Judgment of the Court of 23 September 2003 in Case C-78/01 (Reference for a preliminary ruling from the Bundesgerichtshof): Bundesverband Güterkraftverkehr und Logistik eV (BGL) v Bundesrepublik Deutschland, represented by the Hauptzollamt Friedrichshafen (Free movement of goods — External transit operation — Transport under cover of a TIR carnet — Offences or irregularities — Possibility for a guaranteeing association to prove the place where the offence or irregularity was committed — Time-limit for furnishing proof — Existence of an obligation for the Member State which detects an offence or irregularity to investigate the place where it was committed)
Date: 2003-11-15
Institutions: Court of Justice
Subjects: customs duties, customs regulations, customs territory (EU), infringement of EU law, interpretation of the law, transport document

C 275/8

EN

Official Journal of the European Union

15.11.2003

Thiéfosse (France), Filatures et tissages de Saulxures-sur-Mose-
lotte, established in Saulxures-sur-Moselotte (France), Tissage
Mouline Thillot, established in Thillot (France), Filature Nigge-
ler & Küpfer SpA, established in Capriolo (Italy), Standardtela
SpA, established in Milan (Italy), (Agents: C. Stanbrook and
P. Bentley, QC): Appeal against the judgment of the Court of
First Instance of the European Communities (Second Chamber,
Extended Composition) of 29 November 2002 in Case T-213/
97 Eurocoton and Others v Council [2000] ECR II-3727,
seeking to have that judgment set aside, the other parties to
the proceedings being: Council of the European Union (Agents:
S. Marquardt acting as Agent, assisted by G.M. Berrisch and
H.P. Nehl), United Kingdom of Great Britain and Northern
Ireland (Agent: K. Manji) and Tessival SpA, established in
Azzano S. Paolo (Italy), the Court, composed of: G.C. Rodrí-
guez Iglesias, President, M. Wathelet and C.W.A. Timmermans
(Presidents of Chambers), C. Gulmann, D.A.O. Edward, P. Jann,
F. Macken, N. Colneric, S. von Bahr (Rapporteur), J.N. Cunha
Rodrigues and A. Rosas, Judges; F.G. Jacobs, Advocate General;
L. Hewlett, Principal Administrator, for the Registrar, has given
a judgment on 30 September 2003, in which it:

1.

2.

Sets aside the judgment of the Court of First Instance of the
European Communities of 29 November 2000 in Case T-213/
97 Eurocoton and Others v Council in so far as it concerns the
appellants.

Sets aside the decision of the Council of the European Union of
16 May 1997, which became final on 21 May 1997, not to
adopt the proposal for a Council regulation (EC) imposing a
definitive anti-dumping duty on the import of unbleached
cotton fabric from the People’s Republic of China, Egypt, India,
Indonesia, Pakistan and Turkey (COM (97) 160 final),
submitted by the Commission of the European Communities on
21 April 1997, in so far as it concerns the appellants.

3. Dismisses the action for damages.

4. Orders the Council of the European Union and the appellants

to bear their own costs at first instance.

5. Orders the Council of the European Union to pay the costs of

the appeal.

6. Orders the United Kingdom of Great Britain and Northern
Ireland to bear its own costs both at first instance and on
appeal.

(1) OJ C 108 of 7.4.2001.

JUDGMENT OF THE COURT

of 23 September 2003

in Case C-78/01 (Reference for a preliminary ruling from
the Bundesgerichtshof): Bundesverband Güterkraftver-
kehr und Logistik eV (BGL) v Bundesrepublik Deutsch-
land, represented by the Hauptzollamt Friedrichshafen (1)

(Free movement of goods — External transit operation —
Transport under cover of a TIR carnet — Offences or
irregularities — Possibility for a guaranteeing association to
prove the place where the offence or irregularity was
committed — Time-limit for furnishing proof — Existence
of an obligation for the Member State which detects an
offence or irregularity to investigate the place where it was
committed)

(2003/C 275/14)

(Language of the case: German)

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

In Case C-78/01: Reference to the Court under Article 234 EC
by the Bundesgerichtshof (Germany) for a preliminary ruling
in the proceedings pending before that court between Bundes-
verband Güterkraftverkehr und Logistik eV (BGL) and Bundes-
republik Deutschland, represented by the Hauptzollamt Fried-
richshafen, third party: Préservatrice Foncière Tiard SA, on
the interpretation of Articles 454 and 455 of Commission
Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Council Regulation (EEC)
No 2913/92 establishing the Community Customs Code (OJ
1993 L 253, p. 1), the Court, composed of: G.C. Rodríguez
Iglesias,
and
C.W.A. Timmermans (Presidents of Chambers), C. Gulmann,
A. La Pergola, V. Skouris, F. Macken, N. Colneric, J.N. Cunha
Rodrigues and A. Rosas (Rapporteur), Judges; P. Léger, Advo-
cate General; H. von Holstein, Deputy Registrar, has given a
judgment on 23 September 2003, in which it has ruled:

President, M. Wathelet, R.

Schintgen

1.

2.

The first subparagraph of Article 454(3) of Commission
Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Council Regulation (EEC)
No 2913/92 establishing the Community Customs Code
does not preclude a guaranteeing association against which
proceedings are brought by a Member State for payment of
customs duties on the basis of the guarantee contract it has
concluded with that State in accordance with the Customs
Convention on the International Transport of Goods under
cover of TIR Carnets from being able to furnish proof of the
place where the offence or irregularity was committed, provided
that that proof is furnished within the period laid down in that
provision, that time-limit being peremptory.

The first paragraph of Article 454(3) and Article 455 of
Regulation No 2454/93 must be interpreted as meaning that
the guaranteeing association has available, to furnish proof of
the place where the offence or irregularity was actually commit-
ted, a period of two years running from the date of the claim
for payment made to it.

15.11.2003

EN

Official Journal of the European Union

C 275/9

3. Articles 454 and 455 of Regulation No 2454/93 do not
require the Member State which detects an offence or irregularity
in connection with a transport operation under cover of a TIR
carnet, in addition to making the notifications prescribed in
Article 455(1) of that regulation and an enquiry to the office
of destination, to investigate the actual place where the offence
or irregularity was committed and the identity of the customs
debtors, by seeking the administrative assistance of another
Member State for elucidation of the facts.

the national of a Member State, the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P.- Puissochet, M. Wathe-
let, R. Schintgen and C.W.A. Timmermans (Presidents of
Chambers), D.A.O. Edward, A. La Pergola, P. Jann, F. Macken,
N. Colneric (Rapporteur) and S. von Bahr, Judges; L.A. Geel-
hoed, Advocate General; L. Hewlett, Principal Administrator,
for the Registrar, has given a judgment on 23 September
2003, in which it has ruled:

(1) OJ C 118 of 21.4.2001.

JUDGMENT OF THE COURT

of 23 September 2003

in Case C-109/01 (Reference for a preliminary ruling from
the Immigration Appeal Tribunal): Secretary of State for
the Home Department v Hacene Akrich (1)

(Freedom of movement for workers — National of a non-
Member State who is the spouse of a national of a Member
State — Spouse under a prohibition on entering and
remaining in that Member State — Temporary establishment
of the couple in another Member State — Establishment
with a view to acquisition by spouse of a right under
Community law to enter and remain in the first Member
State — Abuse)

(2003/C 275/15)

(Language of the case: English)

1.

In order to be able to benefit in a situation such as that at issue
in the main proceedings from the rights provided for in
Article 10 of Regulation (EEC) No 1612/68 of the Council of
15 October 1968 on freedom of movement for workers within
the Community, a national of a non-Member State married to
a citizen of the Union must be lawfully resident in a Member
State when he moves to another Member State to which the
citizen of the Union is migrating or has migrated.

2. Article 10 of Regulation No 1612/68 is not applicable where
the national of a Member State and the national of a non-
Member State have entered into a marriage of convenience in
order to circumvent the provisions relating to entry and residence
of nationals of non-Member States.

3. Where the marriage between a national of a Member State and
a national of a non-Member State is genuine, the fact that the
spouses installed themselves in another Member State in order,
on their return to the Member State of which the former is a
national, to obtain the benefit of rights conferred by Community
law is not relevant to an assessment of their legal situation by
the competent authorities of the latter State.

4. Where a national of a Member State married to a national of
a non-Member State with whom she is living in another
Member State returns to the Member State of which she is a
national in order to work there as an employed person and, at
the time of her return, her spouse does not enjoy the rights
provided for in Article 10 of Regulation No 1612/68 because
he has not resided lawfully on the territory of a Member State,
the competent authorities of the first-mentioned Member State,
in assessing the application by the spouse to enter and remain
in that Member State, must none the less have regard to the
right to respect for family life under Article 8 of the European
Convention for the Protection of Human Rights and Fundamen-
tal Freedoms, signed at Rome on 4 November 1950, provided
that the marriage is genuine.

In Case C-109/01: Reference to the Court under Article 234
EC by the Immigration Appeal Tribunal (United Kingdom) for
a preliminary ruling in the proceedings pending before that
court between Secretary of State for the Home Department
and Hacene Akrich, on the interpretation of Community law
on freedom of movement for persons and the right to remain
of a national of a non-Member State who is the spouse of

(1) OJ C 150 of 19.5.2001.