JUDGMENT OF THE COURT OF FIRST INSTANCE (Seventh Chamber)
23 September 2009 (*)
(Customs union – External Community transit operations – Consignments of tobacco and ethyl alcohol for third countries – Fraud – Claim for remission of import duties – Article 239 of Regulation (EEC) No 2913/92 − Article 905 of Regulation (EEC) No 2454/93 − Fairness clause − Existence of a special situation – Comprehensive guarantee)
In Case T‑385/05,
Transnáutica – Transportes e Navegação, SA, established in Matosinhos (Portugal), represented by C. Fernández Vicién, I. Moreno-Tapia Rivas, D. Ortigão Ramos and B. Aniceto Silva, lawyers,
applicant,
v
Commission of the European Communities, represented by X. Lewis and J. Hottiaux, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision REM 05/2004 of 6 July 2005 refusing the reimbursement and remission of certain customs duties,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Seventh Chamber),
composed of N.J. Forwood, President, D. Šváby and E. Moavero Milanesi (Rapporteur), Judges,
Registrar: K. Pocheć, Administrator,
having regard to the written procedure and further to the hearing on 12 February 2009,
gives the following
Judgment
Legal context
External Community transit procedure
1 Under Articles 37, 91 and 92 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘the Customs Code’), non-Community goods brought into the Community which, instead of being subject to import duties immediately, are placed under the external Community transit procedure may, under customs supervision, move from one point to another within the customs territory of the Community and will be released for free circulation only at the customs office of destination.
2 The person in whom the rights and obligations in respect of the external Community transit procedure are vested is defined by the Customs Code as ‘the principal’. In that capacity, he must produce the goods intact at the customs office of destination by the prescribed time-limit and must observe the provisions relating to the Community transit procedure (Article 96 of the Customs Code). Those obligations end when the goods and the corresponding documents are produced at the customs office of destination (Article 92 of the Customs Code).
3 Under Articles 341, 346, 348, 350, 356 and 358 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the Customs Code (OJ 1993 L 253, p. 1; ‘the Implementing Regulation’), the goods in question must first be presented at the customs office of departure together with a T1 declaration. The office of departure prescribes the period within which the goods must be presented at the office of destination, enters the necessary particulars on the T1 declaration, retains its own copy and returns the other copies to the principal. The goods are transported under cover of the T1 document. After presentation of the goods, the office of destination records on the copies of the T1 document the details of controls carried out and sends back a receipt without delay. Articles 361 et seq. of the Implementing Regulation, in the version applicable in the present case, state that the receipt issued by the office of destination is to be returned, at the request of the person presenting Copies 4 and 5 of the transit declaration, to the office of departure without delay through a central office.
4 The customs supervision to which goods transported under the external Community transit procedure are subject comes to an end when the goods are released for free circulation, in particular as a result of the payment of import duties (Articles 37(2) and 79 of the Customs Code). If the goods are prematurely removed from customs supervision, a customs debt on importation is immediately incurred (Article 203(1) and (2) of the Customs Code). Liability for that debt lies not only with the person who removed the goods from customs supervision, but also with the person required to fulfil the obligations arising from the use of the customs procedure under which those goods were placed (Articles 203(3) and 213 of the Customs Code), namely, the principal.
5 Under Article 379(1) of the Implementing Regulation, where a consignment has not been presented at the office of destination and the place where the offence or irregularity occurred cannot be established, the office of departure is to notify the principal of this fact as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration.
Comprehensive security for the customs debt
6 Under Article 94 of the Customs Code, the principal must provide a guarantee in order to ensure payment of any customs debt or other charges which may be incurred in respect of the goods. In that connection, Article 191 states that, at the request of the person concerned, the customs authorities are to allow comprehensive security to be provided to cover two or more operations in respect of which a customs debt has been or may be incurred. Under Article 198, where the customs authorities establish that the security provided does not ensure, or is no longer certain or sufficient to ensure, payment of the customs debt within the prescribed period, they are to require the person who is liable or may become liable, at his option, to provide additional security or to replace the original security with a new security.
7 In accordance with Article 361 of the Implementing Regulation, the amount of the comprehensive guarantee is to be set at least at 30% of the duties and other charges payable, or at a level equal to the full amount of duties and other charges payable, where the guarantee is intended to cover external Community transit operations concerning goods listed in Annex 53, which include cigarettes and alcohol. However, Article 361 provides that, in that situation, the customs authorities may in exceptional cases set the amount of the guarantee at 50% of the duties and other charges payable.
8 The comprehensive guarantee is to be lodged with an office of guarantee; that office is to determine the amount of the guarantee, accept the guarantor’s undertaking and issue an authorisation allowing the principal to carry out, within the limits of the guarantee, any Community transit operation irrespective of the office of departure. For that purpose, each person who has obtained authorisation is to be issued with one or more copies of a guarantee certificate (Article 362 of the Implementing Regulation). On issue of the certificate of guarantee or at any time during the validity thereof, the principal is, on his own responsibility, to designate on the reverse of the certificate the person or persons authorised to sign Community transit declarations on his behalf. The principal may at any time delete the name of an authorised person from the reverse of the certificate (Article 363). Under Article 364 of the Implementing Regulation, any person named on the reverse of a guarantee certificate presented at an office of departure is to be deemed to be the authorised representative of the principal.
Remission of import duties
9 As the application for remission of import duties was lodged on 27 September 2004, the applicable legislation is Chapter 3 of Title IV of Part IV of the Implementing Regulation, which contains specific provisions relating to the application of Article 239 of the Customs Code, in the version in force at that date.
10 Article 239 of the Customs Code reads as follows:
‘1. Import duties or export duties may be repaid or remitted in situations other than those referred to in Articles 236, 237, and 238:
– to be determined in accordance with the procedure of the committee;
– resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the Committee procedure. Repayment or remission may be made subject to special conditions.
2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office …’.
11 Article 905 of the Implementing Regulation provides, inter alia:
‘1. Where the application for repayment or remission submitted under Article 239(2) of the Code is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the Member State to which the decision-making customs authority belongs shall transmit the case to the Commission to be settled under the procedure laid down in Articles 906 to 909 where:
…
The term “the person concerned” shall be interpreted in the same way as in Article 899.
…
3. The dossier submitted to the Commission shall contain all the information required for full consideration. …
4. As soon as it receives the dossier the Commission shall inform the Member State concerned accordingly.
…’
12 Article 906 of the Implementing Regulation provides as follows:
‘The Commission shall forward to the Member States a copy of the dossier referred to in Article 905(3) within 15 days of the date on which it received that dossier.
Consideration of the case in question shall be included as soon as possible on the agenda of a meeting of the group of experts provided for in Article 907.’
13 Article 907 of the Implementing Regulation provides:
‘After consulting a group of experts composed of representatives of all Member States, meeting within the framework of the Committee to consider the case in question, the Commission shall decide whether or not the situation which has been considered justifies repayment or remission. …’
Background to the dispute
14 The applicant Transnáutica – Transportes e Navegação, SA is a Portuguese freight transportation company which had the status of authorised consignee during the period in which the operations in question, which were liable to customs duty, were carried out under the external Community transit procedure.
15 Between 14 April 1994 and 12 October 1994, 68 T1 transit declarations concerning 64 consignments of tobacco and 4 consignments of ethyl alcohol were issued by the customs authority of Xabregas (Portugal), the customs office of departure. Those goods came from the Netherlands and were to be dispatched to Germany for re-export to certain Eastern European countries. In some cases, the ‘Copies No 5’ of the 68 T1 transit declarations were never returned to the customs office of departure while, in others, the T1 declarations were returned with stamps and signatures which were later discovered to be false.
16 From August 1994 the Portuguese authorities were ordered to keep under observation certain lorries and the movements of the goods they were carrying in order to discover the source of the false stamps on the Copies No 5 of the T1 declarations.
17 Between January 1995 and January 1996 the Portuguese authorities sent the applicant copies of the T1 declarations, asking it to provide evidence that it had acted duly and lawfully throughout the external Community transit procedure and demanding payment of the relevant customs debts, as the applicant had been designated as principal in respect of the external transit declarations in question; furthermore, the guarantee certificate had been issued in its name.
18 In its reply of 23 March 1995, the applicant stated that it had been unaware of the transit operations, involving cigarettes and ethyl alcohol, carried out in its name. Following an internal investigation, it had found that one of its employees had been acting fraudulently by signing T1 declarations for smuggling operations, without the company’s knowledge.
19 The employee in question was dismissed and subsequently found guilty of repeated breach of trust by the Tribunal Criminal de Lisbon (Criminal Court of Lisbon) (Portugal) in December 1999. The criminal investigation opened in respect of the applicant was closed in September 2005, on the ground that the company had been unaware of its employee’s actions and that its representatives had had nothing to do with the fraud in question. That same criminal investigation also revealed that the customs authorities had acted negligently by accepting too low a guarantee for the operations in question and also by mishandling the examination of the goods in question.
20 On 17 November 2003, the applicant applied to the Portuguese authorities for the repayment and remission of the customs debt. By letter of 27 September 2004, in accordance with Article 906 et seq. of the Implementing Regulation, the Portuguese Government forwarded the applicant’s application to the Commission of the European Communities which, by letter of 23 December 2004, informed the applicant of its intention, following a preliminary examination of the file, to refuse the application. The applicant was given access to the file at the Commission’s offices on 19 January 2005 and, by letter of the same date to the Commission, the applicant made known its position on that intention.
21 On 6 July 2005, pursuant to Article 907 of the Implementing Regulation, the Commission adopted Decision REM 05/2004, which was notified to the applicant on 12 August 2005 by letter of the Portuguese Ministry of Finance and Public Administration, refusing the application and stating that there was no justification for repayment and remission of the customs debt, on the ground that the applicant was not in a special situation for the purposes of Article 239 of the Customs Code (‘the contested decision’). On 19 September 2005, the applicant was granted access to the file on which the Commission had based its decision.
Procedure and forms of order sought
22 By application lodged at the Registry of the Court of First Instance on 21 October 2005, the applicant brought the present action. The written procedure was closed on 12 April 2006.
23 The applicant claims that the Court should:
– annul the contested decision in its entirety;
– order the Commission to pay the costs.
24 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to bear the costs.
25 The composition of the Chambers of the Court of First Instance having been changed, the Judge-Rapporteur was attached to the Seventh Chamber, to which the present case was consequently assigned.
26 Acting upon the report of the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral procedure and put questions to the parties by way of measures of organisation of the procedure under Article 64 of the Rules of Procedure. The parties replied to those questions.
27 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 12 February 2009. On that occasion, and subject to their admissibility, the applicant requested a stay, after the hearing, for the submission of certain documents. Those documents were lodged at the Registry of the Court of First Instance on 12 February 2009 and were notified to the Commission, which did not raise any objections.
Law
28 In support of its action, the applicant relies on five pleas in law: (i) breach of essential procedural requirements; (ii) manifest error of assessment in the application of Article 239 of the Customs Code; (iii) failure to state sufficient reasons, contrary to Article 253 EC; (iv) breach of the principles of sound administration and respect for the rights of the defence; and (v) breach of the principle of proportionality.
29 It is appropriate to begin by considering the second plea, alleging manifest error of assessment.
Introductory observations
30 As a preliminary point, it should be noted that Article 905 of the Implementing Regulation subjects the repayment of import duties to two cumulative conditions, namely, first, the existence of a special situation and, second, the absence of deception or obvious negligence on the part of the operator concerned (Case T‑282/01 Aslantrans v Commission [2004] ECR II‑693, paragraph 53, and Case T‑26/03 Geologistics v Commission [2005] ECR II‑3885, paragraph 35). In addition, the application of Article 239 of the Customs Code requires the Commission to balance, on the one hand, the Community interest in ensuring that the customs provisions are respected against, on the other hand, the interest of the importer acting in good faith not to suffer harm beyond normal commercial risk (Case T‑42/96 Eyckeler & Malt v Commission [1998] ECR II‑401, paragraph 133).
31 It is clear from points 14 and 37 of the contested decision that the Commission and the Portuguese authorities agreed to exclude the existence of obvious negligence or deception on the part of the applicant in the present case.
32 Regarding the existence of a special situation, it should be recalled that, by virtue of settled case-law, circumstances which might constitute a special situation within the meaning of Article 905 of the Implementing Regulation exist where, having regard to the objective of fairness underlying Article 239 of the Customs Code, factors liable to place the applicant in an exceptional situation as compared with other operators engaged in the same business are found to exist (Case C‑86/97 Trans-Ex-Import [1999] ECR I‑1041, paragraphs 21 and 22; Case C‑61/98 De Haan [1999] ECR I-5003, paragraphs 52 and 53, Case C‑253/99 Bacardi [2001] ECR I‑6493, paragraph 56, and Aslantrans v Commission, paragraph 56). The fairness clause provided for by the Community customs legislation is intended to apply where the circumstances characterising the relationship between an economic operator and the administration are such that it would be inequitable to require that operator to bear a loss which he normally would not have incurred (see, by way of analogy, Case 58/86 Coopérative agricole d’approvisionnement des Avirons [1987] ECR 1525, paragraph 22, and Case C-222/01 British American Tobacco (Investments) and Imperial Tobacco [2004] ECR I‑4683, paragraph 63).
33 In order to determine whether the circumstances of the case constitute a special situation, the Commission must assess all the relevant facts (see, by way of analogy, Case T‑346/94 France-aviation v Commission [1995] ECR II‑2841, paragraph 34, and Case T‑205/99 Hyper v Commission [2002] ECR II‑3141, paragraph 93). The Commission has some discretion in applying a fairness clause, but it is required to exercise that discretion by genuinely balancing the interests, as mentioned in paragraph 30 of this judgment.
34 It is in the light of the foregoing that the Court must examine whether the Commission committed a manifest error of assessment in finding, in the contested decision, that the circumstances relied on by the applicant did not constitute a special situation.
35 This plea, alleging manifest error of assessment, is split up into five parts, corresponding to the five facts which, according to the applicant, the Commission did not take into account for the purposes of classifying its situation as a ‘special situation’. First, the applicant was unaware of the fraudulent activities of one of its employees. Secondly, the Portuguese customs authorities did not inform the applicant that an investigation was being carried out because of suspected fraud. Thirdly, the Portuguese customs authorities were in breach of the provisions on the comprehensive guarantee. Fourthly, the Portuguese customs authorities failed to discharge their duty of diligence in implementing the external Community transit procedure. Fifthly, the applicant could become insolvent if it had to pay the customs debt in question.
36 The third part of the second plea should be examined first.
Third part of the second plea, alleging manifest error of assessment in that the Portuguese customs authorities were in breach of the provisions on the comprehensive guarantee
Arguments of the parties
37 The applicant complains that the Commission failed to take account of the fact that the Portuguese customs authorities were in breach of the legislative provisions governing the comprehensive guarantee by accepting too low a guarantee for operations concerning sensitive goods such as tobacco and ethyl alcohol, thereby placing the applicant in a special situation. The applicant claims that, under Article 361 of the Implementing Regulation, where a comprehensive guarantee is provided, the amount of the guarantee must cover at least 30% of the duties and other charges payable. Furthermore, where operations concern sensitive goods such as tobacco and ethyl alcohol, the guarantee must be set at a level equal to the full amount of the duties and other charges payable. However, the Portuguese customs authorities accepted the comprehensive guarantee certificate for the operations in question, even though it covered only 7.29% of the customs debts and other charges relating to a single lorry-load. If each T1 declaration had been taken into consideration, the guarantee would cover all the taxes only in respect of three of those declarations. However, since other T1 declarations were issued on the same dates, the comprehensive guarantee was insufficient.
38 In response to the Commission’s argument that there is no causal connection between the failure to set the guarantee at the correct level and the incurring of a customs debt, the applicant argues that, under Article 94(1) of the Customs Code, in all Community transit operations a comprehensive guarantee must be provided in order to ensure payment of any customs debt or other charges which may be incurred in respect of the goods. The guarantee is not intended to cover the value of the goods but, precisely, the amount of the customs debt. If, in relation to the first operation, the Portuguese customs authorities had refused the guarantee provided by the applicant’s employee as insufficient, the fraudulent operations would never have been carried out. The applicant claims that the employee could never have provided a legally valid comprehensive guarantee because, under the applicant’s articles of association, the issue of an adequate guarantee for the goods in question would have required the signatures of at least two directors of the company, and the employee could not have obtained by himself a bank guarantee covering the total value of the operations to be carried out.
39 According to the applicant, the question is not when the goods were removed from customs supervision, but whether there is a causal connection between the customs authorities’ acceptance of a guarantee certificate which was invalid for the operations in question, because it was for too low an amount, and the transit operations which gave rise to the customs debt claimed by the Commission. The applicant is even more surprised by the fact that the customs authorities continued to accept the comprehensive guarantee after opening the investigation in August 1994. Although it is true that the guarantee could have been accepted in order ultimately to secure the dismantling of a criminal organisation, nevertheless, in view of the fact that the customs authorities did not look for the goods beyond the Portuguese border, the situation for the applicant must be described as ‘special’.
40 The Commission contends that the customs debt was incurred because the goods in question were removed from customs supervision, the documents did not reach the office of destination and the ‘Copies No 5’ of the T1 transit declarations were never returned to the office of departure. In those circumstances, as the infringement thus took place during the transit, the question of the comprehensive guarantee cannot be used to show that the applicant was in a special situation. The Commission also submitted at the hearing, first, that the applicant was regarded by the Portuguese customs authorities as being a reliable trader and, second, that it was not possible for the customs authorities to verify whether the comprehensive guarantee was sufficient for each of the transit operations, since the comprehensive guarantee allows coverage of operations which can commence in many different offices of departure.
41 According to the Commission, even supposing that the fraud could have been avoided if the Portuguese authorities had refused to accept the comprehensive guarantee, it could equally be said that the fraud could have been avoided if the applicant had adequately supervised the activities of its own employees.
42 The Commission adds that, in accordance with Article 362 of the Implementing Regulation, the applicant had been authorised by the Portuguese authorities to lodge a comprehensive guarantee and that, under Article 363 of that Regulation, the principal was required on his own responsibility to designate on the reverse of the certificate the persons authorised to sign Community transit declarations on his behalf, as was done in the present case, because the two employees whose names appear on the guarantee certificate, one of whom was the employee subsequently dismissed, are those who signed the T1 declarations.
Findings of the Court
43 Article 94 of the Customs Code requires the principal to provide a guarantee in order to ensure payment of the customs debt or other charges which may be incurred in respect of the goods. The guarantee is not intended to cover the value of the goods but the amount of the customs debt. If the goods were removed from customs supervision, a customs debt would immediately be incurred.
44 As follows from paragraphs 191 and 198 of the Customs Code, where the customs authorities allow comprehensive security to be provided by the principal to cover two or more operations in respect of which a customs debt may be incurred, if they establish that the security provided does not ensure, or is no longer certain or sufficient to ensure, payment of the customs debt, they are to require the principal, at his option, to provide additional security or to replace the original security with a new security.
45 Action and supervision on the part of the competent national customs authorities are essential, not only at the time of the setting up of the guarantee certificate, but also each time a comprehensive guarantee, intended to cover several transit operations, is used to effect and cover those.
46 The applicant’s guarantee certificate signed on 9 December 1993 and headed ‘Comprehensive guarantee No 068‑1064/993’, had been provided for a maximum credit of 8 million Portuguese escudos, that is to say approximately EUR 40 000. The names and signatures of the persons authorised to sign appear on the reverse of the external Community transit declarations, including those who signed the 68 T1 declarations at issue.
47 This was therefore a comprehensive guarantee, which could cover several external Community transit operations. In this case, the 68 T1 transit declarations concerned sensitive goods such as cigarettes and ethyl alcohol. As the applicant submitted without being contradicted by the Commission, as regards sensitive goods, the amount of the guarantee was to cover all the duties and other charges payable or in exceptional cases, not mentioned in the present case, 50% of those duties. The applicant has maintained that the duties and charges payable for a lorry-load of tobacco amounted to approximately EUR 1 million, which means that the applicant’s comprehensive guarantee was clearly insufficient to cover the duties and charges payable for a consignment of tobacco. When questioned in the course of the hearing on the value of the duties payable on a lorry-load of tobacco, the Commission did not contradict the applicant and stated that the estimate of the amount of those customs duties was the responsibility of the national customs authorities.
48 Clearly, the Portuguese customs authorities accepted an insufficient guarantee for the 68 T1 declarations at issue. As the applicant claimed at the hearing, without being contradicted by the Commission, taking into consideration all the T1 declarations made on the same day, the comprehensive guarantee never covered more than 7.29% of the duties and charges. On the other hand, if each declaration is analysed separately, the guarantee certificate would cover all the duties payable only in respect of three of the declarations at issue. In that case, however, other T1 declarations must be considered to have been issued on the same date without having sufficient guarantee coverage.
49 Had the Portuguese customs authorities verified, at the time of issue of the T1 declarations, whether the amount of the duties and other charges that might be incurred for each cargo was covered by the comprehensive guarantee provided by the applicant, the 68 T1 declarations could not have been issued.
50 The Commission’s argument to the effect that there is no causal connection between a customs debt being incurred and acceptance of a comprehensive guarantee certificate that is invalid on account of its low amount cannot succeed. It is true that the customs debt is incurred at the time when the goods are removed from customs supervision, but acceptance at the time when the T1 declarations are issued of too low a guarantee, the amount of which could clearly not cover all the duties and other charges payable, constitutes a defect in the T1 declaration issuing procedure.
51 As pointed out in paragraph 43 of this judgment, the guarantee is intended to ensure payment of the customs debt which could be incurred if the goods were removed from customs supervision during transit and before being released for free circulation by the payment of import duties at the customs post at the place of destination. It should be noted that, in order for the system to function, it is essential that the guarantee provided is for an amount sufficient to cover the amount of customs debt which may be incurred, according to a 30, 50, or 100% rate, which is fixed on the basis of the nature of the goods transported. An error in the monitoring of the guarantee, at the time when the T1 declaration is issued, will have a definite impact on the capacity of the principal to ensure payment of the customs debt that may be incurred. Intervention on the part of the competent national customs authorities when the T1 declarations are issued constitutes a fundamental step in the procedure which allows any irregularities to be detected.
52 In the present case, the Portuguese customs authorities should either have requested the applicant, in its capacity as principal, to provide additional security necessitated by the high value of the customs debt that might be incurred, or suspended the T1 declaration issuing procedure. If the Portuguese customs authorities had refused to accept the guarantee on account of its insufficient amount and required the provision of additional security, not only would the T1 declarations at issue not have been issued but, as the applicant correctly asserts, it would have been able to uncover the fraudulent acts of its employee.
53 In that regard, the rule contained in the applicant’s articles of association, requiring a double signature for an adequate guarantee intended to cover all the duties and other charges that might be incurred in the circumstances, constitutes an internal monitoring mechanism designed for more thorough verification of operations in respect of which a higher customs debt might be incurred.
54 It must be observed, first, that the guarantee certificate allowed persons authorised to sign the transit declarations to render the applicant liable for low amounts, since the guarantee had been provided for a maximum credit of EUR 40 000, which corresponded to the normal activities of the undertaking, and, second, that the applicant’s employee, having fraudulently signed the 68 T1 declarations at issue, did not have special authorisation to give a sufficient guarantee or to increase the existing guarantee. Given all those factors, it may be considered that the applicant had taken sufficient precautions to avoid transit operations of high value being carried out under a comprehensive guarantee, as was the case here.
55 Clearly, the lack of monitoring on the part of the customs authorities at an initial and fundamental stage of the external Community transit procedure enabled 68 T1 declarations to be issued that were not covered by the guarantee certificate, and fraudulent acts to be carried out without the applicant’s knowledge, the latter having put in place all the mechanisms necessary to prevent wrongful use of the guarantee, as explained in paragraph 53 of this judgment.
56 In addition, the fact that, as the Commission submitted at the hearing, the applicant was an economic operator known to the Portuguese customs authorities and regarded as reliable does not in any way ease the obligation on the customs authorities to monitor the amount of the guarantee in relation to the goods which are submitted to them. On the contrary, the fact that the economic operator was known and that the applicant had never previously marketed sensitive goods such as tobacco and ethyl alcohol are circumstances which should have attracted closer scrutiny from the customs authorities.
57 In that regard, since the issue of T1 declarations is subject to a guarantee in an amount which must cover any debt that may be incurred, failure to comply with that amount, or indeed exceeding the limits of the maximum credit of the guarantee, should have led to the operation of issuing the T1 declarations being suspended, unless supplementary guarantees were provided, without there being any need for the authorities to have been aware of a fraudulent scheme perpetrated by one of the applicant’s employees.
58 In any event, even if the Portuguese customs authorities deliberately, for the purposes of an investigation, omitted to inform the applicant, in its capacity as principal, of irregularities detected in the T1 declaration issuing procedure, which has not been established in the present case, to burden the applicant with a customs debt resulting from the choice of those authorities, connected, as the case may be, with the prosecution of infringements, would be inimical to the objective of the fairness clause which underlies Article 905 of the Implementing Regulation, inasmuch as the applicant would find itself thus placed in a special situation that would go beyond the normal commercial risk relating to its business (see, to that effect, De Haan, paragraph 53, Case C‑62/05 P Nordspedizionieri di Danielis Livio and Others v Commission [2007] ECR I‑8647, paragraph 51, and Hyper v Commission, paragraph 95).
59 The conclusion must therefore be drawn that the lack of diligence on the part of the Portuguese customs authorities when they carried out their monitoring task, which precedes the issue of T1 declarations, in particular, as regards the fixing and monitoring of the amount of the comprehensive guarantee, undermined the verification system provided for under the external Community transit system by the Customs Code and the Implementing Regulation and therefore denied the applicant any real opportunity to detect the fraud before it was committed.
60 That lack of diligence is the responsibility of the Portuguese customs authorities and puts the applicant in a special situation that goes beyond the normal commercial risk relating to its business.
61 It follows from the foregoing that the Commission committed a manifest error of assessment in finding that the applicant was not in a special situation as far as concerns the breach of the obligation to monitor the validity and amount of the comprehensive guarantee on the part of the Portuguese customs authorities.
62 Consequently, since the third part of the second plea is well-founded, the contested decision must be annulled, without there being any need to examine the other parts of that plea, nor the other pleas.
Costs
63 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE COURT OF FIRST INSTANCE (Seventh Chamber)
hereby:
1. Annuls Commission Decision REM 05/2004 of 6 July 2005;
2. Orders the Commission of the European Communities to pay the costs.
Forwood | Šváby | Moavero Milanesi |
Delivered in open court in Luxembourg on 23 September 2009.
[Signatures]