Action brought on 20 February 2009 - Química Atlântica v Commission

(Case T-71/09)

Language of the case: Portuguese

Parties

Applicant: Química Atlântica, Lda (Lisbon, Portugal) (represented by J. Teixeira Alves, lawyer)

Defendant: Commission of the European Communities

Form of order sought

a declaration that the Commission was obliged to adopt measures for the harmonisation of the criteria for classifying and charging duty on dicalcium phosphate imported from Tunisia;

a declaration that that failure to act on the part of the Commission has engendered considerable differences in the duty payable on goods declared in Portugal compared to those declared in those Member States that, for reasons of geographical proximity, compete with traders declaring goods in Portugal;

an order that the Commission should adopt harmonising measures for the classification and charging of duty on dicalcium phosphate;

an order that the Commission should take into account the fact that phosphate is an inorganic product, obtained from the chemical reaction caused by the addition of an acid to minerals, so its classification is automatically excluded from the first 24 chapters of the Common Customs Tariff;

an order that the Commission should adopt measures to ensure that the classification adopted in the various Member States is harmonised in keeping with appropriate criteria of interpretation;

a declaration that the applicant is entitled to reimbursement of the customs duties it has paid over and above those that would be payable if the rate for Tariff Code 28 35 52 90 were applied;

an order that the Commission should pay the costs of the proceedings and the unavoidable expenses borne by the applicant, in particular its lawyer's fees and transport and accommodation expenses.

Pleas in law and main arguments

The applicant markets dicalcium phosphate, imported from Tunisia, which, until 1994, it declared to customs under the description hydrogen orthophosphate of calcium (dicalcium phosphate) under tariff code 28 35 5290 of the CN. The Portuguese customs authorities required dicalcium phosphate to be declared under code 23 09 90 98 of the CN, as preparations of a kind used in animal feeding - Other, subject to high duty, whereas in France, the United Kingdom and Spain, which take up nearly all the dicalcium phosphate obtained in Tunisia and exported to the EU, the same product was classified under tariff heading 28 35 52 90 and zero-rated.

The applicant has requested the Commission to adopt measures to harmonise the tariff classification of dicalcium phosphate, but the Commission has never acted. Ever since 2005 it has put off and put off taking a decision on the harmonisation of dicalcium phosphate. In December 2008 the Commission adopted an express measure, of negative content, consisting, first, of the affirmation that the classification of dicalcium phosphate under tariff heading 2309 was constant and uniform in the various Member States and, secondly, of the consequential refusal to adopt measures to render that classification uniform. The Commission has in its possession authentic documents which prove that dicalcium phosphate imported from Tunisia, the chief supplier to the Community, is classified in France and Spain under tariff code 2835 25 90 and it had the means whereby to learn that at the very least in the United Kingdom also that classification had been adopted. The bare assertion that there are no problems in classifying dicalcium phosphate in the other Member States is a half-truth, for it does not say that dicalcium phosphate is not imported into those Member States from Tunisia. The Commission was required to ascertain whether the composition of dicalcium phosphate from Tunisia was not close to that of substitutes imported from other regions, which it has not done, despite its knowing of a binding tariff information in France. The Commission's reply to the applicant's complaints bestows legitimacy on divergent and, therefore, necessarily incorrect tariff classifications, is based on untrue premisses and in the end the Commission has adopted no measure to harmonise the classification criteria, maintaining the former situation of uncertainty.

The Portuguese courts have upheld the decisions of the Portuguese customs authorities, without making a reference to the CJEC for a preliminary ruling as they were bound to do. In most of the Member States that import dicalcium phosphate from Tunisia the product is declared under tariff code 28 35 52 90. This divergence in classification, with its effects on duty, has forced the applicant out of the Spanish market, on which dicalcium phosphate enjoyed duty-free status because of its being classified under tariff code 28 35 52 90.

____________