# C_2015294EN.01000401.xml

| 7.9.2015 | EN | Official Journal of the European Union | C 294/4 |
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7.9.2015

EN

Official Journal of the European Union

C 294/4

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Judgment of the Court (Fourth Chamber) of 9 July 2015 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Ministero dell’Economia e delle Finanze and Others v Francesco Cimmino and Others

(Case C-607/13) (1)

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((Reference for a preliminary ruling - Agriculture - Common organisation of the markets - Bananas - Regulation (EC) No 2362/98 - Articles 7, 11 and 21 - Tariff quotas - Bananas originating in ACP countries - Newcomers - Import licences - Non-transferable nature of rights deriving from certain import licences - Abusive practice - Regulation (EC) No 2988/95 - Article 4(3)))

(2015/C 294/05)

Language of the case: Italian

Referring court

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Parties to the main proceedings

Applicants: Ministero dell’Economia e delle Finanze, Agenzia delle Dogane, European Commission

Applicants:

Defendants: Francesco Cimmino, Costantino Elmi, Diletto Nicchi, Vincenzo Nicchi, Ivo Lazzeri, Euclide Lorenzon, Patrizia Mansutti, Maurizio Misturelli, Maurizio Momesso, Mirjam Princic, Marco Raffaelli, Gianni Vecchi, Marco Malavasi, Massimo Malavasi, Umberto Malavasi, Carlo Mosca, Luca Nicoli, Raffaella Orsero, Raffaello Orsero, Erminia Palombini, Matteo Surian

Defendants:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 7(a) of Commission Regulation (EC) No 2362/98 of 28 October 1998 laying down detailed rules for the implementation of Council Regulation (EEC) No 404/93 regarding imports of bananas into the Community, as amended by Commission Regulation (EC) No 1632/2000 of 25 July 2000, in conjunction with Article 11 of that regulation, is to be interpreted as meaning that the requirement that an economic agent must have been engaged in commercial activity as an importer ‘independently and on [his] own account’ must be satisfied not only for the purpose of the registration of such an agent as a ‘newcomer’ within the meaning of that provision but also that of ensuring that the agent may maintain that status in order to import bananas under the tariff quotas laid down by Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas, as amended by Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations; |
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1.

Article 7(a) of Commission Regulation (EC) No 2362/98 of 28 October 1998 laying down detailed rules for the implementation of Council Regulation (EEC) No 404/93 regarding imports of bananas into the Community, as amended by Commission Regulation (EC) No 1632/2000 of 25 July 2000, in conjunction with Article 11 of that regulation, is to be interpreted as meaning that the requirement that an economic agent must have been engaged in commercial activity as an importer ‘independently and on [his] own account’ must be satisfied not only for the purpose of the registration of such an agent as a ‘newcomer’ within the meaning of that provision but also that of ensuring that the agent may maintain that status in order to import bananas under the tariff quotas laid down by Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas, as amended by Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations;

| 2. | Article 21(2) of Regulation No 2362/98, as amended, must be interpreted as precluding transactions, such as those at issue in the main proceedings, whereby a newcomer purchases, through another operator registered as a newcomer, goods from a traditional operator before the goods are imported into the EU, then sells them to that traditional operator, through the same intermediary, after importing the goods into the EU, if those transactions constitute an abusive practice, which it is for the national court to establish; |
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2.

Article 21(2) of Regulation No 2362/98, as amended, must be interpreted as precluding transactions, such as those at issue in the main proceedings, whereby a newcomer purchases, through another operator registered as a newcomer, goods from a traditional operator before the goods are imported into the EU, then sells them to that traditional operator, through the same intermediary, after importing the goods into the EU, if those transactions constitute an abusive practice, which it is for the national court to establish;

| 3. | Article 4(3) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests is to be interpreted as meaning that the finding of an abusive practice in circumstances such as those in the main proceedings means that an operator who has placed himself artificially in a situation enabling him to obtain unlawfully the benefit of the preferential rate of duty for the importation of bananas is obliged to pay the duties on the goods concerned, without prejudice, where appropriate, to any administrative, civil or criminal-law penalties provided for by national law. |
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3.

Article 4(3) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests is to be interpreted as meaning that the finding of an abusive practice in circumstances such as those in the main proceedings means that an operator who has placed himself artificially in a situation enabling him to obtain unlawfully the benefit of the preferential rate of duty for the importation of bananas is obliged to pay the duties on the goods concerned, without prejudice, where appropriate, to any administrative, civil or criminal-law penalties provided for by national law.

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(1)  OJ C 61, 1.3.2014.

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