Action brought on 14 May 2009 - HIT Trading and Berkman Forwarding v Commission

(Case T-191/09)

Language of the case: Dutch

Parties

Applicants: HIT Trading BV (Barneveld, Netherlands) and Berkman Forwarding BV (Barendrecht, Netherlands) (represented by: A.T.M. Jansen, lawyer)

Defendant: Commission of the European Communities

Form of order sought

HIT Trading claims that the Court of First Instance should annul the Commission's decision of 12 February 2009 in Case REC 08/01 and declare that the post-clearance recovery of customs duties and anti-dumping duties is to be waived since the remission of those duties is justified.

Pleas in law and main arguments

The applicants submit that the Commission wrongly decided that the post-clearance recovery of customs duties and anti-dumping duties was justified, and that the Commission was wrong to find that there was no special situation for the purposes of Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

The applicants puts forward the following grounds in support of that submission:

The Commission finds that the Pakistan customs authorities made an active error within the meaning of Article 220(2)(b) of Regulation No 2913/92 as regards preferential origin. The Commission wrongly takes the view that, as regards non-preferential origin, this error is not an error within the meaning of Article 220(2)(b) of Regulation No 2913/92.

The Commission wrongly finds that the applicants were not careful in regard to the declarations lodged after 10 September 2004.

In its examination of the question whether post-clearance recovery may be waived or whether a special situation exists, the Commission has failed, without justification, to fulfil its obligations.

The Commission finds that the Pakistan customs authorities made an active error within the meaning of Article 220(2)(b) of Regulation No 2913/92 as regards preferential origin. The Commission wrongly takes the view that, as regards non-preferential origin, this error does not give rise to a special situation for the purposes of Article 239 of Regulation No 2913/92.

It is not clear from the contested decision that the Commission genuinely weighed up the Community's interest in compliance with customs regulations against the interests of importers, acting in good faith, in not being subject to disadvantage beyond the normal commercial risks.

It is not clear from the contested decision that the Commission took into account all the relevant facts in assessing whether the circumstances of the particular case give rise to a special situation.

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