Judgment of the Court of 5 November 2002 in Case C-208/00 (Reference for a preliminary ruling from the Bundesgerichtshof ): Überseering BV v Nordic Construction Company Baumanagement GmbH (NCC) (Articles 43 EC and 48 EC — Company formed in accordance with the law of a Member State and having its registered office there — Company exercising its freedom of establishment in another Member State — Company deemed to have transferred its actual centre of administration to the host Member State under the law of that State — Non-recognition by the host Member State of the company's legal capacity and its capacity to be a party to legal proceedings — Restriction on freedom of establishment — Justification)
Date: 2002-12-21
Institutions: Court of Justice
Subjects: Germany, head office, interpretation of the law, right of action, right of establishment

C 323/12

EN

Official Journal of the European Communities

21.12.2002

system applicable to the common fisheries policy (OJ 1993
L 261, p. 1), Article 11(2) of Regulation No 2241/87 or
Article 21 of Regulation No 2847/93, Article 1(2) of Regu-
lation No 2241/87, or Article 31 of Regulation No 2847/93,
the Court (Fifth Chamber), composed of: M. Wathelet, Presi-
dent of the Chamber, C.W.A. Timmermans, A. La Pergola
(Rapporteur), P. Jann and S. von Bahr, Judges; C. Stix-Hackl,
Advocate General; R. Grass, Registrar, has given a judgment
on 14 November 2002, in which it:

1. Declares that, in respect of each of the years 1991 to 1996,

by:

— failing to put in place appropriate detailed rules for the
utilisation of the quotas allocated to it and to carry out
the inspections and other controls required by the relevant
Community regulations,

— failing provisionally to close certain fisheries when quotas

were exhausted,

— failing to take administrative or penal action against the
masters of vessels infringing those regulations or against
any other person responsible for such infringement,

the United Kingdom of Great Britain and Northern Ireland has
failed to comply with its obligations under Article 5(2) of
Council Regulation (EEC) No 170/83 of 25 January 1983
establishing a Community system for the conservation and
management of fishery resources and, with effect from 1 January
1993, Article 9(2) of Council Regulation (EEC) No 3760/92
of 20 December 1992 establishing a Community system for
fisheries and aquaculture, as well as Article 1(1) of Council
Regulation (EEC) No 2241/87 of 23 July 1987 establishing
certain control measures for fishing activities and, with effect
from 1 January 1994, Article 2 of Council Regulation (EEC)
No 2847/93 of 12 October 1993 establishing a control
system applicable to the common fisheries policy, Article 11(2)
of Regulation No 2241/87 and, with effect from 1 January
1994, Article 21 of Regulation No 2847/93, and Article 1(2)
of Regulation No 2241/87 and, with effect from 1 January
1994, Article 31 of Regulation No 2847/93;

2. Orders the United Kingdom of Great Britain and Northern

Ireland to pay the costs.

( 1) OJ C 176 of 24.6.2000.

JUDGMENT OF THE COURT

of 5 November 2002

in Case C-208/00 (Reference for a preliminary ruling
from the Bundesgerichtshof ): Überseering BV v Nordic
Construction Company Baumanagement GmbH (NCC) (1)

(Articles 43 EC and 48 EC — Company formed in accordance
with the law of a Member State and having its registered
office there — Company exercising its freedom of establish-
ment in another Member State — Company deemed to have
transferred its actual centre of administration to the host
Member State under the law of that State — Non-recognition
by the host Member State of the company’s legal capacity
and its capacity to be a party to legal proceedings —
Restriction on freedom of establishment — Justification)

(2002/C 323/13)

(Language of the case: German)

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

In Case C-208/00: Reference to the Court under Article 234
EC by the Bundesgerichtshof (Germany) for a preliminary
ruling in the proceedings pending before that court between
Überseering BV and Nordic Construction Company Bauma-
nagement GmbH (NCC), on the interpretation of Articles 43
EC and 48 EC, the Court, composed of: G.C. Rodríguez Iglesias,
President,
(Rapporteur) and
R. Schintgen (Presidents of Chambers), C. Gulmann,
D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken,
N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges;
D. Ruiz-Jarabo Colomer, Advocate General; H.A. Rühl, Princi-
pal Administrator, for the Registrar, has given a judgment on
5 November 2002, in which it has ruled:

J.-P. Puissochet, M. Wathelet

1. Where a company formed in accordance with the law of a
Member State (‘A’) in which it has its registered office is
deemed, under the law of another Member State (‘B’), to have
moved its actual centre of administration to Member State B,
Articles 43 EC and 48 EC preclude Member State B from
denying the company legal capacity and, consequently, the
capacity to bring legal proceedings before its national courts for
the purpose of enforcing rights under a contract with a company
established in Member State B.

21.12.2002

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Official Journal of the European Communities

C 323/13

2. Where a company formed in accordance with the law of a
Member State (‘A’) in which it has its registered office exercises
its freedom of establishment in another Member State (‘B’),
Articles 43 EC and 48 EC require Member State B to recognise
the legal capacity and, consequently, the capacity to be a party
to legal proceedings which the company enjoys under the law of
its State of incorporation (’A’).

1. Article 5(2) 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:

( 1) OJ C 233 of 12.8.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 14 November 2002

in Case C-251/00 (Reference for a preliminary ruling from
the Tribunal Tributário de Primeira Instância de Lisboa ):
Ilumitrónica — Iluminação e Electrónica Lda v Chefe da
Divisão de Procedimentos Aduaneiros e Fiscais/Direcção
das Alfândegas de Lisboa, third party: Ministério Púb-
lico (1)

(EEC-Turkey Association Agreement — Importation of
television sets from Turkey — Determination of the person
liable for the customs debt — Post-clearance recovery of
customs duties)

(2002/C 323/14)

(Language of the case: Portuguese)

— in order to determine whether there is an ’error made by
the competent authorities themselves’, account must be
taken both of the conduct of the customs authorities
which issued the certificate permitting the application of
preferential treatment and of that of the central customs
authorities;

— the routine issuing by the authorities of the exporting
country of certificates permitting the application of prefer-
ential treatment under association rules constitutes evi-
dence of such an error when those authorities must have
been aware, on the one hand, of the existence in the
exporting country of a policy of encouraging exports,
involving the duty-free importation of components orig-
inating in third countries for incorporation in goods
intended for export to the Community and, on the other
hand, of the absence in the exporting country of provisions
enabling collection of the compensatory levy to which the
application of preferential treatment to exports to the
Community of goods thus obtained was subject;

— the fact that some of the relevant provisions of the
association rules were not published in the Official Journal
the European Communities and the circumstance
of
that those provisions were not
implemented, or were
implemented incorrectly, in the exporting country over a
period of more than 20 years constitute evidence that such
an error could not reasonably have been detected by the
person liable.

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

2.

The conduct of the authorities of the exporting country does not
affect the determination of the person by whom the customs
debt is payable or the right of the authorities of the importing
country to take action for post-clearance recovery thereof.

In Case C-251/00: Reference to the Court under Article 234
EC by the Tribunal Tributário de Primeira Instância de Lisboa
(Portugal) for a preliminary ruling in the proceedings pending
before that court between Ilumitrónica — Iluminação e
Electrónica Lda and Chefe da Divisão de Procedimentos
Aduaneiros e Fiscais/Direcção das Alfândegas de Lisboa, third
party: Ministério Público, on the interpretation of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing
the Community Customs Code (OJ 1992 L 302, p. 1) and on
the validity of a Commission decision,
(Fifth
Chamber), composed of: M. Wathelet, President of the Chamb-
er, C.W.A. Timmermans, A. La Pergola, P. Jann (Rapporteur)
and S. von Bahr, Judges; J. Mischo, Advocate General; L. Hew-
lett, Principal Administrator, for the Registrar, has given a
judgment on 14 November 2002, in which it has ruled:

the Court

3. Articles 22 and 25 of the Agreement establishing an associ-
ation between the European Economic Community and Turkey
do not require the national customs authorities of a Member
State, acting on the Commission’s advice, to have recourse to
the procedure provided for by those articles before taking action
for post-clearance recovery of import duties.

(1) OJ C 233 of 12.8.2000.