Case C-292/02: Reference for a preliminary ruling by the Finanzgericht Düsseldorf by order of that Court of 6 August 2002 in the case of Meiland Azewĳn B.V. against Hauptzollamt Duisburg
Date: 2002-10-26
Institutions: Court of Justice
Subjects: administrative check, excise duty, freedom to provide services, interpretation of the law, mineral oil, motor fuel, tax exemption

C 261/4

EN

Official Journal of the European Communities

26.10.2002

Reference for a preliminary ruling by the Verwaltungs-
gerichtshof by order of that Court of 25 July 2002 in the
appeal by Rethmann Photo Recycling GmbH

(Case C-291/02)

(2002/C 261/06)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichts-
hof of 25 July 2002, received at the Court Registry on
12 August 2002, for a preliminary ruling in the appeal by
Rethmann Photo Recycling GmbH on the following questions:

1. Do the provisions of Regulation (EEC) No 259/93 (1) on
the supervision and control of shipments of waste within,
into and out of the European Community and Council
Directive 75/442/EEC (2) of 15 July 1975 on waste
display, with respect to the question whether a planned
shipment of waste is to be assigned to recovery operation
R1 in Annex II B or disposal operation D10 in Annex
II A to Directive 75/442, sufficient clarity and definiteness
to allow the person concerned (private parties as well as
Member States) to assess the respective legal conse-
quences of their conduct, or are those provisions invalid
because of a lack of certainty and the resulting unen-
forceability?

2.

3.

Is the sole criterion,
in assigning a waste treatment
measure to recovery operation R1 (use principally as a
fuel or other means to generate energy) in Annex II B to
that the waste is used entirely to
Directive 75/442,
generate energy (energy use) and the energy generated is
also in fact used?

Is it permissible for the competent authority of desti-
nation to proceed on the basis of the following criteria in
deciding whether a planned waste shipment is to be
assigned to recovery operation R1 or disposal operation
D10:

(a) Risk reduction

(b) Conservation of natural resources

(c) Conservation of energy resources

(d) Conservation of landfill space

(e)

Ecological appropriateness of the operation

(f)

Economic appropriateness of the operation?

4.

Is the following statement correct:

to the use of

Not all incineration with energy use constitutes recovery
for the purposes of operation R1. Operation R1 does not
relate just
the heat released through
incineration but also requires use as a fuel. A fuel is
characterised by the fact that it satisfies certain criteria
relating to thermal value, concentration of pollutants and
combustion rate and is sufficiently homogeneous with
regard to those characteristics for the process of incin-
eration to be able to be controlled. Waste which cannot
meet those criteria — that is to say, which possesses
insufficient
thermal value, whose composition is so
variable that incineration (in a conventional incinerator)
cannot be satisfactorily controlled or whose level of
pollutants is such that their incineration gives rise to
impermissible emissions — per se cannot be recovered in
accordance with R1.

(1) OJ L 030 [1993], p. 1.
(2) OJ L 194 [1975], p. 39.

Reference for a preliminary ruling by the Finanzgericht
Düsseldorf by order of that Court of 6 August 2002 in
the case of Meiland Azewijn B.V. against Hauptzollamt
Duisburg

(Case C-292/02)

(2002/C 261/07)

Reference has been made to the Court of
Justice of the
European Communities by order of the Finanzgericht Düssel-
dorf (Finance Court, Düsseldorf) of 6 August 2002, received at
the Court Registry on 13 August 2002, for a preliminary
ruling in the case of Meiland Azewijn B.V. against Hauptzoll-
amt Duisburg (Principal Customs Office, Duisburg) on the
following questions:

1.

2.

Is Article 8a(1) of Directive 92/81/EEC (1) to be construed
as quite simply exempting mineral oil intended to be used
as motor fuel from excise duty in the Member State to
which it is brought in a standard tank of a commercial
motor vehicle after it has been released for consumption
in another Member State?

If the answer to the first question should be in the
affirmative,
is Article 8a(1) of Directive 92/81/EEC
directly applicable in relation to the claimant having
regard to the rule in Paragraph 19(2) of the Mineralöl-
steuergesetz (Law on Excise Duty on Mineral Oils)?

26.10.2002

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Official Journal of the European Communities

C 261/5

3. Are the administrative and control procedures for the
reduction in excise duty which is possible under
Article 8(2)(f) of Directive 92/81/EEC governed by
Article 8(8) of Directive 92/81/EEC without the appli-
cation of a marker or by Article 1(1) of Directive 95/60/
EC (2)?

4.

5.

If the third question should be answered to the effect that
the Member States which exercise the power under
Article 8(2)(f) of Directive 92/81/EEC are obliged,
in
an instance comparable to the present case, to grant
reductions in duty also in the form of a refund of excise
duty, is a reduction in excise duty for agricultural works
contrary to the freedom to provide services if
the
reduction is linked to a marking procedure under
Article 1(1) of Directive 95/60/EC that is not applied in
this context by other Member States, which on the
contrary impose excise-duty penalties in the case of
markings for which no provision is made under their
legal systems?

If the answer to the fourth question should be in the
affirmative, does the breach of the freedom to provide
services mean that liability to pay duty is expunged, or
would the claimant, in order to achieve exemption from
duty, be obliged to ask for unmarked mineral oil and
apply for a refund of excise duty in the Member State in
which it obtains marked gas oil at a reduced rate of duty?

( 1) OJ L 316, 31.10.1992, p. 12.
( 2) OJ L 291, 6.12.1995, p. 46.

Is the amount of aid also to be reduced under the second
indent of Article 10(2)(a) of Regulation (EEC) No 3887/92 (1)
where the special premium for male bovine animals applied
for when this provision of Community law was in force cannot
for legal reasons be granted to the farmer but where in the
words of Article 44(1) of Regulation (EC) No 2419/2001 (2),
the farmer submitted factually correct information or can
show otherwise that he was not at fault?

(1) OJ L 391, 31.12.1992, p. 36.
(2) OJ L 327, 12.12.2001, p. 11.

Action brought on 21 August 2002 by the Italian Republic
against the Commission of the European Communities

(Case C-298/02)

(2002/C 261/09)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 21 August 2002 by the Commission of the
European Communities, represented by Umberto Leanza,
acting as Agent, assisted by Maurizio Fiorilli, avvocato dello
Stato.

The applicant claims that the Court should:

Reference for a preliminary ruling by the Niedersächsi-
sches Oberverwaltungsgericht by order of that Court of
1 August 2002 in the administrative-law case of Mrs Gisela
Gerken against Amt für Agrarstruktur Verden

— annul Commission decision No 2281 (1) of 26 June
2002 in so far as it makes a financial correction of
EUR 12 253 816 in respect of account headings B1-
1512-001 and B1-1512-004 so far as concerns Italy.

(Case C-295/02)

(2002/C 261/08)

Pleas in law and main arguments

Reference has been made to the Court of Justice of the
European Communities by order of the Niedersächsisches
Oberverwaltungsgericht (Lower Saxony, Higher Administrat-
ive Court) of 1st August 2002, received at the Court Registry
on 19 August 2002, for a preliminary ruling in the administrat-
ive-law case of Mrs Gisela Gerken against Amt für Agrar-
struktur (Office for Agriculture) Verden on the following
question:

Aid for peaches and pears intended for the production of fruit
salad — financial correction

According to the Commission, during the 1995-96, 1996-
97 and 1997-98 marketing years, aid was granted for a final
product which did not conform to the definitions contained in
Regulations (EEC) No 1558/91 (2) and (EC) No 504/97 (3). The
two regulations provided for the payment of aid for whole or
sliced peaches and pears provided that they had undergone