Case C-309/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 20 April 2004 in the case of Fleisch-Winter GmbH & Co. KG against Hauptzollamt Hamburg-Jonas
Date: 2004-09-25
Institutions: Court of Justice
Subjects: export refund, export restriction, interpretation of the law, marketing, product quality

C 239/2

EN

Official Journal of the European Union

25.9.2004

The Appellant claims that the Court should:

Reference for a preliminary ruling by the Bundesfinanzhof
by order of that court of 20 April 2004 in the case of
Fleisch-Winter GmbH & Co. KG against Hauptzollamt
Hamburg-Jonas

(a) set aside in part the judgment under appeal in so far as it
determines that the Commission was entitled to use world-
wide product turnover as the differentiating factor when
setting the basic amount of the fine imposed on the Appel-
lant;

(b) annul Article 3 of the Decision (2), as modified by the Court
of First Instance, in so far as it imposes a fine of EUR 6.138
million on the Appellant, or, at least, substantially reduce
this fine further to such amount the Court deems appro-
priate; and

(c) order the Commission to pay the costs incurred before the

Court of First Instance and the Court of Justice.

Pleas in law and main arguments:

The Appellant submits that the judgment of the Court of First
Instance should be set aside on the following grounds:

1) Violation of Article 253 of the EC Treaty and the principles
of non bis in idem and of fairness by holding that the
Commission, in setting the fine imposed on SEC and in the
context of the particular features of this case, is not obliged
to take account of the sanctions previously imposed on SEC
by the US competition authorities based on the same facts.

2) Violation of Article 253 of the EC Treaty and the principles
of fairness and proportionality, by holding that the Commis-
sion is entitled to differentiate the basic amount of the fine
of
the worldwide
product turnover only, with disregard to the scope of SEC's
activities in the EEA.

the parties involved on the basis of

(1) OJ C 31, 2.2.2002, p. 12.
(2) Decision 2002/271/EC of 18 July 2001 relating to a proceeding
under Article 81 of the EC Treaty and Article 53 of the EEA Agree-
ment — Case COMP/E-1/36.490 — Graphite electrodes (OJ 2002,
L 100, p. 1).

(Case C-309/04)

(2004/C 239/03)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesfinanzhof (Federal
Finance Court, Germany) of 20 April 2004 received at the
Court Registry on 21 July 2004, for a preliminary ruling in the
case of Fleisch-Winter GmbH & Co. KG against Hauptzollamt
Hamburg-Jonas (Hamburg-Jonas Principal Tax Office) on the
following questions:

1. Is the fact that on the basis of investigations carried out by
customs authorities there is a suspicion that a product is
subject to a ban under Community law which prohibits the
export of a product eligible for a refund from a particular
Member State to other Member States and to non-member
countries sufficient of
to exclude the existence of
sound and fair marketable quality within the meaning of the
first
(EC)
No 3665/87 (1) so that the actual condition or marketability
of the particular product is irrelevant?

of Regulation

of Article

sentence

itself

13

2. Is confirmation of sound and fair marketable quality within
the meaning of the first sentence of Article 13 of Regulation
(EC) No 3665/87, given in a national application for
payment, information for the purposes of the second para-
graph of Article 11(1)
in conjunction with Article 3 of
Regulation (EC) No 3665/97?

(1) OJ L 351, p. 1.