ddrg/super_eurlex huggingface dataset:
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Customs union – Temporary importation procedure with relief from duties – Temporary importation of road vehicles for commercial use – Change in the customs territory of the Community of the tractor of a trailer during the carriage of goods which ended outside the territory – Refusal to admit under the temporary importation procedure

(Commission Regulation No 2454/93, Arts 670(p), and 718(3)(d))

Summary

Articles 718(3)(d) and 670(p) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, the latter of which defines the concept of ‘internal traffic’ for the purposes of temporary importation with relief from import duties and the former of which lays down a condition to which admission under the temporary importation procedure for road vehicles for commercial use is subject, are to be interpreted as meaning that they prohibit the use of a road tractor registered outside the customs territory of the Community to transport a semi-trailer from a place within the customs territory of the Community, where the semi-trailer is loaded with goods, to another place within the customs territory of the Community where the semi‑trailer is merely parked with a view to being transported subsequently by another road tractor to the consignee of the goods, who is established outside the customs territory of the Community.

The application of the temporary importation procedure directly depends on the carrying out by the vehicle concerned of a clearly defined transport operation, namely carriage which includes a crossing of the external border of the customs territory of the Community by that vehicle and the goods or persons transported, and accordingly it is the transport operation itself, carried out by the means of transport concerned, which is decisive and not the final destination of the goods or persons transported.

(see paras 18, 20, 26, operative part)
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Agriculture – Approximation of laws – Pesticide residues on and in products of plant origin – Directive 90/642 – Whether applicable to a product not mentioned in the annexes to the directive – Condition – Prior scientific assessment – Directive not applicable to vine leaves on account of the absence of a scientific study

(Council Directive 90/642)

Summary

The fact that a product is not mentioned in the annexes to Directive 90/642 on the fixing of maximum levels for pesticide residues in and on certain products of plant origin, including fruit and vegetables, does not, of itself, preclude the latter’s application to that product. In that regard, it is necessary to consider whether, in the context of the rules on maximum pesticide residue levels, the product in question can be included with a product or a group of products expressly referred to by Directive 90/642. Such an examination requires account to be taken of the general objective of that directive, which consists in reconciling the need effectively to protect plants and plant products from harmful organisms and weeds, in order to safeguard the yield from crop production and agricultural productivity in the Community, with the need to protect human or animal health as well as the environment against the harmful effects of pesticides.

The inclusion of a product not mentioned in the annexes to Directive 90/642 in a group or sub-group of products listed there presupposes, therefore, that that product has previously been the subject of a scientific assessment which balances the two requirements arising from the general objective of that directive and which demonstrates, in respect of those two requirements, that it is permissible to apply to the product concerned the maximum levels for pesticide residues fixed for the group or sub-group of products in which it is envisaged to include it.

It follows that Directive 90/642 is not applicable to vine leaves, which are not among the products mentioned in the annexes to the directive, since the beneficial and detrimental effects of pesticides on them have not been the subject of any scientific study to date.

(see paras 22-24, 26)
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Appeals – Purpose – Annulment of a judgment of the Court of First Instance holding that a decision ordering a separation of undertakings is illegal as a result of the illegality of the decision declaring the merger between the undertakings concerned to be incompatible with the common market – Appeal devoid of purpose by reason of the dismissal of the appeal against the judgment holding the decision of incompatibility to be unlawful – No need to adjudicate

(EC Statute of the Court of Justice, Art. 49)
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1. Approximation of laws – Medicinal products – Marketing authorisation – Abridged procedure – Essentially similar products – Medicine containing the same therapeutic moiety as the reference product but combined with another salt – Whether permissible – Conditions

(Council Directive 65/65, Art. 4.8(a)(iii))

2. Approximation of laws – Medicinal products – Marketing authorisation – Abridged procedure – Essentially similar products – Proof of similarity – Results of pharmacological and toxicological tests or clinical trials – Whether permissible

(Council Directive 65/65, Art. 4.8(a)(iii))

Summary

1. On a proper interpretation of Article 4.8(a)(iii) of Directive 65/65 on medicines, as amended by Directives 87/21, 89/341 and 93/39, which permits recourse to an abridged procedure for issuing marketing authorisations for medicines if the medicine for which such authorisation is applied for is essentially similar to a product which has been authorised within the Community, in accordance with Community provisions in force, for not less than six or ten years and is marketed in the Member State for which the application is made, such an application for authorisation may be handled under that abridged procedure where that product contains the same therapeutic moiety as the reference product but combined with another salt. There can be no such similarity if, for reasons specifically identified, there are grounds for believing that there is a significant difference from the reference medicine as regards the safety or efficacy of the product for which the marketing authorisation is sought.

(see paras 39, 44, operative part 1)

2. In support of an application under Article 4.8(a)(iii) of Directive 65/65 on medicines, as amended by Directives 87/21, 89/341 and 93/39, an applicant may, either spontaneously or at the request of the competent authority of a Member State, supply additional documentation in the form of certain pharmacological and toxicological tests or clinical trials in order to demonstrate that his product is essentially similar to the reference product.

(see para. 25, operative part 2)
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Common Customs Tariff – Tariff headings – Machine which records and reproduces signals for video surveillance purposes – Machine which performs a specific function other than data processing within the meaning of Note 5(E) to Chapter 84 of the Combined Nomenclature

Summary

A machine which, for video surveillance purposes, records signals from cameras and, after compressing them, reproduces them on screen, performs a specific function other than data processing within the meaning of Note 5(E) to Chapter 84 of the Combined Nomenclature of the Common Customs Tariff in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 2031/2001.

(see para. 31, operative part)
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Convention on Jurisdiction and the Enforcement of Judgments – Jurisdiction in matters relating to insurance – Prorogation of jurisdiction – Jurisdiction clause agreed between a policy-holder and an insurer both domiciled in the same Contracting State – Unenforceable against a beneficiary who did not subscribe to that clause and is domiciled in another Contracting State

(Brussels Convention of 27 September 1968, Art. 12(3))

Summary

A jurisdiction clause conforming with Article 12(3) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the accession of the Hellenic Republic, by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic and by the Convention of 29 November 1996 on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, being a provision that allows a policy-holder and an insurer who, when the contract is entered into, are domiciled or habitually resident in the same Contracting State to confer jurisdiction on the courts of that State, even where the harmful event may occur abroad, cannot be relied on against a beneficiary under that contract who has not expressly subscribed to that clause and is domiciled in a Contracting State other than that of the policy-holder and the insurer.

First, the enforceability of such a clause would deprive that beneficiary of the opportunity to bring proceedings before the courts for the place where the harmful event occurred or to bring proceedings before the courts of his own domicile, by compelling him to pursue the enforcement of his rights against the insurer before the courts of the latter’s domicile, and, second, it would enable the insurer, in proceedings against the beneficiary, to have recourse to the courts of his own domicile. The result of such an interpretation would be to accept a conferral of jurisdiction for the benefit of the insurer and to disregard the aim of protecting the economically weakest party, in this case the beneficiary, who must be entitled to bring proceedings and defend himself before the courts of his own domicile.

(see paras 32, 39-40, 43, operative part)
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1. Free movement of goods — Freedom to provide services — Provisions of the Treaty — Examination of a national measure which relates to two fundamental freedoms — Criteria for determining which rules apply

(Arts 28 EC and 49 EC)

2. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National rules making the itinerant sale of subscriptions to periodicals subject to prior authorisation — Whether permissible — Requirements — To be determined by the national court

(Art. 28 EC)

Summary

1. Where a national measure relates to both the free movement of goods and freedom to provide services, it will, in principle, be examined in relation to one only of those two fundamental freedoms if it appears that one of them is entirely secondary in relation to the other and may be considered together with it. As regards, in that respect, the sale of a product which is accompanied by an activity with ‘services’ aspects, that fact cannot be sufficient, by itself, to classify such an economic operation as a ‘provision of services’ within the meaning of Article 49 EC. It must be established, in each case, whether that service is or is not wholly secondary in relation to the elements concerning the free movement of goods.

(see paras 34-35)

2. Article 28 EC does not preclude national rules under which a Member State makes an offence of the itinerant sale within its territory, without prior authorisation, of subscriptions to periodicals, where such rules apply, without distinction based on the origin of the products in question, to all the economic operators concerned carrying on their activity within that State, provided that such rules affect in the same manner, in law and in fact, the marketing of products originating in that State and that of products from other Member States.

It is for the national court to determine whether the application of national law is such as to ensure that those rules affect in the same manner, in law and in fact, the marketing of domestic products and that of products from other Member States, and, if that is not the case, to establish whether the rules in question are justified by an objective in the general interest and whether they are proportional to that objective.

(see para. 37, operative part)
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1. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Taxable transactions — Supplies of goods for consideration — Concept — Theft of goods — Excluded — Goods subject to excise duty — Not relevant

(Council Directive 77/388, Art. 2)

2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Taxable amount — National derogating measures — Legislation subjecting to tax transactions other than those set out in Article 2 of the Sixth Directive, such as the theft of goods from a tax warehouse — Not permitted

(Council Directive 77/388, Art. 27(5))

Summary

1. The theft of goods does not constitute a supply of goods for consideration within the meaning of Article 2 of Sixth Directive 77/388 and therefore cannot as such be subject to value added tax. The circumstance that the stolen goods are subject to excise duty does not affect that conclusion.

(see para. 42, operative part 1)

2. An authorisation to apply measures facilitating monitoring of the charging of value added tax, granted to a Member State on the basis of Article 27(5) of Sixth Directive 77/388, does not empower that State to subject transactions to that tax other than those set out in Article 2 of the directive. Such an authorisation thus cannot provide a legal basis for national legislation subjecting to value added tax the theft of goods from a tax warehouse.

(see para. 49, operative part 2)
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1. Common Customs Tariff – Value for customs purposes – Transaction value – Determination – Buying commission not deducted from the declared value and not distinguished from the sale price of the goods in the import declaration – Included

(Council Regulation No 2913/92, Arts 29, 32 and 33)

2. Customs union – Customs declarations – Subsequent verification – Application for revision – Obligations of the customs authorities – Erroneous inclusion of a buying commission in the declared customs value – Repayment of the import duties applied to the commission

(Council Regulation No 2913/92, Arts 78 and 236)

Summary

1. Articles 29, 32 and 33 of Regulation No 2913/92 establishing the Community Customs Code must be interpreted as meaning that a buying commission included in the declared customs value and not distinguished from the sale price of the goods in the customs declaration is to be regarded as forming part of the transaction value within the meaning of Article 29 of the Code and therefore dutiable.

(see para. 38, operative part 1)

2. On a proper interpretation of Articles 78 and 236 of Regulation No 2913/92 establishing the Community Customs Code, after the release of the imported goods, the customs authorities, presented with an application from the declarant seeking revision of his customs declaration in relation to those goods, are required, subject to the possibility of a subsequent court action, either to reject the application by a reasoned decision, as for example where the facts to be verified require physical verification and, following the release of the goods, the latter can no longer be presented to them, or to carry out the revision applied for where, conversely, the verifications to be carried out do not require presentation of the goods, for example where the application for revision envisages only the examination of accounting or contractual documents.

In accordance with Article 78(3) of the Customs Code, if the revision indicates that the provisions governing the customs procedure in question were applied on the basis of ‘incorrect or incomplete information’, which terms cover both technical errors and errors of interpretation of the applicable law such as the erroneous inclusion of a buying commission in the declared customs value, the customs authorities must take the measures necessary to regularise the situation, taking account of the new information available to them. Where it finally becomes apparent that the import duties paid by the declarant exceed those that were legally owed at the time of their payment, the measure necessary to regularise the situation can consist only in repayment of the import duties applied to that commission. That reimbursement is to be made in accordance with Article 236 of the Customs Code if the conditions laid down by that provision are fulfilled, in particular that there has been no manipulation by the declarant and that the application for reimbursement has been submitted within the time-limit, which is in principle three years.

(see paras 48-49, 51-54, 63, 70-71, operative part 2)
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1. Preliminary rulings – Assessment of validity – Finding of invalidity of Community provisions comparable to those already declared invalid by the Court – Lack of jurisdiction of national courts – Duty to refer

(Art. 230 EC, Art. 234 EC, third para., and Art. 241 EC)

2. Agriculture – Common organisation of the markets – Sugar – Trade with non-member countries – Additional import duties – Determination on the basis of the cif import price – Obligation on the importer to make an application – Determination on the basis of the representative price – Not valid

(Commission Regulation No 1423/95, Arts 1(2) and 4(1) and (2))

Summary

1. The third paragraph of Article 234 EC requires a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law to seek a ruling from the Court of Justice on a question relating to the validity of the provisions of a regulation even where the Court has already declared invalid analogous provisions of another comparable regulation. National courts have no jurisdiction themselves to determine that acts of Community institutions are invalid.

Although the rule that national courts may not themselves determine that Community acts are invalid may have to be qualified in certain circumstances in the case of proceedings relating to an application for interim measures, the interpretation adopted in Cilfit and Others , referring to questions of interpretation, cannot be extended to questions relating to the validity of Community acts.

That solution is imposed, first, by the requirement of uniformity in the application of Community law. That requirement is particularly vital where the validity of a Community act is in question. Differences between courts of the Member States as to the validity of Community acts would be liable to jeopardise the essential unity of the Community legal order and undermine the fundamental requirement of legal certainty.

It is imposed, secondly, by the necessary coherence of the system of judicial protection instituted by the EC Treaty. References for a preliminary ruling on validity constitute, on the same basis as actions for annulment, a means of reviewing the legality of Community acts. By Articles 230 EC and 241 EC, on the one hand, and Article 234 EC, on the other, the Treaty established a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the institutions and has entrusted such review to the Community Courts.

(see paras 17-19, 21-22, 25, operative part 1)

2. Paragraphs (1) and (2) of Article 4 of Regulation No 1423/95 laying down detailed implementing rules for the import of products in the sugar sector other than molasses are invalid inasmuch as they provide that the additional duty referred to therein is, as a general rule, established on the basis of the representative price referred to in Article 1(2) of that regulation and that that duty is established on the basis of the cif import price of the shipment concerned only if the importer so requests.

(see para. 32, operative part 2)
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State aid – Power of the Council to authorise aid by way of derogation in view of exceptional circumstances – Conditions of exercise

(Arts 87 EC and 88(2) EC)

Summary

The power held by the Council, laid down in the third subparagraph of Article 88(2) EC, is clearly exceptional in character. It follows that, if the Member State concerned has made no application to the Council under that provision before the Commission declares the aid incompatible with the common market, the Council is no longer authorised to exercise the exceptional power conferred upon it by that provision in order to declare such aid compatible with the common market. Such an interpretation, which makes it possible to avoid the same State aid being the subject of conflicting decisions taken successively by the Commission and the Council, contributes to legal certainty.

Furthermore, to hold that a Member State is able to grant to beneficiaries of such unlawful aid new aid in an amount equivalent to that of the unlawful aid, intended to neutralise the impact of the repayments which the beneficiaries are obliged to make pursuant to the decision finding the aid incompatible with the common market would clearly undermine the effectiveness of decisions taken by the Commission under Articles 87 EC and 88 EC. Therefore, the Council can neither counter such a Commission decision by itself declaring that aid compatible with the market, nor undermine the effectiveness of that decision by declaring compatible with the common market, in accordance with the third subparagraph of Article 88(2) EC, an aid designed to compensate the beneficiaries of the unlawful aid declared incompatible with the common market for the repayments they are required to make pursuant to that decision.

It follows that the Council was not able validly to adopt a decision finding aid which the Belgian State proposed to grant to certain coordination centres established in Belgium compatible with the common market, contrary to a Commission decision adopted prior to the application to the Council which concerned an identical aid scheme and declared it to be incompatible with the common market.

(see paras 24-30, 36-37)
Case C-312/03





Commission of the European Communities

v

Kingdom of Belgium





«(Failure of a Member State to fulfil obligations – Failure to implement Directive 1999/44/EC)»

Judgment of the Court (Third Chamber), 19 February 2004

Summary of the Judgment