"Wacht eens", zei zij. "Heeft de IND informatie opgevraagd in het buitenland en jou die niet ter hand gesteld noch gevraagd of je client daar een reactie op wilde geven? Dat is in strijd met het beginsel van een eerlijk proces." Ja die 9 voor haar scriptie kreeg ze niet voor niets. Jammergenoeg voor juridisch Nederland is ze werkzaam op een heel ander vlak.
Vervolgens zag ik vandaag dat Ali Agayev een uitspraak uit de archieven van de EU had opgedoken die eigenlijk hier ook over gaat.
" Voorts stelt eiser zich op het standpunt dat verweerder de hoorplicht zoals bedoeld in artikel 7:2 van de Awb heeft geschonden door eiser en referenten niet te horen. Slechts in uitzonderlijke gevallen mag van de hoorplicht worden afgeweken. Nu het bezwaar van eiser is onderbouwd met documenten, kan niet worden gesteld dat het bezwaar kennelijk ongegrond is en dat derhalve mag worden afgeweken van horen. Dit is in strijd met het nationale recht en het Unierecht, zoals geformuleerd in het arrest Sopropé van het Hof van Justitie van de Europese Unie (HvJEU) van 18 december 2008, zaaknummer C-349/07, ECLI:EU:C:2008:746." http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2019:14602
"
The Court’s reply
33 Fundamental
rights form an integral part of the general principles of law the
observance of which the Court ensures. For that
purpose, it draws inspiration from the constitutional
traditions common to the Member States and from the guidelines supplied
by international treaties for the protection of human rights on
which the Member States have collaborated or to which they
are signatories (see, inter alia, Case C‑274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 37).
34 It
also follows from the settled case-law of the Court that, where national
legislation comes within the scope of Community
law, the Court, when requested to give a preliminary ruling,
must provide all the criteria of interpretation required by the
national court to determine whether those rules are compatible
with the fundamental rights the observance of which the Court
ensures (see, inter alia, Case C‑260/89 ERT [1991] ECR I-2925, paragraph 42, and Case C-159/90 Society for the Protection of Unborn Children Ireland [1991] ECR I-4685, paragraph 31).
35 Since
the questions referred for a preliminary ruling concern the procedures
to be followed by national authorities when applying
the Community Customs Code, the Court has jurisdiction to
provide the national court with all the criteria of interpretation
required by that court to determine whether the national rules
at issue are compatible with the fundamental rights the observance
of which the Court ensures.
36 Observance
of the rights of the defence is a general principle of Community law
which applies where the authorities are minded
to adopt a measure which will adversely affect an individual.
37 In
accordance with that principle, the addressees of decisions which
significantly affect their interests must be placed in
a position in which they can effectively make known their views
as regards the information on which the authorities intend
to base their decision. They must be given a sufficient period
of time in which to do so (see, inter alia, Commission v Lisrestal and Others, paragraph 21, and Mediocurso v Commission, paragraph 36).
38 The
authorities of the Member States are subject to that obligation when
they take decisions which come within the scope of
Community law, even though the Community legislation applicable
does not expressly provide for such a procedural requirement.
As regards the implementation of that principle and, in
particular, the periods within which the rights of the defence must
be exercised, it must be stated that, where those periods are
not, as in the main proceedings, fixed by Community law, they
are governed by national law on condition, first, that they are
the same as those to which individuals or undertakings in
comparable situations under national law are entitled and,
secondly, that they do not make it impossible in practice or excessively
difficult to exercise the rights of defence conferred by the
Community legal order.
39 The
national court raises two issues in connection with the principle of
respect for the rights of the defence; first, it
asks whether a period of 8 to 15 days as generally provided for
by national law for a taxpayer to exercise his right to a
hearing may be regarded as sufficient and, secondly, it asks
whether, in the circumstances of the main proceedings, the period
of 13 days which elapsed between the time when Sopropé was
placed in a position in which it could submit its observations
and the date of the decision to recover the duty satisfies the
requirements of that principle.
40 As
regards the first issue, it must be pointed out that it is normal and
also appropriate for national legislation and regulations
to establish, within the context of the numerous existing
administrative procedures, general rules governing periods within
which particular steps may or must be taken. The establishment
of such rules also serves to promote the principle of equal
treatment. In respect of national legislation which comes
within the scope of Community law, it is for the Member States to
establish those periods in the light of, inter alia, the
significance for the parties concerned of the decisions to be taken,
the complexities of the procedures and of the legislation to be
applied, the number of persons who may be affected and any
other public or private interests which must be taken into
consideration.
41 As
regards post-clearance recovery of customs import duties, a period
within which a taxpayer may exercise his right to a
hearing which cannot be less than 8 days or greater than 15
days does not, as a matter of principle, make it impossible in
practice or excessively difficult to exercise the rights of
defence conferred by the Community legal order. The undertakings
which may be affected by the procedure at issue in the main
proceedings are professionals which have recourse to importation
on a regular basis. Furthermore, the applicable Community
legislation provides that those undertakings must be able to furnish
proof, for the purposes of inspection, of the lawfulness of all
the transactions that they have effected. Lastly, the general
interest of the European Community and, in particular, the
interest in recovering its own revenue as soon as possible mean
that inspections must be capable of being carried out promptly
and effectively.
42 However,
the appellant in the main proceedings stated before the national court
that it had had a period of only 8 days to
submit its observations and that the decision to recover the
duty was taken only 13 days after it had been asked to submit
its observations. That is why the national court is asking the
Court of Justice to determine whether such periods are compatible
with Community law.
43 Although
the Court has no jurisdiction under Article 234 EC to apply a rule of
Community law to a particular case and thus
to judge a provision of national law by reference to such a
rule, it may none the less, within the framework of the judicial
cooperation provided for by that article and on the basis of
the material presented to it, provide the national court with
an interpretation of Community law which may be useful to it in
assessing the effects of that provision (Case 20/87 Gauchard [1987] ECR 4879, paragraph 5; Joined Cases C-515/99, C‑519/99 to C-524/99 and C‑526/99 to C-540/99 Reisch and Others [2002] ECR I-2157, paragraph 22; and Case C-6/01 Anomar and Others [2003] ECR I-8621, paragraph 37).
44 In
that regard, it must be pointed out that where national legislation or
regulations, as is the case in the applicable legislation
here at issue in the main proceedings, lays down within a
specific time range the period for collecting the observations of
the parties concerned, it is for the national court to satisfy
itself that the period thus individually assigned by the authorities
corresponds to the specific circumstances of the person or
undertaking at issue and that it makes it possible for them to
exercise their rights of defence in accordance with the
principle of effectiveness. The national court must, in those
circumstances,
have due regard to the facts specific to the case. In the case
of imports from Asian countries, factors such as the complexity
of the transactions in question, the distance involved or even
the quality of the relations normally maintained with the competent
local authorities may thus be significant. Likewise, regard
must be had to the size of the undertaking and to the question
whether or not it normally maintains commercial relations with
the country in question.
45 As
regards inspections such as those at issue in the main proceedings, it
must be pointed out that these constitute a whole.
Thus, an inspection procedure carried out over a number of
months, which includes on-the-spot checks and a hearing of the
undertaking concerned, the declarations of which are placed on
the file, may justify the assumption that that undertaking
was aware of the reasons why the inspection procedure had been
carried out and the nature of the facts alleged against it.
46 Such
circumstances, which may make it possible to establish that the
undertaking concerned was, in any event, given the opportunity
to set out its views in the course of the inspection, must also
be taken into consideration.
47 It
is for the court before which the dispute in the main proceedings has
been brought to examine whether, in the light of,
inter alia, those various criteria, the period which was
granted by the competent authorities within the time range provided
for by the national legislation meets the Community-law
requirements set out above.
48 The
following points must be made with regard to the question of the
possible effect on the decision under challenge in the
main proceedings of the fact that it was taken 13 days after
the company had been informed that it had a period of 8 days
within which to submit its observations.
49 The
purpose of the rule that the addressee of an adverse decision must be
placed in a position to submit his observations
before that decision is adopted is to enable the competent
authority effectively to take into account all relevant information.
In order to ensure that the person or undertaking concerned is
in fact protected, the purpose of that rule is, inter alia,
to enable them to correct an error or submit such information
relating to their personal circumstances as will argue in favour
of the adoption or non-adoption of the decision, or in favour
of its having a specific content.
50 Accordingly,
respect for the rights of the defence implies that, in order that the
person entitled to those rights can be
regarded as having been placed in a position in which he may
effectively make known his views, the authorities must take note,
with all requisite attention, of the observations made by the
person or undertaking concerned.
51 It
is for the national court alone to ascertain whether, having regard to
the period which elapsed between the time when the
authorities concerned received the observations and the date on
which they took their decision, they can be held to have taken
due account of the observations sent to them.
52 The
answer to be given to the national court must therefore be that, with
regard to recovery of a customs debt for the purpose
of effecting post-clearance recovery of customs import duties, a
period of 8 to 15 days allowed to an importer suspected of
having committed a customs offence in which to submit its
observations complies in principle with the requirements of Community
law.
53 It
is for the national court before which the case has been brought to
ascertain, having regard to the specific circumstances
of the case, whether the period actually allowed to that
importer made it possible for it to be given a proper hearing by
the customs authorities.
54 The
national court must also ascertain whether, in the light of the period
which elapsed between the time when the authorities
concerned received the importer’s observations and the date on
which they took their decision, they can be deemed to have
taken due account of the observations sent to them."
Dus als mijn client in beroep wil (in visazaken is dat soms vanwege de kosten niet de keuze van de vreemdeling) dan ga ik voor het beroep dus leentjebuur spelen bij beide genoemde bronnen.
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