Case C-468/03: Reference for a preliminary ruling by the VAT and Duties Tribunals, London Tribunal Centre, by direction of that court dated 29 October 2003, in the case of Overland Footwear Ltd against Commissioners of Customs and Excise
Date: 2004-01-10
Institutions: Court of Justice
Subjects: customs duties, customs formalities, customs regulations, customs valuation, import, interpretation of the law

10.1.2004

EN

Official Journal of the European Union

C 7/25

— order the defendant institution to pay the costs.

Pleas in law and main arguments

1.
Breach of essential procedural requirements as a result of
infringement of the Council’s language rules: the Spanish
delegation did not receive an invitation in Spanish to the
meeting of the Management Committee for Fisheries and
Aquaculture at which the proposed regulation was discussed.
Furthermore, during that meeting the Commission put forward
a substantive amendment to its proposal but only in English.

Breach of

2.
Regulation No 1438/2003 infringes the provisions of:

the hierarchy of norms: Article 7(1) of

— Article 13 of Regulation No 2371/2002 which does not
require the Member State to guarantee that the tonnage
capacity does not exceed certain limits; and

— Article 11 of Regulation No 2371/2002 which requires
that, when establishing the balance of entries and exits
the corresponding capacity of the fleet is not to be taken
into account.

3.
Breach of the principle of legitimate expectations: the
retrospective nature of the provision could be detrimental to
the interested of the persons concerned.

4.
Arbitrariness: the provision lays down as the period for
exits the range of 2000 to 2002 for no technical reason
whatever.

(1) OJ L 204 of 13.08.2003, p. 21.

On the basis of the Council Regulation 2913/92 (‘the Customs
Code’), in particular Articles 29, 32 and 33 thereof, and the
case law of the Court, where, at the time of customs clearance,
an importer inadvertently declares as the price paid or payable
for the goods an amount inclusive of buying commission and
inadvertently fails to show the buying commission separately
on the import declaration from the price actually paid or
payable but, after the goods have been released into free
circulation, shows to the satisfaction of the Customs authorities
that the declared price paid or payable for the goods included
bona fide buying commission, which could have been properly
deducted at importation, and makes a claim for repayment of
the duty paid on the buying commission within three years of
the date on which amount of customs duty was communicated:

1.

2.

3.

4.

Could the bona fide buying commission be dutiable as
part of the price actually paid or payable for the goods
under Article 29 of the Customs Code?

If the answer to question 1 is negative, could the bona
fide buying commission be deductible from the declared
transaction value bearing in mind the provisions of
Articles 32.3 and 33 of the Customs Code?

In such circumstances are the customs authorities obliged
under the Customs Code, and in particular Article 78.3
thereof, to accept the amendment to the price paid or
payable for the imported goods and thereby reduced
customs value?

Is the importer therefore entitled under the Customs
Code, and in particular Article 236 thereof, to a refund
of the duty paid on the buying commission?

Reference for a preliminary ruling by the VAT and Duties
Tribunals, London Tribunal Centre, by direction of that
court dated 29 October 2003, in the case of Overland
Footwear Ltd against Commissioners of Customs and
Excise

Action brought on 17 November 2003 by the Com-
the
mission of

the European Communities against

Hellenic Republic

(Case C-468/03)

(2004/C 7/42)

(Case C-474/03)

(2004/C 7/43)

Reference has been made to the Court of Justice of the
European Communities by a direction of the VAT and Duties
Tribunals, London Tribunal Centre, dated 29 October 2003,
which was received at the Court Registry on 6 November
2003,
for a preliminary ruling in the case of Overland
Footwear Ltd and Commissioners of Customs and Excise on
the following questions:

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 17 Nov-
ember 2003 by the Commission of the European Communi-
ties, represented by Maria Patakia, of its Legal Service.