In Joined Cases C-121/91 and C-122/91,
CT Control (Rotterdam) BV and JCT Benelux BV, companies incorporated under Netherlands law, whose registered offices are in Rotterdam, the Netherlands, both represented by I.G.F. Cath and T.H. Tanja-Van den Broek, of the Bar of The Hague, with an address for service in Luxembourg at the Chambers of L.H. Dupong, 14a Rue des Bains,
applicants,
v
Commission of the European Communities, represented by Blanca Rodriguez Galindo, of its Legal Service, and Lian Tan, a Netherlands official seconded to that Service, acting as Agents, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
supported by
Kingdom of the Netherlands, represented by J.W. de Zwaan and T. Henkels, Assistant Legal Advisers at the Ministry of Foreign Affairs, acting as Agents, with an address for service in Luxembourg at the Embassy of the Netherlands, 5 Rue C.M. Spoo,
intervener,
APPLICATION for (i) annulment of Commission Decisions C (90) 1333 def.: REM 1/90 of 5 July 1990 and C (90) 3021 def.: REM 8/90 of 18 December 1990 (Case C-121/91) and Commission Decision C (90) 3024 def.: REM 7/90 of 18 December 1990 (Case C-122/91) addressed to the Netherlands, in which the Commission considered that remission of import duties was not justified in these cases on the grounds that the applicants had submitted applications for remission to the national authorities and (ii) a declaration that the applications for remission made by the applicants should be accepted pursuant to Community law or that they must be treated favourably,
THE COURT (Fifth Chamber),
composed of: G.C. Rodgríguez Iglesias, President of the Chamber, M. Zuleeg, R. Joliet, J.C. Moitinho de Almeida and F. Grévisse, Judges,
Advocate General: C. Gulman,
Registrar: H.A Ruehl, Principal Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 8 October 1992,
after hearing the Opinion of the Advocate General at the sitting on 11 November 1992,
gives the following
Judgment
1 By applications lodged at the Court Registry on 26 April 1991, the company CT Control (Rotterdam BV), the applicant in Case C-121/91, and the company JCT Benelux BV, the applicant in Case C-122/91 (hereinafter "the applicants"), brought actions under the second paragraph of Article 173 of the EEC Treaty for annulment of Decisions C (90) 1333 def.: REM 1/90 of 5 July 1990 and C (90) 3021 def.: REM 8/90 of 18 December 1990 (Case C-121/91) and Decision C (90) 3024 def.: REM 7/90 of 18 December 1990 (Case C-122/91) and for a declaration that the claims for remission made by the applicants should be accepted under Community law or that they must be treated favourably.
2 In view of the connection between the two cases, the Court ordered them to be joined for the purposes of the oral procedure and the judgment by order of 15 September 1992. In both cases the Kingdom of the Netherlands was granted leave to intervene in support of the Commission by order of 17 October 1991.
3 On importation of several consignments of honey during the years from 1982 to 1984 both the applicants, in their capacity as customs agents in the Netherlands, presented between 17 December 1982 and 5 October 1984 EUR 1 movement certificates referred to in Article 6 of Protocol No 1 to the Second ACP-EEC Convention, signed at Lomé on 31 October 1979 (OJ 1980 L 347, p. 73). It appears from those certificates that the honey originated in an ACP State, in this instance Jamaica. Under the Second Lomé Convention the goods in question were allowed to be imported without payment of normal customs duties.
4 During an investigation into exports to the Community of natural honey originating in Jamaica which the Commission conducted in Jamaica between 29 October 1984 and 10 November 1984 it emerged that several EUR 1 movement certificates had been improperly issued between 1979 and 1984. After having carried out their own inquiry, the Jamaican authorities informed the Commission on 5 December 1984 that certain EUR 1 certificates, including those presented by the applicants at the time of making their declarations, had indeed been improperly issued and that they had consequently been withdrawn.
5 On the basis of that information, which the Commission notified to them on 14 March 1985, the Netherlands customs authorities decided to effect post-clearance recovery of the uncollected amounts and to that end sent import duty collection notices to the applicants on 25 October 1985. CT Control (Rotterdam) BV received six additional demands (Nos 252 - 257 AWDA) for a total amount of HFL 231 698.60 in respect all its imports of natural honey originating in Jamaica between December 1982 and October 1984 and JCT Benelux BV received one additional demand (No 261 AWDA) for HFL 24 498.50 in respect of the import of that product in December 1982.
6 Both applicants applied to the competent Netherlands customs authorities, in letters dated 28 and 31 October 1985 respectively, for remission of import duties pursuant to 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).
7 Those two applications were rejected by decisions dated 10 April 1986 without having been submitted to the Commission as provided for in Article 13 of Regulation No 1430/79, cited above. After having appealed unsuccessfully against those decisions, the applicants both instituted proceedings before the Tariefcommissie (Administrative Tribunal in Customs and Excise Matters), Amsterdam, which, by decisions of 20 November 1989, annulled the decisions of the customs administration and ordered the applications to be submitted to the Commission.
8 The Netherlands customs authorities then forwarded the applications to the Commission by letters dated 12 January and 13 July 1990, which were received on 15 January and 17 July 1990 respectively and registered under numbers REM 1/90 and 8/90 (Case 121/91), and by letter dated 13 July 1990, which was received on 17 July 1990 and registered under No REM 7/90 (Case 122/91).
9 Article 1 of each of the contested decisions, adopted by the Commission on 5 July and 18 December 1990 respectively, states that remission of the import duties was not justified.
10 Notified of the contents of these decisions by the Netherlands customs authorities on 20 February 1991, the applicants brought the present actions.
11 Reference is made to the Report for the Hearing for a fuller account of the facts and legislative background to the dispute, the course of the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
The claims for annulment
12 In support of their claims the applicants put forward four pleas in law, which can be summarized as follows:
° infringement of rules of procedure in relation to the period within which the Commission is required to reach its decisions;
° inadequacy of the statement of reasons for the disputed decisions;
° infringement of the procedure for the subsequent verification of the validity of EUR 1 movement certificates;
° infringement of the rights of the defence.
The plea alleging infringement of the rules of procedure in relation to the period within which the Commission is required to reach its decisions
13 Before assessing whether this plea is well founded, it is necessary to have regard to the regulations on which it is based.
14 When in 1985 the applicants lodged with the Netherlands authorities their application for remission of import duties pursuant to Article 13 of Regulation No 1430/79 the provisions for implementing that article were laid down by Commission Regulation (EEC) No 1575/80 of 20 June 1980 (OJ 1980 L 161, p. 13) in the version resulting from Commission Regulation No 945/83 of 21 April 1983 amending for the second time Regulation (EEC) No 1575/80 (OJ 1983 L 104, p. 14, hereinafter "the 1980 implementing regulation").
15 Pursuant to Article 5(2) of that regulation, the Commission' s decision whether to grant repayment or remission had to be taken
"within four months of the date on which the application referred to in Article 3(1) is received by the Commission",
that is to say within four months of receipt of the file forwarded by the Member State concerned and containing all the information necessary for the Commission to conduct a complete examination of the application for repayment or remission of import duties submitted by the claimant.
16 Article 7 of the regulation stipulated that
"if the Commission fails to take a decision within the period referred to in Article 5 or fails to notify a decision to the Member State in question within the period referred to in Article 6, the decision-making authority shall grant the application".
17 However, by the time the applications for remission of import duty were submitted to the Commission, that is to say on 15 January and 17 July 1990 respectively, the 1980 implementing regulation had been repealed since 1 January 1987 and had been replaced by Commission Regulation (EEC) No 3799/86 of 12 December 1986 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of Council Regulation (EEC) No 1430/79 (hereinafter "the 1986 implementing regulation"). Articles 5 to 10 of that regulation made a number of amendments to the rules of procedure previously applicable.
18 Pursuant to Article 8(2) of that regulation, the Commission' s decision whether to grant repayment or remission of import or export duties had to be taken
"within six months of the date on which the documents referred to in Article 6(1) are received by the Commission",
that is to say within six months of receipt of the file referred to in paragraph 15 of this judgment.
19 Article 10 of that regulation repeats the obligation on the national authorities to grant the application if the Commission fails to take a decision within the six-month period referred to in Article 8.
20 In the light of this legislative framework, the applicants assert that the Commission was required to consider their applications for remission of duties on the basis of the time-period rules that were in force on 25 October 1985, the date of the retrospective collection of duty by the national authorities, and that for that examination they had only four months, the period laid down in the 1980 implementing regulation. As the Commission had not reached a decision within that period, the Netherlands authorities should have granted the applications in question pursuant to Article 7 of the 1980 implementing regulation. The Commission' s disputed decisions, which were subsequently taken, should therefore be annulled.
21 The Commission and the Netherlands Government contend, however, that it is the procedural rules in the 1986 implementing regulation that should be applied in the present cases since the applications for remission of import duty in question were not lodged with the Commission until 12 January and 13 July 1990 respectively, that is to say after 1 January 1987, the date on which that implementing regulation came into force. Moreover, the disputed decisions were taken within the period of six months laid down by that regulation.
22 It should be noted that, according to consistent case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force (see, in particular, the judgment in Case 212/80 Amministrazione delle Finanze dello Stato v Salumi [1981] ECR 2735, paragraph 9).
23 It is common ground that the implementing provisions in question are procedural rules relating to the processing of applications for repayment or remission by the Commission. In accordance with the principle regarding the time at which procedural rules take effect, it is therefore the 1986 implementing regulation which applies in the present cases and not, as the applicants contend, the 1980 implementing regulation, which means that the Commission had six months within which to take the disputed decisions, a time-limit which it respected.
24 The applicants, who cite the Salumi II judgment, cited above, and the judgment in Case 113/81 Reichelt v Hauptzollamt Berlin-Sued [1982] ECR 1957, nevertheless maintain that the principle regarding the time at which procedural rules take effect does not apply in the present cases since the relevant procedural and substantive rules form an indivisible whole and cannot therefore be considered in isolation with regard to the time at which they take effect.
25 This argument cannot be accepted.
26 First, in the Salumi II and Reichelt judgments, cited above, the Court merely noted that the Community system for the post-clearance recovery of import and export duties (Salumi II judgment) and the Community system for the repayment or remission of import duties (Reichelt judgment) had replaced, without retroactive effect, the various corresponding national systems as regards both the procedural and substantive rules applicable.
27 Secondly, whichever substantive rules were applicable to the applications for repayment or remission of duties submitted in 1990, the Commission could examine those applications only in accordance with the procedural rules which defined its powers and obligations and which had been in force since the introduction of the 1986 implementing regulation, that is to say before the applications for repayment or remission had been lodged with it. Before that referral to the Commission the applicants had not in any event acquired any rights under the 1980 implementing regulation, which had been repealed on 1 January 1987, before their applications had even been lodged with the Commission.
28 It follows from the foregoing considerations that the first plea put forward by the applicants must be rejected.
The plea alleging inadequacy of the statement of reasons
29 The applicants maintain that the disputed decisions do not meet the requirement, laid down in Article 190 of the EEC Treaty, that they should state the reasons on which they are based in that the statement of reasons merely refers to the judgment of the Court in Joined Cases 98/83 and 230/83 Van Gend & Loos and Bosman v Commission [1984] ECR 3763 without taking account of either the facts or the special circumstances of the cases.
30 In this regard, they raise three different objections:
° the reasons for which the Van Gend & Loos and Bosman judgment is relevant are not stated;
° in the present cases the statement of reasons was wrongly based on that judgment;
° it has not been demonstrated that the imported honey did not originate in Jamaica or another ACP State.
31 It should be noted that, according to consistent case-law (see in particular the judgment in Case 323/88 SA Sermes v Directeur des Services des Douanes de Strasbourg [1990] ECR I-3027), the statement of reasons required by Article 190 of the Treaty must disclose clearly and unequivocally the reasoning followed by the adopting body in such a way as to allow the persons concerned to ascertain the reasons for the measure and thus enable them to defend their rights, and to enable the Court to exercise its review. It cannot, however, be required that the statement should go into all the relevant factual and legal points. The question whether the statement of grounds for a decision meets those requirements must be assessed with regard not only to its wording but also to the context of the decision and to all the legal rules governing the matter in question (see, in this regard, the judgment in Case 185/83 University of Groningen v Inspecteur der Invoerrechten en Accijnzen, Groningen [1984] ECR 3623, paragraph 38).
32 The statement of reasons for the disputed decisions meets those requirements. It covers all the facts and points of law underlying the decisions taken in relation to the applications for remission of duties. Indeed, it states that it is not decisive for the purposes of remission of the duties that recovery be undertaken by a customs agent (fourth recital of the disputed decisions), that the latter "assumed responsibility both for the payment of import duties and for the regularity of the documents which he presented to the customs authorities in support of the declaration of release into free circulation" (fifth recital of the disputed decisions) and that in accordance with the Van Gend & Loos and Bosman judgment, cited above, "the fact of having been furnished with certificates or documents that were subsequently cancelled by the competent authorities cannot be considered as a special circumstance within the meaning of Article 13 of Regulation (EEC) No 1430/79 that can justify repayment of import duties legally due, since good faith concerning the validity of such certificates and the accuracy of their contents is not generally protected" (sixth recital of the disputed decisions).
33 That conclusion cannot be invalidated by the three abovementioned objections raised by the applicants to support the plea that the statement of reasons given for the disputed decisions was insufficient.
34 As regards the first objection, it is sufficient to note that, contrary to what the applicants maintain, the grounds set out for the disputed decisions give the reasons for which reference is made to the judgment in Van Gend & Loos and Bosman v Commission. As indicated in the sixth recital of the disputed decisions, cited above, reference to that judgment of the Court is intended to demonstrate that the condition laid down by Article 13 of Regulation No 1430/79 requiring the existence of special circumstances is not met in situations such as those underlying the judgment cited above. This objection must therefore be rejected.
35 As their second objection the applicants state that in view of the considerable differences between the facts which gave rise to the judgment in the case of Van Gend & Loos and Bosman v Commission and the present cases this judgment cannot be invoked in support of the absence, in the present cases, of "special circumstances" within the meaning of Article 13 of Regulation No 1430/79.
36 This argument cannot be accepted.
37 The judgment in question contains an interpretation of the concept of "special circumstances" within the meaning of Article 13 of Regulation No 1430/79. It states that a customs agent, by the very nature of his functions, renders himself liable for the payment of import duties and for the validity of the documents which he presents to the customs authorities. Consequently, the fact that certificates are withdrawn by the competent customs authority after clearance does not constitute a "special circumstance" but a professional risk which any customs agent runs, even one acting in good faith. With regard to the latter point, the judgment clearly indicates that the good faith of the persons concerned regarding the information given on the certificates of origin cannot be considered a "special circumstance".
38 In the present cases, the applicants do not dispute the fact that they acted as customs agents, that they also assumed responsibility for the correctness of the customs documents and that the certificates produced by them subsequently proved to be invalid. The facts correspond exactly to the considerations which led the Court, in the judgment cited above, to conclude that "special circumstances" within the meaning of Article 13 of Regulation No 1430/79 did not exist. The Commission was therefore right to base the reasoning of the disputed decisions on that judgment.
39 As regards the applicants' third objection, which is that in the disputed decisions the Commission does not show that the imported honey did not originate in Jamaica or another ACP State, it is sufficient to state that it is for the importer and not the Commission to establish that imported goods originate in an ACP State in order to obtain remission of duty. In addition, this question concerns the legality of the withdrawal of the certificates of origin. As the Court stated in the judgment in Joined Cases 244 and 245/85 Cerealmangimi and Italgrani v Commission [1987] ECR 1303, this cannot be advanced as an argument to prove that Commission decisions on applications for remission of duties are unlawful. This objection must therefore also be rejected.
40 It appears from the foregoing that the applicants were in a position to ascertain the reasons for which the Commission considered that remission of duties was not justified in the present cases and that they had the opportunity to defend their rights in full knowledge of the facts.
41 The legality of the disputed decisions cannot therefore be contested on the grounds of the requirement for a statement of reasons laid down in Article 190 of the Treaty. The plea put forward in this regard must therefore be rejected.
The plea of infringement of the procedure for the subsequent verification of the validity of EUR 1 movement certificates
42 In this regard the applicants maintain that the procedure laid down in Article 25 of Protocol No 1 to the Second Lomé Convention for establishing that EUR 1 movement certificates are invalid was not respected and that consequently the decision of the Netherlands authorities to recover import duties after clearance is illegal. They consider that in those conditions the applications which led to the disputed decisions should not have been submitted to the Commission and that the latter decisions should be annulled.
43 It must be borne in mind that the sole aim of Article 13 of Regulation No 1430/79 is to enable importers, when certain special conditions are satisfied and in the absence of negligence or deception, to be exempted from payment of duties due from them and not to enable them to contest the actual principle of an amount being due (see, in this regard, the Italgrani judgment, cited above, paragraph 11).
44 It follows that the applicants may only properly rely, in relation to the contested decisions, on arguments seeking to show the existence in this case of special circumstances and the absence of negligence or deception on their part, and not on arguments seeking to show that the decisions of the competent national authorities subjecting them to payment of the duties at issue were unlawful.
45 As the applicants themselves admit, the plea of breach of the procedure for the subsequent verification of the validity of EUR 1 movement certificates concerns the legality of the decisions of the Netherlands authorities to effect post-clearance recovery of import duties. However, the legality of those decisions can be determined only in actions before the competent national court.
46 In those circumstances, the third plea cannot be accepted either.
The plea of infringement of the rights of the defence
47 The applicants maintain that the procedure followed in the adoption of the disputed decisions does not meet the safeguards laid down in this regard by Community law. They say that they did not have an opportunity to express their point of view directly to the Commission and that they did not have all the information that led to the adoption of the disputed decisions.
48 It should be recalled that in its judgment in Case 294/81 Control Data v Commission [1983] ECR 911, paragraph 17, and its judgment in Van Gend & Loos and Bosman, cited above, paragraph 9, the Court has already rejected this plea, put forward in the same legal context. In those judgments the Court held that the procedure for adopting the disputed decisions, which comprised several stages, some of which took place at national level (submission of the application by the undertaking concerned, preliminary examination of the application by the customs authorities) and some at Community level (submission of the application to the Commission, examination of it by the Committee on Duty-Free Arrangements, consultation of a group of experts, decision by the Commission, notification to the Member State concerned), afforded the persons concerned all the necessary legal safeguards.
49 Given that this procedure was followed in the present cases, a fact which the applicants do not contest, the plea of infringement of the rights of the defence is unfounded. The procedure followed enabled the applicants to submit all their arguments to the Netherlands authorities; their files were at the disposal of both the Committee on Duty-Free Arrangements and the Commission. Moreover, the applicants acknowledge that all the arguments which they could have put forward in favour of remission had been mentioned in their applications and that there was no new factor that they could have introduced into their arguments. At all events, they knew that their applications were being forwarded to the Commission and could have supplemented the arguments contained in them if they had so wished.
50 The applicants consider, however, that in view of recent developments in the case-law of the Court regarding the rights of the defence in the field of competition law and anti-dumping duties and in view of Article 6 of the European Convention on the Protection of Human Rights, respect for the rights of the defence should be maintained more strictly than in the cases which gave rise to the Control Data and Van Gend & Loos and Bosman judgments, cited above.
51 This argument cannot be accepted.
52 First, as the Commission has rightly pointed out, the procedures applicable with regard to competition law and anti-dumping duties differ considerably from that followed in the present cases. In the latter, traders lodge applications for remission of duty themselves, whereas in cases involving competition and anti-dumping duties it is the Community institutions which decide to institute the procedure which may lead to the punishment of an economic agent who has contravened the provisions of the Treaty. In the latter case, the principle of audi alteram partem, which represents the defence' s most essential right according to the case-law of the Court, assumes special importance. However, in cases such as those now before the Court it must be considered that the principle of audi alteram partem is respected at the Community level if the requirements set out in the judgment in the Control Data and Van Gend & Loos and Bosman cases are satisfied.
53 The applicants have provided no evidence to show that the principle of audi alteram partem, as guaranteed in the procedure laid down for the adoption of the disputed decisions, does not meet the requirements set out in Article 6 of the European Convention on the Protection of Human Rights.
54 In those circumstances, the plea of infringement of the rights of the defence and, consequently, the claims for annulment of the disputed decisions must be dismissed.
The claims for a declaration that the applications for remission submitted to the national authorities must be recognized under Community law or that they must be treated favourably
55 The claim is essentially for a declaration by the Court that the Netherlands customs authorities must grant the applicants' applications for remission of import duties.
56 Pursuant to Article 173 of the Treaty, which lays down the conditions for the admissibility of an action for annulment, the Court has jurisdiction to review the legality of acts of the Council and the Commission. If the action is well founded, under Article 174 of the Treaty the Court is to declare the act concerned to be void.
57 It follows that the Court does not have power in these actions to rule on the question whether the national authorities owe any obligations, even where a decision of the Commission has been declared to be void.
58 Consequently, these heads of claim must be dismissed as inadmissible.
59 In the light of all those considerations, the applications must be dismissed as unfounded in so far as they seek annulment of Commission decisions C (90) 1333 def.: REM 1/90 of 5 July 1990, C (90) 3021 def.: REM 8/90 of 18 December 1990 and C (90) 3024 def.: REM 7/90 of 18 December 1990 and as inadmissible in so far as they seek a declaration that the applications for remission of import duties lodged with the national authorities should be recognized under Community law or that they must be treated favourably.
Costs
60 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the applicants have failed in their submissions, they must be ordered to pay the costs, including those of the intervener if they have been applied for.
On those grounds,
THE COURT (Fifth Chamber)
hereby:
1. Dismisses the applications;
2. Orders the applicants to pay the costs, including those of the intervener.
