Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The Court is called upon to rule on two parallel actions brought by Netherlands undertakings seeking to have the decisions by which the Commission found that remission of customs duties was not justified declared void. The central issue of both disputes is the interpretation of Article 13 of Council Regulation No 1430/79 of 2 July 1979 (Official Journal L 175, p. 1) which has already been considered by this Court, most recently in the judgment of 15 December 1983 in Case 283/82, Schoellershammer v Commission [1983] ECR 4219). The problem in the present case is to clarify one aspect of that provision, namely, to decide whether the case of a customs agent who obtains exemption from duty in good faith on the basis of documents furnished by his clients and which subsequently prove to be false is one of the special and atypical cases in which the aforementioned regulation authorizes a remission.

2. Two sources of Community law must be considered in the present case: Council Regulation No 1430/79 on the repayment or remission of import or export duties, and Commission Regulation No 1575/80 implementing the provisions of the former.

3. Before the Court the Commission pleaded that both actions were inadmissible on two grounds: the contested measure did not directly affect the legal position of the applicants and the actions were brought out of time. It should be borne in mind that Article 173 of the EEC Treaty allows any natural or legal person to institute proceedings challenging measures adopted by the Commission or the Council, but that possibility is subject to two conditions: in the first place, the contested measure must be a decision addressed to that person, or in the case of a regulation or a decision addressed to another person, must be of direct and individual concern to the person bringing the action; in the second place, not more than two months must have elapsed from the date of publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, from the day on which it came to the knowledge of the latter.

4. As regards the substance, the applicants contend that the contested decisions:

5. The complaint alleging an infringement of Article 13 of Regulation No 1430 is closely linked to the first complaint. In the view of the applicants, that article provides that repayment or remission will only be granted in a certain number of clear and predefined cases. In the present case, that prior definition has not been made. There are in fact no general rules which define those cases, nor do the grounds for the contested decisions indicate the general criteria on the basis of which the remission was refused. That submission must also be rejected.

6. Also with regard to the grounds for the two decisions, the applicants point out that they do not refer to the opinion of the Committee on Duty-Free Arrangements. They contend that this makes it difficult to ascertain whether the Commission has complied with Article 5 of Regulation No 1575 and Article 190 of the EEC Treaty. This third argument is wholly unfounded.

7. The fourth submission refers to the conduct of the Netherlands authorities. It is said that when the documents were presented, the authorities did not verify the certificates of origin of the goods and, by so acting, caused the applicants to come to the reasonable conclusion that those documents were authentic. The fact that once they had ascertained that the declarations were false, those same authorities demanded payment of the duties is in conflict with the principle of legitimate expectations.

8. The fifth submission pleads infringement of the rights of the defence. The applicants state that the procedure followed by the Commission in considering the case for a remission and the way in which it decided upon it gave them no opportunity to intervene for the purpose of defending their position.

9. The sixth submission concerns the failure to observe the time-limits laid down in the second paragraph of Article 5 and in Article 6 of Regulation No 1575. I would point out that, according to the first of those rules, the Commission must take a decision on the application for repayment or remission within three months of the date on which the State concerned forwarded it to it. Article 6 provides that the Member State concerned shall be notified of the decision ... as soon as possible and in any event within thirty days of the expiry of the three month period referred to above. The applicants state that the Commission has complied with neither one nor the other of those time-limits, but the outcome of the proceedings contradicts this.

10. The seventh and final submission alleges infringement of Community rules in regard to force majeure. This submission is based on two facts :

11. For all the foregoing reasons, I propose that the Court dismiss the applications brought by Van Gend & Loos and Expeditiebedrijf Wim Bosman BV against the Commission by instruments lodged at the Court Registry on 30 May and 11 October 1983 respectively.

1 Translated from the Italian.