Notice for the OJ

 

Action brought on 27 November 2001 by Furness Intercontinental Services B.V. against the Commission of the European Communities

    (Case T-299/01)

    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 27 November 2001 by Furness Intercontinental Services B.V., established in Rotterdam, represented by Johannes Wilhelmus Lambertus Maria ten Braak, with an address for service in Luxembourg.

The applicant claims that the Court should:

(annul decision REM 12/00 of the Commission on the grounds stated, pursuant to Article 230 EC;

(order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant operates as a customs agent, storing goods under customs control on behalf of third parties and dealing with customs declarations. In that connection, it drew up declarations in respect of the external Community transit of ethyl alcohol from the Netherlands to Morocco. On behalf of the same client, the applicant also drew up declarations in respect of other shipments under the external Community transit procedure. It subsequently became apparent, however, that there had been irregularities in relation to those shipments. The goods were not in fact delivered to their declared destination, and the Spanish customs authorities' documents relating to the clearance of the goods appeared to be forgeries. The applicant states that it was not aware of this.

The applicant was required to pay the import duties still due in that regard. The applicant subsequently applied to the Netherlands authorities for a refund of those import duties pursuant to Article 239(2) of Regulation (EEC) No 2913/92¹. The Netherlands authorities in turn submitted an application in this regard to the European Commission pursuant to Article 13 of Regulation (EEC) No 1430/79² and Article 905 of Regulation No 2454/93³. That application was rejected by the Commission in the contested decision.

In support of its claim, the applicant pleads, first of all, violation of the right to a fair hearing, as well as infringement of Articles 906a and 907 of Regulation No 2454/93 and misunderstanding of the principle of legal certainty. In particular, the applicant was not given access to all the documents on the file. As a result, it was unable to express its comments on the matter in a similar way, and could not validly put forward its point of view in accordance with Article 906a of Regulation No 2454/93. In addition, the Commission's decision was given out of time, inasmuch as the time-limit for adoption of the decision could not be extended pursuant to Article 907 of that regulation.

The applicant further pleads infringement of Article 905 et seq. of Regulation No 2454/93 and the absence of a statement of reasons for the contested decision. According to the applicant, the Commission should have carried out an independent investigation into the question whether or not the Spanish customs authorities were involved in the fraud. The applicant maintains that the possible involvement of customs officials in the fraud constitutes a special circumstance justifying the repayment of the customs duties.

The applicant also pleads a misunderstanding of the facts on the part of the Commission. Thus, the Commission failed to take any or any sufficient account of the fact that the competent authorities were already aware of the fraud even before the transportation in question took place. Moreover, those authorities thereafter requested the applicant's assistance in their investigation of that fraud. The applicant further states that the simple declaration by the Spanish authorities that false stamps were used in that fraud is not supported by sufficient evidence. In addition, according to the applicant, the decision does not contain an adequate statement of reasons on those points.

Lastly, the applicant claims that the Commission, in adopting the contested decision, misconstrued its own responsibility in the matter. According to the applicant, the Commission is responsible for the proper functioning of the customs system. At the time of the shipments in question, it was not possible for the applicant to avoid or trace the fraud, which was perpetrated by third parties, even by taking all possible precautionary measures.

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¹ - Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code.

² - Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties.

³ - Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code.