General Court, 19-03-2013, nr. T-324/10

The fifth plea in law in this action is divided into three parts. First, the applicant claims that the lack of involvement of the Spanish authorities in producing the forged import licences cannot be established with certainty. Secondly, it is of the view that there is a link between the level of the duties sought and the errors made by the Commission in the administration of the tariff quota. Thirdly, it is claimed that the Commission did not examine the other conditions for the application of Article 220(2)(b) of the CCC, which are, in the present case, satisfied.

The Commission disputes the applicant's arguments, while the Kingdom of Belgium did not intervene in support of this plea in law.

The applicant claims that it requested OLAF to provide access to any documents or information on any possible complicity when the forged licences were issued. However, the majority of the documents requested were never made available to it, even after the intervention of the European Ombudsman, who proposed an amicable settlement which OLAF has not yet implemented. All attempts by the applicant to obtain more information and to defend itself against post-clearance recovery were rejected as regards essential documents relating to alleged forgeries and the complicity of the Spanish authorities. To that extent, the applicant claims that there was a material infringement of its rights of defence.

The Commission disputes the applicant's arguments, while the Kingdom of Belgium did not intervene in support of this plea in law.

In the first place, the applicant complains that OLAF did not grant it complete access to the documents requested. It considers that the information which was refused to it was essential to determine whether there was error on the part of the Spanish authorities, within the meaning of Article 220(2)(b) of the CCC.

In so far as the applicant's arguments appear to be directed against the decisions by which OLAF refused full access to the documents requested, taken on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), it must be stated that it is apparent from the file that, by the decisions of 26 October and 3 December 2004, OLAF replied to the two requests made by the applicant confirming access to the documents. Moreover, the applicant does not dispute that it did not bring court proceedings against those decisions, as the Commission pointed out. Accordingly, the fact that OLAF refused full access to the documents requested has no bearing on the present dispute.

In the second place, the applicant claims that its rights of defence were the subject of material infringement, since it was unable to obtain the information which it sought on the alleged falsification of the import licences in dispute and on the possible complicity within the Spanish authorities.

It must be borne in mind that, under the principle of observance of the rights of the defence, it cannot be for the Commission alone to decide which documents are useful to the person concerned for the purposes of the waiver of post-clearance recovery. The administrative file may include documents favourable to the waiver of recovery which the person concerned could use in support of his request even if the Commission has not used them. The applicant must therefore be able to have access to all the non-confidential documents on file including those which have not been used as the basis for the Commission's objections (Case T-53/02 Ricosmos v Commission [2005] ECR II-3173, paragraph 72).

By its arguments, the applicant does no more than maintain that it did not have access to documents relating to the falsification of the import licences in dispute and to the possible complicity within the Spanish authorities. On that point, as the Commission points out, two observations may be made.

First, before taking the contested decision, the Commission provided the applicant with a copy of the letter from the Spanish judicial authorities of 20 October 2005 stating that Spanish officials were not involved in the case of the forged import licences. Moreover, the Commission contends that it is perhaps impossible to obtain information relating to the alleged complicity within the Spanish authorities simply because such facts have not been established. The Commission must accordingly be regarded as claiming that it is not aware of the existence of such information and does not have any document which makes reference thereto. It is clear from the case-law that, where the institution concerned asserts that a particular document to which access has been sought does not exist, there is a presumption that it does not exist. That, none the less, is a simple presumption, which the applicant may rebut in any way by relevant and consistent evidence (see Case T-5/02 Tetra Laval v Commission [2002] ECR II-4381, paragraph 95, and Case T-146/04 Gorostiaga Atxalandabaso v Parliament [2005] ECR II-5989, paragraph 121). In the present case, the applicant has not adduced such evidence as to the existence of documents which would establish the alleged forging of the import licences in dispute and possible complicity within the Spanish authorities.

Secondly, it must be noted that the applicant submitted several documents before the General Court in order to substantiate the existence of the alleged complicity and of the method(s) of forging the import licences in dispute. These are, in particular, OLAF's working document of 22 September 2000, the judgment of the Tribunale civile e penale, referred to during the examination of the fifth plea in law, and the report of 23 June 2004 concerning the evidence of OLAF officials responsible for the investigation concerning the fraudulent imports taken by the investigating magistrate in Ravenna. It is also apparent from the file that the applicant already had those three documents when it submitted to the Belgian customs and excise authorities a document entitled ‘Position paper’ (report) dated 25 June 2007, which they were annexed to. As was stated in paragraphs 48 and 50 above, both OLAF's working document and the judgment of the Tribunale civile e penale record only the suspicions of complicity within the Spanish authorities in the production of forged import licences. The same is true of the report on the evidence from the OLAF officials.

It follows from the foregoing that, even before the procedure for waiving post-clearance recovery was referred to the Commission, the applicant was in possession of documents setting out the suspicions of complicity within the Spanish administration in the production of forged import licences and describing quite specifically the probable methods used to forge the licences, enabling it to present its defence on the question of the potential complicity of a Spanish official in drawing up the forged licences.

Accordingly, it is clear that the applicant is not justified in claiming that its rights of defence have been materially infringed because it could not obtain access to certain information or certain documents.

Since the applicant did not provide further clarification on the alleged infringement of the rights of the defence to which it claims it was subject and since it did not substantiate further the mere assertion of infringement of essential procedural requirements, the arguments raised must be rejected and, with it, the sixth plea in law of the action.

It should be borne in mind that Article 905 of Regulation No 2454/93, a provision which sets out and expands on the rule laid down in Article 239 of the CCC, constitutes a general fairness clause intended in particular to cover exceptional situations which, in themselves, do not fall within any of the cases provided for in Articles 900 to 904 of that regulation (Case C-86/97 Trans-Ex-Import [1999] ECR I-1041, paragraph 18). It is clear from Article 905 that repayment of import duties is subject to two cumulative conditions, namely, first, the existence of a special situation and, secondly, the absence of deception or obvious negligence on the part of the economic operator (Case T-282/01 Aslantrans v Commission [2004] ECR II-693, paragraph 53). Accordingly, repayment of duties must be refused if either of those conditions is not met (Case T-75/95 Günzler Aluminium v Commission [1996] ECR II-497, paragraph 54, and Aslantrans v Commission, paragraph 53).

It is stated in the contested decision that the condition of the existence of a special situation is satisfied in this case (see paragraph 18 above). Consequently, the General Court's examination must exclusively relate to the question of whether the Commission was right to find that there was obvious negligence.

According to the case-law, in order to assess whether there is obvious negligence within the meaning of Article 239 of the CCC, account must be taken in particular of the complexity of the provisions non-compliance with which resulted in the customs debt being incurred, and the professional experience of, and care taken by, the trader (Cases C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 56, and Case C-156/00 Netherlands v Commission [2003] ECR I-2527, paragraph 92).

Moreover, it must be borne in mind that the Commission enjoys a margin of discretion when adopting a decision pursuant to Article 239 of the CCC (see, by analogy, Case T-290/97 Mehibas Dordtselaan v Commission [2000] ECR II-15, paragraphs 46 and 78). It must also be pointed out that the repayment or remission of import duties, which may be made only under certain conditions and in cases specifically provided for, constitutes an exception to the normal import and export procedure, and, consequently, the provisions which provide for such repayment or such remission are to be interpreted strictly. In particular, since a lack of obvious negligence is an essential condition of being able to claim repayment or remission of import duties, it follows that that term must be interpreted in such a way that the number of cases of repayment or remission remains limited (Söhl & Söhlke, paragraph 79 above, paragraph 52).

However, although the Commission has some discretion as regards the application of Article 239 of the CCC, it cannot disregard its duty to balance, on the one hand, the European Union interest in full compliance with the provisions of customs legislation, and, on the other hand, the interest of an importer acting in good faith not to suffer harm which goes beyond the normal commercial risk (see judgment of 30 November 2006 in Case T-382/04 Heuschen & Schrouff Oriëntal Foods v Commission, paragraph 46 and case-law cited).

It is in the light of those considerations that the second plea in law of this action, in support of which the Kingdom of Belgium intervened, must particularly be examined.

The applicant criticises the finding of obvious negligence which the Commission attributed to it in the contested decision. Supported by the Kingdom of Belgium, the applicant sets out several arguments in support of that plea in law.

First, the applicant claims that the Commission cannot accuse it of the slightest obvious negligence since the alleged infringements were based on the incorrect hypothesis that it had entered into an agreement to repurchase the goods. Secondly, the applicant claims that, in the light of the circumstances of the present case, it was impossible for it to know that the alleged forged import licences existed, bought at market rates through M, who for years had had a relationship of trust with its subsidiary. Thirdly, contrary to the case-law of the General Court, the Commission does not adduce evidence of obvious negligence on the part of the applicant, although it had always acted in the framework of standard trading practices and displayed professional and diligent conduct. Fourthly, the applicant claims, in essence, that the Commission's criticisms of the commercial relations with M and the holders of the import licences in dispute are unfounded, as those relations fall within standard trading practices. Fifthly, the diligence required is contrary to case-law, and is particularly severe and disproportionate, in a specific situation which is far in excess of normal commercial risk. At the material time, there was no need to question the authenticity of the import licences. Sixthly, the Commission wrongly considered that the condition as to the complexity of the legislation is irrelevant.

By the third, fourth and fifth arguments, which should be examined together and before the other matters, the applicant considers, in essence, that the Commission has not shown that it failed to act with due care.

In the first place, it must be borne in mind that, where the customs authorities have concluded that it could not be established that there was deception or obvious negligence on the economic operator's part, it is for the Commission, when it intends to depart from the position taken by the national authorities, to prove, on the basis of relevant facts, that there was in this case obvious negligence on the part of that operator (Case T-26/03 Geologistics v Commission [2005] ECR II-3885, paragraphs 78 and 82).

It must be noted that, in its letter of 14 December 2007, the Belgian customs and excise authorities were of the opinion that there was a special situation within the meaning of Article 239 of the CCC and that the applicant had not acted with obvious negligence.

In the second place, it must be borne in mind that, to conclude that the applicant had not acted with due care, the Commission noted, in recital 60 of the contested decision, that there was no trace of contacts with the holders of the import licences, although such contacts would have been indispensable so that the goods could be released for free circulation, as the names of those companies appeared on the declarations of release for free circulation, for which those companies could have been held liable. In recitals 60 to 61 the Commission pointed out that if the applicant had contacted those firms, it would have been apparent that they were not aware of the sale of the use of the licences issued in their name, and concluded that the arrangements made and the lack of contacts showed that the applicant was ready to take risks to import bananas benefiting from the tariff quota. The Commission indicated, in recital 62, that the negotiations for the purchase of the import licences were conducted directly between the applicant and M; in recital 63, that the applicant's payments were made into a personal account of M and not into an account of M's employer; in recital 64 that the applicant had not adduced evidence that the import licences, which it returned to M, were in fact received by him, whereas the holders of those licences had to recover them in order to secure the release of the guarantee that they had provided, under the legislation, and, in recital 65, that the purchase of the use of the licences was effected using pro forma invoices sent by fax by two Spanish companies, certain invoices being faxed from unknown addresses or by unknown persons. According to the Commission, those arrangements did not fall within standard trading practices.

To summarise, there are five factors relied on by the Commission to find the lack of due care: the lack of contact between the applicant and the entities holding the import licences; the purchase of the use of the licences by direct negotiations between the applicant and M; the payments made to the personal account of M; the lack of evidence of receipt by M of the licences sent by the applicant; the invoicing for the purchase of the use of the licences by pro forma invoices sent by fax, certain of them from unknown addresses or persons.

In the third place, it must be noted that, in its defence, the Commission considered that the arrangements used by the applicant to obtain use of the import licences were ‘unlawful’, as they are contrary to the second indent of Article 21(2) of Regulation No 2362/98, which does not allow any transfers of rights arising from an import licence from a newcomer operator to a traditional operator. On that point, it is clear that the contested decision, in that it refuses the remission of import duties, is not based on the unlawfulness of the arrangements for the purchase of the use of the import licences, but on the obvious negligence on the part of the applicant.

Therefore, the Commission's argument cannot, in the present case, have any bearing on the proper foundation for the refusal to remit the import duties.

In the fourth place, it must be pointed out that the applicant, supported on this point by the Kingdom of Belgium, is of the view that it is only in the event of doubt as to the authenticity of import licences that the degree of diligence entailed an active obligation on its part. The Commission contends that, having regard to the circumstances of this present case, known only by the applicant, the applicant ought to have had doubts and required further information on the holders of the import licences, and any lack of doubt by the customs authorities having no bearing on that point.

On first reading, it is not apparent from the contested decision that the Commission refused the remission of import duties on the ground that the applicant ought to have had doubts as to the authenticity of import licences in dispute. The lack of due care appears to be based on the arrangements put into place to obtain use of those licences, certain aspects of which did not fall within standard trading practices (recital 65 of the contested decision). Having regard to such content, the applicant's argument is irrelevant to the assessment of whether the contested decision is well founded.

However, it cannot be ruled out that the Commission considered that, in the light of the arrangements used to purchase use of the import licences in dispute, the applicant ought to have had doubts as to their authenticity, as it is pointed out, in recitals 60 and 65 of the contested decision, that contacts with the holders of those licences ought to have been indispensable and that the applicant did not have concerns about the fact that large sums of money had been paid on the basis of pro forma invoices received by fax. Nevertheless, for the reasons set out in paragraphs 98 to 102 and 111 to 115 below, those factors were not capable, in the circumstances of the present case, of giving rise to doubts as to the authenticity of the import licences in dispute.

In the fifth place, it is necessary to examine the five grounds of complaint in the light of which the Commission considered that the applicant had not shown due care.

Firstly, the applicant claims that, other than by bearing a disproportionate administrative burden, having regard to the large number of licences in dispute, it could not contact each licence holder. It acted within the framework of normal commercial relations by leaving M to manage the contacts with its network. If it had acted differently, it would have jeopardised its business relations with M, which it required so that M would find newcomer operators wishing to sell the use of their import licences. The applicant is of the view that it had no reason, at the material time, to display particular vigilance with regard to the agreements concluded by M, since the method used was the same that it had used with other intermediaries.

According to the Commission, the applicant cannot take refuge behind the argument that it had a relationship of trust with M, unless it accepts all the consequences of the choice to give precedence to that relationship over acting with the due care required. Moreover, the Commission is of the view that the applicant could have required M to provide information on the licence holders, as their commercial relations were quite recent at the material time. Finally, the Commission considers that the measures which the applicant specifically took to manage the import licences are irrelevant since it was not shown how they contributed to checking the diligent and lawful use of the licences.

It is apparent from the file that the applicant had all the import licences in dispute though M and that those licences were made available to it, as a general rule, at the end of the three-month periods for which they were used. It must be noted that the applicant, both in its written pleadings and at the hearing, dwelled on the fact that the transactions for which the import licences in dispute were used always concerned small volumes of bananas. In its view, such a fact justified relying on an intermediary as the best way of obtaining in quite short periods the licences enabling the import of cargos within the limit of the tariff quota. Those various facts were not disputed by the Commission. Moreover, the applicant claims, without being contradicted, that it checked the formal requirements and the content of the import licences that it used, in particular as to the point whether the quantities set out on the certificates corresponded to the quantities allocated to the newcomer operator whose name appeared on the licence.

Notwithstanding such checks being carried out, the Commission's first objection implies that the applicant was obliged to contact the holders of the licences in dispute within a quite short period of time in order to avoid the criticisms set out in recitals 60 and 61 of the contested decision.

Questioned at the hearing on the nature and the scope of that obligation, which follows from recital 60 of the contested decision, the Commission was unable to identify the provisions which might be the basis of that obligation and was unable to specify its significance for the procedure for the customs clearance of imported goods, in particular their release for free circulation, doing no more than alleging that the purchase of the right to use the import licences from newcomer operators did not comply with the customs legislation. However, as has already been stated in paragraphs 90 and 91 above, the contested decision is not based on the unlawfulness of the arrangements for the purchase of the right to use the import licences.

Accordingly, the Commission has not established that the applicant was obliged to contact the holders of the import licences in dispute in order to carry out the customs clearance procedures. Specifically, the Commission does not adduce any evidence to show that such contact was mandatory if the applicant was to put the imported goods into free circulation, while it is not in dispute that the applicant could have accomplished without hindrance all of the administrative formalities linked to the import of the goods covered by the import licences in dispute.

Further, it cannot be accepted, as a general rule, that an economic operator who imports goods into the European Union and who, with that objective, resorts to the use of an intermediary to obtain use of the import licences, is regarded as lacking in prudence or diligence if he does not carry out checks of the holders of the licences. Recourse to the service of such an intermediary comes within the practical methods used to carry out the business of imports within the discretion of the importer and is aimed at facilitating that business, since the importer may consider that, in a particular economic context, the intermediary is a person who is better placed than he is to find newcomer operators who have obtained licences and who wish to transfer use thereof, in particular when, as in the present case, the importer requires a large number of licences in a quite short period (see paragraph 98 above). In the absence of any other detailed information capable of giving rise to doubts on the part of the operator as to the authenticity of the import licences used, it cannot be considered that contact with the holders of the import licences was indispensable to enable releasing the imported goods into free circulation.

Consequently, the Commission does not establish that the circumstances described in recitals 60 and 61 of the contested decision constitutes a lack of diligence on the part of the applicant.

Secondly, the applicant claims that it was normal to make payments into M's personal account, since M operated on an independent basis and it acted in this way with other intermediaries; that it could not be criticised for not having checked whether the licences which it returned to M were actually received by him, which would constitute a disproportionate burden of work and would not be consistent with standard trading practices, and that it would have been informed if M had not received the licences, in the light, in particular, of the regular nature of their business relations.

In defence, the Commission restates the criticisms set out in the contested decision, namely that, on the basis of the degree of diligence applicable in the present case, it could be expected of the applicant that it would ensure that payments were made to the appropriate accounts and that it would check that the licences which it returned were actually received. The Commission points out that the applicant, as a diligent operator, ought to have had concerns as to the fact that M wanted large amounts be paid into his own name and into private accounts, without his employer being aware of it.

The second, third and fourth objections set out in recitals 62 to 64 of the contested decision concern the purchase of the right to use the licences by direct negotiations between the applicant and M, the payments made into the personal account of M, and the lack of proof of receipt by M of the licences returned by the applicant (see paragraph 89 above).

As regards the facts, it must be noted that the applicant had maintained commercial relations with M since 1997, one of its Italian subsidiaries having previously had relations during several years with a Portuguese international trading firm for which M worked. It is also apparent from the file as a whole that, as the applicant claims, the commercial relationship for the purchase of the right to use the licences in dispute was established solely between it and M, which, at the hearing, the Commission accepted was not in dispute. Moreover, nothing in the contested decision or in the Commission's written pleadings calls into question the applicant's assertion that M carried out his activity as an intermediary independently or indicates that M had fraudulently carried out that activity. Therefore, the Commission's arguments rehearsed in paragraph 105 above cannot be upheld, since they are based on the idea, which also emerges from the contested decision, that recourse to an intermediary, who was, moreover, employed by an international trading firm, to purchase right to use the licences in dispute presented an increased risk of fraudulent practices.

In the circumstances of the present case, when account is also taken of what is stated in paragraph 102 above, neither the applicant's negotiations directly with M for the purchase of the use of the licences in dispute, nor the payments for all of those purchases into M's personal account, nor the lack of a request to M for proof of receipt of the licences used that it returned to M show that the applicant displayed a lack of due care.

Thirdly, the applicant claims that the use of pro forma invoices is a standard trading practice, used with other intermediates and by other importers, those invoices constituting order forms on the basis of which it paid M, who subsequently established the final invoices. The fact that the invoices had been sent by Spanish companies which the applicant did not know did not constitute a particularity which ought to have encouraged it to be more vigilant, as the operators in question were undertakings unknown in the banana sector and all of the contacts with those operators were managed by M, while the Commission does not adduce evidence of obvious negligence.

The Commission considers it is the circumstances in which the pro forma invoices were used, namely that they were sent by fax from unknown persons from unknown addresses, which is problematic. For that reason, the applicant ought to have carried out checks.

On that point, it must be borne in mind that, in recital 65 of the contested decision, the Commission stated:

First of all, it must be noted that the measures of organisation of procedure and the hearing revealed a divergence of opinion on one fact. In response to the questions raised by the General Court, the Commission produced invoices from four undertakings from which the applicant had bought the right to use the licences in dispute. However, first, the applicant, disputed, at the hearing, the truth of those facts, claiming that only one of the undertakings in question had sold it the right to use the licences in dispute. Secondly, those facts are inconsistent with the facts recorded by OLAF, in the working document of 22 September 2000, which state that two Spanish undertakings were involved, one for 1998 and the other for 1999, and with the contested decision (recitals 11 and 65).

It must also be noted that, to substantiate the applicant's lack of diligence, the Commission relies particularly on the fact that the pro forma invoices for the purchase of the rights to use the licences in dispute were sent from unknown faxes and by unknown persons. More specifically, the Commission pointed out, at the hearing, that the pro forma invoices in question originated from Spain, that the fax numbers were Spanish and that the reference to Spanish ‘copy shops’ appeared on the invoices received by fax.

However, it is apparent from the file as a whole that the rights to use the licences in dispute, which concerned solely 1999, were purchased from a Spanish undertaking (see paragraph 112 above). The pro forma invoices from that undertaking, produced by the Commission in response to measures of organisation of procedure, all include a postal address and a telephone number, referred to in their letterheads. One of the invoices includes the reference ‘casa de fotocopia’ (photocopy service) in the upper margin and another includes a fax number, apparently in Spain, and the reference ‘cemon’ in the top margin.

Although the facts referred to in paragraph 114 above are not specifically stated in the contested decision, it may be considered that the Commission referred to them by noting, in recital 65, that the pro forma invoices had been sent by fax from unknown addresses. Nevertheless, that fact does not suffice to show lack of diligence on the part of the applicant in the present case. First, the fact that a pro forma invoice originating from an undertaking having its registered office in Spain is sent from a fax machine situated in that country does not appear to be a fact such as to lead the operator receiving that invoice to raise his level of diligence. Second, the fact that one of the five invoices sent by that Spanish undertaking to the applicant had been sent from what appeared to be a photocopy service cannot, in itself, give rise to doubts on the part of the applicant as to its commercial relationship with that undertaking or as to the authenticity of the invoices in dispute. Without other detailed information in support of the objection relating to the use of the pro forma invoices, it cannot be held that the Commission's doubts, as to whether the fact that the payment of very large sums of money, paid on the basis of invoices such as those received in the circumstances referred to above, falls within standard trading practice, are established.

Accordingly, the Commission does not establish, by the facts stated in recital 65 of the contested decision, that the applicant displayed, in the present case, a lack of due care.

Without there being any need to rule on the first, second and sixth arguments of the second plea in law in this action, it follows from paragraphs 103, 108 and 116 above that the second plea in law is well founded, since the Commission did not adduce the evidence, which the case-law restated in paragraph 86 above requires, of lack of due care on the part of the applicant, and, therefore, of its obvious negligence.

Consequently, without there being any need to rule on the first, third and fourth pleas in law of this action, it is necessary to declare that Article 1(3) of the contested decision is annulled and to dismiss the remainder of the application.