Report for the Hearing in Joined Cases C-121/91 and C-122/91

I — Facts and procedure

1. Legislation

(a) Basic Regulation No 1430/79 and its amendments

1. Article 1 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175, p. 1) provides that:

2. The situations in which import or export duties are, or may be, repaid or remitted are expressly set out in Sections A to E of Regulation No 1430/79, Section E being a residual category covering situations other than those dealt with in Sections A to D.

3. Article 13 of the basic regulation defines this residual category as follows:

4. Article 13 of the basic regulation was first amended slightly by Article 1(2) of Council Regulation (EEC) No 1672/82 of 24 June 1982 (OJ 1982 L 186, p. 1), which stated explicitly that Article 13 of the basic regulation applied only

5. Finally, Article 13 of the basic regulation, thus amended, was revised a second time by Council Regulation (EEC) No 3069/86 of 7 October 1986 (OJ 1986 L 286, p. 1), which replaced the phrase in which no negligence or deception may be attributed to the person concerned by the phrase

(b) Implementing Regulation No 1575/80 and its amendments

6. The provisions for implementing Article 13 of the basic regulation were laid down in Commission Regulation (EEC) No 1575/80 of 20 June 1980 laying down provisions for the implementation of Article 13 of Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties (OJ 1980 L 161, p. 13).

7. Pursuant to Article 5 of the implementing regulation, the Commission's decision whether to allow repayment or remission

8. Article 7 of the said regulation provides that

9. The implementing regulation was first amended by Commission Regulation (EEC) No 2640/82 of 30 September 1982 amending Regulation (EEC) No 1575/80 laying down provisions for the implemention of Article 13 of Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties (OJ 1982 L 279, p. 67). This amendment related to the periods for lodging an application under Article 13 of the basic regulation with the customs office concerned.

10. The implementing regulation was amended again by Commission Regulation (EEC) No 945/83 of 21 April 1983 amending for the second time Regulation (EEC) No 1575/80 laying down provisions for the implemention of Article 13 of Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties (OJ 1983 L 104, p. 14). This regulation, which came into force on 23 April 1983, extended from three to four months the period laid down in Article 5 of the implementing regulation within which the Commission must take a decision.

11. Finally, the implementing regulation was repealed on 1 January 1987, the date on which Commission Regulation (EEC) No 3799/86 of 12 December 1986 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties (OJ 1986 L 352, p. 19) came into effect. Articles 5 to 10 of this regulation replace the procedural rules laid down in the implementing regulation with regard to Article 13 of the basic regulation. Article 8(2) of Regulation No 3799/86 extends the period for taking a decision whether to grant repayment or remission of import or export duties from four to six months from the date on which the documents are received by the Commission.

2. Facts of the case

12. The limited companies CT Control (Rotterdam) BV, the applicant in Case 121/91, and JCT Benelux BV, the applicant in Case 122/91, are both customs agents.

13. At the time of importing various consignments of honey, the applicants both produced between 17 December 1982 and 5 October 1984 EUR 1 movement certificates referred to in Article 6 of Protocol 1 to the Second ACPEEC Convention of Lomé (OJ 1980 L 347, p. 73), in which it was stated that the honey originated in an ACP country, namely Jamaica. Pursuant to the Second Lomé Convention, the zero rate was applied to the goods instead of the normal rate of duty. However, following an investigation of exports of Jamaican natural honey to the Community under EUR 1 certificates carried out by the Commission in Jamaica between 29 October 1984 and 10 November 1984 it came to light that several EUR 1 certificates had been improperly issued between 1979 and 1984. After carrying out their own investigation, the Jamaican authorities notified the Commission by letter of 5 December 1984 that certain EUR 1 certificates, including those produced by the applicants at the time of their declaration, had indeed been improperly issued and that they had consequently been withdrawn.

14. In response to a request from the Commission dated 14 March 1985, the Inspector of Customs and Excise Duties, Rotterdam, took steps to recover the unpaid amounts and sent collection notices for the duties to the applicants on 25 October 1985. CT Control (Rotterdam) BV received six demands for additional duty (numbered 252-257 AWDA) for a total amount of HFL 231698.60 for all imports carried out between 17 December 1982 and 5 October 1984. JCT Benelux BV received one demand for additional duty (numbered 261 AWDA) for HFL 24498.50 for an import carried out on 17 December 1982.

15. They each applied to the abovementioned Inspector, in letters dated 28 and 31 October 1985 respectively, for repayment or remission pursuant to Article 13 of the basic regulation. By decisions dated 10 April 1986, the Inspector rejected the two applications without submitting them to the Commission as provided for in Article 3 of implementing Regulation No 1575/80.

16. After having appealed unsuccessfully against these decisions, the applicants both instituted proceedings before the Tariefcommissie (Administrative Tribunal in Customs and Excise Matters), Amsterdam, which by decisions of 20 November 1989 annulled the Inspector's decisions of 10 April 1986 and ordered the applications to be submitted to the Commission.

17. The Netherlands authorities then forwarded the applications to the Commission by letters dated 12 January 1990 and 13 July 1990, which were received on 15 January 1990 and 17 July 1990 respectively and registered under numbers REM 1/90 and 8/90 (Case C-121/91), and by letter dated 13 July 1990, which was received on 17 July 1990 and registered under number REM 7/90 (Case C-122/91).

18. The Commission decided in Article 1 of each of the contested decisions, dated 5 July 1990 and 18 December 1990 respectively, that remission of import duties was not justified.

19. The decisions were notified to the Netherlands authorities on 6 July and 20 December 1990 respectively. They were simultaneously brought to the attention of the applicants by a decision of the Inspector of Customs and Excise Duties, Rotterdam, on 20 February 1991.

3. Procedure

20. The applications of CT Control (Rotterdam) BV and JCT Benelux BV were lodged at the Court Registry on 24 April 1991.

21. By orders of 17 October 1991 the Court granted the Kingdom of the Netherlands leave to intervene in Cases C-121/91 and C-122/91 in support of the defendant.

22. By order of 15 September 1992, the Court decided, in accordance with Article 43 of the Rules of Procedure, to join Cases C-121/91 and C-122/91 for the purposes of the oral procedure and the judgment.

23. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided, pursuant to Article 95(1) of the Rules of Procedure, to assign the cases to the Fifth Chamber and to open the oral procedure without any preliminary inquiry.

II — Forms of order sought by the parties

1. In Case 121/91

24.(a). The applicant, CT Control (Rotterdam) BV, claims that the Court should:

25.(b). The Commission contends that the Court should:

26.(c). The Kingdom of the Netherlands, the intervener, contends that the Court should:

2. In Case 122/91

27. (a). The applicant, JCT Benelux BV, claims that the Court should:

28. (b). The Commission contends that the Court should:

29.(c). The Kingdom of the Netherlands, the intervener, contends that the Court should:

III — Summary of the submissions and arguments of the parties

1. Admissibility

30. (a) The applicants consider first that the proceedings were instituted within the twomonth period provided for by the third paragraph of Article 173 of the EEC Treaty. The periods for instituting proceedings did not begin for the applicants before 21 February 1991, the date on which the contested decisions came to their knowledge. Taking account of the six days' extension on account of distance for undertakings established in the Netherlands pursuant to Article 81(2) of the Rules of Procedure, the periods would not have expired until 27 April 1991.

31. They then maintain that, although addressed to a Member State, namely the Netherlands, the disputed decisions affect the applicants directly and individually within the meaning of the second paragraph of Article 173 of the EEC Treaty, given that these decisions have direct legal effects for the applicants and affect no other person.

32. (b) The Commission does not contest the admissibility of the actions brought by the applicants.

2. The substance

33. The four pleas in law which the applicants put forward in support of their actions, the validity of which is contested by the Commission and the intervener, are: lack of competence; infringement of essential procedural requirements; infringement of the Treaty or of its implementing rules, in particular Regulations (EEC) Nos 1430/79, 1575/80 and 3799/86 and the Second ACPEEC Convention and Protocol 1 thereto; and misuse of powers and breach of general principles of Community law as expounded in the case-law of the Court. These pleas relate to:

The first plea: application of the relevant Community regulations

34.(a). The applicants maintain that the Commission was wrong to reach the disputed decisions on the basis of the procedural provisions of Regulation No 3799/86 instead of those of the implementing Regulation No 1575/80 as amended by Regulations Nos 2640/82 and 945/83.

35. In this regard, they claim that it is the date of payment of the additional duty, that is to say 25 October 1985, and not that of receipt by the Commission of the requests from the Netherlands authorities, that is to say 15 January 1990 and 17 July 1990 respectively, that must be taken into consideration in determining which regulation implementing Article 13 of basic Regulation No 1430/79 is applicable. This applies not only to application of the substantive rules but also to that of the procedural rules. According to the applicants, the substantive and procedural provisions of basic Regulation No 1430/79 and those adopted pursuant to that regulation form an indivisible whole, so that in the absence of transitional provisions the individual provisions may not be considered in isolation with regard to the time at which they take effect.

36. The correctness of this point of view is confirmed, according to the applicants, by the judgments of the Court in Case 113/81 Reichelt v Hauptzollamt Berlin-Süd [1982] ECR 1957, Joined Cases 212/80 to 217/80 Amministrazione delle Finanze dello Stato v Salumi [1981] ECR 2735 and Case 148/87 Frydendahl Pedersen v Commission [1988] ECR 4993. Moreover, as regards the application of Regulation No 3799/86, the Advocate General noted in his Opinion in Case 148/87, cited above, that as this regulation had been adopted on the basis of the version of basic Regulation No 1430/79 resulting from Regulation No 3069/86, which provides, in the second paragraph of Article 2, that the new provisions are to apply to applications for repayment or remission of import or export duties submitted to the competent authorities on or after 1 January 1987, Regulation No 3799/86 itself applied only to the applications referred to in Article 2(2) of Regulation No 3069/86.

37. In the present cases, it follows, according to the applicants, that the applications submitted to the Commission on 15 January 1990 and 17 July 1990 respectively pursuant to Article 13 of Regulation No 1430/79 should have been dealt with in accordance with the procedural rules which form an indivisible whole with the substantive rules applicable on 25 October 1985, that is to say implementing Regulation No 1575/80 as amended by Regulations Nos 2640/82 and 945/83.

38. Under Article 5 of the implementing regulation as amended by Regulation No 945/83, the Commission should, in the view of the applicants, have reached its decision on the requests for remission of import duties within four months of receipt of the files. In their rejoinders the applicants corrected the assertion made in their requests for remission that the time-limit should have been three months.

39. The applicants maintain that upon finding that the Commission had not taken the disputed decisions within the time allowed the Netherlands customs authorities should have granted their applications pursuant to Article 7 of implementing Regulation No 1575/80.

40. (b). The Commission and the Netherlands Government consider that it is Regulation No 3799/86 that is applicable in this case as regards the procedural aspects, given that the applications for remission of import duties were submitted to the Commission on 15 January and 17 July 1990 respectively, that is to say after 1 January 1987, the date on which Regulation No 1575/80 was replaced by Regulation No 3799/86. In view of the principle that procedural rules apply to all cases pending at the time when they come into effect, in their opinion it is not the date on which the duties payable were established for the first time (25 October 1985) that determines which procedural rules are applicable, but the date on which the applications were forwarded to the Commission.

41. According to the Commission, it is not appropriate to rely on the case-law of the Court in the Salumi and Reichelt cases, cited above, since Regulation No 3799/86 differs fundamentally from the regulations at issue in those two cases. First, the regulation in question is not a new Community regulation replacing significantly different national provisions, as in the Salumi and Reichelt cases, but one Community regulation replacing another which had been in existence for six years in order to improve it in the light of experience. Secondly, it is clear from the text, wording and scheme of Regulation No 3799/86 that, unlike the regulations concerned in the Salumi and Reichelt cases, a distinction is made between the substantive rules and the procedural rules in Regulation No 3799/86, so that it does not contain rules that are indissociably linked. As regards the view expressed by the Advocate General at paragraph 35 of his Opinion in the Frydendahl Pedersen case, cited above, the Commission notes that it is not justified, given the judgment of the Court in the Salumi case and the fact that Regulation No 3799/86 contains no transitional provisions, to establish a direct link, as the Advocate General did, between Regulation No 3799/86 and basic Regulation No 1430/79, of which it is an implementing regulation, without interpreting the terms, purpose and scheme of Regulation No 3799/86. Nor does the establishment of such a direct link produce satisfactory results, given that Commission regulations do not each have a counterpart Council regulation. Indeed, there are three Council regulations (Nos 1430/79, 1672/82 and 3069/86) but four Commission regulations (Nos 1575/80, 2640/82, 945/83 and 3799/86).

42. According to the Netherlands Government, it is clear from the very scheme of Regulation No 3799/86 itself that that regulation does not constitute an indivisible whole formed of both procedural rules and substantive rules. Title I, B (Provisions for the implemention of Article 13 of the basic regulation) contains a separate Section II entitled Procedural rules (Articles 5 to 10). In the view of the Netherlands Government, there is no difference of substance between Regulation No 1575/80 and Regulation No 3799/86, given that the latter replaced the former with effect from 1 January 1987 and that it consists mainly of procedural rules under which applications for repayment and remission must be forwarded by the appropriate authorities of the Member States to the Commission and processed by the latter (third recital of Regulation No 3799/86). Finally, the Netherlands Government maintains that even if there was a close link between the procedural rules and the substantive rules contained in Regulation No 3799/86, that does not necessarily mean that the scope of that regulation's procedural rules could not be assessed without taking account of the substantive rules. The Court ruled in this wise in Case 154/84 (FKF v Hauptzollamt Berlin-Süd [1985] ECR3165, paragraph 22), where, as in the present case, the issue concerned the temporal scope of a provision setting a time-limit.

43.(c). Stressing that the difference between the substantive and procedural provisions established under Regulation No 3799/86 is neither different nor clearer than at the time of the Reichelt case, cited above, and that the procedural rules have not changed in nature, in their rejoinders the applicants continue to maintain that the rules set out in the basic Regulation No 1430/79 as last amended by Regulation No 3069/86, on the one hand, and the rules contained in Regulation No 3799/86, on the other, form an indivisible whole, which must be assessed according to one and the same criterion with regard to the time at which they take effect. In their replies to the statement in intervention of the Netherlands Government, they state that the specific assessment made by the Court in the FKF judgment cited by the Netherlands Government cannot be transposed to the present cases. According to the applicants, that judgment must be regarded simply as an isolated exception to the rule laid down by the Court in the Salumi and Reichelt judgments.

The plea regarding the reasons stated for the disputed decisions

44.(a). The applicants claim that the reasons on which the disputed decisions are stated to be based, which merely consist of a reference to the judgment of the Court in Joined Cases 98 and 230/83 {Van Gend & Loos NV and Expeditiebedrijf Wim Bosman v Commission [1984] ECR 3763), do not meet the requirements of Article 190 of the EEC Treaty, according to which a decision must state the most important legal and factual reasons on which it is based and which are necessary for understanding the reasoning that led to the decision. It is precisely the latter condition that has not been met in the present cases. The defect in the statement of reasons lies in the fact that, in spite of the essential differences between the present cases and those on which the Van Gend & Loos and Bosman judgment were based, the Commission does no more than refer to that judgment to explain its assertion that the fact of having received invalid certificates or certificates subsequently cancelled by the competent authorities cannot be considered a special circumstance within the meaning of Article 13 of basic Regulation No 1430/79.

45. The factors constituting essential differences between the present cases and the Van Gend & Loos and Bosman cases mentioned by the applicants are, first, that they are small customs agents who, at the time of the disputed import transactions, had only limited experience and they cannot therefore be compared to the experienced professional operators involved in the Van Gend & Loos and Bosman cases, an aspect to which the Court had indeed attached decisive importance. Second, unlike the Van Gend & Loos and Bosman cases, the present case does not concern falsified documents but certificates which, at the time of issue by the competent authorities in Jamaica and at the time of the declaration made by the applicants to the Netherlands authorities, were valid and accepted as such. Moreover, they consider that they displayed the greatest diligence in that they themselves had samples of the consignments of honey presented for customs clearance analysed without being obliged to do so, a fact which should influence the decision whether the withdrawal of the certificates can reasonably be regarded as a trade risk to be borne by the applicants.

46. In that regard, in the opinion of the applicants, it is of little importance that the decision to withdraw the certificates was formally taken by the Jamaican authorities, since it was based entirely on the results of the investigation carried out by the Commission. Finally, the applicants assert that it has not been established in any way that the consignments cleared through customs by the applicants did not consist of natural honey originating in Jamaica or another ACP State, which not only is another difference in relation to the Van Gend & Loos and Bosman cases but also in itself constitutes a special circumstance within the meaning of Article 13 of the basic Regulation No 1430/79.

47.(b). The Commission considers that the disputed decisions do satisfy the requirements of Article 190 of the EEC Treaty. Their preambles refer first to the applications from the Netherlands authorities and describe in detail the cases in which the remission of import duties has been requested. They then mention the two requirements for remission, that is to say the existence of special circumstances and the absence of negligence or deception on the part of the person concerned. Finally, the disputed decisions, citing the judgment of the Court in the Van Gend & Loos and Bosman cases as their basis, indicate that the first condition, that is to say the existence of special circumstances, is not fulfilled and state at the same time (in the penultimate recital) that recognition or non-recognition of special circumstances does not depend on the good faith of the applicants — which is not disputed.

48. In contrast to the applicants, the Commission considers that it rightly concluded that their situations were the same as those considered in the Van Gend & Loos and Bosman cases, which justified reference to that judgment. According to the Commission, the facts adduced by the applicants to demonstrate that their cases differed from the Van Gend & Loos and Bosman cases are not relevant. The fact that the applicants are only small undertakings does not in any way detract from their status as customs agents and experienced professionals. In that capacity they know that, if the customs accept a declaration, they are not thereby protected against possible subsequent claims. They also know that fraud is not impossible and that certificates can subsequently be withdrawn. It is precisely for assuming risks of this kind that a customs agent is paid. If an undertaking does not want to bear these risks it is open to it, under Article 46 of the Algemene Wet inzake de Douane en de Accijnzen (Netherlands General Law on Customs and Excise) of 26 January 1961 (Stb. 31, hereinafter AWDA), to act as authorised agent. In the view of the Commission, the fact that the certificates produced by the applicants subsequently proved to have been improperly issued and that they were later withdrawn by the competent customs authorities does not constitute a special circumstance but one of the trade risks run by the applicants. In that regard, it is of little importance that the present case involves not falsified documents but certificates subsequently proved to be invalid and that the applicants displayed the greatest diligence.

49. As to the applicants' assertion that it has not been established in any way that the consignments of honey which they had cleared through customs were not natural honey originating in Jamaica or another ACP State, the Commission observes that under Protocol 1 annexed to the Second ACPEEC Convention of Lomé, the customs authorities of the exporting ACP State, in this instance Jamaica, have sole jurisdiction to rule on the validity of EUR 1 certificates which they have issued and that the Commission must respect their decision.

50.(c). The Netherlands Government considers that the Commission's decisions are validly justified and meet the requirements of Article 190 of the EEC Treaty regarding the stating of reasons.

51. It points out that CT Control and JCT Benelux, whose activities consist in making customs declarations, cannot be considered as having no experience in this field.

52. Furthermore, it contends that the fact that the present case concerns not falsified certificates but certificates that were subsequently withdrawn in accordance with the normal procedure cannot be considered a special circumstance within the meaning of Article 13 of the basic Regulation No 1430/79 if one does not wish to create serious problems for the collection of customs duties and for the own resources of the European Community.

53. As regards the certificate verification procedure, the Netherlands Government states that the Netherlands authorities can and do check certificates in the country of issue on the basis of Paragraph 159 of the Voorschrift Herkomst en Oorsprong (Decree No 277-11507 of 29 August 1977: instructions on the provenance and origin of goods).

54. As to the absence of obvious negligence within the meaning of Article 13 of the basic Regulation No 1430/79, in the opinion of the Netherlands Government this is of only secondary importance in the present case since even the first condition for the application of Article 13 of that regulation, that is to say the existence of a special circumstance, is not met.

55. Finally, on the question of proof whether the honey in question came from Jamaica or another ACP State, the Netherlands Government observes that a declarant can enjoy the preferential treatment available under the Second Lomé Convention only if he himself furnishes proof that the goods meet all the requirements of the Convention applicable in the matter. For the provision of such proof, the Second Lomé Convention requires the use of the EUR 1 certificate and admits of no other method of proof or the reversal of the burden of proof. As these certificates were subsequently withdrawn, that proof was not provided.

56. In their replies to this intervention by the Netherlands Government, the applicants state first that the fact that they were recognized as customs agents under Article 55 of the AWDA does not detract from the relevance of their assertion that, given the difference in size and experience between themselves and the company Van Gend & Loos, the assessment of the Court in the Van Gend & Loos and Bosman judgment, cited above at paragraph 16, does not apply to the present cases. Recognition as customs agent is not, in their opinion, subject to special conditions, and certainly not to conditions regarding the size and/or experience of the company concerned.

57. They maintain, furthermore, that the Netherlands Government is too ready to claim that the mere fact that the certificates concerned, which were valid at the time of customs clearance, were subsequently withdrawn means that it has not been demonstrated that the merchandise met the conditions laid down by the Second ACPEEC Lomé Convention and in particular by Protocol 1 to that Convention. In that regard, the applicants observe first that it is evident from Article 6(1 )(a) of the Protocol that EUR 1 movement certificates are not an objective in themselves but a means of determining the originating status of products from the ACP States within the meaning of Article 1 of the Protocol, and nor are they the only means. Secondly, they state that the simple fact that a certificate is subsequently declared invalid does not remove from the consignments of natural honey in question their status as products originating in an ACP State pursuant to Article 1 of the Protocol, given that neither the Jamaican authorities nor the Commission carried out an investigation into the consignments of honey actually cleared through customs that showed that these consignments were not products originating in an ACP State. Thirdly, they maintain that the purpose of tariff preferences cannot be to penalise, by imposing additional duty, the customs agent who acted in good faith and with extreme diligence for irregularities in the issue of certificates in an ACP State of origin — irregularities which should not be held against the customs agent but against the ACP State in question — without permitting the customs agent to carry out an investigation and to demonstrate that the irregularity does not relate to the products which he himself cleared through customs.

The plea regarding the procedure for subsequent verification of the validity of EUR 1 movement certificates

58.(a). The applicants state that the procedure laid down in Article 25 of Protocol 1 to the Second ACPEEC Convention of Lomé for ascertaining the invalidity of EUR 1 movement certificates was not followed, which rendered the additional duty null and void, so that the applications which led to the disputed decisions should not have been submitted to the Commission and that as a result the decisions were invalid.

59. They point out in this regard that Article 25(1) of Protocol 1 lays down that subsequent verifications of EUR 1 movement certificates are to be carried out at random or whenever the customs authorities of the importing State have reasonable doubts as to the authenticity of the document or the accuracy of the information regarding the true origin of the goods in question. The Netherlands customs authorities never had such reasonable doubts, as is evident, inter alia, from the fact that during the period from 1982 to 1984 they unreservedly accepted the EUR 1 movement certificates presented by the applicants. Nor did the Netherlands customs authorities offer to release the goods subject to any precautionary measures judged necessary, as provided for in the second subparagraph of Article 25(2) of the Protocol for cases in which the customs authorities of the importing State decide to suspend execution of the provisions of the Lomé Convention while awaiting the results of the verification.

60. In any case, according to Article 25(3) of the Protocol, any dispute between the importer and the customs authorities of the importing country should have been settled under the customs legislation of the Netherlands and not, as the Commission asserts with regard to the validity of EUR 1 certificates, by the Jamaican courts.

61.(b). The Commission states that the existence of the procedure under Article 25 of the Protocol does not exclude the possibility of using other procedures.

62. Indeed, under Article 155 of the EEC Treaty, the Commission has a responsibility, inter alia, to ensure that the measures taken by the institutions are applied, including the Second ACPEEC Convention of Lomé. This supervisory role presupposes that the Commission can verify the truth of the information on the origin of products exported to the EEC under EUR 1 movement certificates.

63. In the current case, it is this verification that it carried out from 29 October to 10 November 1984 in Jamaica. It emerged from that investigation that numerous EUR 1 certificates had been improperly issued between 1979 and 1984. The Jamaican customs authorities subsequently carried out their own inquiry, in the course of which they also concluded that certain EUR 1 certificates had been improperly issued. They therefore withdrew them.

64. The Commission points out that the Jamaican customs authorities alone had the power to withdraw these EUR 1 certificates. The Commission itself and the customs authorities of the importing state were bound by that decision. Consequently, the Netherlands customs authorities were obliged to collect the unpaid amounts.

65. In following this procedure, it was not even necessary for the Netherlands authorities to have reasonable doubts about the veracity of certificates presented by the applicants. Moreover, no precautionary measures could be taken, as the consignments of honey had already been released.

66. With regard to Article 25(3) of the Protocol, the Commission observes that, notwithstanding the fact that Article 25(3) is not applicable to the procedure followed in the present cases, it is necessary to distinguish between on the one hand the dispute regarding the collection notice, which is a dispute between the importer and the customs authorities of the importing State and which must consequently be decided by the courts in the latter, and on the other the dispute concerning the decision to withdraw the EUR 1 movement certificate, which is a dispute between the importer and the customs authorities of the exporting State and which must therefore be settled by the courts in that State.

67.(c). The Netherlands Government notes that under Article 8(2) of Protocol 1 to the Second Lomé Convention the customs authorities of the exporting country have the right to carry out any check which they consider appropriate, whether or not a request to that effect has been received from the authorities of the importing country.

68. If the competent authorities of the exporting country withdraw EUR 1 certificates for reasons that concern them, it is difficult for the Commission and the Netherlands authorities not to take account thereof, given that it is for neither the Commission nor the Netherlands authorities to judge the reason for which and the basis on which the authorities of the exporting country have withdrawn the certificates.

69. Consequently, the Netherlands Government considers that the interested party must address any complaint about the withdrawal to the authorities of the exporting country in accordance with the national provisions applicable in that country.

70.(d). In their rejoinders, the applicants dispute that the Commission is permitted, on the basis of its general managerial powers under Article 155 of the EEC Treaty, to derogate from the compulsory procedure laid down by Article 25 of Protocol 1 to the Second ACPEEC Convention of Lomé.

71. They consider first that Article 25 of the Protocol concerns only the relationship between the Member States of the Community and the ACP States, in this instance Jamaica. The Commission plays no role in this relationship or in the matter at issue, nor can it arrogate this role to itself by relying on Article 155 of the EEC Treaty.

72. They consider secondly that as precise rules in the matter exist in the form of Article 25 of the Protocol it is not appropriate to apply the general powers of the Commission under Article 155 of the EEC Treaty. Furthermore, in their view those powers apply exclusively on the territory of the Community and cannot be extended unilaterally to the territory of States outside the Community, and certainly not without the consent of the competent authorities in the ACP States involved.

73. In reply to the statement in intervention, the applicants consider that the Netherlands Government has misunderstood the essence of their argumentation, which is that if the Community authority or the national authority acting in application of a Community provision fails to observe the procedural rules applicable in the matter, the resulting legal act, that is to say the disputed decision, is null and void.

The plea of breach of procedural guarantees

74.(a). According to the applicants, the procedure followed for the adoption of the disputed decisions does not satisfy the requirements of Community law in this respect, especially as regards their right to be heard and their right to have all the relevant information used in reaching the disputed decisions so that they can make any observations they consider useful.

75. In this regard, they observe that they did not have access to the dossier which the Netherlands customs authorities produced during the proceedings before the Committee on Duty-Free Arrangements and the Commission and on the basis of which the disputed decisions were adopted, so that they were not able to add their own observations. The same applies to the information on the investigation carried out by the Commission in Jamaica into the validity of EUR 1 movement certificates, which played a very important role in reaching those decisions. Not having had knowledge of the contents of that investigation, they were not placed in a position to make observations other than those expressed in the context of the national proceedings.

76. The applicants are aware that in its previous case-law (in particular, in the Van Gend & Loos and Bosman judgment, cited above, paragraph 9, and in the judgment in Case 294/81 Control Data v Commission [1983] ECR 911, parigraph 17) the Court has already rejected a plea to this effect as advanced by the applicants. They nevertheless consider it useful to revert to this plea, taking into account developments in the case-law of the Court regarding the rights of the defence and the application of Article 6 of the European Convention on Human Rights.

77. As regards the case-law of the Court regarding the rights of the defence, the applicants cite first the judgment in Case 121/76 Moli v Commission [1977] ECR 1971, in which the Court stated in general terms that the general principle that when any administrative body adopts a measure which is liable gravely to prejudice the interests of an individual it is bound to put him in a position to express his point of view is infringed where the person concerned is not given that opportunity. They then cite the consistent case-law of the Court in cases relating to competition law, in which the Court has established the principles that (1) only the facts on which the persons concerned have been able to present their observations may be taken into consideration (Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299), (2) during the administrative procedure the Commission must make available to the undertakings concerned the information necessary for their defence (Joined Cases 100/80 to 103/80 Pioneer [1983] ECR 1825) and (3) the Commission may not use information covered by its general duty, laid down in Article 214 of the EEC Treaty, to maintain professional secrecy in support of its decision if nondisclosure of that information were to reduce the opportunity of the parties involved to express their views on the accuracy or scope of that information or on the conclusions drawn from it by the Commission (Case 332/81 Michelin [1983] ECR 3461). Finally, the applicants point to the judgment in Case 49/88 Al Jubail Fertilizer v Council [1991] ECR I-3187, in which the Court partly annulled a provision of a regulation establishing a definitive antidumping duty on the ground that the defendant had infringed the right of the exporters concerned to a fair hearing by not giving them an opportunity during the administrative procedure to express their point of view on certain facts and circumstances and on the means of proof used by the defendant.

78. The applicants consider that since the Court holds these principles to be of such great importance that their infringement leads even to nullity of a regulation in a procedure in which per se the person directly affected by the measure does not have an opportunity during the administrative stage to express his point of view on a particular issue in reply to that of the defendant, these principles apply a fortiori if, as in the present cases, the persons directly affected by the measures in question had no opportunity to present their point of view at any stage in the procedure whatever, on any issue whatever, as was well known by the defendant at the time.

79. As regards the European Convention on Human Rights, the applicants point out that under Article 6 of the Convention in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The applicability of that provision to the present procedure for the adoption of the disputed decisions is open to no doubt, according to the applicants. Indeed, a notice of additional taxation of the kind involved in the present cases may, according to the applicants, constitute a decision affecting civil rights and obligations, that is to say the obligation to pay the additional tax.

80. (b). The Commission and the Netherlands Government rely on the judgments delivered in the Van Gena and Loos and Control Data cases, cited above; in those judgments the Court stated that the procedure followed in that regard offered all the legal guarantees to the parties involved such as the applicants. It allowed the person concerned to put all his arguments to the national customs authorities and he had access to his file, both in the Committee on Duty-Free Arrangements and before the Commission.

81. They add that in reaching the disputed decisions the Commission in any case took account of the decision of the Jamaican authorities, and not of the results of its own investigation.

82. According to the Commission, the case-law of the Court regarding competition law and antidumping duties cited by the applicants does not concern the procedure followed in the present cases and cannot therefore be taken into account. Indeed, the procedure at issue differs considerably from the procedures applicable with regard to competition and antidumping duties. By contrast with those procedures, under the procedure at issue here Commission decisions are preceded by the processing of applications at national level and possibilities for legal redress are available at that stage. It is evident from the procedural channels followed in the present cases that the applicants did in fact avail themselves of those possibilities.

1 Language of the case: Dutch.