Case T‑576/11

Schenker Customs Agency BV

v

European Commission

(Customs union — Post-clearance recovery of import duties — Imports of glyphosate originating in Taiwan — Application for the remission of import duties made by a customs agent — Article 239 of Regulation (EEC) No 2913/92 — Fairness clause — Existence of a special situation — Declarations of release for free circulation — Incorrect certificates of origin — Concept of obvious negligence — Commission decision finding that the remission of duties was not justified)

Summary — Judgment of the General Court (Sixth Chamber), 16 April 2015

1.      Own resources of the European Union — Repayment or remission of import or export duties — Fairness clause established by Article 239 of the Community Customs Code and Article 905 of implementing Regulation No 2454/93 — Rule in derogation — Restrictive interpretation

(Council Regulation No 2913/92, Art. 239; Commission Regulation No 2454/93, Art. 905)

2.      Own resources of the European Union — Repayment or remission of import or export duties — Article 239 of the Community Customs Code — Existence of a special situation — Concept — Discretion of the Commission — Scope — Limits

(Council Regulation No 2913/92, Art. 239; Commission Regulation No 2454/93, Art. 905)

3.      Own resources of the European Union — Repayment or remission of import or export duties — Fairness clause established by Article 905 of Regulation No 2454/93 — Scope — Competence of the Commission — Limits — Application of substantive customs law — Exclusive competence of the national authorities

(Art. 267 TFEU; Council Regulation No 2913/92, Arts 239 and 243; Commission Regulation No 2454/93, Art. 905)

4.      Customs union — Arising and recovery of a customs debt — Recovery notices corresponding to anti-dumping duties sent by the national customs authorities — Legal nature — Notification of subsequent entry in the accounts by those authorities of an existing customs debt

(Council Regulation No 2913/92, Art. 201(2) and (3))

5.      Own resources of the European Union — Repayment or remission of import duties — Special situation — Concept — Reliance of the taxpayer on the validity of certificates of origin proving to be false, falsified or invalid — Reliance on the fact that those certificates were initially accepted by the customs authorities of a Member State — Exclusion

(Council Regulation No 2913/92, Art. 239; Commission Regulation No 2454/93, Art. 905)

6.      Own resources of the European Union — Repayment or remission of import or export duties — Existence of a special situation — Concept — Insufficient supervision by the Commission of the correct application of an anti-dumping regulation — Included — No deficiency

(Council Regulations No 2913/92, Art. 239, and No 368/98)

7.      Own resources of the European Union — Repayment or remission of import duties — Fairness clause established by Article 239 of the Community Customs Code and Article 905 of implementing Regulation No 2454/93  — Special situation — Concept — Deficient conduct of the national customs authorities — Included — No deficiency

(Council Regulation No 2913/92, Art. 239; Commission Regulation No 2454/93, Art. 905)

8.      Own resources of the European Union — Repayment or remission of import duties –Circumstances implying neither manipulation nor obvious negligence of the person concerned — Concept of obvious negligence — Restrictive interpretation — Criteria — Complexity of the customs regulations — None  — Professional experience of the customs agent — Diligence of the importer —Lack

(Council Regulation No 2913/92, Arts 5 and 239; Commission Regulation No 2454/93, Arts 199 and 905(3), and Annex 37)

9.      Acts of the institutions — Statement of reasons — Obligation — Scope — Decision rejecting an application for repayment or remission of import duties

(Art. 296 TFEU; Council Regulation No 2913/92, Art. 239)

1.      See the text of the decision.

(see para. 44)

2.      See the text of the decision.

(see paras 45, 46)

3.      See the text of the decision.

(see paras 49-51, 55, 57, 58)

4.      Recovery notices, corresponding to anti-dumping duties on imports from non-member countries, sent by national customs authorities to importers and their direct or indirect representatives, simply constitute notification to the latter of the subsequent entry in the accounts by these authorities of an existing customs debt which, pursuant to Article 201(2) of the Customs Code, was incurred when the declarations submitted by the applicant were accepted. In addition, pursuant to Article 201(3) of the Customs Code, an importer is debtor of the entire debt, including import duties, such as anti-dumping duties that have not been collected because declarations were made indicating as the country of origin of the imported product a country other than the true country of origin.

(see para. 52)

5.      In the context of a post-clearance recovery of import duties imposed by way of anti-dumping duties, the fact that certificates of origin issued by chambers of commerce of another country have been shown to be invalid cannot be regarded as a circumstance placing the person concerned in a special situation within the meaning of Article 239 of Regulation No 2913/1992, establishing the Customs Code. Reliance on those certificates to establish the origin of goods declared before the customs authorities is a choice by the declarant in performing his obligation to declare the origin of the imports before the customs authorities. That choice involves risks inherent in the activity of a customs agent, which must therefore be borne by the latter and not by the public finances. If those circumstances were to be regarded as placing the taxpayer in a special situation justifying remission of anti-dumping duties, traders would have no incentive to ensure the veracity of declarations and documents presented before the customs authorities.

(see paras 61-65, 69)

6.      When applying the anti-dumping duties imposed by Regulation No 368/98 imposing a definitive anti-dumping duty on imports of glyphosate originating in the People's Republic of China and collecting definitively the provisional duty imposed, the circumvention of which is at the origin of the recovery notices issued by the national customs authorities, the obligation to apply anti-dumping duties to the imports concerned primarily falls on the customs authorities of the Member States.

However, as guardian of the treaties and of European Union secondary legislation, in general, and in its key role as overseer of the application of European Union customs law, there are coordination and supervision obligations, notably in the context of investigations into potential infringements, which fall on the Commission. The Commission performs those obligations where procedures have been set in motion either by the Commission or with its support as and when information relating to the possible circumvention came to light at the end of the various stages of the investigations conducted by the national authorities and OLAF. Furthermore, the obligations thus imposed on the Commission do not include the obligation to inform importers or customs agents of information in its possession or to warn them when it has doubts regarding the transactions they perform.

(see paras 72, 76, 77)

7.      In the context of imports subject to a general set of rules, to which anti-dumping duties apply, both the Commission and the national customs authorities are under an obligation of diligence and supervision to ensure that EU law is applied. However, that obligation does not mean that, where there is insufficient tangible evidence concerning named companies which would have given the national authorities grounds for taking specific and immediate action against them or against operations conducted by them, customs authorities are required to carry out physical and automatic checks of all consignments of products imported by such companies which arrive at EU customs. Nor are customs authorities required to warn those companies, given the general nature of the information contained therein. Furthermore, customs authorities which have been informed of a possible fraud are not under any obligation to warn an operator that he could incur liability for customs duties as a result of the fraud, even where that operator has acted in good faith.

(see paras 85-87, 90)

8.      A customs agent, by the very nature of his functions, renders himself liable for the payment of import duty and for the validity of the documents which he presents to the customs authorities. In that regard, a well-established customs agent should at least have doubts as to the true origin of the imported product where invoices, packing lists and customs declarations contain indications as to such origin and there are inconsistencies in the certificates of origin.

In addition, if the agent did not even check or have access to the invoices and packing lists relating to the declarations at issue before submitting them to the customs authorities, when, under Article 199 of Regulation 2454/93, laying down provisions for the implementation of the Customs Code it is, as declarant, responsible for the accuracy of the information given in those declarations, its lack of diligence is all the more significant. In that regard, the agent’s internal procedures for processing declarations and compiling the relevant documents as well as the particularities of the corporate structure of its group cannot constitute grounds allowing it to elude obligations that form an integral part of a customs agent’s functions and pass on the consequences thereof to the budget of the European Union.

Likewise, a customs agent cannot take refuge behind the actions of its client to justify the remission of import duties.

(see paras 95, 98, 101, 104-107, 109, 110, 112, 115)

9.      See the text of the decision.

(see paras 118-124)