7.8.1999 EN C 226/21 Official Journal of the European Communities
3. Must the fees paid for such services be calculated in the — C(1999)544, which withdraws the assistance granted
light of the cost involved in providing the service? to Floreurop - Productos Florestais Lda by Commission
Decision C(96)2211 of 13 September 1996 concern-ing the grant of an EAGGF, Guarantee Section, contri-4. Are such costs those incurred in taking the action and inbution under Council Regulation (EEC) No 4256/88maintaining the facilities necessary for taking it?for project No 94.PT.06.015, entitled ‘Demonstration
Project to accelerate agricultural diversification inMadeira by introducing products intended for the 5. May the criterion of the economic benefit which the user
uharmaceutical industry (tea tree oil)’ obtains from the action taken be applied in calculating the
amount payable for such action?
to the extent to which they are addressed to the Portuguese
Republic;
(1) OJ, English Special Edition, 1969 (II), p. 412.
— Order the Commission to pay the costs.
Pleas and principal arguments
— Breach of the obligation to state reasons (Article 253 EC);
— Infringement of Article 23(1) third indent and Article 24
of Regulation (EEC) No 4253/88 (2) in that, on a correctAction brought on 1 June 1999 by the Portugueseinterpretation and application of those provisions to theRepublic against the Commission of the European Com-projects in question, only the beneficiary undertakingsmunitiesshould be responsible for repaying the amounts received:
the assistance in question was granted and controlled
directly and solely by the European Commission without(Case C-208/99)any involvement of the national management and moni-
toring bodies. Nor can the fact that the national authoritiessimply accompanied the Commission inspectors be regard-(1999/C 226/34)ed as participation in the control process. The Member
State cannot be held responsible for irregularities arising
in the implementation of such projects nor can it be theAn action against the Commission of the European Communi-addressee of decisions requiring the recovery of funds usedties was brought before the Court of Justice on 1 June 1999improperly.by the Portuguese Republic, represented by Luı ´s Fernandes,
Angelo Seiça Neves and Paula Fraga ˜o, acting as Agents, with
an address for service in Luxembourg at the Portuguese
Embassy, 33 Allée Scheffer, Luxembourg.(1) OJ L 374 of 31.12.1988, p. 25.
(2) OJ L 394 of 31.12.1988, p. 14.
The applicant claims that the Court of Justice should:
— Uphold this application and therefore annul the following
decisions:
— C(1999)543, which withdraws the assistance granted
to Belgravia Lda b, Commission Decision C(93)3403of 26 November 1993 concerning the grant of anAction brought on 4 June 1999 by the Commission of theEAGGF, Guarantee Section, contribution underEuropean Communities against the Italian RepublicCouncil Regulation (EEC) No 4256/88 (
1) for project
No 93.PT.06.023, entitled ‘Demonstration Project forintroduction of the cultivation of sea kale’,(Case C-212/99)
— C(1999)545, which withdraws the assistance granted(1999/C 226/35)to Ordinal-Gesta ˜o de Investimentos Lda by Com-
mission Decision C(93)1606 of 21 June 1993 concern-ing the grant of an EAGGF, Guarantee Section, contri- An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 4 June 1999 bution under Council Regulation (EEC) No 4256/88
for project No 93.PT.06.002, entitled ‘Pilot and Dem- by the Commission of the European Communities, represented
by Pieter Jan Kuijper and Enrico Traversa, Legal Advisers acting onstration Project for turning to account three Mediter-
ranean plants (fennel, balm and parsley) through the as Agents, with an address for service in Luxembourg at the
office of Carlos Go ´mez de la Cruz, Wagner Centre, Kirchberg. extraction of essential oils for the agro-food industry’,
C 226/22 EN 7.8.1999 Official Journal of the European Communities
The applicant claims that the Court should: Q u e s t i o n 2
— Declare that, in view of the administrative and contractual In so far as the national administrative customs procedure
practice established by various public universities, which provides, as the only measure (applied automatically, as
entails a failure to respect the vested rights of former indicated above) to be taken by the national customs auth-
university language assistants who are not of Italian mother orities, for recourse to the overdue-clearance procedure, the
tongue, whereas such recognition is guaranteed for the sole object of which is to ensure sale of the goods, may it not
majority of other national workers, the Italian Republic be regarded as a disproportionate measure infringing taxpayers’
has failed to fulfil its obligations under Article 39 (ex Article rights of defence and classifiable as an obstacle to the
48) of the Treaty establishing the European Community; free movement of goods, particularly since, being applied
automatically, that measure may take effect forthwith, that isto say on the first day following the end of the statutory — Order the Italian Republic to pay the costs.
storage period, without the importer of the goods even being
warned or advised?
Pleas in law and main arguments
Question 3
It appears from the information provided by the Italian
authorities that the infringement of Article 48 of the EC Treaty By immediately putting up the goods for ‘sale’ in the circum-
(now, after amendment, Article 39 EC), which the Commission stances described above, does the national customs adminis-
described in detail in its letter under Article 169 (now Article trative procedure infringe Article 6(3) of the Community
226) of 9 Jul, 1998 and in its reasoned opinion of 28 January Customs Code?
1999, has not been cured.
Question 4In the case of six of the nine universities listed in the above
letter and opinion, the Italian Government has failed to provide
Does the national customs administrative procedure, by not the Commission with adequate documentary evidence to show
making any notification compulsory in the overdue-clearance that, for financial and social security purposes, the seniority
procedure, as provided for in Article 638 et seq. of the Customs acquired by university foreign language assistants before the
Regulations, infringe Article 243 of the Community Customs entry into force of Law No 236/1995 has been recognised.
Code?
Question 5
In the event that the overdue-clearance charge provided for in
Article 638 et seq. of the Customs Regulations falls to be
classified as a procedural administrative penalty (the view
Reference for a preliminary ruling by the Tribunal Fiscal taken in the national case-law), is that charge subject to VAT?
Aduaneiro do Porto by order of that court of 11 May
1999, in the case of José Teodoro de Andrade and the
Director da Alfândega de Leixo ˜es Question 6
If the hypothesis outlined in the Question 5 (that the charge (Case C-213/99)constitutes an administrative penalty) is accepted, may the fact
that that charge is levied on an ad valorem (objective) basis, but
(1999/C 226/36) without any reference to fault on the part of the agent or to
charges actually borne by the customs authorities in respect of
measures relating to precautionary supervision, warehousingReference has been made to the Court of Justice of theand other matters, be regarded as constituting an infringementEuropean Communities by an order of the Tribunal Fiscalof the principle of proportionality?Aduaneiro do Porto (Customs Court, Oporto) of 11 May 1999,
which was received at the Court Registry on 4 June 1999, for
a preliminary ruling in the case of José Teodoro de AndradeQuestion 7and the Director da Alfândega de Leixo ˜ es, on the following
questions:
If it were accepted, on the contrary, that the said charge is not
in the nature of a penalty but in fact represents remunerationfor services provided by the customs authorities, would theQuestion 1levying of VAT be justified?
Is the national administrative customs procedure, in so far as(1) Council Regulation (EEC No 2913/92 of 12 October 1992it means that, automatically and without prior notice, goodsestablishing the Community Customs Code, OJ L 302 ofremaining uncleared beyond the statutory periods are to be19.10.1992, p. 1.subject to the overdue-clearance procedure (sale), compatible
with Article 53 of the Customs Code (1), in particular Article
53(1)?