Court of Justice 09-12-1999 ECLI:EU:C:1999:598

The first part of the first plea

14 By the first part of their first plea, the appellants claim that the Court of First Instance infringed the rights of the defence and Community law by not acknowledging the Commission's obligation under the first paragraph of Article 871 of Regulation No 2454/93 to check whether the file sent to the Commission by the Italian authorities contained all the information needed for an examination of the matter, inasmuch as the appellants did not take part in the procedure. They were neither informed of the existence of the procedure nor heard by the Commission. The appellants further maintain that the Commission should have taken into consideration the judgment delivered by the Høyesterett as regards the origin of the goods.

15 It should be recalled that, as is apparent from Article 168a of the EC Treaty (now Article 225 EC) and the first paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal is to be limited to points of law and must be based on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant or an infringement of Community law by the Court of First Instance (see, in particular, the order made in Case C-19/95 Ρ San Marco ν Commission [1996] ECR I-4435, paragraph 36).

16 It also follows from the abovementioned provisions that an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. Where the Court of First Instance has established or assessed the facts, the Court of Justice has jurisdiction under Article 168a of the EC Treaty (now Article 225 EC) to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them (see, in particular, paragraphs 48 and 49 of the judgment in Case C-136/92 Ρ Commission ν Brazzelli Lualdi and Others [1994] ECR I-1981 and paragraph 21 of the judgment in Case C-7/95 Ρ Deere ν Commission [1998] ECR I-3111).

17 It is sufficient to recall that, as is apparent from the facts found by the Court of First Instance, the Commission did not need to seek additional information in order to make the contested decision, since the file submitted to it was complete. Inasmuch as the appellants had requested the Italian authorities to refer the matter to the Commission and had confirmed that they had nothing to add to the file sent to the Commission, the Court of First Instance was correct in finding that there was no need for the Commission to request any additional information. The only item which did not appear in the file sent to the Commission was the judgment of the Høyesterett of 2 April 1993. However, as the Court of First Instance stated in paragraph 42 of the contested judgment, the judgment of the Høyesterett did not establish that the products in question were of Norwegian origin, and could not therefore affect the contested decision.

18 In those circumstances, the first part of the first plea must be rejected as manifestly unfounded.

The second and third parts of the first plea

19 By the second and third parts of the first plea, which may appropriately be examined together, the appellants maintain that the Court of First Instance misinterpreted and misapplied Article 5(2) of Regulation No 1697/79. They claim, first, that the Court of First Instance added a further condition to the three conditions prescribed by Article 5(2) of Regulation No 1697/79, by imposing on them the burden of proving the origin of the goods in issue and, second, that they are not able to provide the necessary proof.

20 Whilst it is true that, as the Commission has stated, an appeal must be dismissed as inadmissible if it confines itself to repeating or reproducing word for word the pleas in law and arguments previously submitted to the Court of First Instance (see, in particular, the order in San Marco ν Commission, cited above, paragraph 38), the second and third parts of the first plea must be declared admissible. The appellants are contesting, albeit laconically, the interpretation of Article 5(2) of Regulation No 1697/79 arrived at by the Court of First Instance.

21 However, that plea must be rejected as manifestly unfounded.

22 It is settled case-law that, under Article 5(2) of Regulation No 1697/79, three cumulative conditions must be satisfied for the purposes of waiver by the competent authorities of post-clearance recovery of import duties, namely that non-collection must have been due to an error by the authorities, that the person liable must have acted in good faith and that he must have complied with all the provisions laid down by the legislation in force so far as his customs declaration is concerned (see, in particular, paragraph 12 of the judgment in Case C-348/89 Mecanarte ν Chefe do Serviço da Conferência Final da Alfândega, Oporto [1991] ECR I-3277 and paragraph 83 of the judgment in Joined Cases C-153/94 and C-204/94 Faroe Seafood and Others [1996] ECR I-2465).

23 In the present case, the Court of First Instance ruled only on the first condition laid down by Article 5(2) of Regulation No 1697/79. It held, in paragraphs 62 to 65 of the contested judgment, that that condition was not fulfilled in the present case, so that there was no need to consider the other conditions.

24 In that connection, the Court of First Instance found, in paragraph 39 of the contested judgment, that the exporter was unable to prove the origin of the goods in question, and rightly concluded, in accordance with the settled case-law of the Court of Justice, that the goods were therefore of unknown origin (see Case C-12/92 Huygen and Others [1993] ECR I-6381, paragraph 17, and Faroe Seafood and Others, cited above, paragraph 16). The Court of First Instance also noted that the appellants had not contested the fact that the exporter was unable to prove the Norwegian origin of the products in question.

25 On that point, it follows from the Community provisions that it is for the exporter to prove the origin of the goods by producing all appropriate supporting documents (see Faroe Seafood and Others, paragraphs 60 to 64, and Article 10(4) of Council Regulation (EEC) No 2937/77 of 20 December 1977 on the application of Decision No 1/77 of the EEC-Norway Joint Committee supplementing and amending Protocol 3 concerning the definition of the concept of Originating products' and methods of administrative cooperation and replacing certain decisions of the said Joint Committee (OJ 1977 L 344, p. 1)).

26 Thus, contrary to the argument advanced by the appellants, the Court of First Instance did not introduce an additional condition by requiring the importer to prove the origin of the goods.

27 In those circumstances, the second and third parts of the first plea must be rejected as manifestly unfounded.

The first part of the third plea

34 By the first part of the third plea, the appellants claim that, by stating that a certain commercial risk is inherent in the market, the Court of First Instance violated the principle of the protection of legitimate expectations.

35 The Commission maintains that the appellants are merely reproducing word for word the arguments advanced by them before the Court of First Instance, and that that part of the plea is therefore inadmissible.

36 In that regard, the plea must be declared admissible inasmuch as the appellants are challenging, albeit laconically, the contested judgment.

37 However, the Court of First Instance rightly observed in paragraphs 62 and 63 of the contested judgment, first, that the European Community cannot be made to bear the adverse consequences of the wrongful acts of suppliers of importers, second, that the importer may seek compensation from the perpetrator of the fraud, and, finally, that, in calculating the benefits from trade in goods likely to obtain tariff preferences, a prudent trader aware of the rules must assess the risks inherent in the market which he is considering and accept them as normal trade risks (Case 827/79 Amministrazione delle Finanze ν Acampora [1980] ECR 3731, paragraph 8, and Case C-97/95 Pascoal ôc Filhos ν Fazenda Pública [1997] ECR I-4209, paragraph 59).

38 It is the responsibility of traders to make the necessary arrangements in their contractual relations in order to guard against the risks of an action for post-clearance recovery (Faroe Seafood and Others, paragraph 114, and Pascoal ÔC Filhos, cited above, paragraph 60).

39 In those circumstances, the first part of the third plea must be rejected as manifestly unfounded.

The second part of the third plea

40 By the second part of the third plea, the appellants maintain that, by holding that there existed a ‘customs’ risk, and thus confirming the need for a covert restriction on intra-Community trade, the Court of First Instance infringed Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC).

41 It must be recalled in that regard that, under Article 113(2) of the Rules of Procedure of the Court of Justice, the subject-matter of the proceedings before the Court of First Instance may not be changed in the appeal (San Marco ν Commission, paragraph 47).

42 Were a party to be allowed to put forward for the first time before the Court of Justice a plea in law — in the present case, infringement of Articles 30 and 36 of the Treaty — which it had not raised before the Court of First Instance, that would enable it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal, the jurisdiction of the Court of Justice is confined to review of the assessment made by the Court of First Instance of the pleas argued before it (San Marco ν Commission, paragraph 49, and Commission ν Brazzelli Lualdi, cited above, paragraph 59).

43 Even if the plea advanced were founded on an alleged error of law on the part of the Court of First Instance, it follows from the combined effects of Article 51 of the EC Statute of the Court of Justice and Article 112(l)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal {San Marco ν Commission, paragraph 37).

44 The appellants have not in any way specified the nature of the alleged infringement of Articles 30 and 36 of the Treaty; they merely state that ‘[t]he entire system of Community trade would be affected by the aforesaid “risk” and would consequently be subject to the contingency of having to pay, several years after the exportation took place, a duty which no longer exists’, and that ‘this is an absurd idea’.

45 In those circumstances, the second part of the third plea must be rejected as manifestly inadmissible.