21.3.2009

EN

Official Journal of the European Union

C 69/52

(Case T-38/09)

(2009/C 69/113)

Language of the case: Spanish

Parties

Applicant: El Corte Inglés (Madrid, Spain) (represented by: P. Muñiz and M. Baz, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the contested decision is null and void for the following reasons:

—annul the contested decision;

—order the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

This action is brought against Commission Decision C(2008) 6317 final of 3 November 2008 ordering the a posteriori recovery of import duties and finding that the remission of those duties was not justified in a particular case (REM File 03/07).

The applicant imported textiles from Jamaica, imports subject to the system of preferential treatment laid down in the EU-ACP Association Agreement provided that they are accompanied by a EUR. 1 movement of goods certificate, sent by the competent Jamaican authorities. The certificate was included as evidence that the goods originated in Jamaica. However, an OLAF investigation in Jamaica concluded that the goods did not acquire preferential origin status in Jamaica, so that they could not benefit from preferential treatment.

In response to the request for remission of the tax submitted by the applicant on the basis of Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, the contested decision declared that the Jamaican authorities had not committed an error of the kind provided for in Article 220(2)(b) of that regulation and that the applicant was not in a special situation as a result of the incorrect representation of the facts by the exporters.

The applicant claims that the contested decision is null and void for the following reasons:

—The administrative procedure for the adoption of the contested decision infringes essential procedural requirements. Specifically, the contested decision breaches the principle of sound administration and seriously infringes the applicant's rights of defence on the ground that no administrative file exists concerning the processing of the contested decision.

—The contested decision contains an error of assessment by concluding that the applicant is not in a special situation. In this case a special situation exists in so far as:

—the Jamaican authorities knew or ought to have known that that the goods did not satisfy the conditions laid down for entitlement to the preferential treatment, even if the exporters had supplied incorrect information,

—the Jamaican authorities committed a serious breach of their obligations.

—The defendant failed to fulfil its obligation to ensure the ACP-EC Agreement is properly applied.