Case C-542/03: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 18 November 2003 in the case of Hauptzollamt Hamburg-Jonas against Milupa GmbH & Co KG
Date: 2004-03-06
Institutions: Court of Justice
Subjects: export refund, interpretation of the law, skimmed milk powder

C 59/12

EN

Official Journal of the European Union

6.3.2004

Reference for a preliminary ruling by the Bundesfinanzh-
of by order of that court of 18 November 2003 in
the case of Hauptzollamt Hamburg-Jonas against Milupa
GmbH & Co KG

(Case C-542/03)

(2004/C 59/20)

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court, Germany) of 18 November 2003,
received at the Court Registry on 23 December 2003, for a
preliminary ruling in the case of Hauptzollamt Hamburg-Jonas
against Milupa GmbH & Co KG on the following question:

subparagraph of
the first
Are the second sentence of
the first subparagraph of Article 7(2) and
Article 7(1),
Article 7(5) of Regulation (EC) No 1222/94, as amended by
Regulation (EC) 229/96, (1) to be interpreted as meaning that
the party concerned is not entitled to grant of an export refund
if, in the production of the exported goods, it was not the
product declared by him, which under the first indent of
Article 1(2)(c) of Regulation (EC) No 1222/94 (2) is assimilated
to skimmed milk powder of the type described in Annex A
(PG 2), that was used but another product which, in respect of
the non-fat part of its dry matter content, is also assimilated to
skimmed milk powder of the type described in Annex A (PG 2)
by virtue of the first indent of Article 1(2)(f) of Regulation (EC)
No 1222/94?

(1) OJ 1996 L 30, p. 24.
(2) OJ 1994 L 136, p. 5.

Action brought on 23 December 2003 by the Commission
of the European Communities against the Kingdom of
Spain

(Case C-546/03)

(2004/C 59/21)

An action against the Kingdom of Spain was brought before the
Court of Justice of the European Communities on 23 December
2003 by the Commission of the European Communities,
represented by M. Díaz-Llanos La Roche and G. Wilms, acting
as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1.

2.

declare that, by failing to observe the mandatory time-
limits for entry in the accounts laid down by Article
220(1) of the Community Customs Code (1)
(and by
Article 5 of Regulation No 1854/89 (2)) the Kingdom of
Spain has failed to fulfil
its obligations under those
provisions of Community law;

declare, furthermore, that inasmuch as late establishment
caused delays to the making available of own resources,
in accordance with
by not paying default
Article 11 of Regulation 1552/89 (3) up until 31 May
2000 and in accordance with Article 11 of Regulation
No 1150/2000 (4) from 31 May 2000, the Kingdom of
Spain has failed to fulfil its obligations under the relevant
provision of Community law;

interest

3.

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Community rules on own resources are clear in that they
refer to the time when the Spanish authorities are obliged to
establish such resources: that moment is when the national
authorities are in a position to calculate the amount due and
to notify the chargeable person that all the relevant Community
provisions have been complied with. In the event of a failure
to enter duties deriving from a customs debt in the accounts,
those rules do not allow the national administration to apply
time-limits provided for in their national legislation, which are
different
from the compulsory time-limits laid down by
Community law. Such time-limits must be observed once the
debtor is identified and the amount of the debt can be
calculated.

The time at which establishment of own resources must take
place is independent of notification to the debtor or of a
definitive decision adopted by the national authorities. Those
circumstances are relevant only to the relationship between the
national authorities and the debtor, whereas the relationship
between the Member State and the Community, as regards
own resources, is governed exclusively by compliance with
objective conditions concerning entry in the accounts. The
obligation to establish own resources and subsequently the
obligation to make them available is independent of the
additional time-limits provided for by the national legislation
in order to allow the debtor to submit his observations.
Therefore, the practice followed by the Spanish authorities
does not comply with Community rules.