Official Journal of the European Union

C 103/23

(Case T-32/11)

2011/C 103/41

Language of the case: Dutch

Parties

Applicant: Verenigde Douaneagenten (Rotterdam, Netherlands) (represented by: J. van der Meché, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—Annul the Decision for the reasons set out below.

Pleas in law and main arguments

The applicant seeks a declaration annulling the decision of the European Commission of 1 October 2010, reference REC 02/09.

On the basis of Article 220(2)(b) of Regulation No 2913/92 (1) and Article 871 of Regulation No 2454/93 (2) the Commission found that the applicant acted in good faith and complied with all the provisions laid down by the legislation in force, but that there was no question of an error on the part of the competent authorities and thus post-clearance recovery could not be dispensed with.

The applicant submits that in the present case there is an error on the basis of the second subparagraph of Article 220(2)(b) of Regulation No 2913/92. That subparagraph provides that where the preferential status of goods is established on the basis of a system of administrative cooperation involving the authorities of a third country, the issue of an incorrect certificate by those authorities is regarded as an error. The applicant submits that this is the case here.

Moreover, the applicant considers that in the event of post-clearance recovery the Netherlands authorities must prove that the issue of the incorrect certificate is attributable to an incorrect statement of the facts by the exporter.

The applicant submits that the conclusion must be that the issue of incorrect certificates by the customs authority on Curacao is an error pursuant to the second subparagraph of Article 220(2)(b) of Regulation No 2913/92.

In its investigation the Commission also established that the applicant must be regarded as not having performed any fraudulent acts or displayed any obvious negligence but that it is not a case of special circumstances and therefore remission of duties is not justified.

The applicant submits in that connection that the ruling in the contested decision on remission under Article 239 of Regulation No 2913/92 was not given within the period laid down in Article 907 of Regulation No 2454/93. Therefore it submits that the Netherlands customs authority should grant the application for remission of duties.

In its investigation the Commission also failed to follow the correct procedure in that it failed to hear the applicant or place it in a position to make its views known properly, which, the applicant submits, is contrary to the principle of defence in Article 41 of the Charter of Fundamental Rights of the European Union.

Furthermore the applicant states that there is a special circumstance because of the fact that in relying on Article 220(2)(b) of Regulation No 2913/92 it is dependent on documents that it does not, and did not have to, possess.

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

(2) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).