Case C-152/01: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 1 March 2001 in the case of Kyocera Electronics Europe GmbH against Hauptzollamt Krefeld
Date: 2001-06-30
Institutions: Court of Justice
Subjects: customs formalities, customs valuation, interest, interpretation of the law, purchase price

C 186/4

EN

Official Journal of the European Communities

30.6.2001

Thionville, with an address for service in Luxembourg at the
premises of Borislav Erdeljan, 90 Route de Thionville —
Appeal against the unpublished order of the Court of First
Instance of the European Communities (First Chamber) of
21 May 1999 in Cases T-169/98 and T-170/98 Schiocchet v
Commission, seeking to have that order annulled and to have
the forms of order sought by the appellant at first instance
granted, the other party to the proceedings being: Commission
of the European Communities (Agent: M. Wolfcarius, assisted
by J.-L. Fagnart) — The Court (Third Chamber), composed of:
C. Gulmann (Rapporteur), President of
the Chamber,
J.-P. Puissochet and F. Macken, Judges; S. Alber, Advocate
General; R. Grass, Registrar, has made an order on 16 Novem-
ber 2000, the operative part of which is as follows:

1.

2.

The appeal is dismissed.

Schiocchet SARL shall pay the costs.

(1) OJ C 281 of 2.10.1999.

2.

3.

accordingly, declare the application admissible and send
it back to the Court of First Instance for judgment (or for
a stay of proceedings pending delivery of the judgment
of the Court of Justice in Case C-310/99 Italy v Com-
mission);

order the Commission to pay the full costs incurred by
the appellants in respect of matters adjunct to proceedings
before the Court of First Instance and the present appeal
proceedings, reserving the costs of the main proceedings.

Pleas in law and main arguments

The contested order is vitiated by the following errors in law:

— infringement and misapplication of Articles 111 and 114

of the Rules of Procedure of the Court of First Instance;

— infringement and misapplication of the provisions of the
Rules of Procedure of the Court of First Instance with
regard to calculating procedural time-limits in the event
of publication of the contested act;

— failure to give reasons in relation to the legal arguments
for the application of the rules on time-limits invoked by
the appellant;

— in the alternative, error of law and failure to state reasons

with regard to the matter of excusable error.

Appeal brought on 27 March 2001 by Confederazione
Generale dell’Industria Italiana (Confindustria), estab-
lished in Rome, Confederazione Generale Italiana del
Commercio, del Turismo, dei Servizi e delle PMI
(Confcommercio), Confartigianato, Associazione Bancaria
Italiana (ABI), established in Rome, Associazione Naziona-
le fra le Imprese Assicuratrici (ANIA), established in Milan
(Italy), and Banco di Napoli SpA, established in Naples
(Italy) against the order made on 19 January 2001 by the
Second Chamber, Extended

Reference for a preliminary ruling by the Bundesfinanzh-
of by order of that court of 1 March 2001 in the case of
Kyocera Electronics Europe GmbH against Hauptzollamt
Krefeld

(Case C-141/01 P)

(2001/C 186/07)

(Case C-152/01)

(2001/C 186/08)

An appeal against the order made on 19 January 2001 by the
Second Chamber extended Composition, of the Court of First
Instance of the European Communities in Case T-126/00
between Confederazione Generale dell’Industria Italiana (Con-
findustria) and Others and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 27 March 2001 by Confederazione
Generale dell’Industria Italiana (Confindustria) and the other
abovementioned companies.

The appellant claims that the Court should:

1.

set aside the order of the Court of First Instance of the
European Communities of 19 January 2001;

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 1 March 2001, received at the Court
Registry on 9 April 2001, for a preliminary ruling in the case
of Kyocera Electronics Europe GmbH v Hauptzollamt Krefeld
on the following questions:

1. Must Article 3(2)(a) of Commission Regulation (EEC)
No 1495/80 (1) of 11 June 1980 implementing certain
provisions of Articles 1, 3 and 8 of Council Regulation
(EEC) No 1224/80 (2) on the valuation of goods for
customs purposes as amended by Regulation (EEC)
No 220/85 (3) be interpreted as meaning that payments
of interest are distinct from the price of the goods if at
the material time, namely the acceptance of the customs
declaration, only the invoice for the net price of the goods

30.6.2001

EN

Official Journal of the European Communities

C 186/5

has been submitted to the customs office and that invoice
— like the declaration of customs value — does not
reveal either expressly or by implication that in the
context of the transaction to be assessed interest was also
paid by the buyer to the seller?

crops which need little water. The legislation which was
enacted shortly afterwards in light of experience (Council
Regulation No 1422/97) (2) bears out the fact that neither
the objectives nor the spirit of the applicable Community
law were prejudiced.

2.

If the answer to Question 1 is in the negative:

Do the interest payments then form part of the customs
value of the goods?

(1) OJ L 154, 21.6.1980, p. 14.
(2) OJ L 134, 31.5.1980, p. 1.
(3) OJ L 25, 30.1.1985, p. 7.

Action brought on 9 April 2001 by the Kingdom of Spain
against the Commission of the European Communities

(Case C-153/01)

(2001/C 186/09)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 9 April 2001 by the Kingdom of Spain,
represented by Mr Santiago Ortiz Vaamonde, Abogado del
Estado, acting as Agent, with an address for service in
Luxembourg at the Spanish Embassy, 4-6 Boulevard E. Servais.

The applicant claims that the Court should:

— annul the Commission’s decision of 5 February 2001 (1)
excluding from financing certain expenditure incurred by
the Member States under the Guarantee Section of the
EAGGF, in so far as that decision is the object of the
present action; and

— order the defendant institution to pay the costs.

Pleas in law and main arguments

(Arable crops: inadequate extraordinary set-aside for the 1995
harvest)

— There was no failure to fulfil obligations such as to allow
a financial adjustment to be made. The Spanish authorities
consider that they have not acted in breach of Community
law.

As regards the failure to implement the extraordinary set-
aside in the non-irrigated areas, they submit that the
applicable law should be interpreted purposively and in a
factual context, on the basis of a fact recognised by the
Commission:
in 1994
prompted farmers to have recourse to the production of

the exceptional drought

that

As regards the failure to implement the extraordinary set-
aside in relation to irrigated arable crops, they rely on
the factual circumstances (the drought and the Act of
Accession) acknowledged by Commission Regulation
No 1040/95 (3) and to an agreement which unfortunately
will be put to the test only if it is recognised by the
Commission.

— (In the alternative) The financial adjustment includes
items which should not be included and has been
calculated in a way that is contrary to the applicable rules.
Although items which the Commission alleges should be
present are included in the adjustment, the way it has
been calculated is incorrect.

(Arable crops: the checks carried out in the Autonomous
Community of Andalusia in respect of the 1996 and 1997
harvests were inadequate as to quality and quantity)

— The checks carried out considerably exceed the minimum
required by the rules. The delays alleged to have occurred
as regards the standard-method checks cannot have any
repercussions since the checks carried out by tele-
detection, in themselves, exceed the compulsory mini-
mum. Furthermore, it is not surprising that the additional
checks using the standard methods were carried out in
part after 31 August, since they are additional checks
taking place later than the initial checks. The Commission
failed to respond on both occasions when it was asked
whether it was incorrect to carry out additional checks
after 31 August. It is inconsistent to increase the amount
of
in proportion to the number of
additional checks, since that amounts to inflicting heavier
penalties if more checks are carried out.

the adjustment

The Spanish authorities consider that the adjustment
relating to the tele-detection and standard-method checks
in Andalusia for the 1997 harvest is void for two further
reasons:

1.

2.

The information used by the Commission to assess
the 1997 harvest is incorrect since it concerns the
1996 harvest. There is, therefore, a manifest error of
fact.

The adjustment relating to the 1997 harvest is
indefensible because there has been a breach of the
principle of the right to a fair hearing.

Even if the Court were to hold that it was appropriate to
make a financial adjustment, the amount fixed by the
Commission cannot be justified.