Judgment of the Court of 30 September 2003 in Case C-76/01 P: Comité des industries du coton et des fibres connexes de l'Union européenne (Eurocoton) and Others (Appeal — Dumping — Failure by the Council to adopt a proposal for a regulation imposing definitive anti-dumping duties — Lack of simple majority necessary for the adoption of the regulation — Expiry of the time-limit for the anti-dumping investigation — Definition of a reviewable act — Obligation to state reasons)
Date: 2003-11-15
Institutions: Court of Justice
Subjects: General Court (EU), action for annulment (EU), anti-dumping duty, import, textile industry, third country

15.11.2003

EN

Official Journal of the European Union

C 275/7

JUDGMENT OF THE COURT

(Fifth Chamber)

of 25 September 2003

in Case C-58/01 (Reference for a preliminary ruling from
the Special Commissioners of Income Tax): Océ van der
Grinten NV v Commissioners of Inland Revenue (1),

(Directive 90/435/EEC — Corporation tax — Parent com-
panies and subsidiaries of different Member States —
Concept of withholding tax)

(2003/C 275/12)

(Language of the case: English)

In Case C-58/01: Reference to the Court under Article 234 EC
by the Special Commissioners of
Income Tax (United
Kingdom) for a preliminary ruling in the proceedings pending
before them between Océ van der Grinten NV and Com-
missioners of
Inland Revenue, on the interpretation of
Article 5(1) of Council Directive 90/435/EEC of 23 July 1990
on the common system of taxation applicable in the case of
parent companies and subsidiaries of different Member States
(OJ 1990 L 225, p. 6, corrigendum at OJ 1991 L 23, p. 35)
and the interpretation and validity of Article 7(2) of that
directive, the Court (Fifth Chamber), composed of: M. Wathelet
(Rapporteur), President of the Chamber, D.A.O. Edward, A. La
Pergola, P. Jann and A. Rosas, Judges; A. Tizzano, Advocate
General; L. Hewlett, Principal Administrator, for the Registrar,
has given a judgment on 25 September 2003, in which it has
ruled:

1.

In so far as taxation such as the 5 % charge envisaged by the
double taxation convention at issue in the main proceedings is
imposed on the dividends paid by a subsidiary resident in the
United Kingdom to its parent company resident in another
Member State,
it amounts to a withholding tax on profits
which a subsidiary distributes to its parent company within the
meaning of Article 5(1) of Council Directive 90/435/EEC of
23 July 1990 on the common system of taxation applicable in
the case of parent companies and subsidiaries of different
Member States. On the other hand, such taxation does not
amount to a withholding tax prohibited by Article 5(1) of the
Directive in so far as it is imposed on the tax credit to which
that distribution of dividends confers entitlement in the United
Kingdom.

2. Article 7(2) of Directive 90/435 is to be interpreted as
allowing taxation such as the 5% charge envisaged by the
double taxation convention at issue in the main proceedings
even though that charge, in so far as it applies to dividends
paid by the subsidiary to its parent company, amounts to a
withholding tax within the meaning of Article 5(1) of the
Directive.

3.

Examination of the third question has revealed no formal or
procedural defects such as to affect the validity of Article 7(2)
of the Directive.

(1) OJ C 134 of 5.5.2001.

JUDGMENT OF THE COURT

of 30 September 2003

in Case C-76/01 P: Comité des industries du coton et des
fibres connexes de l’Union européenne (Eurocoton) and
Others (1)

(Appeal — Dumping — Failure by the Council to adopt a
proposal for a regulation imposing definitive anti-dumping
duties — Lack of simple majority necessary for the adoption
of the regulation — Expiry of the time-limit for the anti-
dumping investigation — Definition of a reviewable act —
Obligation to state reasons)

(2003/C 275/13)

(Language of the case: English)

In Case C-76/01 P, Comité des industries du coton et des fibres
connexes de l’Union européenne (Eurocoton), established in
Brussels (Belgium), Ettlin Gesellschaft für Spinnerei und Webe-
rei AG, established in Ettlingen (Germany), Textil Hof Weberei
GmbH & Co. KG, established in Hof (Germany), H. Hecking
Söhne GmbH & Co., established in Stadtlohn (Germany),
Spinnweberei Uhingen GmbH,
established in Uhingen
(Germany), F. A. Kümpers GmbH & Co., established in Rheine
(Germany), Tenthorey SA, established in Éloyes (France), Les
tissages des héritiers de G. Perrin — Groupe Alain Thirion
(HPG–GAT Tissages), established in Cornimont (France), Étab-
lissements des fils de Victor Perrin SARL, established in

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.