Order of the Court (Second Chamber) 3 December 2001 in Case C-59/00 (Reference for a preliminary ruling from the Vestre Landsret): Bent Mousten Vestergaard v Spøttrup Boligselskab (Article 104(3) of the Rules of Procedure — Public works contracts — Contracts with a value below the threshold values laid down in Directive 93/37/EEC — Clause requiring the use of a product of a specified make, without any possibility of using a similar product — Free movement of goods)
Date: 2002-04-06
Institutions: Court of Justice
Subjects: Denmark, award of contract, interpretation of the law, public contract, works contract

6.4.2002

EN

Official Journal of the European Communities

C 84/31

Portugal on 1 March 1986 (OJ 1986 57, p. 21) — the Court
(First Chamber), composed of: P. Jann (Rapporteur), President
of the Chamber, L. Sevo´ n and M. Wathelet, Judges; A. Tizzano,
Advocate General; R. Grass, Registrar, has made an order on
11 October 2001, in which it has ruled:

— the person liable has complied with all of the provisions
laid down by the rules in force as far as concerns the
declaration of the event to which the collection of the levy
in question relates.

(1) OJ No C 122 of 29 April 2000.

1. Article 1(2)(c) and the second subparagraph of Article 2(1) of
Council Regulation (EEC) No 1697/79 of 24 July 1979 on
the post-clearance recovery of import duties or export duties
which have not been required of the person liable for payment
on goods entered for a customs procedure involving the
obligation to pay such duties must be interpreted as meaning
that entry in the accounts of the amount originally required of
the person liable for payment is an official act which precedes
notification regarding recovery and actual recovery and which
does not necessarily consist in entry by the customs authority in
the accounts books, or any other medium used in their stead, of
the amount in question.

2. Article 2(2) of Regulation No 1697/79 must be interpreted as
meaning that, where an initial act determining the amount of
levies payable is annulled and replaced by a second act which,
without altering the basis for recovery, fixes such levies in an
amount lower than that which was initially decided, the action
for recovery must be considered to have been set in motion by
the initial act.

3. Neither Article 254 of the Act of Accession nor the provisions of
Commission Regulation (EEC) No 3771/85 of 20 December
1985 on stocks of agricultural products in Portugal nor of
Commission Regulation (EEC) No 579/86 of 28 February
1986 laying down detailed rules relating to stocks of products
in Spain and Portugal preclude the
in the sugar sector
Portuguese Republic from requiring of traders holding surplus
stocks of sugar which they should have been able to export
within the period prescribed for that purpose to pay the levy
provided for by Article 7(1) of Regulation No 579/86.

4.

The customs authorities of a Member State must refrain from
to
carrying out post-clearance recovery of duties pursuant
Article 5(2) of Regulation No 1697/79 where:

— the duties have not been collected on account of an error
of interpretation or application of the provisions on the
levy in question in so far as it is the consequence of acts of
the competent authorities, which excludes errors caused by
incorrect declarations by the person liable

ORDER OF THE COURT

(Second Chamber)

3 December 2001

in Case C-59/00 (Reference for a preliminary ruling
from the Vestre Landsret): Bent Mousten Vestergaard v
Spøttrup Boligselskab (1)

(Article 104(3) of the Rules of Procedure — Public works
contracts — Contracts with a value below the threshold
values laid down in Directive 93/37/EEC — Clause requiring
the use of a product of a specified make, without any
possibility of using a similar product — Free movement of
goods)

(2002/C 84/51)

(Language of the case: Danish)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-59/00: Reference to the Court under Article 234 EC
by the Vestre Landsret (Denmark) for a preliminary ruling in
the proceedings pending before that court between Bent
Mousten Vestergaard and Spøttrup Boligselskab, on the
interpretation of Articles 6 and 30 of the EC Treaty (now, after
amendment, Articles 12 EC and 28 EC), the Court (Second
Chamber) composed of: N. Colneric, President of the Chamber,
R. Schintgen and V. Skouris (Rapporteur), Judges, Advocate
General: P. Léger, Registrar: R. Grass, after informing the
referring court of its intention to give its decision by reasoned
order in accordance with Article 104(3) of the Rules of
Procedure, after inviting the parties referred to in Article 20 of
the EC Statute of the Court of Justice to submit observations,
has made an order on 3 December 2001, in which it has ruled:

Article 30 of the EC Treaty (now, after amendment, Article 28 EC)
precludes a contracting authority from including in the contract
documents for a public works contract which does not exceed the
threshold laid down in Council Directive 93/37/EEC of 14 June
1993 concerning the coordination of procedures for the award of
public works contracts a clause requiring the use in carrying out the
contract of a product of a specified make, where that clause does not
include the words ‘or equivalent’.

— the person liable acting in good faith could not reasonably
have detected that error, despite his professional experience
and the diligence shown by him

(1) OJ C 122 of 29.4.2000.