1. By its appeal, C.A.S. SpA (‘the appellant’) seeks to have set aside the judgment of the Court of First Instance of the European Communities of 6 February 2007 in Case T-23/03 CAS v Commission [2007] ECR II‑289 (‘the judgment under appeal’) which dismissed its action for annulment of Article 2 of the Commission’s decision of 18 October 2002 (REC 10/01) (‘the contested decision’) concerning an application for remission of import duty. Legal context Legislation relating to the Association Agreement
2. This appeal is brought in the context of the Association Agreement establishing an Association between the European Economic Community (EEC) and Turkey, signed on 12 September 1963 in Ankara by the Republic of Turkey, of the one part, and the Member States of the EEC and the Community, of the other part. The Association Agreement was concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 OJ 1973 C 113, p. 1) (‘the Association Agreement’). It entered into force on 1 December 1964.
3. The Association Agreement involves a preparatory phase to enable the Republic of Turkey, in accordance with Article 3, to strengthen its economy with the aid of the European Community, a transitional phase during which, in accordance with Article 4, a customs union is progressively to be established and economic policies more closely aligned, and a final phase which, in accordance with Article 5, is to be based on the customs union and to entail closer coordination of economic policies.
4. The final phase provided for by the Association Agreement came into force on 31 December 1995 (Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the customs union (OJ 1996 L 35, p. 1)) The decisions adopted by the Association Council during the transitional phase were also applicable to the imports covered by the contested decision, given that those imports took place between 5 April 1995 and 20 November 1997.
5. Those decisions include, in particular, Decision No 5/72 of 29 December 1972 on methods of administrative cooperation for implementation of Articles 2 and 3 of the Additional Protocol to the Association Agreement (OJ 1973 L 59, p. 74).
6. Article 11 of Decision No 5/72 provides that the Member States and the Republic of Turkey are to assist each other, through their respective customs administrations, in checking the authenticity and accuracy of the certificates in order to ensure the proper application of the provisions of the decision.
7. Article 12 of Decision No 5/72 provides that ‘[the Republic of] Turkey, the Member States and the Community shall each take the steps necessary to implement this Decision’.
8. Decision No 1/95 lays down detailed rules for the implementation of the final phase of customs union and Annex 7 to that decision concerns mutual assistance on customs matters between the competent administrative authorities of the Community and those of the Republic of Turkey.
9. Articles 3 and 7 of that Annex set out the rules governing respectively the assistance which those authorities have a duty to provide at the request of one or other of them and the execution of such a request for assistance.
10. Furthermore, under Article 15 of Decision No 1/96 of the EC-Turkey Customs Cooperation Committee of 20 May 1996 laying down detailed rules for the application of Decision No 1/95 (OJ 1996 L 200, p. 14), in order to ensure the proper application of the provisions of that decision the Member States and the Republic of Turkey are to assist each other, through their respective customs administrations and within the framework of mutual assistance provided for in Annex 7 to Decision No 1/95, in checking the authenticity and accuracy of the certificates.
11. In addition, Article 13(2) of Decision No 1/96 states: ‘The office at which the division shall take place shall issue an extract of the A.TR. certificate for each part of the divided consignment, using for this purpose an A.TR. certificate. Box 12 of the extract shall show the registration number, date, office and country of issue of the initial certificate …’ Legislation on repayment and remission of customs duty
12. Article 239(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the CCC’) states: ‘Import duties … may be repaid or remitted in situations …: - … - resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the Committee procedure …’
13. Article 905(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1) (‘the CCC implementation regulation’) provides: ‘Where the decision-making customs authority to which an application for repayment or remission under Article 239(2) of the [CCC] has been submitted cannot take a decision on the basis of Article 899, but the application is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the Member State to which this authority belongs shall transmit the case to the Commission to be settled under the procedure laid down in Articles 906 to 909 …’
14. Article 904(c) of the CCC implementation regulation provides: ‘Import duties shall not be repaid or remitted where the only grounds relied on in the application for repayment or remission are, as the case may be: … (c) presentation, for the purpose of obtaining preferential tariff treatment of goods declared for free circulation, of documents subsequently found to be forged, falsified or not valid for that purpose, even where such documents were presented in good faith.’
15. Article 220(2)(b) of the CCC provides that subsequent entry in the accounts of duty resulting from a customs debt is not to occur where the amount of duty legally owed failed to be entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration. Background to the dispute
16. The appellant is a company incorporated under Italian law and a 95.1% subsidiary of Steinhauser GmbH, established in Ravensburg. The appellant’s core business consists in processing imported fruit juice concentrates and it is also an importer of such products in Italy.
17. According to the facts as stated by the Court of First Instance, between 5 April 1995 and 20 November 1997 the appellant imported and put into free circulation in the Community apple and pear juice concentrates declared as being from and originating in Turkey. That type of product was imported into the Community using A.TR.1 certificates with the effect that those products qualified for the exemption from customs duties provided for by the Association Agreement and the Additional Protocol to that agreement, signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (JO 1972 L 293, p. 1).
18. The customs services in Ravenna (Italy) carried out a post-clearance documentary check on the authenticity of A.TR.1 certificate D 141591 submitted by the appellant in the course of one of the import operations for the abovementioned period. In accordance with the relevant provisions, the request for verification of the authenticity of that certificate was sent to the Turkish authorities.
19. By letter of 15 May 1998, the Turkish authorities notified the Ravenna customs services that the checks carried out showed that that certificate was not authentic since it had not been issued by the Turkish customs authorities. They stated, moreover, that further checks were to be carried out.
20. Consequently, the Italian authorities carried out post-clearance checks on 103 A.TR.1 certificates submitted by the appellant in the course of various import operations.
21. By letter of 10 July 1998, the Permanent Representation of the Republic of Turkey to the European Union (‘the Turkish Permanent Representation’) notified the Commission that 22 A.TR.1 certificates submitted by the appellant, listed in an annex to that letter and concerning exports by the Turkish company Akman to Italy, were ‘false’.
22. Following that letter, between 12 and 15 October 1998 and between 30 November and 2 December 1998, the European Commission’s Unit for the Coordination of Fraud Prevention (UCLAF), the predecessor to the European Anti-Fraud Office (OLAF), carried out checks in Turkey.
23. By letter of 8 March 1999, the Turkish Permanent Representation notified the customs services in Ravenna that 32 A.TR.1 certificates submitted by the appellant (‘the certificates at issue’), including 18 of the certificates listed in the annex to the letter of 10 July 1998, were not in order and had been neither issued nor validated by the Turkish authorities. Those certificates were identified in the annex to that letter.
24. Thereafter, the inauthentic or irregular nature of a significant number of A.TR.1 certificates was the subject-matter of a large amount of correspondence between the Commission, the Turkish authorities and the Italian authorities, correspondence which included, inter alia, the Turkish authorities’ letters of 22 April 1999 and 16 July 1999.
25. The Italian authorities took the view that it was clear from all the correspondence that the Turkish authorities considered 48 A.TR.1 certificates, including the certificates at issue, to be either inauthentic or irregular.
26. In the present case, the certificates at issue were considered to be ‘forged’, given that they had been neither issued nor validated by Turkish customs offices. On the other hand, the 16 other certificates (corresponding to customs duties totalling ITL 1 904 763 758 or EUR 983 728.38) were classified as invalid, given that, whilst they had been issued by the Turkish customs authorities, the goods concerned did not originate in Turkey.
27. Since all 48 certificates had been classified as either ‘forged’ or ‘invalid’, the goods to which they related could not qualify for the preferential treatment accorded to imported Turkish agricultural products. Accordingly, the Italian customs administration demanded the sum of ITL 5 200 954 129 or EUR 2 686 068.63 from the appellant by way of unpaid customs duties.
28. By letter of 28 March 2000 to the Ravenna customs services, the appellant, relying on Articles 220(2)(b), 236 and 239 of the CCC, claimed that import duties should not have been entered in the accounts post-clearance and that the import duties claimed should be ‘repaid’. In support of its claim, the appellant pleaded its good faith, errors on the part of the competent authorities that could not have been detected and deficiencies attributable to those authorities.
29. Following the appellant’s claim, the Italian Republic asked the Commission to decide whether it was appropriate to waive subsequent entry in the accounts of the import duties claimed from the appellant pursuant to Article 220(2)(b) of the CCC, or to ‘repay’ those duties under Article 239 of the CCC.
30. By letter of 3 June 2002, the Commission requested certain additional information from the Italian authorities, which replied by letter of 7 June 2002.
31. By letter of 25 July 2002, the Commission informed the appellant of its intention not to consent to its claim. Before taking a final decision, however, the Commission invited the appellant to advise it of any observations it may have and to have access to the file so that it could inspect the non-confidential documents.
32. On 6 August 2002, the appellant’s representatives consulted the administrative file at the Commission’s offices. They also signed a declaration confirming that they had had access to the documents listed in an annex to that declaration.
33. On 18 October 2002, the Commission adopted the contested decision, which was notified to the appellant on 21 November 2002. Firstly, the Commission concluded that it was appropriate to enter in the accounts the import duties that were the subject-matter of the claim.
34. Secondly, the Commission concluded that it was appropriate to ‘repay’ import duties in respect of the part of the claim relating to the 16 invalid certificates since, in that regard, the appellant was in a special situation for the purposes of Article 239 of the CCC.
35. Thirdly, with regard to the certificates at issue, the Commission concluded, on the other hand, that the circumstances relied on by the appellant could not give rise to a special situation for the purposes of Article 239 of the CCC. Consequently, in Article 2 of the contested decision, the Commission decided that it was not appropriate to ‘repay’ the import duties relating to those certificates, amounting to EUR 1 702 340.25. The proceedings before the Court of First Instance and the judgme nt under appeal
36. By application lodged at the Registry of the Court of First Instance on 29 January 2003, the applicant sought the annulment of Article 2 of the contested decision.
37. In support of its action, the applicant put forward three pleas in law, alleging infringement of its rights of defence, of Article 239 of the CCC and of Article 220(2)(b) of the CCC respectively.
38. The Court of First Instance dismissed the action in its entirety. The first plea
39. By it first plea, the applicant maintained that its rights of defence were infringed during the administrative procedure in that, although it had access to the file containing the documents on which the Commission had based the contested decision, it did not have access to documents which had a decisive influence on the Commission’s overall assessment of the situation.
40. However, the Court of First Instance dismissed that plea on the grounds set out in paragraphs 87 to 102 of the judgment under appeal. The second plea
41. The second plea, alleging infringement of Article 239 of the CCC, is composed of four parts. The first part concerns incorrect classification of A.TR.1 movement of goods certificate D 437214. The second and third parts set out, respectively, serious deficiencies attributable to the Turkish authorities and to the Commission in order to establish that there was a special situation for the purposes of that article. Lastly, the fourth part concerns lack of obvious negligence on the part of the applicant and the assessment of commercial risks.
42. As regards the first part of that plea, after pointing out that determination of the origin of goods is based on a division of powers between the authorities of the exporting country and those of the importing country, inasmuch as origin is established by the authorities of the exporting country, the Court of First Instance first examined the correspondence exchanged between the Commission and the Italian and Turkish authorities.
43. In this connection, the Court of First Instance noted, in paragraph 122 of the judgment under appeal, that, with regard to the part of the contested decision concerning the certificates at issue, the Commission based its decision essentially on the Turkish authorities’ letter of 8 March 1999 to the Ravenna customs services.
44. However, in comparing the wording of that letter and the wording of subsequent communications from the Turkish authorities, the Court of First Instance pointed out, in paragraphs 124 to 128 of the judgment under appeal, that there were ambiguities as to the classification of certificate D 437214 and that the Commission had not been in a position properly to conclude that that certificate had been forged prior to the adoption of the contested decision.
45. However, on the basis of a letter of 22 August 2003, and thus subsequent to the contested decision, in which the Turkish authorities confirmed the conclusions set out in their letter of 8 March 1999, the Court of First Instance held that that consideration did not, of itself, suffice to annul the contested decision because the applicant had no legitimate interest in the annulment of a decision on the ground of a procedural defect, where annulment of the decision could only lead to the adoption of another decision identical in substance to the decision annulled.
46. Next, the Court of First Instance examined the second part of the second plea relating to various claims that there were deficiencies attributable to the Turkish authorities which are essentially based on the proposition that those authorities did in fact issue and endorse the certificates at issue.
47. In that regard, the Court of First Instance, after observing, in paragraphs 150 to 152 of the judgment under appeal that, firstly, it lay within the exclusive competence of the Turkish authorities to determine whether documents they had issued were original or forged and that, secondly, those authorities had concluded that the certificates at issue were forged, rejected the applicant’s argument that the impressions of the stamps and signatures applied to the certificates at issue demonstrate that they were in all likelihood issued and authenticated by the Turkish authorities.
48. Lastly, the Court of First Instance also observed that neither the Association Agreement nor the implementation provisions expressly provide that registers of certificates issued by the Turkish authorities are to be kept.
49. The Court of First Instance did in fact acknowledge that paragraph 12 of Point II of Annex II to Decision No 1/96 requires the document number to be entered in Box 12 of A.TR.1 certificates and that Article 13 of that decision provides that, where a certificate is divided, Box 12 of the extract is to show, inter alia, the registration number of the initial certificate.
50. However, it considered that that did not mean that the certificates were authentic because forgers would have every interest in using on forged certificates a registration number which corresponded with a lawful certificate.
51. As regards the third part of the second plea, relating to a raft of claims in respect of failings attributable to the European Commission, the Court of First Instance relied on investigations carried out by UCLAF in Turkey to come to the conclusion that the Commission had in fact ensured that the Association Agreement was properly implemented.
52. The Court of First Instance also stated, in paragraph 240 of the judgment under appeal, that the applicant had not been able to establish that the Commission had encountered difficulties concerning the administrative assistance agreed upon with the Turkish authorities which would have justified bringing the matter before the Association Council or the EC-Turkey Customs Union Joint Committee (‘the Joint Committee’).
53. Thereafter, the Court of First Instance held that the Association Agreement, the decisions of the Association Council and the applicable Community legislation did not lay down any obligation for specimens of stamps and signatures to be sent from one Contracting Party to another, for importers to be warned of doubts as to the validity of customs transactions effected by those importers under the system of preferential treatment and for UCLAF to adopt a particular method of investigation.
54. As for the fourth part of the second plea, relating to the lack of obvious negligence on the part of the applicant, the Court of First Instance rejected it as being of no consequence after pointing out that the Commission did not, in the part of the contested decision dealing with the certificates at issue, express its view on the issue of the applicant’s due care or negligence. The third plea
55. The Court of First Instance also rejected the third plea, alleging infringement of Article 220(2)(b) of the CCC, given that the applicant had not been able to demonstrate that the acts of the competent authorities contributed to the issue or acceptance of the certificates at issue which had proved to be forged. Measures of organisation of procedure and measures of inquiry required
56. Lastly, the Court of First Instance rejected the evidence offered in support and the measures of inquiry sought by the applicant such as, inter alia, its request to call upon the Commission to produce all the documents which the applicant considers it was not able to consult when it was given access to the administrative file. Forms of order sought by the parties
57. By its appeal the appellant claims that the Court should: - set aside the judgment under appeal; - allow the claims made at first instance, or in the alternative, refer the case back to the Court of First Instance for it to rule on the substance of the case; - allow the requests for measures of organisation of procedure made by the appellant in its written pleadings of 28 January 2003, 4 August 2003 and 11 August 2003, and - order the defendant at first instance to pay the costs.
58. The Commission contends that the Court should: - dismiss the appeal in its entirety; - uphold the form of order which the Commission sought at first instance; and - order the appellant to pay the costs, including the costs incurred at first instance. The appeal
59. The appellant puts forward nine grounds of appeal.
60. First, it submits that the Court of First Instance made an error of law in determining the division of powers between the exporting country and the importing country in so far as the Turkish authorities do not, contrary to what was held by the Court of First Instance, have exclusive competence to determine whether the certificates at issue are authentic or not.
61. Secondly, the appellant submits that there was infringement of its right of access to the file, which cannot be restricted to only the documents on which the Commission based the contested decision.
62. The appellant’s third and fourth grounds of appeal allege that the burden of proof was wrongly allocated because the Court of First Instance imposed on it the entire burden of proof but rejected its offers of evidence and the measures of inquiry it requested.
63. Errors in the legal classification of the failings alleged against the Turkish authorities and the Commission form the subject-matter of the fifth ground of appeal. In that regard, the appellant puts forward a number of heads of complaints concerning the assessment of the certificates at issue as irregular or inauthentic, failure to send specimens of stamps or signatures, breach of the obligation to warn importers, the way in which the investigations in Turkey were carried out and the non-disclosure of the registration of the certificates at issue.
64. By its sixth ground of appeal, the appellant criticises the statement in the judgment under appeal that the Commission was not required to bring the matter before the Joint Committee or the Association Council.
65. The seventh ground of appeal alleges that the Court of First Instance failed to have regard to the appellant’s legitimate interest in the annulment of the contested decision with respect to A.TR.1 certificate D 437214, and the eighth ground of appeal alleges that the Court of First Instance failed to assess considerations of equity and risks in the judgment under appeal.
66. Lastly, in the ninth ground of appeal, the appellant complains that the Court of First Instance infringed Article 220(2)(b) of the CCC. Initial observations
67. First, it must be pointed out that the appellant submitted at the hearing that the implementation of Article 2 of the contested decision was only partly suspended and that it has paid a part of the import duty relating to the certificates at issue. Consequently, the situation is one of both repayment of import duty, as regards the sums which were paid by the appellant, and remission of such duty, as regards the duty which was subsequently entered in the accounts, but which the appellant did not pay.
68. Secondly, it must be stated that the appellant has put forward, in support of its appeal, a number of complaints relating both to infringement of essential procedural requirements and infringement of substantive rules. However, in view of the specific circumstances of the present case, and apart from the grounds of appeal alleging infringement of the right of access to the file and of Article 220(2)(b) of the CCC, those complaints in essence challenge the Court of First Instance’s application of Article 239 of the CCC, in particular as regards the existence of a special situation within the meaning of that article. Therefore, those complaints as a whole must be examined at the outset. Infringement of Article 239 of the CCC Arguments of the parties
69. In essence, the appellant criticises the legal classification by the Court of First Instance of the failings attributable, first, to the Turkish authorities and, secondly, to the Commission.
70. As regards the failings alleged against the Turkish authorities, the appellant submits that the Court of First Instance erred in law in respect of a number of aspects: - during the assessment of the certificates at issue, in particular of certificate A.TR.1 D 437214, in so far as those certificates were found to be forgeries; - as regards the failings of those authorities in relation to their obligations regarding specimens of the stamps and signatures which they use and the registration of certificates issued by them; - in connection with mutual assistance, regarding whether assistance was provided by the Turkish authorities in issuing the certificates at issue, and - in respect of other evidence which, in the appellant’s opinion, shows that there were failings on the part of the Turkish authorities constitutive of a special situation with regard to the appellant.
71. With regard to the failings alleged against the Commission, the appellant submits that there were sufficient objective indications of systematic and deliberate infringements by the Turkish authorities, which should have justified an intensified review of the system of preferential arrangements by the Commission.
72. The appellant is also of the opinion, taking as its basis Article 93 of the CCC implementing regulation and Article 4 of Decision No 1/96, that the Republic of Turkey and the Commission were legally obliged during the period in question, namely 1995 to 1997, to send to the competent customs officials or demand specimens of the stamps used by the Turkish customs authorities.
73. The appellant maintains that the Court of First Instance also made an error of law when it did not conclude that the Commission was obliged to warn importers of fruit juice concentrates, by the end of 1994 or the beginning of 1995 at the latest, of irregularities in Turkey in the issuing of A.TR.1 certificates and it maintains that the Commission was also obliged to bring the matter before the Joint Committee or the Association Council.
74. Moreover, UCLAF failed to comply with its obligations to carry out a proper investigation in Turkey, since it did not implement certain methods of investigation.
75. Lastly, the appellant alleges that the Court of First Instance failed to have regard to the fact that it is contrary to the principle of equity which underlies Article 239 of the CCC, given the relationship between economic operators and the administration, to leave the appellant to bear the loss which stems from the contested decision.
76. The Commission submits, first, that the grounds of appeal raised by the appellant as regards the failings which are alleged against it and the Turkish authorities do not concern points of law, but are assessments of fact which cannot be challenged on appeal.
77. Furthermore, it maintains that neither the Republic of Turkey nor the Commission was obliged, under the provisions applicable here, to send specimens of stamps or signatures or to keep registers of A.TR.1. certificates.
78. With regard to the duty to warn importers, the Commission points out that the imports at issue here dated from the period between April 1995 and November 1997, whereas doubts regarding the authenticity and the accuracy of the A.TR.1 certificates arose only subsequently, namely as of 1998.
79. It also contends that, in view of the Turkish authorities’ impeccable willingness to cooperate, it had no reason to bring the matter before the Joint Committee or the Association Council. Findings of the Court - Admissibility
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).
81. In support of its appeal, the appellant relies on a number of circumstances which, in its opinion, constitute a special situation for the purposes of Article 239 of the CCC.
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.
84. Consequently, the objection of inadmissibility raised by the Commission must be rejected. - Substance
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.
87. As regards the appellant’s due care and the absence of deception on its part, it must be pointed out that they are not the subject-matter of this appeal. As the Court of First Instance stated in paragraph 295 of the judgment under appeal, the Commission did not, in the part of the contested decision dealing with the certificates at issue, express its view on the issue of the appellant’s due care or negligence.
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.
91. Furthermore, that finding is reinforced by Article 904(c) of the CCC implementing regulation which provides that import duties must not be repaid or remitted where the ‘only grounds’ relied on in the application for repayment or remission are presentation, for the purpose of obtaining preferential tariff treatment, of documents subsequently found to be forged, falsified or not valid for that purpose, even where such documents were presented in good faith. In other words, the presentation of forged, falsified or invalid certificates does not per se constitute a special situation for the purposes of Article 239 of the CCC.
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.
93. Although the Commission has some discretion as regards the application of Article 239 of the CCC, it cannot disregard its duty to balance, on the one hand, the Community interest in full compliance with the provisions of customs legislation, whether that be Community legislation or other legislation binding on the Community, and, on the other hand, the interest of an importer acting in good faith not to suffer harm which goes beyond the normal commercial risk.
94. That balancing underlies the scheme of Article 239 which, as has been pointed out in paragraph 85 of this judgment, is a general equitable provision. Consequently, when examining an application for repayment or remission of import duty, the Commission is not entitled merely to assess the behaviour and activities of the importer and the exporter. It must also take into account, in particular, the effect of its own behaviour on the specific situation in the course of its duty to supervise and monitor.
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.
99. The Commission also has significant rights and powers available to it in connection with its obligation of supervising and monitoring the proper implementation of the Association Agreement.
100. Thus, under the provisions of Article 3 of Annex 7 to Decision No 1/95, the Commission may request from the Turkish authorities any information which may enable it to ensure that customs legislation is correctly applied.
101. Under paragraph 4(a) of the same article, the Commission may also request that the Turkish authorities take the necessary steps to keep a special watch on natural or legal persons of whom there are reasonable grounds for believing that they are breaching or have breached customs legislation.
102. Furthermore, according to Article 7(3) and (4) of that annex, duly authorised Commission officials may, with the agreement and within the conditions laid down by the Turkish customs authorities, obtain from the respective offices of those authorities information relating to breaches of customs legislation or be present at inquiries carried out in Turkish territory.
103. The same is true of Article 15 of Decision No 1/96 according to which, in order to ensure the proper application of the provisions of that decision, the Member States and the Republic of Turkey must assist each other, through their respective customs administrations and within the framework of mutual assistance provided for in Annex 7 of Decision No 1/95, in checking the authenticity and accuracy of the certificates.
104. Consequently, the Commission cannot reasonably claim, as it did at the hearing, that it is in the same position as the appellant as regards the checking of events which occurred in a third country, namely in Turkey. On the contrary, it is for the Commission to make full use of the rights and powers which it has under the provisions of the Association Agreement and the decisions adopted in respect of its implementation so as to fulfil its obligation of supervising and monitoring the proper implementation of the Association Agreement.
105. Such use of its rights and powers is particularly necessary in a situation in which exports to the same Community port, namely that of Ravenna, by the same Turkish export company in the same reference period took place, according to the findings in the judgment under appeal, under cover of both irregular and inauthentic certificates.
106. The full use of the rights and powers which the Commission has in connection with its duty of supervising and monitoring the proper implementation of the Association Agreement is also called for because the assessments made by the Turkish authorities as regards the inauthentic or irregular nature of the certificates at issue show some ambiguities or, at the very least, some inconsistencies.
107. Therefore, as the Court of First Instance stated in paragraphs 120 to 128 of the judgment under appeal, a comparison between the wording of the letter of the Turkish authorities of 8 March 1999 and that of subsequent communications from those authorities, such as the letter from the Turkish Permanent Representation to UCLAF of 22 April 1999, discloses ambiguities as to the allegedly inauthentic nature of certificate D 437214.
108. As regards two other A.TR.1 certificates whose authenticity was assessed by the Turkish authorities in the course of the same post-clearance check, even though they are not amongst the certificates at issue, the Court of First Instance also found, in paragraphs 198 to 201 of the judgment under appeal, some inconsistencies in that the Turkish authorities had classified them, at different stages of the procedure, as falsified, incorrect and also partially incorrect.
109. Furthermore, as is apparent from the judgment under appeal, the use by those authorities of a variety of terms to describe the outcome of their checks of the certificates, such as, inter alia ‘false’ (letter from the Turkish Permanent Representation to UCLAF of 10 July 1998, mentioned in paragraph 41 of the judgment under appeal), ‘not correct and … not issued and endorsed by [the Turkish] customs office’ (letter from the Turkish General Directorate of Customs of 8 March 1999, mentioned in paragraph 123 of the judgment under appeal), ‘not correct and … not issued according to the rules’ (letter from the Turkish Permanent Representation to UCLAF of 22 April 1999, mentioned in paragraph 124 of the judgment under appeal) and ‘incorrect’ (letter from the Turkish General Directorate of Customs of 16 July 1999, mentioned in paragraph 200 of the judgment under appeal), also gave rise to ambiguities.
110. What is more, the different terms used by the Turkish authorities in their correspondence with the Commission and the Italian customs authorities do not tally with the notions of ‘authenticity’ and ‘accuracy’ set out in Article 11 of Decision No 5/72 and Article 15 of Decision No 1/96.
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.
112. However, clearly the Commission did not make full use of the rights and powers conferred upon it by the Association Agreement and its implementing provisions.
113. First, although it is true that UCLAF carried out two investigations in Turkey from 12 to 15 October 1998 and from 30 November to 2 December 1998, clearly the Court of First Instance erred in holding, in paragraph 218 of the judgment under appeal, that there was no conclusive evidence which would give grounds for assuming that UCLAF was not able to carry out a thorough investigation, in particular at the customs administration in Mersin. It is clear from UCLAF’s mission reports of 9 and 23 December 1998 that the customs office from which the goods at issue were exported to the Community, namely that of Mersin, was not one of the organisations visited by its investigators in Turkey. Therefore, they were not able to check whether the certificates at issue were authentic or not. UCLAF’s two mission reports of 9 and 23 December 1998 do not deal with whether the certificates at issue were in fact falsified or, by contrast, incorrectly issued by the Turkish authorities.
114. That finding is borne out by a letter of 9 December 1998, that is to say subsequent to the investigations carried out by UCLAF in Turkey, in which UCLAF’s Director, Mr Knudsen, ‘urged’ the Turkish authorities to agree to a joint investigation in the Mersin customs office in order to obtain details of all the exports of fruit juice concentrates Akman had made since the end of 1993.
115. In that regard, it cannot be disputed that in order to carry out an investigation in the respective offices of the Turkish customs authorities, the Commission had to have the agreement of those authorities pursuant to Article 7(3) of Annex 7 to Decision No 1/95. It is sufficient to point out that the Commission has not referred to any lack of agreement on the part of the Turkish authorities which prevented it from carrying out such an on-the-spot check.
116. Moreover, it is apparent from paragraphs 244 to 259 of the judgment under appeal that the Commission did not request specimen impressions of the stamps used in the Mersin customs offices from the Turkish authorities and did not send them to the customs authorities of the Member States. The Court of First Instance found in that regard that, during the entire period covering the importations at issue, the Republic of Turkey and the Commission were not under any obligation to provide each other with specimen impressions of the stamps used by the customs offices.
117. However, it is the sending of specimen impressions of the stamps and signatures used in those offices that makes it possible to supervise compliance with the customs rules relating to tariff preferences effectively.
118. The Commission’s obligation to ensure that the Association Agreement is properly implemented means that the Commission, and through it the customs authorities of the Member States, should always have all the information to enable it to carry out an effective check, and specimen impressions of the stamps and signatures unquestionably constitute such information.
119. Moreover, contrary to what was held by the Court of First Instance in paragraph 255 of the judgment under appeal, it is unambiguously apparent from the wording of Article 15(1) of Decision No 1/96, as amended by Decision No 2/97 of the EC‑Turkey Customs Cooperation Committee of 30 May 1997 (OJ 1997 L 249, p. 18), which entered into force on 1 September 1997, namely during the period covering the imports at issue, that ‘the customs authorities of the Member States of the Community and of [the Republic of] Turkey shall provide each other, through the Commission …, with specimen impressions of stamps used in their customs offices for the issue of A.TR. movement certificates’.
120. In any event, even before the entry into force of that decision, the Commission should, in order to facilitate the proper implementation of the Association Agreement, have requested that the Turkish authorities provide it with those specimens on the basis of Article 7(3) of Decision No 1/95 which authorises it to request ‘any information which may enable it to ensure that customs legislation is correctly applied’.
121. The fact that the Republic of Turkey sent the impressions of stamps used for A.TR.1 certificates voluntarily, as stated by the Court of First Instance in paragraph 258 of the judgment under appeal, does not call in question the finding that the Commission failed to fulfil its obligation to request that the Turkish authorities provide it with specimen impressions of the stamps and signatures used in the Mersin customs office and to send them, in turn, to the customs authorities of the Member States.
122. Lastly, it is also apparent from paragraphs 153 to 160 of the judgment under appeal that the Commission merely observed that neither the Association Agreement nor the implementing provisions expressly required registers to be kept in Turkey for the entry of customs certificates and that, in any case, the possible existence of such registers did not imply that certificates were authentic, given that forgers would have every interest in using on forged certificates a registration number which corresponded with a lawful certificate. That reasoning was accepted by the Court of First Instance in paragraphs 161 and 162 of the judgment under appeal.
123. That argument cannot, however, succeed. In that regard, it must be stated that the registration of certificates issued by the customs authorities is indispensable in international trade. Failure to keep such registers is likely to render worthless the effectiveness of any post-clearance check on certificates issued by the respective customs authorities.
124. Furthermore, the obligation on the Turkish authorities to register A.TR.1 certificates stems, contrary to what was held by the Court of First Instance in paragraph 161 of the judgment under appeal, from the implementing provisions of the Association Agreement. Article 13 of Decision No 1/96 provides that, where there is division of certificates, box 12 of the extract must show, in particular, the registration number of the ‘initial certificate’. Even though Article 13 applies to the specific case of division of certificates, it is clear that the registration number of the ‘initial certificate’ must appear in box 12 of the A.TR.1 certificate, that is to say that the initial certificate must, in any event, also be registered in the customs registers of the country of export.
125. The Court of First Instance’s statement in paragraph 162 of the judgment under appeal, that forgers would have every interest in using a registration number which corresponded with a lawful certificate which had already been registered, is not such as to relieve the Commission of its obligation to ensure that the Association Agreement is properly implemented.
126. On the contrary, given that that statement implies a double importation into the Community under cover of A.TR.1 certificates with the same registration number, one authentic and the other inauthentic, the Commission should have checked whether such a double importation into the Community under cover of A.TR.1 certificates bearing the same registration number had actually taken place. It may be inferred from the Commission’s arguments both before the Court of First Instance and before the Court of Justice that it did not do so.
127. Furthermore, given that neither of UCLAF’s two missions was carried out at the Mersin customs office, as was pointed out in paragraph 113 of this judgment, they were also not able to check whether there were such registers and whether the certificates at issue were entered in those registers or not.
128. It follows from all of the above considerations that the Commission failed to fulfil its obligations to supervise and monitor the proper implementation of the Association Agreement.
129. Had the Commission not failed to fulfil its obligations, the forgeries of the certificates at issue could have been discovered and elucidated as soon as the first imports into the Community were made and the scale of the financial loss, both for the Community budget and for the appellant, could have been limited. Furthermore, the Commission could, as soon as those forgeries were discovered, have warned importers in good time and, if necessary, have brought the matter before the Joint Committee.
130. In any event, if the Commission had made full use of the rights and powers which it has under the Association Agreement, the doubts as to the inauthentic or irregular nature of the certificates at issue could have been dispelled and their authenticity or inauthenticity could have been established with certainty.
131. It follows that that failure to fulfil obligations on the part of the Commission constitutes a special situation for the purposes of Article 239 of the CCC.
132. Therefore, in holding that it had not been proved that a special situation for the purposes of Article 239 of the CCC existed, the Court of First Instance misapplied that article and thus erred in law.
133. Consequently, this plea is well founded.
134. Having regard to the above, there is no need to examine the pleas alleging infringement of the right of access to the file and infringement of Article 220(2)(b) of the CCC. The consequences of the setting aside of the judgment under appeal
135. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice, if the appeal is well founded, the Court of Justice must quash the decision of the Court of First Instance. It may then itself give final judgment in the matter, where the state of the proceedings so permits. That is the case here.
136. It follows from all the considerations set out in paragraphs 85 to 133 of this judgment that the Commission made a manifest error of assessment in finding that the conditions set out in Article 239 of the CCC had not been met and that, consequently, there was no need to repay or remit the import duty relating to the certificates at issue. Article 2 of the contested decision must therefore be annulled. Costs
137. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to costs.
138. Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 of those rules, 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 appellant has applied for costs and the Commission has been unsuccessful, it must be ordered to pay the costs at both instances.