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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Bolton Alimentari (Commercial policy) [2011] EUECJ C-494/09 (17 February 2011)
URL: http://www.bailii.org/eu/cases/EUECJ/2011/C49409.html
Cite as: [2011] EUECJ C-494/09, [2011] EUECJ C-494/9
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(Preliminary ruling – Admissibility – Customs duty – Tariff quota – Customs Code – Article 239 – Regulation (EEC) No 2454/93 – Articles 308a, 308b and 905 – Regulation (EC) No 975/2003 – Tuna – Exhaustion of quota – Date of opening – Sunday)
In Case C-494/09,
REFERENCE for a preliminary ruling under Article 267 TFEU from the Commissione tributaria provinciale di Alessandria (Italy), made by decision of 18 November 2009, received at the Court on 1 December 2009, in the proceedings
Bolton Alimentari SpA
Agenzia delle Dogane – Ufficio delle Dogane di Alessandria,
composed of K. Lenaerts, President of the Chamber, D. Å váby, E. Juhász, G. Arestis and T. von Danwitz (Rapporteur), Judges,
Advocate General: J. Mazák,
Registrar: A. Impellizzeri, Administrator,
having regard to the written procedure and further to the hearing on 9 December 2010,
after considering the observations submitted on behalf of:
– Bolton Alimentari SpA, by M. Merola and C. Santacroce, avvocati,
– the Italian Government, by G. Palmieri, acting as Agent, assisted by G. Albenzio, avvocato dello Stato,
– the European Commission, by L. Bouyon, D. Recchia and B.'R. Killmann, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 The present reference for a preliminary ruling relates to the interpretation of Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1) (‘the Customs Code’) and of Articles 308a to 308c and 905 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation No 2913/92 (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 214/2007 of 28 February 2007 (OJ 2007 L 62, p. 6), (‘the implementing regulation’).
2 The reference has been made in proceedings between Bolton Alimentari SpA (‘Bolton’) and the Agenzia delle Dogane – Ufficio delle Dogane di Alessandria (‘the Agenzia’) concerning the exclusion of Bolton from a tariff quota which opened on Sunday, 1 July 2007, a day on which the Italian customs offices were closed, and which was exhausted on the day on which it was opened.
Legal context
3 Article 239 of the Customs Code provides:
‘1. Import duties or export duties may be repaid or remitted in situations other than those referred to in Articles 236, 237 and 238:
– to be determined in accordance with the procedure of the committee;
– resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the committee procedure. Repayment or remission may be made subject to special conditions.
2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which the amount of the duties was communicated to the debtor.
…’
4 Article 308a of the implementing regulation states:
‘1. Save as otherwise provided, where tariff quotas are opened by a Community provision, those tariff quotas shall be managed in accordance with the chronological order of dates of acceptance of declarations for release for free circulation.
…
4. Subject to paragraph 8, allocations shall be granted by the Commission on the basis of the date of acceptance of the relevant declaration for release for free circulation, and to the extent that the balance of the relevant tariff quota so permits. Priority shall be established in accordance with the chronological order of these dates.
5. The Member States shall communicate to the Commission all valid requests for drawing without delay. Those communications shall include the date referred to in paragraph 4, and the exact amount applied for on the relevant customs declaration.
…
7. If the quantities requested for drawing from a tariff quota are greater than the balance available, allocation shall be made on a pro rata basis with respect to the requested quantities.
8. For the purposes of this Article, acceptance of a declaration by the customs authorities on 1, 2 or 3 January shall be regarded as acceptance on 3 January. However, if one of those days falls on a Saturday or a Sunday, such acceptance shall be regarded as having taken place on 4 January.
…’
5 Article 308b of the implementing regulation provides:
‘1. The Commission shall make an allocation each working day, except:
– days which are holidays for the Community institutions in Brussels …
…
2. Subject to Article 308a(8), any allocation shall take into account all unanswered requests which relate to declarations for release for free circulation accepted up to and including the second previous day, and which have been communicated to the Commission.’
6 Under Article 308c of the implementing regulation:
‘1. A tariff quota shall be considered as critical as soon as 90% of the initial volume has been used, or at the discretion of the competent authorities.
2. By way of derogation from paragraph 1, a tariff quota shall be considered from the date of its opening as critical in any of the following cases:
…
(c) an equivalent tariff quota opened in the previous two years had been exhausted on or before the last day of the third month of its quota period or had a higher initial volume than the tariff quota in question.
…’
7 Article 899 of the implementing regulation provides:
‘1. Where the decision-making customs authority establishes that an application for repayment or remission submitted to it under Article 239(2) of the [Customs] Code:
– is based on grounds corresponding to one of the circumstances referred to in Articles 900 to 903, and that these do not result from deception or obvious negligence on the part of the person concerned, it shall repay or remit the amount of import duties concerned;
– is based on grounds corresponding to one of the circumstances referred to in Article 904, it shall not repay or remit the amount of import duties concerned.
2. In other cases, except those in which the dossier must be submitted to the Commission pursuant to Article 905, the decision-making customs authority shall itself decide to grant repayment or remission of the import or export duties where there is a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned.
Where Article 905(2), second indent, is applicable, the customs authorities may not decide to authorise repayment or remission of the duties in question until the end of a procedure initiated in accordance with Articles 906 to 909.
…’
8 Under Article 905 of the implementing regulation:
‘1. Where the application for repayment or remission submitted under Article 239(2) of the [Customs] Code is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the Member State to which the decision-making customs authority belongs shall transmit the case to the Commission to be settled under the procedure laid down in Articles 906 to 909 where:
– the authority considers that a special situation is the result of the Commission failing in its obligations,
…
2. However, the cases referred to in paragraph 1 shall not be transmitted where:
– the Commission has already adopted a decision under the procedure provided for in Articles 906 to 909 on a case involving comparable issues of fact and of law,
– the Commission is already considering a case involving comparable issues of fact and of law.
…’
9 Article 1 of Council Regulation (EC) No 975/2003 of 5 June 2003 opening and providing for the administration of a tariff quota for imports of canned tuna covered by CN codes 1604 14 11, 1604 14 18 and 1604 20 70 (OJ 2003 L 141, p. 1) provides:
‘From 1 July 2003, imports of canned tuna covered by CN codes 1604 14 11, 1604 14 18 and 1604 20 70 originating in any country shall be eligible for a tariff rate of 12 per cent within the limits of the tariff quota opened in accordance with this Regulation.’
10 Article 2 of Regulation No 975/2003 provides:
‘The tariff quota shall be opened annually for an initial period of five years. Its volume for the first two years shall be fixed as follows:
– 25 000 tons from 1 July 2003 to 30 June 2004,
– 25 750 tons from 1 July 2004 to 30 June 2005.’
11 Article 6 of Regulation No 975/2003 provides:
‘This Regulation may be revised during the second year after the tariff quota is opened in order to adapt the volume of the quota to the needs of the Community market. If, however, this revision is not completed three months before the 30 June 2005, the quota shall be automatically extended for a further year for a volume of 25 750 tons. Subsequently the tariff quota shall be extended regularly for one year at a time and for the same volume unless a revision is adopted not later than three months before the closure of the current quota.’
12 Article 8(1) of that regulation provides:
‘The Commission shall be assisted by the Customs Code Committee … set up by Article 247a of Council Regulation (EEC) No 2913/92.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
13 For the importation of canned tuna from Thailand, tariff quotas from which Bolton benefited in 2005 and 2006 were opened in accordance with Regulation No 975/2003.
14 In order to benefit from the tariff quota for the period from 1 July 2007 to 30 June 2008, Bolton submitted declarations for release for free circulation for canned tuna from Thailand which were not accepted by the Italian customs offices until 2 July 2007 by reason of the fact that the offices are closed on Sundays.
15 According to the written observations of the Commission, on 4 July 2007 it allocated the tariff quota in question on the basis of the chronological order of the dates on which the customs declarations had been accepted. Following the allocation of the tariff quota to the applications for drawing in respect of which the declarations had been accepted on 1 July 2007, that tariff quota was exhausted on the day on which it was opened. For that reason, Bolton’s application for drawing was not considered and Bolton was therefore obliged to pay the full duty applicable to the imports which it had carried out.
16 As is apparent from the Commission’s observations, on 16 July 2007 the Agenzia asked it to consider regularising the applications for drawing which had been excluded from the tariff quota allocation on the ground that they had not been accepted by the Italian customs offices until Monday, 2 July 2007. In that regard, the Agenzia relied on the Administrative Arrangement on the management of tariff quotas adopted by the Customs Code Committee on 30 October 2007 (TAXUD/3439/2006-rev.1IT; ‘the Administrative Arrangement’). It submitted that, in accordance with point 15 of that arrangement, the declarations accepted on Sunday, 1 July 2007, by customs authorities of other Member States should have been dealt with by the Commission together with those accepted, in Italy, on Monday, 2 July 2007. In addition, it raised the fact that, by analogy, the provisions of Article 308a(8) of the implementing regulation, concerning the handling of applications accepted on the first three days of the year, should have been applied to the situation in the present case.
17 On 16 August 2007, the Commission replied, by letter TAXUD B4 D (2007) 9241 (‘the TAXUD note’), that it was impossible to regularise the applications for drawing bearing 2 July 2007 as the acceptance date. The allocation of tariff quotas, it stated, was effected under Article 308a(4) of the implementing regulation according to chronological order and the Administrative Arrangement could not alter that.
18 Bolton sought repayment of the additional amount in duty which it had had to pay for its imports, relying on the fact that it had not had the opportunity to enter into competition with the other European Union importers for admission to the tariff quota in question on a fair and non-discriminatory basis. By decision of 17 November 2008, the Direzione regionale per il Piemonte e la Valle d’Aosta – Ufficio delle Dogane di Alessandria (Regional Directorate for Piedmont and the Aosta Valley – Alessandria Customs Office) refused the repayment requested. With a view to having that decision annulled, Bolton brought the matter before the national court.
19 In those circumstances, the Commissione tributaria provinciale di Alessandria (Tax Court for the Province of Alessandria) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. Is Article 239 [of the Customs Code] to be interpreted as meaning that, in a case such as that at issue here, where the Member State takes the view that the European Commission cannot be criticised for having committed any irregularity and none of the other circumstances contemplated in Article 905(1) [of the implementing regulation] … obtains, that same Member State may decide independently on an application for repayment to the debtor within the meaning of Article 899(2) [of the implementing regulation]?
2. If the answer to the preceding question is in the affirmative, may the expression “special situation” used in [Article 905(1) of the implementing regulation with reference to] Article 239 [of the Customs Code] refer to the exclusion of a Community importer from a tariff quota whose opening date falls on a Sunday because of the Sunday closing of the customs offices of the Member State in question?
3. Are Articles 308a to 308c [of the implementing regulation] and the relevant provisions of the [Administrative Arrangement on the management of tariff quotas] to be interpreted as meaning that, in a case such as that at issue here, the Member State should have asked the Commission beforehand to suspend the tariff quota in question in order to enable Italian importers to receive fair and non-discriminatory treatment in comparison with importers from other Member States?
4. Are the exclusion of Bolton … from the quota, as decided by the Commission, and the TAXUD note measures taken in compliance with Articles 308a to 308c [of the implementing regulation], as well as with the relevant provisions of the Administrative Arrangement …, and therefore valid?’
Consideration of the questions referred
Admissibility
20 The Italian Government takes the view that the reference for a preliminary ruling is inadmissible. In its opinion, it is before the General Court of the European Union that Bolton ought to have contested the Commission decision by which it was excluded from the tariff quota and the TAXUD note confirming that position. In accordance with the case-law resulting from Case C-188/92 TWD Textilwerke Deggendorf [1994] ECR I-833, Bolton cannot contend before a national court that the Commission has erred in its application of provisions of European Union law.
21 In that regard, it is appropriate to note that the first, second and third questions do not concern the validity of acts of the Commission, but refer solely to the obligations of the national authorities pursuant to European Union legislation. Thus, the possible option for Bolton, as suggested by the Italian Government, to apply to the General Court can affect only the admissibility of the fourth question and not that of the reference for a preliminary ruling as a whole.
22 With regard, more specifically, to the admissibility of the fourth question, it must be noted that, admittedly, the possibility for a litigant to plead before the court hearing its action the invalidity of provisions in European Union acts presupposes that the party in question had no right of direct action under Article 263 TFEU by which it could challenge provisions the consequences of which it is suffering without having been able to seek their annulment (see TWD Textilwerke Deggendorf, paragraph 23, and Case C-550/09 E and F [2010] ECR I-0000, paragraphs 45 and 46).
23 Nevertheless, it follows from that case-law that the admissibility of such a direct action must be beyond any doubt (E and F, paragraph 48 and case-law cited). In the present case, however, the information set out in the reference for a preliminary ruling and that provided by the Italian Government does not allow the Court to conclude that the admissibility of such a direct action would have been beyond any doubt.
24 With regard, in particular, to the ‘decision’ of the Commission by which, in the view of the Italian Government, Bolton was excluded from the tariff quota, it must be stated that neither the reference for a preliminary ruling nor the observations of the parties make it clear whether, when and to what extent Bolton was made aware of that decision. In addition, that decision was not produced before the Court, with the result that it is unable to ascertain whether Bolton was the addressee or, if not, whether that company was directly and individually concerned by it within the meaning of the fourth paragraph of Article 263 TFEU. Thus, the Court cannot assess whether the admissibility of an action by Bolton against that decision would have been beyond any doubt.
25 In those circumstances, the questions referred must be regarded as being admissible in their entirety.
Substance
The fourth question
26 By its fourth question, which it is appropriate to consider first, the national court asks, in essence, whether Articles 308a to 308c of the implementing regulation and the relevant provisions of the Administrative Arrangement must be interpreted as precluding the Commission from being able to adopt a decision which excludes an operator from a tariff quota by reason of the fact that that quota was exhausted on the day on which it was opened, namely a Sunday, a day on which the customs offices of the Member State in which the operator in question is established are closed.
27 In accordance with Article 308a(1) of the implementing regulation, tariff quotas are, ‘save as otherwise provided’, to be managed in accordance with the chronological order of dates of acceptance of declarations for release for free circulation.
28 Article 308a(4) of the implementing regulation provides that, ‘subject to paragraph 8’ thereof, allocations are to be granted by the Commission on the basis of the date of acceptance of the relevant declaration for release for free circulation. The second sentence of that provision states that priority is to be established in accordance with the chronological order of those dates of acceptance.
29 In accordance with Article 308a(8) of the implementing regulation, acceptance of a declaration by the customs authorities on 1, 2 or 3 January is to be regarded, for the purposes of Article 308a, as acceptance on 3 January. Article 308a(8) also stipulates that if one of those days falls on a Saturday or a Sunday, such acceptances are to be regarded as having taken place on 4 January.
30 It follows from the actual wording of those provisions that, as a general rule, allocations are granted in accordance with the chronological order of the dates of acceptance of declarations for release for free circulation, irrespective of the day of the week on which those declarations were accepted.
31 Furthermore, since the second sentence of Article 308a(8) of the implementing regulation expressly lays down a derogating rule to cover cases in which the 1, 2 or 3 January should fall on a Saturday or Sunday, that rule necessarily presupposes the existence of a general rule that the chronological order is to be determined solely on the basis of the date of acceptance of the declaration for release for free circulation, irrespective of the day of the week on which that declaration was accepted.
32 This interpretation is supported by the scheme of Article 308a of the implementing regulation, in that paragraph 4 thereof states that a derogation from that general rule is provided for only in circumstances referred to in paragraph 8 thereof, that is to say, in regard to declarations for release for free circulation accepted on 1, 2 or 3 January.
33 The fact that, according to point 15 of the Administrative Arrangement, the declarations for release for free circulation accepted by the national customs authorities on a Sunday are dealt with by the Commission on a Monday cannot call into question the result which follows expressly and unequivocally from the interpretation of Article 308a of the implementing regulation. By its nature, the Administrative Arrangement cannot derogate from the rules established in that article and accordingly cannot be interpreted in a manner contrary to that article (see, by way of analogy, Joined Cases C-75/05 P and C-80/05 P Germany and Others v Kronofrance [2008] ECR I-6619, paragraph 61, and Case C-369/07 Commission v Greece [2009] ECR I-5703, paragraph 112).
34 Similarly, the circumstance, pleaded by Bolton, that, at the time of the facts in the main proceedings, the Commission was aware that customs offices in Italy were closed on Sundays and that the quota in question was liable to be exhausted within days of its opening is irrelevant for the purposes of interpreting Article 308a of the implementing regulation.
35 In Bolton’s view, the Commission should either have postponed the opening of that quota to a Monday or dealt with the applications for drawing accepted in Italy on the Monday together with those accepted in other Member States on the Sunday in order thereby to ensure that all operators in the European Union would have non-discriminatory access to the quota in question.
36 It must, however, be borne in mind that the Sunday closing of customs offices in Italy cannot be attributed to the Commission and that the Commission is not, by that fact alone, obliged to remedy the different treatment of Italian operators resulting from the fact that the opening days of customs offices in Italy differ from those in other Member States.
37 Having regard to the foregoing, the answer to the fourth question is that Articles 308a to 308c of the implementing regulation must be interpreted as not precluding the Commission from being able to adopt a decision excluding an operator from a tariff quota by reason of the fact that that quota was exhausted on the day on which it was opened, namely a Sunday, that being a day on which the customs offices in the Member State in which the operator in question is established are closed.
The third question
38 By its third question, which it is appropriate to consider second, the national court asks, in essence, whether Articles 308a to 308c of the implementing regulation and the relevant provisions of the Administrative Arrangement must be interpreted as requiring a Member State to request the Commission to suspend a tariff quota in order to ensure fair and non-discriminatory treatment of importers in cases where the opening of that tariff quota falls on a Sunday, that being a day on which the customs offices of the Member State in question are closed, and where that quota is liable to be exhausted on the day on which it was opened, given that the customs offices in other Member States are open on Sundays.
39 In that regard, an obligation on a Member State to request the suspension of a tariff quota presupposes that the Commission is in fact in a position to suspend the opening of the tariff quota because of the Sunday closing of customs offices in one Member State.
40 Articles 308a to 308c of the implementing regulation do not, however, provide for the suspension of the opening of a tariff quota in such circumstances.
41 In addition, as the Commission has pointed out, such suspension of a tariff quota cannot be accepted since it would necessarily, throughout the European Union, make the opening of such a quota dependent on the special circumstances prevailing in a single Member State.
42 Finally, with regard to the rules of the Administrative Arrangement, it must be borne in mind, as has been pointed out in paragraph 33 of this judgment, that those rules cannot derogate from the provisions of the implementing regulation.
43 Having regard to the foregoing, the answer to the third question is that Articles 308a to 308c of the implementing regulation must be interpreted as not requiring a Member State to request the Commission to suspend a tariff quota in order to ensure fair and non-discriminatory treatment of importers in cases where the opening of that tariff quota falls on a Sunday, that being a day on which the customs offices in the Member State in question are closed, and where that quota is liable to be exhausted on the day on which it is opened, given that the customs offices in other Member States are open on Sundays.
The first question
44 By its first question, which it is appropriate to consider third, the national court asks, in essence, whether the customs authority of a Member State may itself rule on the application for repayment referred to in Article 239(2) of the Customs Code if that authority takes the view that no irregularity can be attributed to the Commission and that the application in question does not come within any of the other circumstances contemplated in Article 905(1) of the implementing regulation.
45 In this regard, it must be borne in mind that, under Article 899(2) of the implementing regulation, the national customs authorities have the power to decide whether or not it is appropriate to grant repayment of duty in all other cases, that is to say, in cases other than those referred to in paragraph 1 thereof, which are not relevant to the present case, ‘except those in which the dossier must be submitted to the Commission pursuant to Article 905’.
46 Having regard to the fact that the competent Italian customs authority took the view that the particular situation in which Bolton found itself was not the result of a failure on the part of the Commission to fulfil its obligations and that the application for repayment in question did not come within the other circumstances contemplated in Article 905(1) of the implementing regulation, it necessarily follows that the Italian customs authority to which Bolton applied pursuant to Article 239(2) of the Customs Code had the power to decide whether or not it was appropriate to grant the repayment requested.
47 Having regard to the foregoing, the answer to the first question is that, in circumstances other than those contemplated in Article 899(1) of the implementing regulation, the customs authority of a Member State has the power itself to rule on the application for repayment referred to in Article 239(2) of the Customs Code if that authority takes the view that no irregularity can be attributed to the Commission and that the application in question does not come within any of the other circumstances contemplated in Article 905(1) of the implementing regulation.
The second question
48 By its second question, which it is appropriate to consider last, the national court asks, in essence, whether Article 239 of the Customs Code must be interpreted as meaning that it refers to the exclusion of a European Union importer from a tariff quota, the opening date of which falls on a Sunday, by reason of the Sunday closing of the customs offices of the Member State in which that importer is established.
49 In order to answer that question, it is first of all necessary to determine whether Article 239 of the Customs Code can, in principle, apply in circumstances such as those in the main proceedings.
50 In the view of the Italian Government, Article 239 of the Customs Code cannot apply as this would have the result of extending the tariff quota beyond the quantitative limit which results from Articles 2 and 6 of Regulation No 975/2003, that is to say, 25 750 tonnes.
51 It is true that, in the main proceedings, repayment of import duties pursuant to Article 239 of the Customs Code would imply that, notwithstanding the exhaustion of the tariff quota in question, imports carried out by importers such as Bolton would, by reason of the repayment of the difference between the normal import duties and those resulting from the application of the preferential rates valid for that tariff quota, in effect be subject to that preferential rate.
52 Such a consequence cannot, however, exclude application of Article 239 of the Customs Code in circumstances such as those in the main proceedings, as will be clear from an analysis of the wording, scheme and purpose of that provision.
53 First, the wording of Article 239 of the Customs Code gives no indication to suggest that application of that article would be excluded in circumstances such as those in the main proceedings.
54 Next, it must be borne in mind that Article 239 of the Customs Code is a general equitable provision (Case C-230/06 Militzer & Münch [2008] ECR I-1895, paragraph 50, and Case C-204/07 P C.A.S. v Commission [2008] ECR I-6135, paragraph 85).
55 Since it is impossible for importers established in a Member State in which the customs offices are closed on the day on which a tariff quota is opened to have declarations for release for free circulation accepted on the same day as operators established in other Member States, it is in keeping with principles of fairness to remedy that unfavourable situation by the application of Article 239 of the Customs Code.
56 Finally, if the view were to be taken that that provision cannot apply in circumstances such as those in the main proceedings, the customs rules of the European Union would not allow account to be taken of the disadvantageous situation of operators in one Member State in comparison with the situation of their competitors established in other Member States, something which would run counter to the objective of that provision.
57 Accordingly, the economic consequences described in paragraphs 50 and 51 of this judgment, which are the inevitable result of the application of Article 239 of the Customs Code, cannot, in principle, call into question the applicability of that provision in circumstances such as those in the main proceedings.
58 With regard to the question whether the conditions to which application of Article 239 of the Customs Code is subject are satisfied in the main proceedings, it must be pointed out that, in the context of the system of judicial cooperation established by Article 267 TFEU, it is for the referring court to give a ruling in the dispute before it, while it is for the Court of Justice to provide that court with all information necessary for that purpose with regard to European Union law (see, to that effect, Case C-14/09 Genc [2010] ECR I-0000, paragraph 31).
59 To that end, it must be stated that, in accordance with Article 239(1) of the Customs Code, read in conjunction with the first subparagraph of Article 899(2) of the implementing regulation, repayment of import duties may be made where the facts of the case constitute a special situation resulting from circumstances in which no deception or obvious negligence can be attributed to the person concerned.
60 In accordance with settled case-law, such a special situation presupposes that the person liable is in an exceptional situation as compared with other operators engaged in the same business (see, to that effect, C.A.S. v Commission, paragraph 82 and the case-law cited).
61 In that regard, it is, admittedly, true that Bolton is in the same situation as other tuna importers established in Italy. That fact does not, however, preclude the view from being taken that Bolton and other tuna importers established in Italy are in an exceptional situation vis-à-vis tuna importers established in the other Member States, given that the existence of a common customs territory necessarily requires that account be taken of the importers concerned throughout the European Union.
62 It is appropriate to point out that, with regard to the conditions that there must be no deception or obvious negligence, there is nothing in the main proceedings to suggest fraudulent conduct or negligence on the part of Bolton.
63 Finally, if the national court were to conclude, in the light of these considerations, that Bolton’s application for repayment must be accepted, it is also necessary to state that the amount to be repaid cannot correspond to the difference between the normal customs duties and the favourable tariff valid for the tariff quota, but only to part of that difference, regard being had to the fact that, as is apparent from the Commission’s observations, the applications for drawing on the tariff quota in question were taken into account only up to 73.89302%.
64 In the light of the foregoing, the answer to the second question is that Article 239 of the Customs Code must be interpreted as meaning that it can refer to the exclusion of a European Union importer from a tariff quota, the opening date of which falls on a Sunday, by reason of the Sunday closing of the customs offices in the Member State in which that importer is established.
Costs
65 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
1. Articles 308a to 308c 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, as amended by Commission Regulation (EC) No 214/2007 of 28 February 2007, must be interpreted as not precluding the European Commission from being able to adopt a decision excluding an operator from a tariff quota by reason of the fact that that quota was exhausted on the day on which it was opened, namely a Sunday, that being a day on which the customs offices in the Member State in which the operator in question is established are closed.
2. Articles 308a to 308c of Regulation No 2454/93, as amended by Regulation No 214/2007, must be interpreted as not requiring a Member State to request the European Commission to suspend a tariff quota in order to ensure fair and non-discriminatory treatment of importers in cases where the opening of that tariff quota falls on a Sunday, that being a day on which the customs offices in the Member State in question are closed, and where that quota is liable to be exhausted on the day on which it is opened, given that the customs offices in other Member States are open on Sundays.
3. In circumstances other than those contemplated in Article 899(1) of Regulation No 2454/93, as amended by Regulation No 214/2007, the customs authority of a Member State has the power itself to rule on the application for repayment referred to in Article 239(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, if that authority takes the view that no irregularity can be attributed to the European Commission and that the application in question does not come within any of the other circumstances contemplated in Article 905(1) of Regulation No 2454/93.
4. Article 239 of Regulation No 2913/92, as amended by Regulation No 1791/2006, must be interpreted as meaning that it can refer to the exclusion of a European Union importer from a tariff quota, the opening date of which falls on a Sunday, by reason of the Sunday closing of the customs offices in the Member State in which that importer is established.
[Signatures]
* Language of the case: Italian.