Notice for the OJ

 

Action brought on 9 August 2002 by Koninklijke Coöperatie Cosun U.A. against the Commission of the European Communities

    (Case T-240/02)

    Language of the Case: Dutch

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 August 2002 by Koninklijke Coöperatie Cosun U.A., having its registered office in Breda, represented by M.M. Slotboom and N.J. Helder.

The applicant claims that the Court should:

1.Annul European Commission Decision C(2002) 1580 final (file number REM 19/01) of 2 May 2002 addressed to the Kingdom of the Netherlands;

2.Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments:

The applicant manufactured so-called C sugar. This sugar must be exported from the Community not later than one year after the year of production. Failing this, extra charges are imposed in accordance with Regulations No 1785/81 ¹ and No 2670/81. ²

In 1993 the applicant sold C sugar to third parties, which were to export it from the Community. However, the Nederlandse Fiscale Inlichtingen en Opsporingsdienst (Netherlands Fiscal Intelligence and Investigation Service) established that fraud had been committed during transportation and that the C sugar had in fact not been exported from the Community. In the interests of the investigation, the applicant was at first not informed of these developments. It was, however, ascertained that the applicant was not itself involved in the fraud. Despite this, the fact that the applicant had been kept in the dark with regard to the fraud meant that it was unable to export the sugar within the prescribed period and thus avoid incurring the extra charges for non-exported C sugar.

The applicant thereupon sought remission of the extra charges on the basis of Regulation No 1430/79, ³ replaced by Regulation No 2913/92. ⁴ It argued that no negligence or manipulative conduct could be attributed to it and that it was also in a special situation inasmuch as it had not been immediately informed of the fraud. The Commission rejected its request for remission in the decision under challenge.

The applicant first submits that the decision under challenge is contrary to Articles 1 and 13 of Regulation No 1430/79 in so far as the Commission does not treat the extra charges as being import or export duties. According to the decision, those charges do not come within the scope of Regulation No 1430/79 and cannot be remitted. The applicant, however, contends that the charge is an import or export duty and that Regulation No 1430/79 does indeed apply. It argues that the charge has the same objective as a customs duty and is for the same amount as a customs duty. Consequently, non-exported C sugar ought to be treated in the same way as sugar imported from non-member countries.

The applicant goes on to contend that the decision under challenge is at variance with the principles of equal treatment and equity. As a result of that decision the applicant has no entitlement whatever to remission of the extra charge even though no negligence can be attributed to it and it is in a special situation. The applicant claims that it is thereby being treated differently to an undertaking requesting remission of import or export duties. This also creates a gap in the legal protection afforded it. This gap, the applicant argues, is at odds with the principle of legal certainty.

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¹ - (Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector (OJ 1981 L 177 of 01.07.1981, pp 4-31).

² - (Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota (OJ 1981 L 262 of 16.09.1981, pp 14-16).

³ - (Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175 of 12.07.1979, pp 1-7).

⁴ - (Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302 of 19.10.1992, pp 1-50).