Judgment of the Court (First Chamber) of 2 October 2003 in Case C-411/01 (Reference for a preliminary ruling from the Tribunal d'instance de Metz): GEFCO SA v Receveur principal des douanes (Community Customs Code and implementing Regulation — Outward processing procedure — Exemption from the import duties applied to compensating products — Amount deductible in the event of an incorrect indication of a tariff heading in the temporary export declaration for the goods — Failure having no significant effect on the correct operation of the outward processing procedure)
Date: 2003-11-15
Institutions: Court of Justice
Subjects: CCT duties, customs regulations, import, interpretation of the law, legal code, outward processing

15.11.2003

EN

Official Journal of the European Union

C 275/15

JUDGMENT OF THE COURT

profesiones marítimas of 30 December 1999, subject to a
condition of reciprocity.

of 30 September 2003

(1) OJ C 17 of 19.1.2002.

in Case C-405/01 (Reference for a preliminary ruling from
the Tribunal Supremo): Colegio de Oficiales de la Marina
Mercante Española v Administración del Estado, inter-
vener: Asociación de Navieros Españoles (ANAVE) (1)

(Freedom of movement for workers — Article 39(4) EC —
Employment in the public service — Masters and chief mates
of merchant navy ships — Conferment of powers of public
authority on board — Posts reserved for nationals of the flag
State — Posts open to nationals of other Member States on
condition of reciprocity)

(2003/C 275/24)

(Language of the case: Spanish)

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

In Case C-405/01: Reference to the Court under Article 234
EC by the Tribunal Supremo (Spain) for a preliminary ruling
in the proceedings pending before that court between Colegio
de Oficiales de la Marina Mercante Española and Administra-
ción del Estado, intervener: Asociación de Navieros Españoles
(ANAVE), on the interpretation of Article 39 EC and Articles 1
and 4 of Council Regulation (EEC) No 1612/68 of 15 October
1968 on freedom of movement
for workers within the
Community (OJ, English Special Edition 1968 (II), p. 475), the
Court, composed of: G.C. Rodríguez Iglesias, President,
J.-P. Puissochet, M. Wathelet (Rapporteur), R. Schintgen and
C.W.A. Timmermans (Presidents of Chambers), C. Gulmann,
D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken,
N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas,
Judges; C. Stix-Hackl, Advocate General; M.-F. Contet, Principal
Administrator, for the Registrar, has given a judgment on
30 September 2003, in which it has ruled:

1. Article 39(4) EC is to be construed as allowing a Member State
to reserve for its nationals the posts of master and chief mate of
merchant ships flying its flag only if the rights under powers
conferred by public law on masters and chief mates of such
ships are actually exercised on a regular basis and do not
represent a very minor part of their activities.

2. Article 39 EC is to be construed as precluding a Member State
making access by nationals of the other Member States to the
posts of master and chief mate of merchant ships flying its flag,
such as those covered by Article 8(3) of Royal Decree No 2062/
1999 por el que se regula el nivel mínimo de formación en

JUDGMENT OF THE COURT

(First Chamber)

of 2 October 2003

in Case C-411/01 (Reference for a preliminary ruling from
the Tribunal d’instance de Metz): GEFCO SA v Receveur
principal des douanes (1)

(Community Customs Code and implementing Regulation
— Outward processing procedure — Exemption from the
import duties applied to compensating products — Amount
deductible in the event of an incorrect indication of a tariff
heading in the temporary export declaration for the goods —
Failure having no significant effect on the correct operation
of the outward processing procedure)

(2003/C 275/25)

(Language of the case: French)

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

In Case C-411/01: Reference to the Court under Article 234
EC by the Tribunal d’instance de Metz (France) for a preliminary
ruling in the proceedings pending before that court between
GEFCO SA and Receveur principal des douanes, on the
interpretation of Articles 145 to 151 of Council Regulation
(EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code (OJ 1992 L 302, p. 1), the Court
(First Chamber), composed of: M. Wathelet, President of the
Chamber, P. Jann and A. Rosas (Rapporteur), Judges; A. Tiz-
zano, Advocate General; H. von Holstein, Deputy Registrar,
has given a judgment on 2 October 2003, in which it has
ruled:

1. Articles 145 to 151 of Council Regulation (EEC) No 2913/
92 of 12 October 1992 establishing the Community Customs
Code must be interpreted as meaning that an economic operator
who has declared goods under an incorrect tariff heading at the
time of their temporary exportation from Community territory
under the outward processing procedure is not prohibited, even
in the absence of a formal amendment of the temporary export
declaration, from adducing proof that the incorrect declaration
had no significant effect on the correct operation of the procedure
for the purposes of Article 150(2) of the Customs Code.

C 275/16

EN

Official Journal of the European Union

15.11.2003

2.

3.

4.

Such proof must make it possible to establish, without the
slightest ambiguity,
the compensating products have
resulted from processing of the temporary export goods.

that

It is for the national court to determine, in the light of all the
circumstances of the main proceedings, whether or not the
economic operator has adduced that proof.

If so, the amount of the import duty which would be applicable
to the temporary export goods on the basis of their correct tariff
heading may be deducted when the compensating products are
released for free circulation.

(1) OJ C 369 of 22.12.2001.

JUDGMENT OF THE COURT

(First Chamber)

of 25 September 2003

in Case C-437/01: Commission of the European Communi-
ties v Italian Republic (1)

(Failure of a Member State to fulfil
its obligations —
Directives 92/12/EEC and 92/81/EEC — Tax on lubricating
oils — Excise duty on mineral oils)

(2003/C 275/26)

(Language of the case: Italian)

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

In Case C-437/01, Commission of the European Communities
(Agents: E. Traversa and K. Gross) v Italian Republic (Agent:
I. M. Braguglia, assisted by G. Aiello): Application for a
declaration that, by retaining in force a tax on lubricating oils,
the Italian Republic has failed to fulfil its obligations under
Article 3(2) of Council Directive 92/12/EEC of 25 February
1992 on the general arrangements for products subject to
excise duty and on the holding, movement and monitoring of
such products (OJ 1992 L 76, p. 1), and Article 8(1)(a) of
Council Directive 92/81/EEC of 19 October 1992 on the
harmonisation of the structures of excise duties on mineral
oils (OJ 1992 L 316, p. 12), as amended by Council Directive
94/74/EEC of 22 December 1994 (OJ 1994 L 365, p. 46), the
Court (First Chamber), composed of: M. Wathelet (Rapporteur),
Judges;
President of the Chamber, P.
S. Alber, Advocate General; R. Grass, Registrar, has given a
judgment on 25 September 2003, in which it:

Jann and A. Rosas,

1. Declares that, by retaining in force a tax on lubricating oils
under the first paragraph of Article 62 of Legislative Decree
No 504 of 26 October 1995, ‘Testo unico delle disposizioni
legislative concernenti le imposte sulla produzione e sui consumi
e relative sanzioni penali e amministrative’ (Consolidated Text
of Legislative Provisions relating to duties on production and
consumption and related criminal and administrative penalties)
beyond the expiry of the period laid down in the reasoned
opinion, the Italian Republic has failed to fulfil its obligations
under Article 3(2) of Council Directive 92/12/EEC of 25 Feb-
ruary 1992 on the general arrangements for products subject
to excise duty and on the holding, movement and monitoring
of such products, and Article 8(1)(a) of Council Directive 92/
81/EEC of 19 October 1992 on the harmonisation of the
structures of excise duties on mineral oils, as amended by
Council Directive 94/74/EC of 22 December 1994;

2. Orders the Italian Republic to pay the costs.

(1) OJ C 31 of 2.2.2002.

JUDGMENT OF THE COURT

of 23 September 2003

in Case C-452/01 (Reference for a preliminary ruling
from the Verwaltungsgerichtshof): Margarethe Ospelt and
Schlössle Weissenberg Familienstiftung (1)

(Free movement of capital — Article 73b of the EC Treaty
(now Article 56 EC) — Article 40 of and Annex XII to the
EEA Agreement — Prior authorisation procedure for the
acquisition of agricultural and forestry plots — Admissi-
bility — Conditions)

(2003/C 275/27)

(Language of the case: German)

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

In Case C-452/01: Reference to the Court under Article 234
EC by the Verwaltungsgerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between
Margarethe Ospelt and Schlössle Weissenberg Familienstiftung,
on the interpretation of Article 6 of the EC Treaty (now, after
amendment, Article 12 EC) and Articles 73b to 73d, 73f
and 73g of the EC Treaty (now Articles 56 EC to 60 EC), the
Court, composed of: G.C. Rodríguez Iglesias, President,
J.-P. Puissochet (Rapporteur), M. Wathelet, R. Schintgen and
C.W.A. Timmermans (Presidents of Chambers), C. Gulmann,
D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken,
N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas,
Judges; L.A. Geelhoed, Advocate General; H.A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on
23 September 2003, in which it has ruled: