Action brought on 18 March 2004 by Railion Deutschland AG against the Commission of the European Communities

(Case T-109/04)

(2004/C 146/06)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 March 2004 by Raillion Deutschland AG, Mainz (Germany), represented by H. Johlen, lawyer.

The applicant claims that the Court should:

Pleas in law and main arguments:

The applicant is an undertaking engaged in the transport of goods by rail. The complaint is against the Commission decision refusing an application by the Federal Republic of Germany for authority to allow a remission of customs debt in favour of the applicant. The liability to pay the customs debt arose because the applicant was alleged to have transported alcohol declared as paint from the Bremen free zone to the Hamburg free zone by rail. There was nothing to indicate to the applicant that the declaration was false. After the goods reached Hamburg, they were properly transported to their final destination in the Czech Republic.

The applicant claims inter alia that the decision failed to satisfy the essential procedural requirement of the right to be heard. It is true that the applicant was given a formal opportunity to state its position. However the right to be heard also requires that the arguments of the parties be considered; in its decision refusing the application the defendant did not deal with the arguments submitted. The Commission failed to have regard to the points made in relation to the different risks incurred by a rail freight company and a shipping company in a free zone. The Commission's decision was based on the premise that as a rail freight company the applicant would be dealt with in exactly the same way as a shipping company.

The applicant also claims that the decision infringes Article 239 of the Community Customs Code. The decision denies the existence of ‘special circumstances’ on grounds that are irrelevant or are based on facts that are not fully established. Because of the simplification of rail transport procedures, the applicant was exposed to greater risk of deception by fraud in relation to the goods transported. It could not eliminate or control that risk on its own. In particular, it was impossible in practice to inspect the container.

Lastly, the applicant claims that when making an equitable decision under Article 239 of the Community Customs Code it was necessary to take into account the fact that no financial loss was incurred by the European Communities and that at no stage was this threatened, as the alcohol was destined for the Czech market and was also delivered there.