Case T‑125/16

Firma Léon Van Parys NV

v

European Commission

(Customs union — Imports of bananas from Equador — Post-clearance recovery of import duties — Application for the remission of import duties — Decision adopted following the annulment by the General Court of an earlier decision — Reasonable time)

Summary — Judgment of the General Court (Fourth Chamber), 11 December 2017

1.      Action for annulment — Actionable measures — Measures producing binding legal effects — Assessment of those effects by reference to the substance of the measure

(Art. 263 TFEU)

2.      Action for annulment — Jurisdiction of the EU judicature — Claim for a declaratory judgment — Inadmissibility

(Art. 263 TFEU)

3.      Action for annulment — Judgment annulling a measure — Effects — Obligation to implement — Scope — Decision not necessarily having to be on the same grounds as those appearing in the annulled measure

(Art. 266 TFEU)

4.      Action for annulment — Judgment annulling a measure — Effects — Adoption of measures of compliance — Reasonable time — Criteria for assessment

(Art. 266 TFEU)

5.      Action for annulment — Judgment annulling a measure — Effects — Obligation to implement — Re-opening of the proceedings at the stage at which the irregularity was found — Lawfulness

(Art. 266 TFEU)

6.      Action for annulment — Judgment annulling a measure — Effects — Partial annulment of a Commission decision concerning an application for the remission of import duties — Obligation to take a new decision — Scope

(Art. 266 TFEU; Commission Regulation No 2454/93, Art. 907)

7.      Action for annulment — Judgment annulling a measure — Effects — Adoption of measures of compliance — Reasonable time — Partial annulment of a Commission decision concerning an application for the remission of import duties — New decision adopted out of time — Breach of the principle of reasonable time — Consequences

(Art. 266 TFEU; Commission Regulation No 2454/93, Art. 907)

1.      See the text of the decision.

(see para. 41)

2.      See the text of the decision.

(see para. 44)

3.      Article 266 TFEU requires the institution whose act has been declared void only to take the necessary measures to comply with the judgment annulling that act. Accordingly, that article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in that judgment. However, the institutions have broad discretion to decide the measures to put into effect in order to give due effect to an annulling judgment or declaration of invalidity, it being understood that the measures must be compatible with the operative part of the judgment in question and the grounds constituting its essential basis.

The institution concerned is free to adopt the ground it considers most relevant to justify its decision, unless an error committed in the choice of that ground prevents it from subsequently adopting a ground that it could have relied on in the act annulled. In that connection, the fact that that ground was not raised in the annulled act in no way prevented the institution from relying on it in the decision intended to replace that act, since the author of an annulled act may rely, in its new decision, on grounds other than those on which it based its first decision.

(see paras 49, 59, 60)

4.      See the text of the decision.

(see para. 51)

5.      Except where the irregularity found rendered the entire procedure null and void, those institutions may, in order to adopt an act intended to replace a preceding act annulled or declared invalid, reopen the procedure at the stage at which that irregularity was committed

(see para. 52)

6.      Following the partial annulment by the European Union judicature of a Commission decision ruling on an application for remission of duties, the Commission is obliged to re-examine the evidence in the file and to take a fresh decision on that application in order to correct the irregularities found. In so doing, it is required to take account of all factual and legal information available at the time the act was adopted. The Commission’s obligation to apply due diligence in the decision-making process and to adopt its decision on the basis of all information which might have a bearing on the result derives in particular from the principles of sound administration and equal treatment. In those circumstances, the Commission cannot be criticised for resuming its inquiries and compiling a complete file.

Furthermore, it cannot be argued that, following the partial annulment of the first decision with ex tunc effect, the Commission had no more than five days in which to adopt a decision regarding its request for remission, in order to comply with the time limit laid down in Article 907 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code. The nine-month time limit laid down by that provision cannot be applicable in a procedure re-opened pursuant to Article 266 TFEU.

(see paras 54-56, 62)

7.      The breach of the ‘reasonable time’ principle does not, as a general rule, warrant annulment of a decision adopted following an administrative procedure. It is only where the elapsing of an excessive period is likely to affect the content itself of the decision adopted at the end of the administrative procedure that failure to observe the reasonable time principle affects the validity of that administrative procedure.

In that connection, it is true that the system put in place, and in particular the nine-month time limit laid down by Article 907 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, are no longer binding on the Commission in procedures opened under Article 266 TFEU. However, the fact remains that, by adopting the decision intended to replace the annulled decision without observing a reasonable period, the Commission disregarded the guarantees laid down by Regulation No 2454/93 and deprived the applicant of the effectiveness of that regulation, of the possibility to obtain a decision within the time limits laid down, and the guarantee that it would benefit from a favourable decision in the absence of a response within those time limits.

Therefore, by adopting the decision intended to replace the annulled decision 34 months after the delivery of the annulling judgment, the Commission breached the reasonable time principle which constitutes a ground for annulment of the second decision.

(see paras 82, 91-93)