JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

18 January 2000 (1)

(Action for annulment - Poultry imports - Article 13 of Regulation (EEC) No1430/79 - Commission decision refusing repayment of agricultural levies -Revoked - 'Statement for the file‘ - Legality - Legitimate expectations - Legalcertainty - Manifest errors of assessment - Duty to provide reasons)

In Case T-290/97,

Mehibas Dordtselaan BV, a company incorporated under Netherlands law,established in Rotterdam, the Netherlands, represented by Pierre Bos, JasperHelder and Marco Slotboom, of the Rotterdam Bar, with an address for service inLuxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,

applicant,

v

Commission of the European Communities, represented by Hendrik van Lier, ofits Legal Service, acting as Agent, assisted by Jules Stuyck, of the Brussels Bar, withan address for service in Luxembourg at the office of Carlos Gómez de la Cruz, ofits Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for annulment of Commission Decision C (97) 2331 of 22 July1997 refusing the application submitted by the Kingdom of the Netherlands forrepayment to the applicant of agricultural levies,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of: J.D. Cooke, President, R. García-Valdecasas and P. Lindh, Judges,

Registrar: A. Mair, Administrator,

having regard to the written procedure and further to the hearing on 4 May 1999,

gives the following

Judgment

Legislation

1.

    Article 13(1) of Council Regulation (EEC) No 1430/79 of 2 July 1979 on therepayment or remission of import or export duties (OJ 1979 L 175, p. 1), asamended by Council Regulation (EEC) No 3069/86 of 7 October 1986 (OJ 1986L 286, p. 1), provides:

'Import duties may be repaid or remitted in special situations ... which result fromcircumstances in which no deception or obvious negligence may be attributed to theperson concerned.‘

2.

    Article 905(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 layingdown provisions for the implementation of Council Regulation (EEC) No 2913/92establishing the Community Customs Code (OJ 1993 L 253, p. 1) provides:

'The case sent to the Commission shall include all the facts necessary for a fullexamination of the case presented.

As soon as it receives the case the Commission shall inform the Member Stateconcerned accordingly.

Should it be found that the information supplied by the Member State is notsufficient to enable a decision to be taken on the case concerned in full knowledgeof the facts, the Commission may ask for additional information to be supplied.‘

3.

    Article 907 of Regulation No 2454/93 provides:

'After consulting a group of experts composed of representatives of all MemberStates, meeting within the framework of the Committee to consider the case inquestion, the Commission shall decide whether or not the special situation whichhas been considered justifies repayment or remission.

That decision shall be taken within six months of the date on which the casereferred to in Article 905(2) is received by the Commission. Where theCommission has found it necessary to ask for additional information from theMember State in order to reach its decision, the six months shall be extended bya period equivalent to that between the date the Commission sent the request foradditional information and the date it received that information.‘

4.

    Article 909 of the regulation states:

'If the Commission fails to take a decision within the time-limit set in Article 907,or fails to notify a decision to the Member State in question within the time-limitset in Article 908, the decision-making customs authority shall grant theapplication.‘

Facts

5.

    The applicant, Mehibas Dordtselaan BV (formerly known as Expeditie- enControlebedrijf Codirex BV), is a customs agent at the Port of Rotterdam.

6.

    Between February 1981 and June 1983, it made 98 customs declarations relatingto the import by Ruva BV ('Ruva‘) of poultrymeat. The declarations were madeon the basis of invoices submitted by Ruva and gave rise to agricultural levies. Thegoods concerned were put into free circulation in the Community.

7.

    In 1984, the Netherlands tax authorities discovered that the invoices submitted byRuva were fraudulent. The value of the imported goods was actually higher andgreater agricultural levies were therefore payable.

8.

    Accordingly, the applicant paid in October 1986, at the request of the Netherlandscustoms authorities, supplementary agricultural levies in the amount ofNLG 677 476 ('the contested levies‘).

9.

    On 29 October 1990 the applicant applied to the Netherlands authorities forrepayment of the contested levies. The authorities sent the application to theCommission under cover of a letter of 29 April 1994, received on 16 May 1994, fora decision on whether repayment was justified under Article 13 of Regulation No1430/79.

10.

    By a decision of 14 November 1994, the Commission found the application forrepayment not justified.

11.

    By an application lodged at the Registry of the Court on 26 January 1995 theapplicant brought an action for annulment of that decision (Case T-89/95).

12.

    On 31 May 1996 the Commission revoked the decision in the light of the Court'sjudgment in Case T-346/94 France-Aviation v Commission [1995] ECR II-2841.

13.

    The Commission informed the Netherlands authorities of the revocation by letterof 4 June 1996 and stated that as a result of that judgment all requests forrepayment of import duties must include a statement by the person concerned thathe has read the case transmitted by the national authorities and, if appropriate, hasnothing to add ('statement for the file‘). Observing that the application forrepayment of 29 April 1994 was 'neither valid nor admissible‘ because it did notinclude such a statement, the Commission requested the Netherlands authoritiesto submit one signed by the applicant.

14.

    On 17 October 1996 the applicant withdrew its action in Case T-89/95, which wasremoved from the Court's register by order of 17 December 1996.

15.

    By letter of 10 December 1996 the Netherlands customs authorities informed theapplicant that, in the light of the judgment in France-Aviation, the Commission hadrevoked its decision of 14 November 1994 and that as a result of that judgmentapplications for repayment were to be accompanied by a statement for the file. They therefore asked the applicant to send them one.

16.

    By letter of 6 February 1997 the applicant sent the Netherlands authorities thestatement requested together with its comments on the repercussions which thejudgment in France-Aviation was, in its view, likely to have on its application forrepayment. It also requested the authorities to include the application and replylodged by it in Case T-89/95 with the new case to be sent to the Commission.

17.

    By letter of 17 February 1997 the Netherlands authorities submitted a freshapplication for repayment to the Commission including those various documents.

18.

    By Decision C (97) 2331 of 22 July 1997 addressed to the Kingdom of theNetherlands ('the contested decision‘), the Commission found that that applicationfor repayment was not justified. It considered that the fact that invoices proved tobe inaccurate was a trade risk to be assumed by any person making a customsdeclaration and which could not itself be regarded as a special circumstance. TheCommission also stated that the fact that national laws lay down different time-limits for post-clearance recovery where there are acts that could lead to criminalcourt proceedings could not give rise to a special situation for the purposes ofArticle 13 of Regulation No 1430/79.

Procedure and forms of order sought

19.

    Those were the circumstances in which, by an application lodged at the Registryof the Court on 10 November 1997, the applicant brought this action.

20.

    Upon hearing the report of the Judge-Rapporteur, the Court of First Instance(Fifth Chamber) decided to open the oral procedure without any preparatoryinquiry.

21.

    At the hearing on 4 May 1999 the parties presented oral argument and replied tothe questions put by the Court.

22.

    The applicant claims that the Court should:

-    annul the contested decision;

-    order the Commission to pay the costs.

23.

    The Commission contends that the Court should:

-    dismiss the action;

-    order the applicant to pay the costs.

Substance

    

24.

    The applicant relies on four pleas in law in support of its action: first, breach ofRegulation No 2454/93, misuse of powers, and infringement of the principle of legalcertainty; secondly, infringement of the principle of the protection of legitimateexpectations; thirdly, breach of Article 13 of Regulation No 1430/79; and fourthly,infringement of the obligation to provide reasons.

First plea: breach of Regulation No 2454/93, misuse of powers and infringement of theprinciple of legal certainty

Arguments of the parties

25.

    The applicant observes that when it made its first application for repayment,Regulation No 2454/93 did not require a statement for the file to be submitted. Relying on the judgment in Case C-430/92 Netherlands v Commission [1994] ECRI-5197, paragraph 19, it argues that, as the application was complete, the six-monthperiod provided for in Article 907 of the regulation began to run on the day onwhich the Commission received the application, 16 May 1994. It must beconcluded from the Commission's revocation, on 31 May 1996, of its decision of 14November 1994 that it failed to take a decision on the first application forrepayment within the prescribed time-limit and that the Netherlands authoritieswere therefore bound, pursuant to Article 909 of Regulation No 2454/93, to repaythe contested levies. The applicant pointed out at the hearing that since theCommission's decision of 14 November 1994 was adopted two days before the six-month period expired it had only two days after its revocation of 31 May 1996 toreach a decision on the application for repayment, and had thus placed itself in aposition where it was impossible for it to take a new decision.

26.

    Next, the applicant claims that the Commission was not entitled to require it tosubmit a second application for repayment containing a statement for the file. Itadvances three arguments in support of that claim.

    

27.

    First of all, France-Aviation gives rise to no such requirement. For the Commissionto adhere to the principle of audi alteram partem laid down in that case in customsduties repayment procedures, it would have been sufficient for it to request theNetherlands authorities, pursuant to Article 905(2) of Regulation No 2454/93, tohear the applicant.

28.

    Secondly, it argues that the Commission was not entitled to impose a new conditionfor applications for repayment of import duties unless it did so clearly and precisely(Case 169/80 Gondrand Frères [1981] ECR 1931, paragraph 17, and Joined CasesT-18/89 and T-24/89 Tagaras v Court of Justice [1991] ECR II-53, paragraph 40),that is to say by amending Regulation No 2454/93. Indeed, Commission Regulation(EC) No 12/97 of 18 December 1996 amending Regulation No 2454/93 (OJ 1997L 9, p. 1) subsequently did so. However, the applicant points out that since thatregulation only entered into force on 20 January 1997, it could not apply to thiscase.

29.

    Thirdly, and in any event, a statement for the file does not satisfy the right to beheard. Such statements relate only to the case transmitted by the nationalauthorities to the Commission and are therefore supplied before the Commissionexamines the application for repayment. The decision in France-Aviation requires(paragraph 36) that the Commission ask the national authorities to hear theapplicant if it is considering refusing such an application.

30.

    The Commission contends, first, that it complied with the six-month time-limit laiddown in Article 907 of Regulation No 2454/93. It received the first application forrepayment on 16 May 1994 and gave its decision thereon on 14 November 1994. It received the second application for repayment on 25 February 1997 and refusedit on 22 July 1997.

31.

    The Commission goes on to observe that, even if it had failed to take a decisionwithin six months, under Article 909 of Regulation No 2454/93 it would have beenfor the Netherlands authorities to repay the contested levies. The applicant shouldtherefore have challenged the decision taken by those authorities rather than thecontested decision.

32.

    Furthermore, under Article 176 of the EC Treaty (now Article 233 EC) theCommission was bound to adopt the measures necessary to implement France-Aviation, including those relating to repayment procedures which were alreadyunder way (Joined Cases 59/80 and 129/80 Turner v Commission [1981] ECR 1883,paragraph 72, and Joined Cases 97/86, 193/86, 99/86 and 215/86 Asteris and Othersv Commission [1988] ECR 2181, paragraphs 28 and 30). In this case, the groundsof the judgment in France-Aviation (paragraph 39) indicate that a new procedureought to have been initiated on the basis of a case-file supplemented by theNetherlands authorities and the applicant. That is why the Commission revokedits decision of 14 November 1994, requested the Netherlands authorities to makea new application for repayment including a statement signed by the applicant andtook a new decision within six months of receiving the latter application. TheCommission contends that the statement required is a way of ensuring that the casecontains all the information transmitted by both the customs authorities and theperson concerned, and therefore constitutes an appropriate measure to guaranteethe latter's right to be heard. The decision in France-Aviation does not require theCommission to hear the interested party itself but simply to take its decision on thebasis of a complete case-file. Lastly, it points out that it described the requirementof a statement in clear and precise terms in its letter of 4 June 1996 to theNetherlands authorities, and that the Netherlands authorities then fully apprised theapplicant thereof in accordance with the procedure provided for by Regulation No2454/93.

Findings of the Court

33.

    First of all, the Commission was right in the light of France-Aviation to revoke itsdecision of 14 November 1994 (see the order in Case T-22/96 Langdon vCommission [1996] ECR II-1009, paragraph 12), and its revocation met therequirements imposed by the principles of legality and proper administration inevery respect.

34.

    In that case, the Court held that a trader who requests repayment of customs dutieshas the right to be heard during the procedure for the adoption of a decision underArticle 13 of Regulation No 1430/79 and that if that right, and thus the principleof audi alteram partem, is infringed, the decision must be annulled (see paragraphs34 to 40). As is clear from the grounds of the Commission's decision of 31 May1996, it was precisely because, first, the decision was adopted by the sameprocedure as that found to contravene the principle of audi alteram partem inFrance-Aviation and, secondly, because an action for annulment of that decision waspending before the Court that the Commission revoked its decision of 14November 1994. Furthermore, the applicant argued in the action for annulmentthat the decision was unlawful on the ground, inter alia, that it had been denied theright to be heard.

35.

    Next, the applicant's arguments raise two main issues: whether the Commission hadthe power to adopt a new decision on the applicant's request for repaymentfollowing the revocation of 31 May 1996, and whether the contested decision wasproperly adopted.

1. The Commission's power to adopt a new decision following the revocation of31 May 1996

36.

    The Commission expressly acknowledged in its decision of 31 May 1996 that itsdecision of 14 November 1994 was being revoked because it was unlawful (see theorder in Langdon, paragraph 12). The revocation also had retroactive effect (seeJoined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission[1995] ECR II-2305, paragraph 61, and Joined Cases T-481/93 and T-484/93Exporteurs in Levende Varkens and Others v Commission [1995] ECR II-2941,paragraph 46). Furthermore, the applicant itself acknowledged that after theCommission's revocation of 31 May 1996 it had no further interest in seeking theannulment of the decision of 14 November 1994, and for that reason withdrew itsaction in Case T-89/95.

37.

    That being so, it was for the Commission, in accordance with the requirementsimposed by the principle of legality and once it had ensured that the applicant wasin a position to exercise its right to be heard, to take a new decision on theapplication for repayment under the procedure provided for in Regulation No2454/93.

2. The way in which the contested decision was adopted

38.

    First of all, as would have been the case had the decision of 14 November 1994been held by the Community judicature to be unlawful, it was incumbent upon theCommission to reconsider the applicability of Article 13(1) of Regulation No1430/79 to the circumstances of the case, allowing the applicant to exercise its rightto be heard, since the period referred to in Article 907 of Regulation No 2454/93began to run on the date of the decision revoking the decision of 14 November1994, 31 May 1996 (Case C-61/98 De Haan Beheer [1999] ECR I-0000, paragraph48).

    

39.

    In this case, the contested decision was adopted on 22 July 1997, six months afterthe revocation of 31 May 1996. However, the Commission had asked theNetherlands authorities to procure the applicant's observations on 4 June 1996;those observations were only communicated to it on 17 February 1997. Under thesecond paragraph of Article 907 of Regulation No 2454/93, the time which elapsedbetween those two dates is not to be taken into account when calculating the six-month period referred to in the first sentence of the second paragraph of Article907. It follows that the Commission adopted the contested decision within theperiod allowed it by Regulation No 2454/93.

40.

    However, there were irregularities in the procedure whereby the Commissionadopted the contested decision.

41.

    First of all, although the sole ground given in the decision of 14 November 1994 forrefusing the first application for repayment was the absence of a special situationwithin the meaning of Article 13 of Regulation No 1430/79, it is clear from thecase-file, and in particular the letter the Commission sent to the Netherlandscustoms authorities on 4 June 1996, that at the time it considered the applicationto be 'neither valid nor admissible‘ because it did not include a statement for thefile. It is common ground that no such statement was required to be submitted atthe time when the application was made.

42.

    Regulation No 12/97 added a provision to Article 905 of Regulation No 2454/93requiring that cases sent to the Commission include such a statement, but did notcome into force until 20 January 1997 and the new provision could not be appliedto the applicant's first request for repayment.

43.

    It follows that by retroactively imposing a new condition of admissibility on theapplicant's first request for repayment of duties the Commission not only exceededthe powers conferred on it by Regulation No 2454/93, but also failed to have regardto the principle of legal certainty.

44.

    Secondly, the statement now required by the Commission only partly meets therequirements imposed by the principles laid down in France-Aviation. It merelyenables a trader applying for repayment - and who has not necessarily beeninvolved in the preparation of the case sent to the Commission by the competentnational authorities - to satisfy himself that the case is complete and whereappropriate to add anything he deems useful. Whilst that effectively enables theperson concerned to exercise his right to be heard during the first stage of theadministrative procedure, which takes place at national level, it in no wayguarantees his rights of defence during the second stage of the procedure, whichtakes place before the Commission once the national authorities havecommunicated the case to it. The statement is made at a stage when theCommission has not yet had an opportunity to consider the position of the personconcerned, let alone come to a provisional view on his application for repayment.

45.

    It follows from France-Aviation that the right to be heard in a procedure such asthat in point here must be guaranteed at both stages. Thus, at paragraph 36 of thejudgment in that case, the Court found that where the Commission is consideringrefusing an application for repayment on the ground that the trader has been guiltyof obvious negligence whereas the competent national authorities had proposedthat his application be granted on the ground that he could not be regarded asguilty of any negligence at all, it is under a duty to ensure that the person is heardby the national authorities. The Court has confirmed its position in subsequentjudgments in cases where the applicant for repayment was merely alleged to havefailed to act with due care (Case T-42/96 Eyckeler & Malt v Commission [1998]ECR II-401, paragraph 85, and Case T-50/96 Primex Produkte Import-Export andOthers v Commission [1998] ECR II-3773, paragraph 68).

46.

    It is true that Regulation No 2454/93 only provides for contact between the personconcerned and the national authorities on the one hand, and between the nationalauthorities and the Commission on the other (France-Aviation paragraph 30, andPrimex Produkte Import-Export and Others, paragraph 58). Under the currentlegislation, therefore, the Commission need only deal with the Member Stateconcerned. However, it is settled case-law that observance of the right to be heardis, in all proceedings initiated against a person which are liable to culminate in ameasure adversely affecting that person, a fundamental principle of Community lawwhich must be guaranteed even in the absence of any rules governing theproceedings in question (see Joined Cases C-48/90 and C-66/90 Netherlands andOthers v Commission [1992] ECR I-565, paragraph 44, Case C-135/92 Fiskano vCommission [1994] ECR I-2885, paragraph 39, and Case C-32/95 P Commission vLisrestal and Others [1996] ECR I-5373, paragraph 21). In view of the margin ofassessment enjoyed by the Commission in adopting a decision pursuant to thegeneral equitable provision contained in Article 13 of Regulation No 1430/79, it isall the more important that respect for the right to be heard be guaranteed inprocedures for the remission or repayment of import duties (France-Aviation,paragraph 34, Eyckeler & Malt, paragraph 77, and Primex Produkte Import-Export,paragraph 60).

47.

    The procedure followed by the Commission in adopting the contested decision wastherefore tainted by irregularities. However, those irregularities cannot result in theannulment of the contested decision unless it is established that without them theprocedure might have had a different outcome (see to that effect Joined Cases209/78 to 215/78 and 218/78 Landewyck v Commission [1980] ECR 3125, paragraph47, Case C-142/87 Belgium v Commission [1990] ECR I-959, paragraph 48, andCase T-266/94 Skibsvaerftsforeningen and Others v Commission [1996] ECR II-1399,paragraph 243).

48.

    First, the fact that in this case the Commission considered the applicant's firstrequest for repayment of duties to be 'neither valid nor admissible‘ was irrelevant. As the Court has found above, the Commission had six months in any event underArticle 907 of Regulation No 2454/93 to take a new decision, a period which beganto run on the date of the revocation, 31 May 1996, and was extended by the timeallowed to enable the applicant to exercise its right to be heard.

49.

    Secondly, the applicant was not only given the opportunity to ensure that the casesent to the Commission was complete and to add anything it wished but also tomake known its views, since when it made the second application it was alreadyaware of the Commission's provisional position, set out in the decision of 14November 1994. Indeed, the applicant acknowledged at the hearing that it hadbeen given the opportunity to explain its views in full and that its right to be heardhad been observed.

50.

    That being so, it has not been established that without the irregularities whichoccurred in this case the procedure might have resulted in a different decision. The first plea must accordingly be dismissed.

Second plea: infringement of the principle of the protection of legitimate expectations

Arguments of the parties

51.

    The applicant argues that the contested decision breaches the principle of theprotection of legitimate expectations in so far as the Commission gave it goodreason to expect repayment of the contested levies. It advances three argumentsin support of this second plea.

52.

    First of all, it was not until 31 May 1996 that the Commission challenged theadmissibility of the initial application for repayment, received on 16 May 1994, onthe ground that it did not include a statement for the file. In its view, that delayimplied that it was entitled to consider that its application had been validlysubmitted.

53.

    Secondly, it was entitled to assume from the fact that the decision of 14 November1994 was revoked that the Commission had not reached a decision on the firstapplication for repayment within the period prescribed by Regulation No 2454/93and so to expect that the Netherlands authorities would repay the contested levies.

54.

    Thirdly, it applied for annulment of the decision of 14 November 1994 in CaseT-89/95 on the ground that it had not been duly authenticated. On 4 September1995, the member of the Commission's staff responsible for the case told theapplicant's adviser during a telephone conversation that that decision was indeedtainted by a procedural defect and that in the circumstances the Commission waswilling to come to an arrangement. The applicant therefore considers that it wasjustified in believing that it had obtained satisfaction and that the Commissionwould grant its application for repayment.

55.

    The Commission contends that the applicant could not have legitimately believedthat its first application for repayment was well founded and would therefore begranted.

56.

    It emphasises the fact that it revoked its decision of 14 November 1994 within areasonable time, after becoming aware of the decision in France-Aviation andrealising that the procedure which led to the adoption of that decision was notcompatible with Community law.

57.

    The Commission also points out that it was bound, in the light of France-Aviation,to decide the applicant's request for repayment afresh, making certain that theapplicant was able to exercise its right to be heard.

58.

    Finally, the Commission acknowledges that its representative indicated in thecontext of Case T-89/95 that the decision of 14 November 1994 was not dulyauthenticated. However, it denies that its representative stated that it was willingto come to an arrangement on that ground. On 13 October 1995 the Commission'srepresentative had a second telephone conversation with the applicant's adviserduring which he intimated that whether or not the decision was revoked dependedon the outcome of Case C-286/95 P which was pending before the Court, being anappeal against the judgment of the Court of First Instance in Case T-37/91 ICI vCommission [1995] ECR II-1901 and relating to the same procedural defect. TheCommission says it ultimately revoked the decision for a different reason,concerning the requirements imposed by the principle of audi alteram partem laiddown in France-Aviation.

Findings of the Court

59.

    The right to rely on the principle of the protection of legitimate expectationsextends to any individual in a situation where the Community authorities havecaused him to entertain legitimate expectations (Case 265/85 Van den Bergh enJurgens and Van Dijk Food Products v Commission [1987] ECR 1155, paragraph 44,Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 26, CaseT-203/96 Embassy Limousines & Services v Parliament [1998] ECR II-4239,paragraph 74, and Exporteurs in Levende Varkens and Others, paragraph 148). However, a person may not plead infringement of the principle unless he has beengiven precise assurances by the administration (Case T-571/93 Lefebvre and Othersv Commission [1995] ECR II-2379, paragraph 72, and Case T-113/96 Dubois et Filsv Council and Commission [1998] ECR II-125, paragraph 68).

60.

    The arguments advanced by the applicant in no way show that the Commissiongave the applicant any precise assurance that it would obtain reimbursement of thecontested levies.

61.

    First, even if the applicant's belief that its first application for repayment wasadmissible was well founded (see paragraphs 41 and 42 above), it was not entitledto infer that repayment was justified. As the Court has observed at paragraphs 36and 37 above, after revoking the decision of 14 November 1994 the Commissionwas bound to reopen the administrative procedure, and, having given the applicantan opportunity to exercise its right to be heard, decide the matter afresh.

62.

    Secondly, the applicant was not entitled to assume that, because the decision of 14November 1994 was revoked, the Commission failed to take a decision within thesix-month time-limit. As the Court has pointed out at paragraphs 38 and 39 above,after its revocation of 31 May 1996 and once the applicant had been given anopportunity to exercise its right to be heard, the Commission had to adopt a newdecision on the applicant's request for repayment, and the period referred to inArticle 907 of Regulation No 2454/93 began to run on the date of the decision torevoke, 31 May 1996.

63.

    Finally, the Court finds that it has not been established that, in the context of CaseT-89/95, the Commission provided the applicant with a precise assurance that itsrequest for repayment would be granted as part of an arrangement. It must alsobe noted that even if the decision of 14 November 1994 had been annulled by theCourt due to an irregularity in its authentification, the Commission could haveadopted a new decision on the application once it had remedied the proceduraldefect (see to that effect Joined Cases T-305/94, T-306/94, T-307/94, T-313/94,T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-0000,paragraph 98).

64.

    It follows that the plea of breach of the principle of the protection of legitimateexpectations must be rejected.

Third plea: breach of Article 13 of Regulation No 1430/79

Arguments of the parties

65.

    The applicant argues that the Commission's finding that repayment of the contestedlevies was not justified under Article 13 of Regulation No 1430/79 constituted aninfringement of that provision, since both the conditions for it to apply were metin this case.

66.

    Relying on paragraph 34 of France-Aviation, the Commission contends that Article13 of Regulation No 1430/79 accords it a wide discretion, with the result that onlymanifest errors of assessment may be dealt with by the Community judicature. However, it made no error in this case. Even where the conditions for theprovision to apply are met, there is no automatic right to repayment.

- Whether there is a special situation

67.

    The applicant relies on two factors which should have led the Commission toconclude that there was a special situation within the meaning of Article 13 ofRegulation No 1430/79.

68.

    First of all, under Netherlands law as it applied at the material time, the repaymentof import duties was subject to a limitation period of three years while the recoveryof agricultural duties was subject to a limitation period of 30 years. UnderCommunity customs law, by contrast, the limitation period is three years in bothcases (Article 2 of Council Regulation (EEC) No 1697/79 of 24 July 1979 on thepost-clearance recovery of import duties or export duties which have not beenrequired 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). If theperiod had been three years in this case, it could no longer have been required topay the contested levies. The applicant also observes that under Netherlands law,in contrast to Community customs law, the agent and principal were jointly andseverally liable for the recovery of import duties, whereas only the principal couldincur liability for agricultural levies. At the hearing, the applicant stated that theNetherlands authorities could not have recovered the contested levies from Ruvaanyway since Ruva had in the meantime become insolvent and gone intoliquidation; nor could the applicant have taken action against Ruva, for the samereason. The consequences of Ruva being wound up ultimately fall to be borne bythe Community.

69.

    Secondly, Article 5(2) of Regulation No 1697/79 sets out the conditions in whichthe national authorities may waive the right to post-clearance recovery of unpaidimport or export duties. According to the case-law, those conditions are fulfilledwhere 'an economic agent produces in good faith information which, althoughincorrect or incomplete, is the only information which he can reasonably possessor obtain, and therefore include in the customs declaration‘ (Case C-348/89Mecanarte [1991] ECR I-3277, paragraph 29).

70.

    Furthermore, in Case C-250/91 Hewlett Packard France [1993] ECR I-1819,paragraph 46, the Court held that the conditions for Article 13 of Regulation No1430/79 to apply were to be assessed in the light of the conditions laid down inArticle 5(2) of Regulation No 1697/79. It concludes that the Commission is boundto grant a request for repayment under Article 13 of Regulation No 1430/79 wherethe applicant relies on circumstances analogous to those considered relevant for thepurposes of Article 5(2) of Regulation No 1697/79.

71.

    Such circumstances pertained in this case. The Netherlands authorities haveconsistently acknowledged that the applicant relied in good faith in its customsdeclarations on information regarding Ruva's imports. The information in itsdeclarations was in any case the only information it could possess or obtain. Thus,in order to make its declarations, it submitted Ruva's invoices to certain officialbodies which at no point called into question the accuracy of the amounts statedtherein. In addition, the Netherlands authorities only discovered Ruva's fraudulentconduct following a thorough investigation using means not available to theapplicant. Also, since it did not have access to Ruva's books, it would have beenphysically impossible for the applicant to verify the amounts stated in Ruva'sinvoices.

72.

    The Commission challenges the applicant's claim that the Community customslegislation provides for the same treatment in respect of import duties andagricultural levies. Whereas Article 2 of Regulation No 1697/79 draws nodistinction between the two types of duty, Article 3, by contrast, provides thatwhere it is by virtue of an act that could give rise to criminal proceedings that thecompetent authorities were unable to determine the exact amount of duties, actionfor recovery of unpaid duties is to be taken in accordance with the provisions inforce in this respect in the Member States. In addition, the Court has held that theprovisions of Article 3 of Regulation No 1697/79 are to be interpreted inaccordance with national law (Case C-273/90 Meico-Fell [1991] ECR I-5569,paragraph 12). The fact that there are discrepancies between the rules is to beexpected and so does not amount to a special situation for the purposes of Article13 of Regulation No 1430/79.

73.

    The Commission further argues that the fraudulent nature of Ruva's invoices couldnot amount to a special situation justifying repayment of the contested levies. According to the case-law, an importer who has acted in good faith is liable forcustoms duties on the importation of goods in respect of which the exporter hasbreached customs regulations (Case C-97/95 Pascoal & Filhos [1997] ECR I-4209,paragraphs 55 to 61). It is for the importer to bear the risk of an action forrecovery and to adopt the necessary measures in its contractual relations to ensurethat it is equipped to deal with that risk (Joined Cases C-153/94 and C-204/94Faroe Seafood and Others [1996] ECR I-2465, paragraph 114, and Pascoal & Filhos,paragraph 60). If that were not the case, there would be an incentive for theimporter not to verify the exporter's good faith or the information provided to theauthorities of the State of export by the exporter, which would give rise to abuse(Pascoal & Filhos, paragraph 57).

- No deception or manifest negligence

74.

    The applicant argues that it cannot be accused of deception in this case since it wasin no way involved in falsifying Ruva's invoices. Similarly, it did not commit anymanifest act of negligence since it was not in a position to detect the fraud in thoseinvoices (see Eyckeler & Malt, paragraphs 141 and 142). By failing to take intoaccount those factors in the contested decision, the Commission breached Article13 of Regulation No 1430/79.

75.

    The Commission contends that the fact that there was no deception or manifestnegligence on the part of the applicant is not sufficient to justify repayment of thecontested levies. It was incumbent upon the applicant to show in addition thatthere was a special situation within the meaning of Article 13 of Regulation No1430/79.

Findings of the Court

76.

    It is settled case-law, first, that Article 13 of Regulation No 1430/79 constitutes ageneral equitable provision designed to cover situations other than those whicharise most often in practice and for which special provision could be made whenthe regulation was adopted (Case 283/82 Papierfabrik Schoellershammer [1983] ECR4219, paragraph 7, Case 58/86 Coopérative Agricole d'Approvisionnement des Avirons[1987] ECR 1525, paragraph 22, Case C-446/93 SEIM [1996] ECR I-73, paragraph41, and Eyckeler & Malt, paragraph 132).

77.

    Article 13 is intended to apply, inter alia, where the circumstances characterisingthe relationship between a trader and the administration are such that it would beinequitable to require the trader to bear a loss which he would not normally haveincurred (Coopérative Agricole d'Approvisionnement des Avirons, paragraph 22, andEyckeler & Malt, paragraph 132).

78.

    In applying Article 13 of Regulation No 1430/79, the Commission enjoys adiscretionary power (France-Aviation, paragraph 34) which it must exercise bybalancing the Community interest in ensuring that customs rules are respectedagainst the interest of the importer acting in good faith not to incur loss beyond thenormal commercial risk (Eyckeler & Malt, paragraph 133).

- Whether there is a special situation

79.

    As regards the first factor relied on by the applicant, Article 3 of Regulation No1697/79 expressly provides that 'when the competent authorities find that it isfollowing an act that could give rise to criminal court proceedings that thecompetent authorities were unable to determine the exact amount of the importduties or export duties legally due on the goods in question ... the competentauthorities shall take action for recovery in accordance with the provisions in forcein this respect in the Member States‘. Since it is expressly provided that in thesituation referred to in Article 3 customs duties are only recoverable as providedfor under national law, there may well be discrepancies between national law andthe Community customs legislation applicable in other situations.

80.

    The fact that there are such discrepancies is an objective factor which applies toan indeterminate number of economic operators and does not therefore constitutea special situation for the purposes of Article 13 (Coopérative Agricoled'Approvisionnement des Avirons, paragraph 22).

81.

    The applicant's argument that it would not have been possible to recover thecontested levies from Ruva because the company had become insolvent in themeantime cannot be accepted. Article 13 of Regulation No 1430/79 is manifestlynot intended to protect customs agents against the consequences of their clientsgoing into liquidation (see to that effect Joined Cases 98/83 and 230/83 Van Gend& Loos v Commission [1984] ECR 3763, paragraph 16).

82.

    The second argument relied on by the applicant, namely that the fact that theinvoices submitted to it by Ruva were fraudulent amounted to a special situationfor the purposes of Article 13, must also be rejected. In taking the view that thatwas, by the very nature of a customs agent's work, a trade risk accepted by him, theCommission did not make a manifest error of assessment.

83.

    It is settled case-law that submitting documents subsequently found to be falsifiedor inaccurate does not in itself constitute a special situation justifying the remissionor repayment of import duties, even where such documents were presented in goodfaith (Eyckeler & Malt, paragraph 162). A customs agent, by the very nature of hiswork, assumes liability for the payment of import duties and for the validity of thedocuments which he presents to the customs authorities (Van Gend & Loos,paragraph 16), and any loss caused by wrongful conduct on the part of his clientscannot be borne by the Community. For that reason, it has been held that the factthat certificates of origin which were subsequently found not to be valid weredelivered by the customs authorities of the countries mentioned on them does notamount to a special situation. It is one of the trade risks assumed by customsagents.

84.

    The applicant confines itself here to arguing that it submitted fraudulent documentsto the customs authorities in good faith. It does not plead any factor suggestingthat the fraud in question went beyond the normal commercial risk to be assumedby it.

85.

    Finally, as regards the parallel drawn by the applicant between Article 13 ofRegulation No 1430/79 and Article 5(2) of Regulation No 1697/79, although theCourt has held that they pursue the same aim, namely to limit the post-clearancepayment of import or export duties to cases where such payment is justified andis compatible with a fundamental principle such as the protection of legitimateexpectations, it did not consider that the two provisions could be equated. It simplyconsidered that the question whether the error by the competent authorities wascapable of being detected within the meaning of Article 5(2) of Regulation No1697/79 was linked to the existence of obvious negligence or deception within themeaning of Article 13 of Regulation No 1430/79, and that the conditions laid downby the latter provision must therefore be assessed in the light of those laid downin Article 5(2) (Ecykeler & Malt, paragraphs 136 and 137).

86.

    The Commission did not therefore make a manifest error of assessment in decidingthat the factors referred to by the applicant did not constitute a special situationfor the purposes of Article 13 of Regulation No 1430/79.

- No deception or obvious negligence

87.

    It is clear from the wording of Article 13 of Regulation No 1430/79 that itsapplication is dependent on the concurrent fulfilment of two conditions, theexistence of a special situation and the absence of obvious negligence or deception,so that repayment of duties must be refused if either of those conditions is not met(Case T-75/95 Günzler Aluminium v Commission [1996] ECR II-497, paragraph 54).

88.

    In the contested decision, the Commission found that the request for repaymentwas not justified because the applicant had not demonstrated that there was aspecial situation within the meaning of Article 13. For that reason the Commissionwas under no duty to consider the second condition, relating to absence ofdeception and obvious negligence on the part of the applicant.

89.

    It follows that the third plea, namely breach of Article 13 of Regulation No1430/79, is unfounded.

Fourth plea: breach of the duty to provide reasons

Arguments of the parties

90.

    The applicant argues that the contested decision is tainted by two defects in thestatement of reasons. First of all, the statement of reasons fails to indicate why theCommission considered that the first request for repayment was not validlysubmitted and that it was entitled to adopt a new decision on that request. Thecontested decision merely stated that that request 'did not satisfy the requisiteconditions‘. The applicant only realised that the 'conditions‘ were a reference tothe statement for the file when it read the letter sent by the Commission to theNetherlands authorities on 4 June 1996. If the authorities had not sent theapplicant a copy of that letter, it would not have been able to defend its interestsin these proceedings. Secondly, the contested decision failed to state why the factthat Netherlands law imposes different limitation periods for the recovery of importduties and agricultural levies does not amount to a special situation under Article13 of Regulation No 1430/79. Since the Community courts have not yet consideredthe question of discriminatory time-limits for recovery, the Commission should havegiven more explanation of its findings in that respect.

91.

    The Commission contends that the statement of reasons in the contested decisionis adequate. First of all, it clearly states that the decision of 14 November 1994 wasrevoked in the light of the decision in France-Aviation on the ground that theprocedure leading to its adoption did not allow the applicant to exercise its rightto be heard. Secondly, since the Commission has no power to amend or commenton the time-limits for post-clearance recovery determined by the Member Stateswhere there are facts that could give rise to criminal proceedings, it was sufficientfor the contested decision to state that there were different time-limits and thatthose differences did not amount to a special situation such as to justify repaymentof the contested levies.

Findings of the Court

    

92.

    According to settled case-law, the statement of reasons required by Article 190 ofthe EC Treaty (now Article 253 EC) must disclose clearly and unambiguously thereasoning followed by the institution which adopted the measure, so as to enablethe persons concerned to acquaint themselves with the reasons for the measure andthe Community judicature to exercise its power of review. It is not necessary forthe reasoning to go into all the relevant facts and points of law. The questionwhether the statement of reasons meets those requirements must be assessed withregard not only to its wording but also to its context and to all the legal rulesgoverning the matter in question (see, in particular, Joined Cases C-121/91 andC-122/91 CT Control (Rotterdam) and JCT Benelux v Commission [1993] ECRI-3873, paragraph 31, and Case T-195/97 Kia Motors and Broekman Motorships vCommission [1998] ECR II-2907, paragraph 34).

93.

    The first objection raised by the applicant is wholly unfounded. As the applicantitself acknowledges, it knew of the letter of 4 June 1996 in which the Commissioninformed the Netherlands customs authorities that, in order to guarantee theperson concerned the right to be heard, an application for repayment or remissionmust be accompanied by a declaration signed by that person stating that he hasread the case and has nothing to add. In that letter, the Commission also statedthat the first request for repayment was 'neither valid nor admissible‘ because itdid not include such a statement. The same explanation was given to the applicantby the Netherlands customs authorities in their letter of 30 December 1996. Theapplicant must accordingly have understood that the 'requisite conditions‘mentioned in the contested decision referred to the statement. Furthermore, theCourt finds that both those two letters and the contested decision clearly state thatthe decision of 14 November 1994 was revoked in the light of the decision inFrance-Aviation on the ground that the applicant's right to be heard had not beensafeguarded during the administrative procedure, and at a time when that decisionwas the subject of an action for annulment.

94.

    Similarly, the contested decision also expressly states that where there are acts thatcould give rise to criminal proceedings, the post-clearance recovery of duties is tobe made within the time-limits prescribed by national law, so that there may bediscrepancies, and that that does not amount to a special situation for the purposesof Article 13 of Regulation No 1430/79. It is sufficiently clear from thatexplanation that the Commission regards the fact that there are different nationalrules in this area to be a legal reality which is generally and objectively applicableto the operators concerned and that there is therefore nothing special about theapplicant's situation.

95.

    It follows that the plea of breach of the duty to provide reasons is unfounded.

96.

    The action must therefore be dismissed.

Costs

97.

    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 applicant has been unsuccessful in its submissions, it must beordered to pay the costs, as applied for by the Commission.

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby:

1.    Dismisses the action;

2.    Orders the applicant to pay all the costs.

CookeGarcía-Valdecasas Lindh

Delivered in open court in Luxembourg on 18 January 2000.

H. Jung

R. García-Valdecasas

Registrar

President

1: Language of the case: Dutch.