Case C-434/00: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that court of 21 November 2000 in the criminal proceedings against G. Cuomo
Date: 2001-01-27
Institutions: Court of Justice
Subjects: free movement of goods, interpretation of the law

C 28/22

EN

Official Journal of the European Communities

27.1.2001

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that court of 21 November
2000 in the criminal proceedings against G. Cuomo

3.

(Case C-434/00)

(2001/C 28/42)

Reference has been made to the Court of Justice of the
the Hoge Raad
European Communities by judgment of
the Netherlands) of
der Nederlanden (Supreme Court of
21 November 2000, received at
the Court Registry on
27 November 2000, for a preliminary ruling in the criminal
proceedings against G. Cuomo on the following questions:

1. What is to be understood by ‘leaves’ or ‘ceases to be
covered by’ (onttrekken) the external transit procedure
within the meaning of the third subparagraph of Article
5(1) of the Directive on products subject to excise duty (1)
and of Article 7(3) of the Sixth Directive (2), where such
leaving or cessation is irregular — that is to say, it occurs
otherwise than by declaring the goods for release for free
circulation:

(a)

is it
the first action in relation to the goods
which contravenes a provision connected with that
procedure, and is the presence of an intention to
place the goods — partly by that action — on the
Community market in breach of that provision
relevant; or

(b) does it occur (only) when the goods — in this case
after breaking the seal — are unloaded from the
vehicle without satisfying the requirement to pro-
duce the goods together with the relevant document
at the office of destination in accordance with Article
22(1) of Regulation (EEC) No 2726/90 (OJ 1990
L 262, p. 1), and is the presence of an intention to
place the goods — partly by that action — on the
Community market in breach of Community law
relevant; or

(c) must ‘leaves’ or ‘ceases to be covered by’ be taken to
refer to all the actions (taken together) resulting in
the goods being placed unlawfully on the Com-
munity market?

2.

If the answer to the first question is as indicated in (c),
where does the ‘leaving’ or ‘cessation of coverage’ occur:
where the first unlawful action is performed or where a
subsequent action is performed, in particular where the
goods — in this case after breaking the seal — are
unloaded from the vehicle?

For the purposes of the application of criminal law, may
‘leaves’ or ‘ceases to be covered’ also be taken to refer
to the mere placing and transport of goods under a
Community customs procedure where a third country, as
referred to in the directive, is entered as the destination
of that transport operation in the accompanying docu-
ments but the intention of placing the goods on the
market in another Member State was present at the start
of the transport operation?

(1) Council Directive 92/12/EEC of 25 February 1992 on the general
arrangements for products subject to excise duty and on the
holding, movement and monitoring of such products (OJ 1992
L 76, p. 1).

(2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ 1977 L 145, p. 1).

Action brought on 28 November 2000 by the Com-
mission of the European Communities against the French
Republic

(Case C-439/00)

(2001/C 28/43)

An action against the French Republic was brought before the
Court of Justice on 28 November 2000 by the Commission of
the European Communities, represented by Michel Nolin, of
its Legal Service, acting as Agent, with an address for service
in Luxembourg at the office of Carlos Go´ mez de la Cruz,
Wagner Centre, Kirchberg.

The Commission of the European Communities claims that
the Court should:

— declare that, by failing to adopt all the laws, regulations
and administrative measures necessary in order to comply
with Directive 98/4/EC of the European Parliament and
of the Council of 16 February 1998 amending Directive
93/38/EEC coordinating the procurement procedures of
entities operating in the water, energy, transport and
telecommunications sectors (1), or at all events by failing
to communicate the same to the Commission, the French
Republic has failed to comply with its obligations under
that directive;

— order the French Republic to pay the costs.