JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

9 June 1998 (1)

(Post-clearance recovery of customs duties — Regulation (EEC) No 1697/79 —Regulation (EEC) No 2454/93)

In Joined Cases T-10/97 and T-11/97,

Unifrigo Gadus Srl, a company incorporated under Italian law, established atNaples (Italy),

and

CPL Imperial 2 SpA, a company incorporated under Italian law, established atPescara (Italy),

represented by Giuseppe Celona, of the Milan Bar, with an address for service inLuxembourg at the Chambers of Georges Margue, 20 Rue Philippe II,

applicants,

v

Commission of the European Communities, represented initially by FernandoCastillo de la Torre and Paolo Stancanelli and subsequently by Mr Stancanelli, ofits Legal Service, acting as Agents, with an address for service in Luxembourg at

the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre,Kirchberg,

defendant,

APPLICATION for annulment of Commission Decision C(96) 2780 def of8 October 1996 ordering the post-clearance recovery of customs duties and forcompensation for the damage allegedly suffered by the applicants,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: V. Tiili, President, C.P. Briët and A. Potocki, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 3 March 1998,

gives the following

Judgment

Facts giving rise to the dispute and procedure

1.

    The applicants are companies trading in fishery products.

2.

    In 1990 and 1991 they imported consignments of cod from Norway. Those importswere carried out pursuant to EUR.1 certificates confirming that the products wereof Norwegian origin. They therefore benefited from the preferential tariffarrangements applicable to products of that type, within the context of theCommunity tariff quotas provided for by Council Regulation (EEC) No 3692/89 of4 December 1989 opening and providing for the administration of Community tariffquotas for cod and fish of the species Boreogadus saida, dried, salted or in brine,originating in Norway (1990) (OJ 1989 L 362, p. 3) and by Council Regulation(EEC) No 3523/90 of 4 December 1990 opening and providing for theadministration of Community tariff quotas for certain agricultural and fisheryproducts originating in certain EFTA countries (OJ 1990 L 343, p. 4).

3.

    During the course of 1993 the Norwegian customs authorities volunteered to theItalian authorities the information that, according to findings made by them, theexporter was unable to prove that the products were of Norwegian origin.

4.

    On 4 August and 23 November 1993 the Verona Customs Office notified CPLImperial 2 SpA ('CPL Imperial 2‘) and Unifrigo Gadus Srl ('Unifrigo Gadus‘)respectively of its decision to effect a post-clearance recovery of the customs duties.

5.

    By letter of 3 December 1993, sent through the intermediary of the customs agentrepresenting it, CPL Imperial 2 maintained that it had acted in good faith andrequested the Italian authorities not to effect the post-clearance recovery of thecustoms duties. It explained that the non-payment of the duties resulted from anerror on the part of the competent authorities which could not reasonably havebeen detected by an operator acting in good faith. It also requested the Italianauthorities to refer the matter to the Commission. Unifrigo Gadus states that ittook similar steps.

6.

    On 30 January 1996 the applicants confirmed to the Italian authorities, through theintermediary of their representative, that they had taken cognizance of the filewhich those authorities were preparing to send to the Commission and that theyhad no comments to make in that regard.

7.

    By letter of 6 February 1996, received on 12 April 1996, the Italian authorities sentto the Commission the file relating to the request made by the applicants and bya third undertaking which is not a party to the present litigation. They requestedthe Commission to determine whether, in the present case, there was anyjustification for the non-recovery of the import duties, totalling LIT 148 890 000,in accordance with Article 5(2) of Council Regulation (EEC) No 1697/79 of 24 July1979 on the post-clearance recovery of import duties or export duties which havenot been required of the person liable for payment on goods entered for a customsprocedure involving the obligation to pay such duties (OJ 1979 L 197, p. 1,hereinafter 'Regulation No 1697/79‘).

8.

    That request was examined under the procedure described in Article 871 et seq.of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisionsfor the implementation of Council Regulation (EEC) No 2913/92 establishing theCommunity Customs Code (OJ 1993 L 253, p. 1, hereinafter 'RegulationNo 2454/93‘).

9.

    The Commission consulted experts representing the Member States in the courseof the meeting of the Customs Code Committee held on 3 June 1996. On8 October 1996 it adopted Decision C(96) 2780 def ('the Decision‘), Article 1 ofwhich is in the following terms: 'the import duties, amounting to LIT 148 890 000,in respect of which Italy submitted its request dated 2 February 1996 must berecovered‘.

10.

    Following the adoption of the Decision, the applicants each received from thecustoms authorities a letter dated 22 November 1996 enclosing a copy of theDecision and demanding payment of the customs duties, amounting to

LIT 31 200 000 in the case of Unifrigo Gadus and LIT 95 010 000 in the case ofCPL Imperial 2, together with default interest. The sum claimed from CPLImperial 2 included the amount of customs duties corresponding to customs slip7338 F.

11.

    It was in those circumstances that, by applications lodged at the Registry of theCourt of First Instance on 17 January 1997, the applicants brought the presentproceedings.

12.

    By order of the President of the Third Chamber of 9 February 1998, Cases T-10/97and T-11/97 were joined pursuant to Article 50 of the Rules of Procedure for thepurposes of the oral procedure and the judgment.

13.

    Upon hearing the report of the Judge-Rapporteur, the Court of First Instance(Third Chamber) decided to open the oral procedure. The applicants wererequested, in the context of measures of organisation of procedure, to producecertain documents, which they did by letter of 23 January 1998.

14.

    The parties presented oral argument and their replies to the Court's questions atthe hearing on 3 March 1998.

Forms of order sought by the parties

15.

    The applicants claim that the Court should:

—    declare the applications admissible;

—    annul the Decision;

—    in the alternative, declare that the Decision does not affect the applicants'right to waiver of the post-clearance duties in question;

—    in the further alternative, order the Commission to reimburse to theapplicants the full amount which they are required to pay in respect of post-clearance duties, penalties and ancillary charges;

—    in any event, annul the Decision as regards the payment of interest;

—    order the defendant to pay the costs.

16.

    In Case T-11/97, the applicant, CPL Imperial 2, claims that the Court should:

—    in the alternative, annul the Decision in so far as it orders the post-clearance recovery of the amount of customs duties corresponding tocustoms slip 7338 F.

17.

    The Commission contends that the Court should:

—    dismiss the applications;

—    order the applicants to pay the costs.

The application for annulment of the Decision

18.

    It should be noted, as a preliminary point, that, according to settled case-law,procedural rules are generally held to apply to all proceedings pending at the timewhen they enter into force, whereas substantive rules are usually interpreted as notapplying to situations existing before their entry into force (see, in particular, thejudgment of the Court of Justice in Joined Cases C-121/91 and C-122/91 CT Controland JCT Benelux v Commission [1993] ECR I-3873, paragraph 22).

19.

    In those circumstances, it follows — and the parties do not deny this — that the rulesapplicable to the procedure before the Commission are those laid down byRegulation No 2454/93 and that the substantive rules applicable to the facts of thecase are those resulting from Article 5(2) of Regulation No 1697/79.

20.

    The applicants have advanced, in essence, five pleas in law in support of their claimfor annulment.

The first plea, alleging lack of competence on the part of the Commission

Arguments of the parties

21.

    The applicants observe that, according to Article 873 of Regulation No 2454/93, theCommission has absolute power to decide whether it is appropriate to take intoaccount the post-clearance recovery of duties, inter alia where the national customsauthorities consider that the conditions laid down in Article 220(2)(b) of CouncilRegulation (EEC) No 2913/92 of 12 October 1992 establishing the CommunityCustoms Code (OJ 1992 L 302, p. 1) or, previously, in Article 5(2) of RegulationNo 1697/79 are fulfilled. They maintain that such a provision is contrary to theprinciples formulated by the case-law of the Court of Justice, according to whichthe importer is entitled, where the conditions laid down by Article 220(2)(b) arefulfilled, to waiver of post-clearance recovery. Consequently, the Commission wasnot empowered to adopt the Decision.

22.

    The Commission maintains, first, that that plea is inadmissible, since RegulationNo 2454/93 is not of direct and individual concern to the applicants as legalpersons.

23.

    Next, it submits that, contrary to the applicants' assertions, it is precluded by Article871 et seq. of Regulation No 2454/93 from circumventing the right of a personliable to pay customs duties not to have to pay those duties where the criteria arefulfilled in that regard.

Findings of the Court

24.

    The allegation that the plea is inadmissible is founded upon the premiss that theapplicants are seeking annulment of provisions of Regulation No 2454/93 pursuantto Article 173 of the Treaty. However, that is not the case. As the applicantsconfirmed in their reply, their plea must instead be construed as an application foran interpretation of those provisions in accordance with the principles ofCommunity law.

25.

    In those circumstances, the allegation that the plea is inadmissible must be rejected.

26.

    As regards the substance of the plea, it is common ground that, where theconditions laid down in Article 5(2) of Regulation No 1697/79 are fulfilled, theperson liable is entitled to waiver of recovery (see, in particular, the judgments ofthe Court of Justice in Case C-348/89 Mecanarte [1991] ECR I-3277, paragraph 12,Case C-292/91 Weis v Hauptzollamt Würzburg [1993] ECR I-2219, paragraph 15,and Joined Cases C-153/94 and C-204/94 Faroe Seafood and Others [1996]ECR I-2465, paragraph 84).

27.

    Furthermore, Article 871 of Regulation No 2454/93 provides: 'In cases other thanthose referred to in Article 869, where the customs authorities either consider thatthe conditions laid down in Article 220(2)(b) of the Code are fulfilled or are indoubt as to the precise scope of the criteria of that provision with regard to aparticular case, those authorities shall submit the case to the Commission, so thata decision may be taken in accordance with the procedure laid down in Articles 872to 876.‘ Article 873 of that regulation states: 'the Commission shall decidewhether the circumstances under consideration are or are not such that the dutiesin question need not be entered in the accounts‘.

28.

    Articles 871 and 873 of Regulation No 2454/93 thus confer on the Commission adecision-making power, in particular where the competent authorities consider thatthe criteria for waiving post-clearance recovery of customs duties are fulfilled.

29.

    That decision-making power is designed to ensure the uniform application ofCommunity law (see, as regards the provision applying before the entry into forceof Article 871 of Regulation No 2454/93, the judgments of the Court of Justice inCase C-64/89 Deutsche Fernsprecher [1990] ECR I-2535, paragraph 13, Mecanarte,cited above, paragraph 33, and Faroe Seafood and Others, cited above, paragraph80).

30.

    The machinery for referring cases to the Commission would be rendered pointlessif the Commission were required to adhere to the views expressed by the customsauthorities in the request submitted to it by them.

31.

    None the less, that decision-making power in no way permits the Commission todisregard the right of the person liable to waiver of the post-clearance recovery ofcustoms duties where, having completed its examination of the matter, it concludesthat the criteria entitling the undertaking to the benefit of that waiver of recoveryare fulfilled.

32.

    The first plea must therefore be rejected.

The second plea in law, alleging infringement of Articles 871 to 874 of RegulationNo 2454/93

Arguments of the parties

33.

    In the first part of this plea, the applicants point out that Article 871 of RegulationNo 2454/93 provides that the Commission may, and therefore must, requestadditional information '[s]hould it be found that the information supplied by theMember State is not sufficient to enable a decision to be taken on the caseconcerned in full knowledge of the facts‘.

34.

    It was not open to the Commission, therefore, to rely solely on the statement of theNorwegian authorities calling in question the validity of the certificates of origin,when that finding had been contested by the Supreme Court of Norway, theHøyesterett, in a judgment of 2 April 1993, long before the Decision was adopted. By refraining from carrying out a supplementary examination, the Commission didnot decide the matter in full knowledge of the facts.

35.

    In the second part of their plea, the applicants maintain that, having regard to thestrict time-limits prescribed by Articles 871 to 874 of Regulation No 2454/93, thereexisted no grounds for ordering the post-clearance recovery of the duties. In thepresent case, the imports took place in 1990 and 1991 and the applicants requestedthe Italian national authorities to refer the matter to the Commission in December1993; however, the Decision was not adopted until 8 October 1996 and was notsent to the applicants until 22 November 1996.

36.

    The Commission's response to this is that it acted in accordance with the rules laiddown in Articles 871 to 874 of Regulation No 2454/93 (see, in particular, thejudgments of the Court of Justice in Case C-12/92 Huygen and Others [1993]ECR I-6381 and in Faroe Seafood and Others, cited above, paragraphs 16 and 63,and the judgment of the Court of First Instance in Case T-346/94 France-Aviationv Commission [1995] ECR II-2841, paragraphs 30 to 36).

Findings of the Court

37.

    With regard to the first part of this plea, it should be noted that, under the firstparagraph of Article 871 of Regulation No 2454/93, '[t]he case submitted to theCommission shall contain all the information required for a full examination‘. Thethird paragraph of that article provides: 'Should it be found that the informationsupplied by the Member State is not sufficient to enable a decision to be taken onthe case concerned in full knowledge of the facts, the Commission may request thatadditional information be supplied.‘

38.

    In the present case, the Norwegian authorities informed their Italian counterpartsthat the exporter was unable to prove that the products were of Norwegian origin. Where a subsequent verification does not confirm the origin of the goods as statedin the EUR.1 certificate, it must be concluded that the goods are of unknown originand that the EUR.1 certificate and the preferential tariff were thus wronglygranted. In principle, therefore, the customs authorities of the importing MemberState must carry out post-clearance recovery of the customs duties which were notlevied on importation (Huygen and Others, cited above, paragraph 17, and FaroeSeafood and Others, cited above, paragraph 16).

39.

    After the Norwegian authorities had informed the Italian authorities of the fact thatthe exporter was unable to prove the Norwegian origin of the products in question,neither the Italian authorities nor the applicants contested that conclusion.

40.

    In particular, although the applicants claimed to have acted in good faith, they didnot challenge, in the exchange of correspondence with the Italian authorities, theinformation received from the Norwegian authorities. Indeed, the applicants'representative confirmed by letter of 30 January 1996 that he had nothing to addto the file sent to the Commission by the Italian authorities.

41.

    In those circumstances, the Commission was entitled to conclude that the filesubmitted to it was complete and that there was no need for it to seek additionalinformation.

42.

    For the sake of completeness, it should be noted that the only item of informationwhich did not appear in the file sent to the Commission, and on which theapplicants rely, is that relating to the judgment of the Høyesterett of 2 April 1993. It seems that that judgment concerned criminal proceedings against two persons forforgery of health certificates relating to fishery products exported to variouscountries. As the Commission has observed, the Høyesterett ruled only on thatissue, and did not establish that the products in question were of Norwegian origin.

43.

    As regards the second part of the plea, it should be noted that the secondparagraph of Article 871 of Regulation No 2454/93 provides that '[a]s soon as itreceives the case [submitted by the customs authorities of a Member State] the

Commission shall inform the Member State concerned accordingly‘. The firstparagraph of Article 872 of that regulation provides: 'Within 15 days of receipt ofthe case referred to in the first paragraph of Article 871, the Commission shallforward a copy thereof to the Member States.‘ The first sentence of the secondparagraph of Article 873 states, in turn, that the decision 'must be taken within sixmonths of the date on which the case referred to in the first paragraph of Article871 is received by the Commission‘. Lastly, according to the first paragraph ofArticle 874, '[t]he Member State concerned shall be notified of the decisionreferred to in Article 873 as soon as possible and in any event within 30 days of theexpiry of the period specified in that Article‘.

44.

    In the present case, the applicants have adduced no evidence to show that thoseprovisions were disregarded. Thus, neither the period which elapsed between thedate of the imports and the date of adoption of the Decision by the Commissionnor the period between the date on which the undertakings requested their nationalauthorities to refer the matter to the Commission and the date on which thoseauthorities actually did so is covered by the aforementioned provisions. Consequently, they cannot affect the question whether the Commission compliedwith the time-limits laid down by those provisions.

45.

    In the light of all the foregoing, the second plea must be rejected.

The third and fourth pleas in law, alleging infringement of Article 5(2) of RegulationNo 1697/79 and breach of the general principle of the protection of legitimateexpectations

Arguments of the parties

46.

    The applicants maintain that post-clearance recovery of customs duties may beeffected only where the importer should have realised that he had benefited fromsome error or inattention on the part of the customs authorities (judgments of theCourt of Justice in Case 283/82 Schoellershammer v Commission [1983] ECR 4219,paragraph 7, Case 160/84 Oryzomyli Kavallas and Others v Commission [1986]ECR 1633, paragraph 21, and Case C-250/91 Hewlett Packard France v DirecteurGénéral des Douanes [1993] ECR I-1819, paragraphs 45 and 46).

47.

    Thus, where, as in the present case, the importing undertaking had no cause tosuspect that the exporting undertaking had forged the certificates of origin, no post-clearance recovery can take place (Deutsche Fernsprecher, cited above, paragraph17, and Hewlett Packard France, cited above, paragraph 28; see also the judgmentof the Court of Justice in Case C-446/93 SEIM v Subdirector-Geral das Alfândegas[1996] ECR I-73, paragraphs 40 to 48).

48.

    Furthermore, the Commission wrongly considered in the Decision that the possibleinvalidity of EUR.1 certificates formed part of the commercial risk.

49.

    The applicants conclude that, since they were not in a position to detect the errorcommitted, the ordering of post-clearance recovery of the customs duties is contraryto the principle of the protection of legitimate expectations. They point out in thatregard that, according to case-law, Article 5(2) of Regulation No 1697/79 expressesa general principle of fairness.

50.

    The Commission maintains that one of the three cumulative conditions laid downin Article 5(2) of Regulation No 1697/79, as interpreted by case-law, namely thatnon-collection must have been due to an error made by the competent authoritiesthemselves, is not fulfilled in the present case (see, in particular, the judgments inMecanarte and Faroe Seafood and Others, cited above).

51.

    Furthermore, in circumstances such as those of the present case, the person liablecannot entertain a legitimate expectation (see, in particular, the judgments of theCourt of Justice in Joined Cases 98/83 and 230/83 Van Gend & Loos andExpeditiebedrijf Wim Bosman v Commission [1984] ECR 3763 and in Mecanarte andFaroe Seafood and Others, cited above).

52.

    The Commission concludes that the person liable must bear the commercial riskarising from the issue by the exporter of an incorrect declaration of origin(judgments of the Court of Justice in Case 827/79 Amministrazione delle Finanzev Acampora [1980] ECR 3731, paragraph 8, and in SEIM, cited above, paragraph45); it is the responsibility of that person to guard against that risk (Faroe Seafoodand Others, cited above, paragraph 114).

Findings of the Court

53.

    Article 5(2) of Regulation No 1697/79 provides: 'The competent authorities mayrefrain from taking action for the post-clearance recovery of import duties orexport duties which were not collected as a result of an error made by thecompetent authorities themselves which could not reasonably have been detectedby the person liable, the latter having for his part acted in good faith and observedall the provisions laid down by the rules in force as far as his customs declarationis concerned.‘

54.

    It is settled case-law that the conditions laid down in that article are cumulative(see, in particular, the judgments in Mecanarte, paragraph 12, and Faroe Seafoodand Others, paragraph 83).

55.

    The first of those conditions is that an error must have been made by thecompetent authorities themselves.

56.

    It is common ground that the Norwegian customs authorities are competentauthorities within the meaning of Article 5(2) of Regulation No 1697/79 (Mecanarte,paragraph 22, and Faroe Seafood and Others, paragraph 88).

57.

    In the present case, the parties are agreed that the error giving rise to the litigationwas committed by the exporter, who declared that the products were of Norwegianorigin but was subsequently unable to prove that declaration.

58.

    It follows from the very wording of Article 5(2) of Regulation No 1697/79 that thelegitimate expectations of the person liable warrant the protection provided for inthat article only if it was the competent authorities 'themselves‘ which created thebasis for those expectations. Thus, only errors attributable to acts of the competentauthorities confer entitlement to the waiver of post-clearance recovery of customsduties (Mecanarte, paragraph 23, and Faroe Seafood and Others, paragraph 91).

59.

    That condition cannot be regarded as fulfilled where the competent authoritieshave been misled — in particular as to the origin of the goods — by incorrectdeclarations on the part of the exporter whose validity they do not have to checkor assess (Mecanarte, paragraph 24, and Faroe Seafood and Others, paragraph 92).

60.

    Moreover, the person liable cannot entertain a legitimate expectation with regardto the validity of certificates by virtue of the fact that they were initially acceptedby the customs authorities of a Member State, since the role of those authoritiesin regard to the initial acceptance of declarations in no way prevents subsequentchecks from being carried out (Faroe Seafood and Others, paragraph 93).

61.

    It follows that neither the fact that the competent Norwegian authorities certifiedin the EUR.1 certificates that the goods originated there nor the fact that theItalian authorities initially accepted that the origin of the goods was as declared onthose certificates is sufficient to constitute an error on the part of the competentauthorities within the meaning of Article 5(2) of Regulation No 1697/79 (FaroeSeafood and Others, paragraph 94).

62.

    Admittedly, the possibility of verifying the EUR.1 certificate following importation,without the importer being given prior warning, may cause him difficulties where,in good faith, he has imported goods benefiting from preferential tariffs in relianceon certificates which are incorrect or were falsified without his knowledge. It must,however, be pointed out, first, that the European Community cannot be made tobear the adverse consequences of the wrongful acts of suppliers of importers,second, that the importer may seek compensation from the perpetrator of thefraud, and, finally, that, in calculating the benefits from trade in goods likely toobtain tariff preferences, a prudent trader aware of the rules must assess the risksinherent in the market which he is considering and accept them as normal traderisks (judgment of the Court of Justice in Case C-97/95 Pascoal & Filhos v FazendaPública [1997] ECR I-4209, paragraph 59).

63.

    It is the responsibility of traders to make the necessary arrangements in theircontractual relations in order to guard against the risks of an action for post-clearance recovery (Faroe Seafood and Others, paragraph 114, and Pascoal & Filhos,cited above, paragraph 60).

64.

    It follows from all of the foregoing that the Commission rightly concluded that, inthe present case, there had not been any error on the part of the competentauthorities themselves within the meaning of Article 5(2) of Regulation No 1697/79and that the applicants could not rely on the principle of the protection oflegitimate expectations.

65.

    In view of the cumulative nature of the conditions laid down by Article 5(2) ofRegulation No 1697/79, the Commission was not obliged to consider the otherconditions governing the application of that provision, since the first of thoseconditions was not fulfilled in any event. Accordingly, it is not necessary toexamine the applicants' arguments concerning those other conditions.

66.

    The third and fourth pleas must therefore be rejected.

The fifth plea in law, alleging breach of the obligation to provide a statement ofreasons

Arguments of the parties

67.

    The applicants complain that the Commission merely asserted in the Decision thatthe EUR.1 certificates 'were invalid‘, without substantiating that assertion.

68.

    Had the Commission carried out a more thorough examination, which was all themore justified since the applicants took no part in the procedure, it would havefound that the judgment given against the Norwegian exporter by the lower courtsof that State, ruling that the certificate of origin was a forgery prepared by thatexporter, had been set aside by judgment of the Høyesterett of 2 April 1993, whichspecifically concerned the origin of the products.

69.

    According to the applicants, the Commission is incorrect in its assertion that theinvalidity of the certificates of origin has not been contested, since the applicantshave produced the judgment of the Høyesterett in the form of an annex to theirapplications in the present case.

70.

    The Commission considers that the Decision accords with the requirements ofArticle 190 of the Treaty.

Findings of the Court

71.

    It is settled case-law that the statement of reasons required by Article 190 of theTreaty must disclose in a clear and unequivocal fashion the reasoning followed bythe authority which adopted the measure in question, in such a way as to make thepersons concerned aware of the reasons for the measure and thus enable them todefend their rights, and to enable the Community judicature to exercise its powerof review (see, in particular, the judgment of the Court of Justice in Case C-323/88Sermes [1990] ECR I-3027, paragraph 38).

72.

    In the present case, the Commission states in the preamble to the Decision, first,that the EUR.1 certificates are invalid, second, that that invalidity forms part of thecommercial risk, third, that the initial acceptance of those certificates by thecustoms authorities could not have given rise to any legitimate expectations on thepart of the importers and, fourth, that no error was made by the competentauthorities themselves within the meaning of Article 5(2) of Regulation No 1697/79.

73.

    The Decision therefore sets out in a clear and unequivocal fashion the reasoningfollowed by the Commission.

74.

    In those circumstances, the plea must be rejected.

The alternative application for a declaration that the Decision is ineffective

75.

    The applicants claim that, in the event that the Court does not order annulmentof the Decision, it should declare that the Decision does not affect their right towaiver of the post-clearance recovery of the customs duties.

76.

    According to Article 174 of the Treaty, if an action for annulment brought underArticle 173 of the Treaty is well founded, the Court is to declare the act concernedto be void. Consequently, an alternative application such as that made by theapplicants does not fall within the competence of the Court and is thereforeinadmissible.

The alternative application for annulment of the Decision in so far as the amountof the duties demanded includes slip 7338 F

Arguments of the parties

77.

    In Case T-11/97 the applicant observes that it is apparent from the letter of22 November 1996 from the Verona customs authorities informing it of the amountof customs duties to be recovered that that total includes the amount relating tocustoms slip 7338 F of 27 September 1990, which does not concern products theorigin of which had been contested.

78.

    It submits that the Decision should therefore be annulled in so far as it concernsthat amount, which totals LIT 12 614 070.

79.

    The applicant points out that the amount of the customs debt is expressly indicatedin Article 1 of the Decision.

80.

    The Commission contends that that plea is inadmissible. It points out that thematter was referred to it by the Italian authorities, at the applicant's request, solelyfor the purpose of determining whether the criteria for the application of Article5(2) of Regulation No 1697/79 were fulfilled. Consequently, it made no decisionregarding either the question whether the debt was due or the amount of thecustoms debt in issue. It is not open to the applicant, therefore, to contest theDecision by relying on arguments seeking to show that the decisions of thecompetent national authorities demanding payment of the duties at issue wereunlawful. It follows that such decisions may be contested only before the nationalcourts (judgments of the Court of Justice in Joined Cases 244/85 and 245/85Cerealmangimi and Italgrani v Commission [1987] ECR 1303, paragraphs 9 to 13,and in CT Control and JCT Benelux, cited above, paragraphs 42 to 46).

Findings of the Court

81.

    The decision-making power conferred on the Commission by Articles 871 and 873of Regulation No 2454/93 relates only to the question whether, in a given factualsituation, the conditions for the application of Article 5(2) of RegulationNo 1697/79 are fulfilled.

82.

    Consequently, the Commission does not determine the amount of the debt paymentof which is to be demanded. In actual fact, the reference to customs slip 7338 Ffirst appeared in the letter sent by the Italian authorities to the undertaking on22 November 1996, that is to say, following the adoption of the Decision.

83.

    Article 1 of the Decision is admittedly worded as follows: 'The import dutiesamounting to LIT 148 890 000, payment of which was demanded by Italy on2 February 1996, must be recovered.‘ However, the sum referred to correspondsnot to a figure calculated by the Commission but merely to the total amountmentioned by the Italian authorities in their demand, to which express referenceis made in Article 1 of the operative part of the Decision.

84.

    In those circumstances, this head of claim must be rejected, since it cannot affectthe lawfulness of the Decision and in fact falls within the competence of thenational court which is called upon to review the legality of the Italianadministrative act ordering post-clearance recovery of the duties.

The alternative plea seeking annulment of the Decision as regards the payment ofinterest

Arguments of the parties

85.

    The applicants observe that the sum demanded from them by the customsauthorities in the letter of 22 November 1996 also includes interest and may beincreased by the addition of default interest.

86.

    Article 7 of Regulation No 1697/79, which is applicable to the facts of the presentcase, prohibits the charging of default interest on sums recovered post-clearancewhere the non-collection of the customs duties due is attributable to an error madeby the competent authorities.

87.

    The Commission contends that, for the reasons given previously (see paragraph 80above), the plea is inadmissible. It observes that, in any event, since the non-collection of the customs duties is not attributable to an error made by thecompetent authorities, the criterion for the application of Article 7 is not fulfilled.

Findings of the Court

88.

    For the same reasons as those stated above, this head of claim must be rejected(see paragraphs 81 to 84 above).

The claim for compensation

Arguments of the parties

89.

    The applicants deny that the claim for compensation is inadmissible, as alleged bythe Commission (judgment of the Court of First Instance in Case T-485/93 Dreyfusv Commission [1996] ECR II-1101, paragraph 73).

90.

    They submit, as regards the substance of the claim, that the Commission was atfault in its investigation of the matter, since, first, it did not act with the diligencerequired by Regulation No 2454/93 and, second, it did not seek additionalinformation as it was required to do (judgment of the Court of Justice inCase C-368/92 Chiffre [1994] ECR I-605, paragraphs 19 and 30).

91.

    The damage suffered as a result of that fault corresponds to the amount of customsduties which the applicants will ultimately have to pay to the Italian authorities.

92.

    The Commission submits, as its principal argument, that, according to case-law, anapplication for compensation which is in fact designed to nullify the effects of the

decision annulment of which is also sought, as in the present case, must be declaredinadmissible (judgment of the Court of Justice in Case 175/84 Krohn v Commission[1986] ECR 753).

93.

    It submits in the alternative that the application is unfounded, since it cannot besaid to have committed any fault in the present case.

Findings of the Court

94.

    According to case-law, the inadmissibility of an application for annulment based onArticle 173 of the Treaty may exceptionally render inadmissible an action forcompensation brought under Article 215 of the Treaty where the application forcompensation seeks in fact the withdrawal of an individual decision which hasbecome definitive (see, in particular, Krohn v Commission, cited above, paragraph33).

95.

    In the present case, the Commission is not claiming that the application forannulment is inadmissible, but merely that it is unfounded. The case-law relied onby the Commission is therefore inapplicable in the present case.

96.

    As to the substance, it must be observed that the faults alleged by the applicantscorrespond to the first and second parts of the second plea advanced in support ofthe claim for annulment.

97.

    Since the Court's assessment of those two parts has not disclosed any error of lawor of fact on the part of the Commission, the applicants are wrong to claim that ithas committed any such fault.

98.

    In those circumstances, the application for compensation for the damage allegedlysuffered must be rejected.

99.

    It follows that the action must be dismissed in its entirety.

Costs

100.

    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the applicants have been unsuccessful, they must be ordered topay the costs as applied for by the defendant.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby:

1.    Dismisses the applications;

2.    Orders the applicants to pay the costs.

TiiliBriët Potocki

Delivered in open court in Luxembourg on 9 June 1998.

H. Jung

V. Tiili

Registrar

President

1: Language of the case: Italian.

ECR