Case C-464/03: Action brought on 4 November 2003 by Kingdom of Spain against the Commission of the European Communities
Date: 2004-01-10
Institutions: Court of Justice
Subjects: European Commission, Spain, action for annulment (EU), fishery management, fishing fleet, fishing vessel

C 7/24

EN

Official Journal of the European Union

10.1.2004

Action brought on 30 October 2003 by the Commission
of the European Communities against Ireland

(Case C-459/03)

(2004/C 7/39)

An action against Ireland was brought before the Court of
Justice of the European Communities on 30 October 2003 by
the Commission of the European Communities, represented
by P.J. Kuijper and B. Martenczuk, acting as agents, with an
address for service in Luxembourg.

The Applicant claims that the Court should:

— declare that, by instituting dispute settlement proceedings
against the United Kingdom under the UN Convention
for the Law of the Sea concerning the MOX Plant located
at Sellafield, Ireland has failed to fulfil its obligations
under Article 10 and 292 EC and Article 192 and 193
Euratom;

— order Ireland to pay the costs.

Pleas in law and main arguments

The Commission submits that
Ireland has instituted the
proceedings against the United Kingdom without taking due
account of the fact that the European Community is a party to
the UN Convention for the Law of the Sea (UNCLOS). It has
further failed to appreciate that the provisions of UNCLOS
invoked by it, as well as a number of other Community acts
invoked by Ireland, are provisions of Community law. By
submitting the dispute to a Tribunal outside the Community
legal order, Ireland has violated the exclusive jurisdiction of
the Court of Justice enshrined in Articles 292 EC and 193
Euratom. Furthermore, Ireland has also violated the duty of
cooperation incumbent on it under Articles 10 EC and 192
Euratom.

Industry) of 24 October 2003, received at the Court Registry
on 4 November 2003, for a preliminary ruling in the case of
Gaston Schul Douane-Expediteur B.V. against the Minister van
Landbouw, Natuur en Voedselkwaliteit on the following
questions:

1.

Is a court or tribunal as referred to in the third paragraph
of Article 234 EC also required under that provision to
submit to the Court of Justice a question such as that set
out below, concerning the validity of provisions of a
regulation where the Court of Justice has ruled that
analogous provisions of another, comparable regulation
are invalid, or may it refrain from applying the first-
mentioned provisions in view of the clear analogies
between them and the provisions declared invalid?

2. Are Article 4(1) and (2) of Commission Regulation (EC)
No 1423/95 (1) of 23 June 1995 laying down detailed
implementing rules for the import of products in the
sugar sector other than molasses invalid inasmuch as
they provide that the additional duty referred to therein
is, as a general rule, established on the basis of the
representative price referred to in Article 1(2) of Regu-
lation (EC) No 1423/95 and that that duty is established
on the basis of the cif import price of the shipment
concerned only if the importer so requests?

(1) Commission Regulation (EC) No 1423/95 of 23 June 1995 laying
down detailed implementing rules for the import of products in
the sugar sector other than molasses (OJ L 141 of 24.06.1995,
p. 16).

Action brought on 4 November 2003 by Kingdom of
Spain against the Commission of the European Communi-
ties

(Case C-464/03)

(2004/C 7/41)

Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by order of that Court of
24 October 2003 in the case of Gaston Schul Douane-
Expediteur B.V. against the Minister van Landbouw,
Natuur en Voedselkwaliteit

(Case C-461/03)

(2004/C 7/40)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 4 November 2003 by the Kingdom of Spain,
represented by Nuria Díaz Abad, Abogado del Estado, with an
address for service in Luxembourg.

The applicant claims that the Court should:

Reference has been made to the Court of Justice of the
European Communities by order of the College van Beroep
voor het bedrijfsleven (Administrative Court for Trade and

— annul Commission Regulation (EC) No 1438/2003 (1) of
12 August 2003 laying down implementing rules on the
Community Fleet Policy as defined in Chapter III of
Council Regulation (EC) No 2371/2002; and

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.