Case T-332/02
Nordspedizionieri di Danielis Livio & C. Snc and Others
v
Commission of the European Communities
(Customs union – Community transit operation – Fraud – Cigarette smuggling – Remission of import duties – Regulation (EEC) No 1430/79 – Article 13: equitable provision – Meaning of ‘special situation’)
Judgment of the Court of First Instance (Fifth Chamber), 14 December 2004
Summary of the Judgment
1. Own resources of the European Communities – Repayment or remission of import or export duties – Article 13 of Regulation No
1430/79 – Scope – Limits – Application of substantive customs law – Exclusive competence of the national authorities
(Art. 234 EC; Council Regulation No 1430/79, Art. 13(1))
2. Own resources of the European Communities – Repayment or remission of import or export duties – Article 13 of Regulation No
1430/79 – Scope – Commission’s power of decision – Detailed rules for exercise
(Council Regulation No 1430/79, Art. 13(1))
3. Own resources of the European Communities – Repayment or remission of import or export duties – Article 13 of Regulation No
1430/79 – ‘Special situation’ – Definition – National authorities having deliberately allowed offences or irregularities to
be committed in the course of an investigation, thereby giving rise to a customs debt at the expense of a person acting in
good faith – Serious failures by the Commission or the national authorities – Included – Case in question not constituting
a special situation
(Council Regulation No 1430/79, Art. 13(1))
1. The sole aim of Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or export duties is to enable
traders, when certain special conditions are satisfied and in the absence of deception or obvious negligence, to be exempted
from payment of duties due from them and not to enable them to contest the actual principle of a customs debt’s being due.
The determination of the existence and precise amount of the debt falls within the competence of the national authorities.
Moreover, the decisions adopted by the national customs authorities may be challenged before the national courts, which may
make a reference to the Court of Justice pursuant to Article 234 EC.
(see paras 33-34, 101)
2. Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or export duties constitutes a general equitable
provision designed to cover situations other than those which arose most often in practice and for which special provision
could be made when the regulation was adopted. That provision is intended to be applied where the circumstances characterising
the relationship between an operator and the administration are such that it would be inequitable to require the operator
to bear a loss which it normally would not have incurred.
That provision makes the remission of import duties subject to the fulfilment of two cumulative conditions, namely the existence
of a special situation and the absence of deception or obvious negligence on the part of the economic operator.
The Commission has a margin of discretion in adopting a decision applying that general equitable provision. Moreover, repayment
or remission of import duties constitute an exception to the usual body of rules governing import and export and, consequently,
the provisions providing for such repayment or remission are to be interpreted strictly.
(see paras 40-42)
3. The failure by the national authorities to warn the economic operator liable for a customs debt, for the demands of an investigation
conducted by the customs authorities or the police and aimed at identifying and apprehending the persons who have carried
out or are planning a fraud, or the accomplices of those persons, that such an investigation is taking place constitutes,
in the absence of any deception or negligence on the part of the person liable, a special situation within the meaning of
the equitable provision in Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or export duties.
Although it is true that, in the course of such an investigation, it is legitimate for the national authorities deliberately
to allow offences or irregularities to be committed, to place on the person liable the burden of a customs debt arising from
those choices relating to the prosecution of offences is inimical to the objective of the equitable provision, in that it
puts the person liable in an exceptional situation by comparison with other operators engaged in the same business.
Although it is also true that the presentation by the person liable, even in good faith, of documents subsequently found to
be falsified does not in itself constitute a special situation justifying remission of import duties, the finding of such
a situation must apply if there are serious failures by the Commission or the national customs authorities, facilitating the
fraudulent use of the documents.
With respect to customs brokers operating at a Community border having delivered Community transit certificates after a lorry
left a location situated in a third country, neither operating at a border, rather than at the place of departure of the consignment,
nor the impossibility of inspecting the lorry constitutes a factor liable to place an operator in an exceptional situation
as compared with other operators, since those factors affect an indefinite number of operators. Accordingly, they cannot give
rise to a special situation within the meaning of the abovementioned provision.
(see paras 51, 70, 72, 84)
JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
14 December 2004(1)
(Customs union – Community transit operation – Fraud – Cigarette smuggling – Remission of import duties – Regulation (EEC) No 1430/79 – Article 13: equitable provision – Meaning of ‘special situation’)
In Case T-332/02,
Nordspedizionieri di Danielis Livio & C. Snc, established in Trieste (Italy),
Livio Danielis, residing in Trieste,
Domenico D'Alessandro, residing in Trieste,represented by G. Leone, lawyer,
applicants,
v
Commission of the European Communities, represented initially by X. Lewis and R. Amorosi, acting as Agents, and subsequently by X. Lewis, assisted by G. Bambara,
lawyer, with an address for service in Luxembourg,
defendant,
ACTION principally for annulment of decision of the Commission REM 14/01 of 28 June 2002 refusing to accede to the Italian
Republic's application for a remission of import duties in favour of the applicants and, in the alternative, for a declaration
of remission of part of the customs debt corresponding to those duties,
THE COURT OF FIRST INSTANCE OF
THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of: P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges,
Registrar: J. Palacio González, Principal Administrator,
gives the following
Judgment
Legal background
1
Community transit is a customs scheme the purpose of which is to facilitate the movement of goods within the Community. The
scheme includes an external Community transit procedure and an internal Community transit procedure and, inter alia, enables
goods entering the customs territory of the Community to be transported from the place of introduction into that territory
to the place of destination without repeating the customs formalities when moving from one Member State to another. It is
clear from Article 1(2) of Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit (OJ 1977 L 38, p. 1),
which applied at the time of the facts in this case, that essentially it is goods originating in non-member States which are
not in free circulation in the Member States within the meaning of Articles 9 and 10 of the EC Treaty (now Articles 23 EC
and 24 EC) which move under the external Community transit procedure.
2
Pursuant to Article 12 of that regulation, any goods to be carried under the external Community transit procedure must be
covered by a T1 declaration. At least three copies of that declaration, signed by the person who requests permission to carry
out that operation or by his authorised representative, the transport document and other supplementary documents must be produced
at the office of departure. The copies of the T1 document delivered to the principal or to his representative by the office
of departure are to accompany the goods (Article 19(1)).
3
Article 11(a) of Regulation No 222/77 defines ‘principal’ as the person who, in person or through an authorised representative,
requests permission, in a declaration in accordance with the required customs formalities, to carry out a Community transit
operation and thereby makes himself responsible to the competent authorities for the execution of the operation in accordance
with the rules. The principal is to be responsible for the production of the goods intact at the office of destination within
the prescribed time-limit and with due observance of the measures adopted by the competent authorities to ensure identification
and the observance of the provisions relating to the Community transit procedure and to transit in each of the Member States
in the territory of which carriage of the goods is effected (Article 13(a) and (b)).
4
Article 36(1) of Regulation No 222/77 provides that when it is found that, in the course of a Community transit operation,
an offence or irregularity has been committed in a particular Member State, the recovery of duties or other charges which
may be chargeable shall be effected by that Member State in accordance with its provisions laid down by law, regulation or
administrative action, without prejudice to the institution of criminal proceedings.
5
Council Regulation (EEC) No 2144/87 of 13 July 1987 on customs debt (OJ 1987 L 201, p. 15) establishes that a customs debt
on importation is incurred, inter alia, by the removal of goods liable to import duties from the customs supervision involved
in the temporary storage of the goods or their being placed under a customs procedure which involves customs supervision (Article
2(1)(c)).
6
Article 4 of Council Regulation (EEC) No 1031/88 of 18 April 1988 determining the persons liable for payment of a customs
debt (OJ 1988 L 102, p. 5) provides that:
‘1.Where a customs debt has been incurred pursuant to Article 2(1)(c) of Regulation … No 2144/87, the person who removed the
goods from customs supervision shall be liable for payment of such debt.
Under the provisions in force in the Member States, the following shall also be jointly and severally liable for payment of
such debt:
(a)
any persons who participated in the removal of the goods from customs supervision and any persons who acquired or held them;
(b)
any other persons who are liable by reason of such removal.
2. The person required to fulfil, in respect of goods liable to import duties, the obligations arising from their temporary
storage, or from the use of the customs procedure under which they have been placed, shall also be jointly and severally liable
for payment of the customs debt.’
7
The Community customs rules provide for the total or partial repayment of import or export duties which have been paid or
for the remission of a customs debt. The conditions for the remission of duties applicable in the present case were laid down
by Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties
(OJ 1979 L 175, p. 1), as amended by Council Regulation (EEC) No 3069/86 of 7 October 1986 amending Regulation (EEC) No 1430/79
(OJ 1986 L 286, p. 1). That provision states as follows:
‘1.
Import duties may be repaid or remitted in special situations … which result from circumstances in which no deception or obvious
negligence may be attributed to the person concerned.
…’
8
Article 8(1)(b) of Regulation No 2144/87 provides that, subject to certain exceptions which do not apply in the present case,
the customs debt is extinguished by confiscation of the goods.
Facts
9
The applicant, Nordspedizionieri di Danielis Livio & C. Snc (‘Nordspedizionieri’) is a partnership in liquidation made up
of customs agents, with its registered office in Trieste (Italy). The applicants L. Danielis and D. D’Alessandro are two of
the partners of that partnership who are jointly liable therewith in an unlimited amount.
10
On 30 October 1991, Nordspedizionieri, at the request of Cumberland Ltd, made a declaration of external Community transit
to the customs office at Fernetti (Italy). That declaration concerned the shipment of 1 400 packs, or 12 620 kg, of cardboard
boxes, purchased from the Slovenian company Proexim Export-Import, for delivery in Spain. On 5 November 1991, Nordspedizionieri
made a declaration of external Community transit identical to that of 30 October, with the exception of the number of packs
of cardboard boxes sent, which this time amounted to 1 210, weighing 12 510 kg. On 16 November 1991, that partnership made
a third declaration of transit in respect of 1 500 packs of cardboard boxes, weighing 12 842 kg. In all three transactions
the goods were transported in a Slovenian lorry bearing the same registration plate.
11
Upon completion of the customs formalities in respect of the third transaction referred to above, the lorry was allowed to
continue on its way. Shortly afterwards, the director of the customs office in Fernetti requested the customs police of the
parking platform for that area to inspect that lorry’s load. The lorry, which had already left the customs zone, was followed
and stopped by the customs police several kilometres after crossing the border. The lorry was escorted back to the Fernetti
customs post for inspection. The inspection revealed that the cardboard boxes were not empty, as stated in the transit declaration,
but filled with cigarettes. In particular, 8 190 kg of foreign cigarettes originating from outside the Community were discovered,
in 819 boxes. The driver of the lorry, C, was arrested and the lorry and its load were impounded, together with the documents
found in the driver’s possession.
12
The investigation carried out by the Italian customs authorities with the cooperation of the Slovenian authorities revealed
that C had taken part in three other similar cigarette-smuggling operations, using the transit declarations completed by Nordspedizionieri
on 30 October and 5 November 1991 and one lodged on 16 September 1991 by Centralsped Srl. In the case of the consignments
of 30 October and 5 November 1991, the investigation found that, after loads primarily made up of manufactured tobacco had
been declared to the Slovenian customs authorities, the same loads were brought into Italy as cardboard boxes. Once the customs
formalities had been completed at the Fernetti customs post, the lorry continued its journey to a place of destination different
from that stated in the customs declarations, the cargoes having been clandestinely unloaded in Italy.
13
In the course of their investigation into the smuggling operations in question, the Italian authorities discovered a warehouse
in Bareggio (Milan, Italy) containing manufactured tobacco. On 8 April 1992, during a search of that warehouse, the police
seized 801 boxes of cigarettes, weighing 8 010 kg, which were impounded.
14
On 16 October 1992, the revenue department of the central customs office in Trieste ordered the applicants, in their capacity
as principal of the Community transit for the operations of 30 October and 5 November 1991, to pay ITL 2 951 462 300, made
up of ITL 2 501 239 200 in duties and ITL 450 223 100 in interest, in respect of 1 700 boxes (17 000 kg) of foreign manufactured
tobacco illegally imported and offered for sale in the Community customs territory. Since the consignment of 16 November 1991
was seized by the Italian customs authorities before it was offered for sale no customs duties were imposed on the applicants
in that regard.
15
On 28 October 1992, the applicants challenged the Italian customs authorities’ order of 16 October 1992. In a judgment delivered
on 12 September 1994, the Tribunale civile e penale di Trieste (Trieste Civil and Criminal District Court) annulled the contested
order. By a judgment of 5 September 1996, the Corte d’appello di Trieste (Trieste Court of Appeal) reversed that judgment
and ordered Nordspedizionieri and, in the alternative, its partners between them jointly to pay the sum of ITL 2 951 462 300
specified in the contested order. By judgment of 26 January 1999, the Corte suprema di cassazione (Supreme Court of Cassation)
dismissed the applicants’ appeal against the judgment of the Corte d’appello.
16
On 14 January 1994, the judge of the Tribunale civile e penale responsible for preliminary investigations made an order withdrawing
the criminal proceedings which had been brought for trafficking smuggled cigarettes against Mr G. Baldi, a partner of Nordspedizionieri
and the author of the three transit declarations issued by that partnership which were used in the smuggling operations in
question.
17
On 14 November 2000, the applicants applied to the Commission for a remission of the duties demanded by the Italian customs
authorities. On 4 June 2001, the Italian authorities submitted to the Commission an application for the remission of customs
duties in the sum of ITL 497 589 687 (EUR 256 983.63).
18
By letter of 18 December 2001, the Commission requested further information from the Italian authorities. By letter of 11
February 2002, the Italian customs authorities confirmed that the duties in respect of which remission had been applied for
amounted to ITL 497 589 687.
19
On 28 June 2002, the Commission adopted a decision rejecting the Italian Republic’s application of 4 June 2001 for the remission
of the customs debt payable by the applicants (‘the contested decision’). The Commission found that in the present case there
was no special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the
person concerned, within the meaning of Article 13 of Regulation No 1430/79, and therefore the remission of import duties
in the sum of EUR 256 983.63 (ITL 497 589 687) was not justified.
Procedure and forms of order sought
20
By application lodged at the Registry of the Court of First Instance on 30 October 2002, the applicants brought the present
action.
21
Upon hearing the Report of the Judge‑Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure. By way of measures
of organisation of procedure, the Court requested that the Commission produce certain documents. The Commission complied with
that request within the prescribed period.
22
The parties presented oral argument and their replies to the Court’s questions at the hearing in open court on 29 June 2004.
23
The applicants claim that the Court should:
–
primarily, annul the contested decision and declare that the remission of import duties applied for is admissible in the present
case;
–
in the alternative, declare that the remission of duties is due in respect of the customs debt relating to the 8 010 kg of
foreign manufactured tobacco confiscated by the Italian authorities on 8 April 1992 in the clandestine warehouse in Bareggio;
–
order the Commission to pay the costs.
24
The Commission contends that the Court should:
–
declare the applicants’ claim inadmissible in so far as they challenge the precise amount of the customs debt and ask the
Court to uphold their right to the remission of the customs duty in respect of the 8 010 kg of confiscated tobacco;
–
dismiss the remainder of the action as unfounded;
–
order the applicants to pay the costs.
Law
I –
The claim seeking the annulment of the contested decision
25
In support of their claim for annulment the applicants put forward, first, a plea in law alleging several material errors
in the contested decision and, second, a plea in law alleging the existence of a special situation and the absence of deception
or obvious negligence, within the meaning of Article 13 of Regulation No 1430/79.
A –
The first plea in law, alleging several material errors in the contested decision
26
The applicants submit that the contested decision contains several errors. Thus they allege, first, that the description of
the inspection of the consignment corresponding to the customs declaration of 16 November 1991 and, second, that the assertion
that the applicants only applied for the remission of the customs duties in the sum of ITL 497 589 687, are incorrect.
1. The inspection of the operation of 16 November 1991
Arguments of the parties
27
The applicants point out that the fourth paragraph of the contested decision states that the Fernetti customs office caused
the customs officers to inspect the consignment corresponding to the declaration of 16 November 1991. They submit that in
fact the customs authorities did not carry out the inspection of the goods in the customs zone when the transit declaration
was presented but decided to do so after the lorry had left, that is, after the customs formalities had been completed.
28
The Commission states that the lorry transporting the goods which were the subject of the customs declaration of 16 November
1991 was not followed by the Italian police straight after completion of the customs formalities but only when the police
realised that the lorry had left.
Findings of the Court
29
It should be pointed out that paragraph 4 of the contested decision merely states: ‘The [Fernetti] customs office requested
the customs police to inspect the consignment corresponding to [the declaration of 16 November 1991], which turned out to
be made up exclusively of cigarettes. The goods were seized and the driver of the vehicle was arrested.’ That short statement
does not indicate whether the inspection of the consignment took place when the declaration was presented or in the customs
zone or before the completion of the customs formalities. Since it is not in dispute that the customs police carried out the
inspection at the request of the director of the Fernetti customs post it must be found that paragraph 4 of the contested
decision is not vitiated by any error of fact.
30
Therefore, that complaint must be rejected.
2. The amount of the remission of duties applied for
Arguments of the parties
31
The applicants submit that the contested decision erroneously states that they applied for a remission of customs duties in
the sum of ITL 497 589 687. In their view, it is clear from their application of 14 November 2000 to the Commission that they
sought the remission of the full amount that they had been ordered to pay on 16 October 1992 by the Italian customs authorities
in the sum of ITL 2 951 462 300. The applicants submit in this respect that the material error committed by the Commission
is capable of influencing the scope of the dispute in that one of the reasons for granting the remission applied for is precisely
the significant size of the customs debt in question and the financial burden it imposes on them. That error does therefore
have a bearing on the statement of reasons for the decision. The applicants also submit that the precise determination of
the subject‑matter of a dispute cannot be the subject of arbitrary assessment and that the precise amount in issue must be
correctly identified at all stages of the proceedings.
32
The Commission submits that the complaint alleging an error in the calculation of the customs debt is inadmissible in so far
as the applicants use it to challenge the amount of the customs debt assessed by the Italian authorities.
Findings of the Court
33
It is clear from settled case-law that the sole aim of Article 13(1) of Regulation No 1430/79 is to enable traders, when certain
special conditions are satisfied and in the absence of deception or obvious negligence, to be exempted from payment of duties
due from them and not to enable them to contest the actual principle of a customs debt’s being due (see Joined Cases 244/85
and 245/85
Cerealmangimi and Italgrani v
Commission [1987] ECR 1303, paragraph 11; Joined Cases C‑121/91 and C-122/91
CT Control (Rotterdam) and JCT Benelux v
Commission [1993] ECR I-3873, paragraph 43; and Case T-205/99
Hyper v
Commission [2002] ECR II-3141, paragraph 98).
34
The determination of the existence and precise amount of the debt falls within the competence of the national authorities.
Applications submitted to the Commission under Article 13 of Regulation No 1430/79 are not concerned with whether or not the
provisions of substantive customs law have been correctly applied by the national customs authorities. The Court notes that
the decisions adopted by the national customs authorities may be challenged before the national courts, which may make a reference
to the Court of Justice pursuant to Article 234 EC (Case T‑195/97
Kia Motors and Broekman Motorships v
Commission [1998] ECR II-2907, paragraph 36, and
Hyper v
Commission, paragraph 98).
35
The preceding considerations are not undermined by the applicants’ arguments to the effect that, essentially, the precise
determination of the financial claim which is the subject‑matter of any litigation must be open to debate at any stage of
the proceedings. That argument disregards both the division of competences in customs matters between the national authorities
and the Commission and the specific rules and limitations on the remission or repayment of customs duties laid down by Article
13(1) of Regulation No 1430/79.
36
In the light of the foregoing, it must be concluded that the complaint alleging an error in the contested decision concerning
the amount of the remission applied for by the applicants is inadmissible since by that complaint the applicants challenge
the calculation of the precise amount of the customs debt.
37
It must be found that, in any event, the contested decision does not contain any material error in that it states that the
applicants sought the remission of ITL 497 589 687, corresponding to the customs duties which the Italian authorities claimed
from them. The amount in question is that shown in the Italian Republic’s request of 4 June 2001, that sum having been subsequently
confirmed, at the Commission’s request, by letter of the Italian authorities of 11 February 2002. Contrary to the applicants’
submission, the fact that the contested decision did not point out that they had applied for the remission of the full amount
of the customs debt demanded of them by the Italian authorities can have no bearing on the assessment of whether there was
a special situation or on the statement of reasons for the contested decision. First, in addition to the customs duties, that
customs debt included VAT and consumer tax, which are not covered by the remission procedure laid down by Article 13 of Regulation
No 1430/79. Second, since the national authorities made an application to the Commission, and given the exclusive competence
of those authorities in fixing the customs debt, the relevant amount in respect of customs duties of which remission was sought
was that stated by the national authorities.
38
Accordingly, that complaint must be rejected.
39
Consequently, the first plea in law must be rejected.
B –
The second plea in law, alleging the existence of a special situation and the absence of deception or obvious negligence,
within the meaning of Article 13 of Regulation No 1430/79
1. Preliminary observations
40
It should be noted that, according to settled case-law, Article 13(1) of Regulation No 1430/79 constitutes a general equitable
provision designed to cover situations other than those which arose most often in practice and for which special provision
could be made when the regulation was adopted (Case 283/82
Schoellershammer v
Commission [1983] ECR 4219, paragraph 7;
Cerealmangimiand Italgrani v
Commission, paragraph 10; Case 58/86
Coopérative agricole d’approvisionnement des Avirons [1987] ECR 1525, paragraph 22; Case C-446/93
SEIM [1996] ECR I-73, paragraph 41; and Case T-239/00
SCI UK v
Commission [2002] ECR II-2957, paragraph 44). That provision is intended to be applied where the circumstances characterising the relationship
between an operator and the administration are such that it would be inequitable to require the operator to bear a loss which
it normally would not have incurred (
Coopérative agricole d’approvisionnement des Avirons, paragraph 22, and
SCI UK v
Commission, paragraph 50).
41
Article 13 of Regulation No 1430/79 makes the remission of import duties subject to the fulfilment of two cumulative conditions,
namely the existence of a special situation and the absence of deception or obvious negligence on the part of the economic
operator (Case C-370/96
Covita [1998] ECR I-7711, paragraph 29; Case C-61/98
De Haan [1999] ECR I-5003, paragraph 42; and
SCI UK v
Commission, paragraph 45).
42
It should also be noted that it is settled case-law that the Commission has a margin of discretion in adopting a decision
applying the general equitable provision under Article 13 of Regulation No 1430/79 (Case T-346/94
France-aviation v
Commission [1995] ECR II-2841, paragraph 34; Case T-50/96
Primex Produkte Import-Export and Others v
Commission [1998] ECR II-3773, paragraph 60; and Case T-290/97
Mehibas Dordtselaan v
Commission [2000] ECR II-15, paragraphs 46 and 78). It must also be pointed out that repayment or remission of import duties, which
may be granted only subject to certain conditions and in cases which have been specifically provided for, constitute an exception
to the usual body of rules governing import and export and, consequently, that the provisions providing for such repayment
or remission are to be interpreted strictly (Case C‑48/98
Söhl & Söhlke [1999] ECR I-7877, paragraph 52, and Case T-282/01
Aslantrans v
Commission [2004] ECR II-0000, paragraph 55).
2. The existence of a special situation
43
The applicants submit that they were in a special situation within the meaning of Article 13 of Regulation No 1430/79. They
submit, first, that the Italian authorities deliberately let the smuggling operations in question be committed in order to
dismantle the smuggling network; second, that they were the victims of a fraud which exceeded the commercial risks inherent
in their professional activities; third, that the customs authorities failed to fulfil their obligations to supervise customs
operations; fourth, that it was impossible for them to supervise the transport operations; fifth, and finally, that in the
contested decision the Commission did not weigh up the interests at stake.
a) The allegation that the Italian authorities had prior knowledge of the smuggling operations
Arguments of the parties
44
The applicants point out that the obligation in question originates in an investigation carried out by the customs authorities,
which were probably aware of the facts.
45
The applicants point out that on 16 September 1991 C carried out an initial journey to Irun (Spain) on the basis of a Community
transit document issued by Centralsped. That transit document was discharged upon receipt by the Fernetti customs office,
on 20 September 1991, of the fifth copy of the T1 document, and was sent to the Trieste customs district on 5 December 1991.
The applicants submit that that first discharge is plainly false.
46
The applicants also note that the consignment of 16 November 1991 was inspected at the request of the Fernetti customs office
once the lorry had left the customs zone, which first required the pursuit and interception of the lorry. The applicants submit
that consignments are never stopped after leaving the customs zone, except where the customs police are already aware of the
existence of smuggling. The applicants point out that that fact leads to the conclusion that the discovery of the cigarettes
was not made fortuitously during a random check of the goods, but that the customs police were informed of the true nature
of the consignment in question.
47
The applicants also state that on Sunday 17 November 1991, that is, less than 24 hours after the inspection of the lorry,
and before C had been questioned, the customs police went to Brescia (Italy) where they searched a building occupied by someone
who was subsequently charged for participation in the cigarette‑smuggling operations.
48
Moreover, the applicants note that the consignments carried on 30 October and 5 November 1991 were duly declared to the Slovenian
customs authorities as boxes of foreign manufactured tobacco. The applicants submit that the Slovenian authorities, in the
context of the mutual administrative assistance agreement of 16 November 1965 between Italy and Yugoslavia then in force,
informed the Italian authorities of the presence of those sensitive goods in the consignments transported by C.
49
The applicants infer from the circumstances set out above that the Italian authorities were aware that C was smuggling, and
that in order to trace and apprehend all the members of that smuggling network they deliberately let offences be committed,
allowing two transport operations to be carried out for which the applicants had, in ignorance of the facts and therefore
in good faith, issued Community transit certificates. The applicants submit in this respect that the Court of First Instance
has held that the remission of import duties was justified where there was fraud in connection with an external Community
transit operation in which the customs administration was aware of the illegal act in question (Case T-330/99
Spedition Wilhelm Rotermund v
Commission [2001] ECR II-1619). Similarly, they point out that the Court of Justice has held that the demands of an investigation conducted
by the customs authorities or the police constitute, in the absence of any deception or negligence on the part of the person
liable, and where that person has not been informed that the investigation is being carried out, a special situation within
the meaning of Article 13(1) of Regulation No 1430/79 (
De Haan, paragraph 53).
50
The Commission maintains that the appellants’ situation is not comparable with that of the applicant in
De Haan. In that case, the customs authorities were aware of the smuggling and deliberately organised a delivery under surveillance,
whereas in the present case, by contrast, the smuggling operation was discovered following a routine customs check upon presentation
of the transit declarations to the customs authorities.
Findings of the Court
51
It should be noted that the demands of an investigation aimed at identifying and apprehending the persons who have carried
out or are planning a fraud, or the accomplices of those persons, may justify a deliberate omission to inform the principal
about the investigation fully or at all, even where the principal is in no way implicated in the perpetration of the fraud
(
De Haan, paragraph 32). It is therefore legitimate for the national authorities deliberately to allow offences or irregularities
to be committed, in order better to dismantle a network, identify perpetrators of fraud and obtain or consolidate evidence.
However, to place on the person liable the burden of a customs debt arising from those choices relating to the prosecution
of offences is inimical to the objective of the equitable provision, in that it puts the person liable in an exceptional situation
by comparison with other operators engaged in the same business. Accordingly, the failure to warn the person liable, for the
demands of an investigation conducted by the customs authorities or the police, that such an investigation is taking place
constitutes, in the absence of any deception or negligence on the part of the person liable, a special situation within the
meaning of Article 13(1) of Regulation No 1430/79 (see
De Haan, paragraph 53).
52
It is therefore necessary to consider whether there is evidence, as the applicants submit, that the Italian authorities were
aware of the cigarette smuggling in question, and nevertheless allowed the operations of 30 October and 5 November 1991 to
be carried out.
53
First, the Court considers that the fact that, once the customs formalities in relation to the operation of 16 November 1991
had been completed, the director of the Fernetti customs office requested the customs police to search the lorry, which necessitated
its pursuit and interception, is insufficient in itself to prove that the authorities were informed of the true nature of
the load. The record of the arrest, made by the Fernetti customs authorities on 16 November 1991, shows that the director
of the customs office ordered the vehicle to be searched because he suspected that the cargo transported differed from that
which had been declared. The fact that that search occurred after the lorry had left the customs zone does not justify the
conclusion that it was not a random search.
54
Next, the Court considers that the investigations and searches carried out by the Italian police at Brescia do not prove either
that the Italian authorities had been informed beforehand of the smuggling. It is clear from the record of the search prepared
by the Trieste customs police on 17 November 1991 that the police interventions in question followed the discovery of the
cigarettes in the lorry searched in Fernetti, the preliminary investigations of the police and the examination of the documentation
seized belonging to the driver of the lorry. It should also be noted that, contrary to the applicants’ assertion, the driver
of the lorry was briefly questioned on 16 November 1991 following his arrest.
55
Furthermore, the duties of which remission was requested do not correspond to that customs operation of 16 November 1991,
but to the earlier operations of 30 October and 5 November 1991. The authorities’ alleged knowledge of the smuggling must
therefore have existed before those dates in order for the
De Haan case-law to apply.
56
The fact that the declaration of 16 September 1991 was falsely discharged does not prove that the authorities were aware of
the smuggling operations of 30 October and 5 November 1991. The contents of the file do not support the conclusion that the
Italian customs authorities were aware of that alleged falsification before 16 November 1991. By contrast, the record made
by the Fernetti customs authorities of 16 December 1991 states that the smuggling corresponding to the operation of 16 September
1991 was discovered following the statements made by C on 16 November 1991 and the inspection, following those statements,
of the Fernetti customs register.
57
As for the argument that the Slovenian authorities informed their Italian counterparts in advance of the presence of cigarettes
in the consignments which were the subject of the declarations of 30 October and 5 November 1991, it should be noted that
the applicants adduce no evidence in that regard, beyond the existence of an administrative assistance agreement between Italy
and Yugoslavia of 16 November 1965 for the prevention and suppression of customs fraud. That agreement did not require the
Slovenian authorities to inform the Italian authorities without delay each time a consignment of tobacco left their territory
(see paragraph 79 below). Furthermore, in the record made by the Fernetti customs on 16 December 1991, it is stated that on
7 December 1991 the Italian authorities requested information from the Slovenian authorities and that it was following that
request that, on 13 December 1991, the Slovenian authorities confirmed the dates on which the consignments in question had
left Slovenian customs and informed the Italian authorities that the goods declared were primarily foreign manufactured tobacco.
58
Lastly, the applicants’ reference to the judgment in
Spedition Wilhelm Rotermund v
Commission is not relevant in the present case. In that case, the special situation arose from the existence of fraudulent practices
which could only reasonably be explained by the active complicity of an employee of the customs office at the destination,
since the Court concluded in that regard that the Commission was not entitled to confine itself to requiring that the applicant
adduce formal and definitive proof of such complicity (
Spedition Wilhelm Rotermund v
Commission, paragraphs 56 to 58). The facts were therefore different to those in the present case.
59
It is clear from the foregoing that the applicants have not shown that the Italian authorities were aware of the cigarette
smuggling beforehand and that they deliberately permitted the fraud corresponding to the transit operations of 30 October
and 5 November 1991 to be committed.
b) The allegation that the smuggling operations of which the applicants were the victims exceeded the commercial risks inherent
in their professional activity
Arguments of the parties
60
The applicants submit that they were the victims of a cleverly executed smuggling operation, involving huge sums of money,
carried out by an international group of fraudsters. They assert that the exceptional nature of the situation arises also
from the seriousness of the facts, the sums of money involved in the crime and the existence of at least four offences carried
out in succession by the smugglers. The applicants point out that no irregularity or error was detected in the transport documents
or the invoices submitted by the driver of the lorry in order to obtain the T1 transit documents. They note that the present
case is the first and only time that their good faith was not justified in relation to the issue of transit certificates:
they had issued hundreds of T1 documents previously in the course of decades of activity involving customs declarations.
61
The applicants point out that the contested decision is flawed in that it describes their business as ‘carriers’ or ‘customs
agents’. They assert that transport was not included in the business carried out by Nordspedizionieri and that they could
not be described as customs agents or ‘agenti in dogana’, within the meaning of a contract of agency under Italian law. The
applicants thus state that they carried on the business of representation only for customs purposes, acting as customs brokers
or ‘spedizionieri doganali’, in accordance with Italian customs law, in particular Articles 40 and 47 et seq. of Presidential
Decree No 43 of 23 January 1973.
62
The applicants note that the capacity to represent others for customs purposes has been recognised by the Community customs
rules and they invoke the sixth recital in the preamble to, and Article 3(3) of, Council Regulation (EEC) No 3632/85 of 12
December 1985 defining the conditions under which a person may be permitted to make a customs declaration (OJ 1985 L 350,
p. 1), and Article 5 of the Customs Code. They point out that those provisions enable representatives to be instructed to
make customs declarations, acting either in their own name but on behalf of others or in the name and on behalf of others
and that, pursuant to Article 3 of Italian Law No 1612 of 22 December 1960 on the recognition of customs brokers, such a representative
cannot unjustifiably refuse to act.
63
The applicants challenge the argument contained in the contested decision that fraudulent acts committed by third parties
are part of the normal commercial risks facing the customs broker and cannot constitute a special situation within the meaning
of Article 13 of Regulation No 1430/79. They submit that Article 4(1) of Regulation No 1031/88, which provides that persons
who removed the goods from customs supervision or who participated in that removal are liable for the payment of the customs
debt, establishes a liability in tort, which does not apply to the applicants since in the criminal proceedings they were
entirely absolved of responsibility. The applicants submit that only Article 4(1) of Regulation No 1031/88 applies in the
present case, and not Article 4(2), which applies only where the owner of the goods fails to perform its obligations, such
as where it is in liquidation.
64
The applicants note that a professional representative for customs purposes does not assume any commercial risks and therefore
that the assertion that the fraudulent operations of third parties are part of the normal commercial risks incurred by the
representative for customs purposes has no meaning in law. Moreover, they point out that the case-law of the Court of First
Instance, in particular since Case T-42/96
Eyckeler & Malt v
Commission [1998] ECR II-401, is that the innocent use of false customs documents cannot constitute a normal commercial risk. They point
out that the Court held in that judgment that, in circumstances in which the Commission had failed to discharge its duty of
supervising and monitoring, falsifications carried out in a very professional way exceeded the normal commercial risk which
must be borne by the operator (
Eyckeler & Malt v
Commission, paragraphs 188 and 189).
65
The applicants submit that
Eyckeler & Malt v
Commission constitutes a departure from earlier case-law and the start of new case-law more in line with the need to protect international
trade. The applicants refer in that connection to
Primex Produkte Import‑Export and Others v
Commission, paragraphs 163 and 164, and Joined Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T‑216/97 to T-218/97,
T-279/97, T-280/97, T-293/97 and T-147/99
Kaufring and Others v
Commission [2001] ECR II-1337. The
Kaufring judgment in particular stresses the fundamental principle of legitimate expectations in relation to documents prepared by
foreign authorities (paragraphs 216, 218 and 219).
66
The Commission contends that the use of false documents, even in good faith, cannot in itself constitute a special situation
and constitutes one of the normal commercial risks inherent in the trader’s business. Thus, the fact that the applicants are
not responsible for organising the smuggling does not exonerate them from payment of the customs debt.
Findings of the Court
67
It should be noted at the outset that whilst the applicants describe themselves as ‘spedizionieri doganali’(customs brokers),
paragraph 3 of the contested decision describes Nordspedizionieri as a ‘società di trasporti, agente in dogana’ (carrier,
customs agent). In their letter of 6 May 2002 in reply to the Commission’s preliminary objections to the remission of duties
applied for, the applicants pointed out that customs brokers only deal with the commercial documents and that, unlike customs
agents, they do not organise the transport of the goods and have no power to inspect the consignment. However, whilst the
contested decision is flawed in respect of the description of the applicants’ profession, the Commission did not rely in its
reasoning on any argument relating to the supply of services for the transport of goods. Therefore, the inaccuracy in the
decision could not in practice have affected the procedure for the remission of the customs debt.
68
It should be noted that the obligations on the applicants in the present case apply to them not so much because they are customs
brokers as because they were the principal for the two external transit operations in question. Under Article 11(a) of Regulation
No 222/77, the principal is responsible to the competent authorities for the execution of the Community transit operation
in accordance with the rules, and, under Article 13(a) and (b) of that regulation, the production of the goods intact at the
office of destination within the prescribed time‑limit and with due observance of the measures adopted by the competent authorities
to ensure identification and to observe the provisions relating to the Community transit procedure. In that sense, by assuming
the status of principal by their customs declarations of 30 October and 5 November 1991, the applicants assumed a particular
responsibility under the Community customs legislation.
69
The applicants’ arguments based on their own interpretation of Article 4(1) of Regulation No 1031/88, concerning the determination
of the persons obliged to pay a customs debt, cannot be upheld. The applicants submit, essentially, that since they did not
participate in the removal of the goods, they are not jointly liable for the payment of the customs duties in question. It
suffices to note in this regard that Article 13 of Regulation No 1430/79 does not permit the fact that a customs debt is due
to be challenged (
Cerealmangimi and Italgrani v
Commission, paragraph 11;
CT Control (Rotterdam) and JCT Benelux v
Commission, paragraph 43; and
Hyper v
Commission, paragraph 98), since the determination of the existence of the debt lies with the national authorities. Applications submitted
to the Commission under Article 13 of Regulation No 1430/79 are not concerned with whether or not the provisions of substantive
customs law have been correctly applied by the national customs authorities (
Kia Motors and Broekman Motorships v
Commission, paragraph 36).
70
As for the applicants’ argument that the innocent and involuntary participation in fraudulent operations carried out by third
parties constitutes a special situation within the meaning of Article 13 of Regulation No 1430/79, it should be noted that
according to settled case-law the presentation, even in good faith, of documents subsequently found to be falsified does not
in itself constitute a special situation justifying remission of import duties (see, to that effect,
Eyckeler & Malt v
Commission, paragraph 162;
Primex Produkte Import-Export and Others v
Commission, paragraph 140; and
SCI UK v
Commission, paragraph 58). In particular, the Court of First Instance has held that the fact that the invoices submitted to a customs
broker were fraudulent did not amount to a special situation for the purposes of Article 13 of Regulation No 1430/79, considering
that that fact was a commercial risk accepted by a customs broker, who by the very nature of his work, assumes liability for
the validity of the documents which he presents to the customs authorities and, therefore, that any loss caused by wrongful
conduct on the part of his clients cannot be borne by the Community (
Mehibas Dordtselaan v
Commission, paragraphs 82 and 83).
71
The specific circumstances and characteristics of the offence which were alleged by the applicants, such as the degree of
organisation of the wrongdoers, the seriousness of the acts, the sums of money involved or the existence of four offences
committed in succession do not undermine that finding (see, to that effect, Joined Cases 186/82 and 187/82
Magazzini Generali [1983] ECR 2951, paragraphs 14 and 15; see also
Aslantrans v
Commission, paragraph 58). Similarly, the applicants’ arguments that Italian customs brokers cannot adjust their fees in line with their
assessment of the risk of fraud or refuse, without justification, to act when instructed to do so do not place the applicant
in an exceptional situation as compared with other operators in so far as those circumstances affect an indefinite number
of operators, namely all Italian customs brokers (see, to that effect, Case C-86/97
Trans-Ex-Import [1999] ECR I-1041, paragraph 22; Case C-253/99
Bacardi [2001] ECR I-6493, paragraph 56; and
De Haan, paragraph 52). Finally, the fact that this was the first case of fraud of which the applicants were the victims also does
not suffice to give rise to exceptional circumstances within the meaning of Article 13 of Regulation No 1430/79.
72
A different conclusion, namely that there was a special situation, must apply however if there are serious failures by the
Commission or the national customs authorities, facilitating the fraudulent use of the documents (
SCI UK v
Commission, paragraph 59; see also, to that effect,
Eyckeler & Malt v
Commission, paragraphs 189 and 190;
Primex Produkte Import-Export and Others v
Commission, paragraph 163; and
Kaufring and Others v
Commission, paragraphs 235 and 302). Since Article 13 of Regulation No 1430/79 is intended to apply where the circumstances characterising
the relationship between an operator and the administration are such that it would be inequitable to require the operator
to bear a loss which he normally would not have incurred (
Coopérative agricole d’approvisionnement des Avirons, paragraph 22), it must be held that such circumstances amount to a special situation within the meaning of that provision
and justify remission of the import duties (see, to that effect,
Primex Produkte Import-Export and Others v
Commission, paragraphs 163 and 164).
73
Therefore, in the present case, it is necessary to consider whether the applicants have demonstrated the existence of such
failures on the part of the Commission or the national customs authorities.
c) The lack of supervision on the part of the customs authorities
Arguments of the parties
74
The applicants point out that the customs authorities did not check the consignments of 30 October and 5 November 1991 and
that they stamped the transit certificates with their visa of conformity without inspecting the lorries, thereby giving credence
to the veracity of the documents presented by the driver. They submit, in particular, that if the customs authorities suspected
the existence of irregularities in the operations of 30 October and 5 November 1991, as they did for the operation of 16 November
1991, they were under a duty to inspect the goods. They also point out that an appropriate deposit, in the sum of ITL 100 000 000,
was lodged when the two certificates guaranteeing payment of the customs duties owing in respect of the declared consignment
of cardboard boxes were issued. Whether that deposit was appropriate should have been assessed, if necessary, by the customs
authorities, which could have inspected the lorry when the transit certificates were issued. Thus, even if the customs authorities
and the customs police were not aware of the smuggling, they were also liable by reason of their failure physically to inspect
the goods.
75
The applicants also invoke a principle of confidence on the part of the operator in the proper application of Community legislation.
They submit that, given the existence of the administrative assistance agreement between Italy and Yugoslavia, referred to
above, the Slovenian customs authorities were under a duty to alert the Italian authorities that the consignments in question
were sensitive goods, because they are the subject of a valuable monopoly, and that the consequences of any shortcomings in
the system for notifying the existence of and preventing smuggling should not have to be borne by the person making the customs
declaration. Thus, even if the line of case-law following the judgment in
De Haan does not apply in the present case, the principle laid down in
Eyckeler & Malt v
Commission and Case C-250/91
Hewlett Packard France [1993] ECR I‑1819 should apply since the applicants have a legitimate expectation that the Community institutions will carry
out preventive checks of sensitive goods.
76
The Commission maintains that, whilst it is true that, in certain situations, a fraud committed by the presentation, in good
faith, of false documents may justify a remission of the debt, in particular when the Commission or the customs authorities
have demonstrated serious shortcomings facilitating the fraudulent use of those documents, in the present case the applicants
have adduced no evidence of fault on the part of the Italian authorities.
Findings of the Court
77
The applicants’ argument amounts in essence to submitting, first, that the Italian authorities should have physically inspected
the goods which were the subject of the transit operations of 30 October and 5 November 1991, and, second, that the Slovenian
customs authorities were required to alert their Italian counterparts of the transport of the tobacco in question.
78
First, the Court observes that it is not reasonable to require the national customs authorities to carry out a physical inspection
of all cargoes which cross Community borders. The reality of international carriage of goods makes it impossible in practice
physically to check all cross-border transport. Similarly, as the contested decision states in paragraph 36, the acceptance
of a transit declaration does not preclude the relevant customs authority from carrying out subsequent checks (see, to that
effect, Joined Cases 98/83 and 230/83
Van Gend & Loos v
Commission [1984] ECR 3763, paragraph 20). Lastly, contrary to the applicants’ submission, the evidence in the file does not lead to
the conclusion that the Italian authorities suspected the existence of irregularities in the operations of 30 October and
5 November 1991.
79
Second, the administrative assistance agreement for the prevention and suppression of customs fraud between Italy and Yugoslavia
of 16 November 1965 did not require the Slovenian customs authorities to inform the Italian customs authorities without delay
of all consignments of tobacco leaving their territory for Italy. The agreement merely provides for mutual assistance and
the establishment of close cooperation between the two authorities (Articles 1 and 3), the implementation ‘where possible’
of special surveillance of the movements of goods and vehicles identified as constituting a significant smuggling operation
(Article 4) and the exchange of information in particular in relation to the categories of goods which are the subject of
customs infringements (Article 5).
80
In the light of the foregoing, the Court considers that the applicants have not shown that the national customs authorities
were guilty of serious shortcomings which facilitated the fraudulent use of the transit certificates in question. Accordingly,
it must be held that, in the present case, the presentation by the applicants, in good faith, of documents which were subsequently
shown to have been false does not constitute a special situation justifying a remission of customs duties.
d) The impossibility of the applicants inspecting the lorries
Arguments of the parties
81
The applicants state that they operate on the border between Italy and Slovenia, that they delivered Community transit certificates
after the lorry left Ljubljana and, consequently, that it was impossible for them to inspect the consignment. The applicants
add that the persons making customs declarations cannot ask to inspect the vehicles, primarily because of the speed with which
transit operations must be carried out for obvious reasons connected with cross-border trade.
82
The Commission points out that the assessment of whether or not there is a special situation cannot depend on the place, which
is an objective factor likely to apply, actually or potentially, to a large number of operators (
Coopérative agricole d’approvisionnement des Avirons, paragraph 22).
Findings of the Court
83
It is settled case-law that circumstances which might constitute a special situation within the meaning of Article 13(1) of
Regulation No 1430/79 exist where, having regard to the objective of fairness underlying that provision, factors liable to
place the applicant in an exceptional situation as compared with other operators engaged in the same business are found to
exist (
Trans-Ex-Import, paragraph 22;
Bacardi, paragraph 56; and
De Haan, paragraph 52).
84
It must be stated that neither operating at a border, rather than at the place of departure of the consignment, nor the alleged
impossibility of inspecting the lorry constitutes a factor liable to place the applicants in an exceptional situation as compared
with other operators, since those factors affect an indefinite number of operators. Accordingly, they cannot give rise to
a special situation within the meaning of Article 13 of Regulation No 1430/79. It should be noted for the sake of completeness
that customs brokers, before presenting a customs declaration, are able to request that the customs services check the goods,
even if they only do so rarely.
e) The balancing of the interests involved
Arguments of the parties
85
The applicants point out that the Court of Justice has accepted that there is a special situation compared with that of other
operators carrying out the same business where the collection of the duties would have financially crippled the operator in
question given the extent of the customs claim (
Trans-Ex-Import). The applicants also observe that the Commission must assess all the facts in order to determine whether they constitute
a special situation and must balance the Community interest in ensuring that the customs provisions are respected against
the interest of the operator acting in good faith not to suffer harm beyond the normal commercial risk (
Spedition Wilhelm Rotermund v
Commission, paragraph 53). The contested decision did not compare the interests at stake, but merely excluded the application of Article
13 of Regulation No 1430/79.
86
The Commission submits that the applicants’ argument implies that, before rejecting an application for remission, the Commission
should draw up a sort of credit and debit account of the risks for the Community’s own resources and those incurred by the
operators. However, according to the case-law, the analysis to be carried out is in order to determine whether or not the
Commission or the customs authorities committed an error such as to impose an unreasonable burden on the operator.
Findings of the Court
87
It should be noted that, contrary to the applicants’ assertion, the Court did not hold in
Trans-Ex-Import that the fact that the levying of the duties risked the financial destruction of the operator given the amount of customs
duties claimed gave rise to a special situation. Whilst the referring court did indeed refer to the Court for preliminary
ruling a question as to whether the fact that the levying of customs duty would destroy the operator’s business gave rise
to a special situation under Article 905(1) of 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 (OJ 1993 L 253, p. 1)
(
Trans-Ex-Import, paragraph 13), the Court merely replied that a finding of a special situation presupposes the existence of factors liable
to place the applicant in an exceptional situation compared with that of other operators engaged in the same business (
Trans-Ex-Import, paragraph 22).
88
Similarly, the applicants’ argument that the contested decision is not based on a comparison of the interests at stake cannot
be upheld. It should be noted that in applying Article 13 of Regulation No 1430/79 the Commission enjoys a margin of discretion
which it must exercise by balancing the Community interest in ensuring that the customs provisions are respected against the
interest of the operator acting in good faith not to suffer harm beyond the normal commercial risk (
Eyckeler & Malt v
Commission, paragraph 133, and
Mehibas Dordtselaan v
Commission, paragraph 78). It should be noted that, contrary to the applicants’ submission, the Commission did not, in the contested
decision, merely exclude the application of Article 13 of Regulation No 1430/79, but assessed whether the facts of the case
fell within the commercial risk normally faced by customs brokers, and concluded that they did not go beyond the normal commercial
risk for that business (see, in particular, paragraph 30 of the contested decision).
89
It follows from the foregoing that the applicants have not succeeded in demonstrating, whether their arguments are considered
in succession or as a whole, that the Commission committed a manifest error of assessment in considering that the circumstances
of the case did not constitute a special situation within the meaning of Article 13 of Regulation No 1430/79.
3. The existence of negligence or deception
Arguments of the parties
90
The applicants submit at the outset that the order of the preliminary investigating judge of the Tribunale civile e penale
di Trieste of 14 January 1994 dismissing the criminal proceedings proves that there was no deception or negligence on their
part within the meaning of Article 13 of Regulation No 1430/79. They point out that this is the first and only time that their
good faith was not justified in relation to the issue of transit certificates, whereas they had previously issued hundreds
of T1 documents in the course of decades of activity involving customs declarations. The applicants state that the transit
certificates in question were issued in accordance with standard trade practice, which the customs authorities had never challenged
in the past, and that therefore it was for the Commission to prove obvious negligence on their part (see
Primex Produkte Import-Export and Others v
Commission, paragraph 136), as well as to prove that the applicants had acted differently in this case in terms of the procedures for
drawing up and issuing the two certificates in question.
91
The applicants challenge the argument in the contested decision that, given their status as habitual makers of customs declarations,
they were under an obligation to take all appropriate precautions in connection with the consignment in transit, in particular
the obligation, before making the declaration, to check the nature of the goods contained in the lorries. The applicants point
out in that respect that the operations were processed at the customs post at the border and therefore ‘in line’, that is,
one lorry behind another at the border crossing, and that, consequently, if the goods were unloaded in the customs area that
would hinder the ease of movement of the goods. The applicants also point out that the person making the customs declaration
can only request that the goods be inspected if there are specific doubts as to the nature of the goods, because of errors
or contradictions in the documents produced, and that it must be authorised by the customs authorities. They also point out
that the weight of the lorry carrying the cigarettes was similar to what it would have been if it had in fact been carrying
cardboard boxes and was therefore compatible with the nature of the consignment declared in the accompanying transport documents
and invoices.
92
The applicants submit that, so far as they were able to do so, on the basis of their professional experience, and by exercising
particular care in examining the documents submitted to them, they considered that the lorries were carrying cardboard boxes,
as had been the case on numerous other occasions, since those goods were commonly in transit at the Fernetti customs post.
Moreover, the applicants submit that the documents in which the transit declarations were made appeared to be in good order,
as is confirmed by the fact that the customs authorities stamped them with their visas of conformity.
93
The Commission submits that the applicants’ arguments amount to a claim that, notwithstanding that they made the customs declarations,
they should not incur any liability. Such a view amounts to a denial of the duty of care owed by the person making the customs
declaration and is contrary to the requirements of equity on which the remission procedures are based. The Commission notes
that the Court has pointed out the importance of the duty of care of the operator making a customs declaration (
Hewlett Packard France, paragraph 27), since that duty is essential for determining whether the operator was obviously negligent (Case T-75/95
Günzler Aluminium v
Commission [1996] ECR II-497, paragraph 43). The Commission concludes that the analysis of the contested decision shows that the applicants
did not exercise the standard of care required of an experienced operator.
Findings of the Court
94
Article 13 of Regulation No 1430/79 makes the remission of import duties subject to the fulfilment of two cumulative conditions,
namely the existence of a special situation and the absence of deception or obvious negligence on the part of the economic
operator (
Covita, paragraph 29;
De Haan, paragraph 42; and
SCI UK v
Commission, paragraph 45). Consequently, it suffices that one of the two conditions is not satisfied for the repayment of the duties
to be refused (
Günzler Aluminium v
Commission, paragraph 54;
Mehibas Dordtselaan v
Commission, paragraph 87; and
Kaufring and Others v
Commission, paragraph 220).
95
The Court of First Instance has held that in the present case the Commission did not commit a manifest error of assessment
in considering that the circumstances of the case did not constitute a special situation within the meaning of Article 13
of Regulation No 1430/79. Therefore, it is not necessary to examine the condition relating to the absence of deception or
obvious negligence.
96
It follows from all the foregoing that the second plea in law is unfounded.
97
Accordingly, the applicants’ claim seeking an order annulling the contested decision must be rejected.
II –
The order sought in the alternative, for the remission of part of the customs duties Arguments of the parties
98
In the alternative the applicants challenge the rejection, in the contested decision, of their application that part of the
customs debt in question be regarded as extinguished following the confiscation of part of the goods subject to customs duties,
as provided for by Article 8(1)(b) of Regulation No 2144/87. They point out that in the course of its investigations on 8
April 1992 the Trieste customs police confiscated 8 010 kg of foreign manufactured tobacco in a warehouse in Bareggio, and
submit that it is highly probable that the confiscated goods were those which had been transported under cover of the transit
declarations issued by the applicants on 30 October and 5 November 1991. The applicants submit that the challenge to the amount
of the customs debt constitutes the issue of fact underlying the proceedings, and therefore it cannot be declared inadmissible,
in so far as it constitutes the objective issue of the proceedings.
99
The Commission submits that that application is inadmissible in that, according to settled case-law, in an action for annulment
the Community Courts can only order a Community institution to adopt measures for the enforcement of a judgment ordering the
annulment of a decision.
Findings of the Court
100
By the complaint alleging infringement of Article 8(1)(b) of Regulation No 2144/87 the applicants ask the Court to find, in
particular, ‘so far as may be relevant’, that there should be a remission of duties in respect of the 8 010 kg of foreign
manufactured tobacco confiscated in Bareggio.
101
It is settled case-law that Article 13(1) of Regulation No 1430/79 is not intended to be used to challenge the very principle
that the customs debt is due (
Cerealmangimi and Italgrani v
Commission, paragraph 11;
CT Control (Rotterdam) and JCT Benelux v
Commission, paragraph 43; and
Hyper v
Commission, paragraph 98). The question of the extinguishment of all or part of the customs debt by confiscation of the goods subject
to customs duties, within the meaning of Article 8(1)(b) of Regulation No 2144/87, necessarily relates either to the question
of the very existence of the customs debt, or to the determination of its amount. Similarly, it should be noted that applications
submitted to the Commission under Article 13 of Regulation No 1430/79 are not concerned with whether or not the provisions
of substantive customs law have been correctly applied by the national customs authorities (
Kia Motors and Broekman Motorships v
Commission, paragraph 36). Accordingly, it must be concluded that the question of the extinguishment of the customs debt by confiscation
of part of the goods subject to customs duties does not arise under that provision.
102
That conclusion is not undermined by the applicants’ argument to the effect that dispute over the amount of the customs debt
constitutes the issue of fact underlying the proceedings. That argument fails to take account of the limits and specificity
of the mechanism for the remission or repayment of customs debts laid down by Article 13(1) of Regulation No 1430/79.
103
In the light of the foregoing, it must be found that the order sought by the applicants for a declaration that the remission
of duties is due in respect of the customs debt in respect of the 8 010 kg of confiscated tobacco must be declared inadmissible.
104
Consequently, the action must be dismissed in its entirety.
Costs
105
Under Article 87(2) of the Rules of Procedure of the Court of First Instance, 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 applicants have been unsuccessful,
and the Commission has applied for costs, the applicants must be ordered to bear their own costs and those of the Commission.
On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber)
hereby:
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Dismisses the action;
2.
Orders the applicants to bear their own costs and to pay those of the Commission.
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Lindh
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García-Valdecasas
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Cooke
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Delivered in open court in Luxembourg on 14 December 2004.
Table of contents
| Procedure and forms of order sought |
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I – The claim seeking the annulment of the contested decision |
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A – The first plea in law, alleging several material errors in the contested decision |
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1. The inspection of the operation of 16 November 1991 |
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2. The amount of the remission of duties applied for |
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B – The second plea in law, alleging the existence of a special situation and the absence of deception or obvious negligence,
within the meaning of Article 13 of Regulation No 1430/79
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1. Preliminary observations |
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2. The existence of a special situation |
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a) The allegation that the Italian authorities had prior knowledge of the smuggling operations |
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b) The allegation that the smuggling operations of which the applicants were the victims exceeded the commercial risks inherent
in their professional activity
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c) The lack of supervision on the part of the customs authorities |
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d) The impossibility of the applicants inspecting the lorries |
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e) The balancing of the interests involved |
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3. The existence of negligence or deception |
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II – The order sought in the alternative, for the remission of part of the customs duties |
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1 –
Language of the case: Italian.
