Case C-23/04: Reference for a preliminary ruling by the Dioikitiko Protodikeio Athens by order of that Court of 30 September 2003 in the case of Sphakianakis AEBE against Hellenic Republic
Date: 2004-03-20
Institutions: Court of Justice
Subjects: Greece, Hungary, customs duties, customs inspection, export licence, interpretation of the law

C 71/10

EN

Official Journal of the European Union

20.3.2004

Reference for a preliminary ruling by the Bundesgerichts-
hof by order of that Court of 27 November 2003 in
respect of the opening of insolvency proceedings against
Susanne Staubitz-Schreiber

(Case C-1/04)

(2004/C 71/13)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesgerichtshof
(Federal Court of Justice) of 27 November 2003, received at
the Court Registry on 2 January 2004, for a preliminary ruling
in respect of the opening of insolvency proceedings against
Susanne Staubitz-Schreiber on the following question:

Does the court of the Member State which receives a request
for the opening of insolvency proceedings still have jurisdiction
to open insolvency proceedings if the debtor moves the centre
of his or her main interests to the territory of another Member
State after filing the request but before the proceedings are
opened, or does the court of that other Member State acquire
jurisdiction?

Action brought on 16 January 2004 by the Commission
of the European Communities against the Republic of
Finland

(Case C-13/04)

(2004/C 71/14)

An action against
the Republic of Finland was brought
before the Court of Justice of the European Communities on
16 January 2004 by the Commission of
the European
Communities, represented by M. Konstantinidis and P. Aalto,
acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

1. Declare that the Republic of Finland has failed to enact
national legislation in a manner ensuring legal certainty
and clarity as regards the second subparagraph of
Article 7(1) of Council Directive 94/62/EC on packaging
and packaging waste (1) and has failed to ensure that the
above obligation is applied in practice;

2. Order the Republic of Finland to pay the costs.

Pleas in law and main arguments

The period allowed for implementing the directive ended on
30 June 1996. The Republic of Finland has not enacted
national legislation in a manner ensuring legal certainty and
clarity as regards the second subparagraph of Article 7(1) of
Council Directive 94/62/EC on packaging and packaging waste
and has not ensured that the above obligation is applied in
practice.

(1) European Parliament

and Council Directive 94/62/EC of
20 December 1994 on packaging and packaging waste, OJ L 365
of 31.12.1994, p. 10.

Reference for a preliminary ruling by the Dioikitiko
Protodikeio Athens by order of that Court of 30 Septem-
ber 2003 in the case of Sphakianakis AEBE against
Hellenic Republic

(Case C-23/04)

(2004/C 71/15)

Reference has been made to the Court of Justice of the
European Communities by order of the Dioikitiko Protodikeio
Athens (Administrative Court of First Instance, Athens) of
30 September 2003, received at
the Court Registry on
26 January 2004, for a preliminary ruling in the case of
Sphakianakis AEBE against Hellenic Republic on the following
questions:

1. Does Article 31(2) of Protocol 4 (appended to the
Europe agreement establishing an association between
the European Communities and their Member States, of
the one part, and the Republic of Hungary, of the other
part) impose an obligation of mutual cooperation on the
customs authorities of the Member State of importation
to take into account decisions of the Hungarian courts
concerning the validity of
the investigations carried
out by the authorities of the exporting State into the
correctness of the EUR.1 certificate in light of the fact
that:

(a)

(b)

the Hungarian authorities duly informed the cus-
toms authorities of the importing State concerning
the results of
the investigation initially carried
out concerning the inaccuracy of certain export
certificates, stressing none the less that the validity
of the investigation formed the subject matter of
proceedings pending before the Hungarian courts
and

the Hungarian authorities officially communicated
to the customs authorities of the importing State the
outcome of those proceedings, that is to say the
decisions of the abovementioned courts whereby it
was finally ascertained that a number of EUR.1
certificates were accurate;

20.3.2004

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Official Journal of the European Union

C 71/11

2.

3.

4.

5.

Is Article 32 of Protocol 4 mentioned above to be
construed as meaning that the customs authorities of the
importing Member State are required to take into account
the decisions of the courts of the exporting State over-
turning the outcome of investigations ordered and carried
out by the Hungarian authorities after the export oper-
ation, regard being had to the fact that

(a)

the authorities of the importing State were duly
informed both of the fact that proceedings were
pending before the Hungarian courts and of the
outcome of the relevant procedures and

(b)

those authorities never asked for any investigation
to be carried out;

If the answer to the above questions is affirmative are the
abovementioned provisions of Community law to be
construed as not permitting the adoption of administrat-
ive acts imposing additional duties charges and taxes
issued by the national authorities of the importing State
after notification by the Hungarian authorities of the
outcome of the investigation conducted by them but
before publication of the court decisions overturning the
results of the investigation for the purpose of elucidating
the due result of the prohibition of the imposition of
duties by the association agreement between the EU and
Hungary, in light also of the fact finally that the EUR.1
certificates issued were correct;

In that connection are the above questions affected by
the fact
that neither the Greek nor the Hungarian
authorities sought convocation of the association com-
mittee mentioned in Article 33 of Protocol 4 for the
purpose of reaching a determination in that connection,
a situation which demonstrates that neither of the two
authorities considered that adoption of the decisions of
the Hungarian courts constituted a dispute between them
which ought to have been brought before that committee
for a determination?

In the alternative, if the answer to the foregoing questions
is in the negative, if therefore the Greek customs auth-
orities did not infringe the abovementioned provisions of
Community law by the imposition of additional duty,
VAT and a penalty is it then possible to take the view that
the ex post determination of duties as against the importer
is not permitted under Article 220(2) of the Common
customs code on the ground of error by the customs
authorities of either the importing or exporting State,
regard being had in particular to the fact that the customs
authorities of the exporting State had available to then all
the factual elements in connection with the manufacture
of the vehicles intended for export as the basis for issue
of the EUR.1 certificate, with the result that the authorities
of the importing State might be in a position to ascertain
ex officio the duty lawfully payable?

Reference for a preliminary ruling from the Dioikitiko
Protodikeio Athinon by order of 30 September 2003 in
the case of SPHAKIANAKIS AEBE v Greek State

(Case C-24/04)

(2004/C 71/16)

By order of 30 September 2003, which was received at the
registry of the Court of Justice of the European Communities
on 26 January 2004, the Dioikitiko Protodikeio Athinon seeks
from the Court, in the context of the dispute pending before
it between SPHAKIANAKIS AEBE and the Greek State, a
preliminary ruling on the following questions:

The questions in the present case are identical to the questions
in Case C-23/04.

Action brought on 27 January 2004 by the Commission
of the European Communities against the Kingdom of
Spain

(Case C-26/04)

(2004/C 71/17)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 27 Janu-
ary 2004 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, of the Commission’s
Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare that, by failing to officially designate the beaches
‘A Videira’, ‘Niño de Corvo’ and ‘Canabal’ in Moaña, Ría
de Vigo, Comunidad Autónoma de Galicia, the Kingdom
of Spain has failed to fulfil
its obligations under
Article 4(1) of Council Directive 76/160/EEC (1) of
8 December 1975 concerning the quality of bathing
water;

— declare that, by failing to adopt a pollution-reduction
programme for the Ría de Vigo, the Kingdom of Spain
its obligations under Article 5 of
has failed to fulfil
Council Directive 79/923/EEC (2) of 30 October 1979 on
the quality required of shellfish waters;

— order the Kingdom of Spain to pay the costs.