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C 258/14 EN Official Journal of the European Communities 15.8.

98

Ð By omitting to make any finding as regards the Pleas in law and main arguments adduced in support:
question whether consultation took place between the
Directorate-General empowered to adopt a decision
concerning classification and the Directorate-General Ð Infringement of Article 13(1) of Council Regulation
having power to assess the requirements of the service (EEC) No 1430/79 on the repayment or remission of
and whether, if such consultation took place, it was import or export duties (2), alternatively of Article
conducted in a proper fashion, that is to say, by 239(2) of Council Regulation (EEC) No 2913/92
omitting to verify whether or not the appointing establishing the Community Customs Code (the
authority based its decision on incorrect or incomplete CCC') (3): the Netherlands Government considers that,
material facts, the Court of First Instance failed to by applying to the present case the concept of special
exercise its powers of judicial review in relation to acts circumstances' within the meaning of Article 13(1) of
of the appointing authority. Regulation No 1430/79, the Commission has
committed a manifest error of assessment. First, the
Commission failed to take into account the fact that
Ð The proceedings before the Court of First Instance the external Community transit system does not
were irregular: by informing the appellant that it function perfectly and is susceptible to fraud. Second,
would not take into account the observations made the Commission omitted to take into consideration the
with regard to the judgment in Case T-12/97 fact that the process of discharging customs
Barnett (2), which it had itself requested, the Court of documentation is so time-consuming that, before it
First Instance misled the appellant as to her legitimate becomes apparent that fraud is involved, the customs
expectations. By failing to take cognizance of the debt may have risen to a substantial level as a result of
appellant's observations containing new pleas based successive transit operations. In consequence of the
on matters of fact and law which had emerged in the system provided for by the CCC, it frequently happens
course of the proceedings (consisting of the new case- in cases of documentary fraud that it does not become
law established by the Court of First Instance in its apparent to the declarant that fraud is involved until
judgment in Barnett), the Court of First Instance after 14 months have passed.
wrongfully omitted to apply Article 48(1) and the first
and second subparagraphs of Article 48(2) of the
Rules of Procedure of the Court of First Instance, Ð Breach of the requirement to provide a statement of
whereas the appellant's case was precisely the type of reasons: the contested decision is accompanied by, at
dispute for which the legislature intended to provide best, only a summary statement of reasons. The
by adopting that provision. Similarly, the contested Commission has failed to state the extent to which, as
order failed to apply the third subparagraph of a result of the defects in the operation of the external
Article 48(2) of the Rules of Procedure of the Court of Community transit system and the impracticability of
First Instance. checking within a reasonable time that customs
formalities have been properly completed, or of
adopting measures to limit the loss, liability for the
(1) OJ C 137 of 2.5.1998, p. 14.
(2) Judgment of 5.11.1997, OJ C 387 of 20.12.1997, p. 17. whole or part of the customs debt cannot be imposed
on the customs agent.

(1) Decision of the Commission establishing that remission of
import duties pursuant to Article 13(1) of Council Regulation
(EEC) No 1430/79 of 2 July 1979 is not justified in a specific
case.
Action brought on 24 April 1998 by the Kingdom of the (2) OJ L 175 of 12.7.1979, p. 1.
(3) OJ L 302 of 19.10.1992, p. 1.
Netherlands against the Commission of the European
Communities
(Case C-157/98)
(98/C 258/25)

Appeal brought on 24 April 1998 by the Commission of
An action against the Commission of the European the European Communities against the judgment delivered
Communities was brought before the Court of Justice of on 19 February 1998 by the First Chamber of the Court
the European Communities on 24 April 1998 by the of First Instance of the European Communities in Case
Kingdom of the Netherlands, represented by Marc Fierstra T-42/96 between Eyckeler & Malt AG, supported by the
and Corinna Wissels, of the Ministry of Foreign Affairs, United Kingdom of Great Britain and Northern Ireland,
The Hague, acting as Agents. and the Commission of the European Communities
(Case C-163/98 P)
The applicant claims that the Court should:
(98/C 258/26)

annul the decision of the Commission (1), communicated
to the Netherlands Government by notice of 19 February An appeal against the judgment delivered on 19 February
1998, and order the Commission to pay the costs. 1998 by the First Chamber of the Court of First Instance
15.8.98 EN Official Journal of the European Communities C 258/15

of the European Communities in Case T-42/96 between Hewlett Packard judgment that Article 13 of
Eyckeler & Malt AG, supported by the United Kingdom Regulation (EEC) No 1430/79 and Article 5(2) of
of Great Britain and Northern Ireland, and the Regulation (EEC) No 1697/79 pursue the same aim,
Commission of the European Communities was brought namely to limit the post-clearance payment of import
before the Court of Justice of the European Communities and export duties to cases where such payment is
on 24 April 1998 by the Commission of the European justified and is compatible with a fundamental
Communities, represented by Jean-Louis Dewost, principle such as that of the protection of legitimate
Director-General of the Legal Service, and Götz zur expectations'. The Court of Justice thereby assumes a
Hausen, Legal Adviser, with an address for service in general comparability between the two provisions.
Luxembourg at the Office of Carlos Gómez de la Cruz, a
Member of the Commission's Legal Service, Wagner
(1) OJ 1998 C 113, p. 13.
Centre, Kirchberg.

The appellant claims that the Court should:

1. set aside the judgment of the Court of First Instance of
19 February 1998 in Case T-42/96 (1); Action brought on 8 May 1998 by the Commission of the
European Communities against the Kingdom of Belgium
2. dismiss the action; (Case C-170/98)
(98/C 258/27)
3. order the applicant to pay the costs.

An action against the Kingdom of Belgium was brought
Pleas in law and main arguments adduced in support:
before the Court of Justice of the European Communities
on 8 May 1998 by the Commission of the European
Ð Error of law in relation to the plea alleging breach of Communities, represented by Frank Benyon, Legal
the rights of the defence: Adviser, and Bernard Mongin, of its Legal Service, acting
as Agents, with an address for service in Luxembourg at
the office of Carlos Gómez de la Cruz, Wagner Centre,
The contested judgment erroneously transposes Kirchberg.
considerations applicable to competition proceedings
to the procedure for remission of import duties and
thereby concludes that in the procedure for remission The Commission of the European Communities claims
of such duties the Commission should allow the that the Court should:
undertaking access to all non-confidential
administrative papers, including those which the
Commission regards as irrelevant or which might be (1) declare that, by omitting either to adjust the
detrimental to it. That requirement fails to take into agreement with Zaire (1) in such a way as to provide
account the particular features of the procedure for for fair, free and non-discriminatory access by
remission of customs duties, in which not only the Community nationals to cargo-shares due to Belgium
conduct of the undertaking but also that of the or to denounce that agreement, Belgium has failed to
authorities of Member States and non-member fulfil its obligations under Council Regulation (EEC)
countries is to be assessed. No 4055/86 of 22 December 1986 applying the
principle of freedom to provide services to maritime
transport between Member States and between
Ð Error of law in relation to the plea alleging
Member States and third countries (2), in particular
infringement of Article 13 of Council Regulation
Articles 3 and 4(1) thereof;
(EEC) No 1430/79 on the repayment or remission of
import or export duties:
(2) order the Kingdom of Belgium to pay the costs.
The contested judgment wrongly held the existence of
an error (within the meaning of Article 5(2) of
Regulation (EEC) No 1697/79) by the competent Pleas in law and main arguments adduced in support:
authorities not to be a necessary precondition for the
remission of duties. The Court of First Instance
interprets the judgment of the Court of Justice in Case Article 18 of the agreement with Zaire makes provision
C-250/91 Hewlett Packard France [1993] ECR I-1819 for the two parties' intention not to be bound thereby
too narrowly. Contrary to the finding in paragraph 137 until after completion of the formalities required under
of the contested judgment, the Court of Justice did not their respective laws'. Those formalities were completed
merely hold the subjective elements of the two by Belgium upon adoption of the Law of 21 April 1983
provisions to be comparable. On the contrary, the approving the agreement, which was notified to Zaire on
Court of Justice makes it clear in paragraph 46 of the 13 June 1983, that is to say, prior to the entry into force