIONS WERE NOT SATISFIED AND THAT THERE WERE THEREFORE NO GROUNDS FOR REFRAINING FROM POST-CLEARANCE RECOVERY OF THE MONETARY COMPENSATORY AMOUNTS . DURING THE HEARING BEFORE THE COURT OF JUSTICE THE APPLICANTS ACKNOWLEDGED THAT THEY HAD FULL KNOWLEDGE OF THAT DECISION BY THE DATE ON WHICH THEY WERE NOTIFIED OF THE DECISION AT ISSUE AT THE LATEST AND THAT THEY HAD FAILED TO SEEK A DECLARATION THAT IT WAS VOID .
20 IT THEREFORE FOLLOWS FROM THE FOREGOING THAT THE POSITION ADOPTED BY THE ITALIAN AUTHORITIES DOES NOT PREVENT THE APPLICANTS FROM ASSERTING THEIR RIGHTS BEFORE THE COMPETENT JUDICIAL BODIES IN ORDER TO BE EXEMPTED FROM THE MONETARY COMPENSATORY AMOUNTS AT ISSUE . CONSEQUENTLY, THE ITALIAN AUTHORITIES' CONDUCT CANNOT BE REGARDED AS A SPECIAL CIRCUMSTANCE WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 13 OF REGULATION NO 1430/79 .
21 AS REGARDS IN THE SECOND PLACE THE ALLEGED HESITATION ON THE PART OF THE COMMISSION, IT MUST BE STATED, WITHOUT IT BEING NECESSARY TO CONSIDER WHETHER ITS HESITATION AMOUNTS TO A SPECIAL CIRCUMSTANCE WITHIN THE MEANING OF ARTICLE 13, THAT THE APPLICANTS' CONTENTIONS ARE IN ANY EVENT FACTUALLY INCORRECT . IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT THE RELEVANT EXPORTS OF DURUM WHEAT BY THE APPLICANTS WERE EFFECTED BETWEEN 5 OCTOBER 1981 AND 8 JUNE 1982 AND THAT AT THE END OF JUNE 1982 OFFICIALS OF THE COMMISSION, ON THE OCCASION OF AN INSPECTION VISIT AT THE RELEVANT CUSTOMS POST, REQUESTED THE CUSTOMS AUTHORITIES TO ALTER THEIR POSITION . CONSEQUENTLY, THE COMMISSION HAS MAINTAINED THE SAME INTERPRETATION OF COMMUNITY LAW THROUGHOUT, AS IS SHOWN BY THE REPORT DRAWN UP BY THE COMMITTEE ON DUTY-FREE ARRANGEMENTS ON 3 NOVEMBER 1982, THE COMMISSION' S AFOREMENTIONED DECISION OF 6 FEBRUARY 1984 AND THE DECISION OF 22 MARCH 1985 WHICH IS THE SUBJECT OF THESE PROCEEDINGS . IN ADDITION, THE APPLICANTS HAVE FAILED TO SHOW THAT THE COMMISSION' S POSITION PRIOR TO JUNE 1982 WAS AMBIGUOUS AND CAPABLE OF PRODUCING UNCERTAINTY AS TO THE LAW . CONSEQUENTLY, THEIR ARGUMENTS CANNOT BE ACCEPTED . THE SPECIAL CIRCUMSTANCE ARISING FROM THE DISRUPTION OF CONTRACTUAL AND COMMERCIAL RELATIONSHIPS BETWEEN THE APPLICANTS AND THE TRADERS TO WHOM THEY DELIVERED THE DURUM WHEAT
22 THE APPLICANTS MAINTAINED FOR THE FIRST TIME IN THE COURSE OF THE HEARING THAT THE CONTRACTUAL RELATIONSHIPS ESTABLISHED WITH THEIR TRADING PARTNERS AT THE TIME OF THE OPERATIONS IN QUESTION WERE DISRUPTED . IT WAS THE NORMAL PRACTICE FOR THE IMPORTER TO PAY THE MONETARY COMPENSATORY AMOUNTS TO THE EXPORTER WHERE THE DURUM WHEAT WAS EXPORTED FROM ITALY TO A MEMBER STATE WHICH ALSO APPLIED NEGATIVE MONETARY COMPENSATORY AMOUNTS . SINCE THE EXPORTS IN QUESTION WERE EFFECTED WITHOUT PAYMENT OF THE MONETARY COMPENSATORY AMOUNTS BY THE APPLICANTS THEY WERE UNABLE TO CLAIM REIMBURSEMENT FROM THE IMPORTER OF THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO THE IMPORTS AND IT WAS NO LONGER POSSIBLE TO OBTAIN SUCH PAYMENT TODAY .
23 IN CONNECTION WITH THIS CONTENTION AND THE ARGUMENTS ADDUCED IN SUPPORT, IT MUST BE STATED THAT THEY CONSTITUTE, AS WAS RIGHTLY STATED BY THE COMMISSION, A FRESH ISSUE WITHIN THE MEANING OF THE FIRST SUBPARAGRAPH OF ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE AND THAT THE COMMISSION HAS NOT BEEN GIVEN AN OPPORTUNITY TO COMMENT ON ITS MERITS . SINCE THE ISSUE WAS NOT BASED ON MATTERS OF LAW OR OF FACT WHICH CAME TO LIGHT IN THE COURSE OF THE WRITTEN PROCEDURE IT MUST IN ANY EVENT BE REJECTED AS INADMISSIBLE BY VIRTUE OF THE AFOREMENTIONED PROVISION .
24 IT FOLLOWS FROM THE WHOLE OF THE FOREGOING THAT THE APPLICANTS HAVE FAILED TO SHOW THE EXISTENCE IN THIS CASE OF SPECIAL CIRCUMSTANCES WITHIN THE MEANING OF ARTICLE 13 OF REGULATION NO 1430/79 . CONSEQUENTLY, THE APPLICATIONS MUST BE DISMISSED EVEN THOUGH NO NEGLIGENCE CAN BE ATTRIBUTED TO THE APPLICANTS IN THIS CASE .