Case C-452/02: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 29 October 2002 in the case of Hauptzollamt Bremen against ITG GmbH Internationale Spedition
Date: 2003-03-08
Institutions: Court of Justice
Subjects: Union transit, customs, customs debt, customs formalities, customs regulations, import, interpretation of the law

C 55/8

EN

Official Journal of the European Union

8.3.2003

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 29 October 2002 in the case
ITG GmbH Inter-
of Hauptzollamt Bremen against

nationale Spedition

(Case C-452/02)

(2003/C 55/15)

Action brought on 18 December 2002 by the Commission
the United
of

the European Communities against

Kingdom

(Case C-458/02)

(2003/C 55/16)

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 29 October 2002, received at the
Court Registry on 12 December 2002, for a preliminary ruling
in the case of Hauptzollamt Bremen against ITG GmbH
Internationale Spedition on the following questions:

1.

2.

Is a customs debt on importation incurred under
Article 203(1) of Regulation (EEC) No 2913/92 (1) where,
contrary to instructions, goods in temporary storage are
not presented to the original customs authority but to
another customs authority without having been placed
under the Community transit procedure required for their
movement?

If Question 1 should be answered in the negative: In the
circumstances described in Question 1 is there a non-
fulfilment of an obligation that could result
in the
incurrence of a customs debt on importation under
Article 204(1)(a) of Regulation (EEC) No 2913/92?

An action against the United Kingdom was brought before the
Court of Justice of the European Communities on 18 December
2002 by the Commission of the European Communities,
represented by K. Banks, acting as agent, with an address for
service in Luxembourg.

The applicant claims that the Court should:

— declare that in providing for an exception to the right to
equitable remuneration for performers and phonogram
producers where a phonogram published for commercial
purposes, or a reproduction of such phonogram, is used
for any communication to the public (the exception
concerning any communication to a non-paying audi-
ence), the United Kingdom has failed to implement
correctly Article 8(2) of Council Directive 92/100/EEC (1)
on rental right and lending right and on certain rights
related to copyright in the field of intellectual property;

3.

If Question 2 should be answered in the affirmative:

— order the United Kingdom to pay the costs of this action.

(a)

Should Article 859, point 5, of Regulation (EEC)
No 2454/93 (2) be interpreted as referring only to
an unauthorised movement of goods that could
have been authorised by the customs office, or does
it mean any movement of goods at all?

(b) Should Article 859, point 5, of Regulation (EEC)
No 2454/93 be interpreted as meaning that the
that the
condition laid down in that provision,
goods in temporary storage can be presented to the
customs authorities at their request, is fulfilled only
if the goods are presented again to the customs
office where they were originally presented, or is the
condition fulfilled even if the goods are presented
again to another customs office in the same town
which comes under the organisation of a different
customs authority?

( 1) OJ L 302, p. 1.
( 2) OJ L 253, p. 1.

Pleas in law and main arguments

The only permissible exceptions to both the producers’ and
performers’ right
to obtain equitable remuneration under
Article 8 of Directive 92/100/EEC are provided for by
Article 10 of the directive. In the present context, the United
Kingdom can only rely upon limitations allowed under
Article 10(2) because the exceptions provided for under
paragraph 1 of the said provision are not pertinent.

As to the application of
the limitations allowed under
Article 10(2), it must be borne in mind that, pursuant to this
provision, Member States may only provide for limitations
with regard to the protection of performers to the extent that
they may lawfully do in connection with the protection of
copyright in literary and artistic works. It follows, however,
from Article 11 bis (2) of the Berne Convention that domestic
legislation shall not in any circumstances be prejudicial to the
author’s right to obtain equitable remuneration.