Case C-419/04: Reference for a preliminary ruling by the Cour d'Appel de Poitiers (2ème Chambre Civile) by order of that court of 21 September 2004 in the case of Conseil Général de la Vienne against Directeur Général des Douanes et Droits Indirects
Date: 2004-11-20
Institutions: Court of Justice
Subjects: customs debt, customs regulations, interpretation of the law

20.11.2004

EN

Official Journal of the European Union

C 284/11

Reference for a preliminary ruling by the Tribunal du
travail de Bruxelles (17th Chamber), by judgment of that
court of 8 September 2004 in the case of Gérald de
Cuyper v Office national de l'emploi

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by order of that court of 24 September 2004
in the case of Staatssecretaris van Financiën against
Stichting Kinderopvang Enschede

(Case C-406/04)

(2004/C 284/21)

(Case C-415/04)

(2004/C 284/22)

Reference has been made to the Court of Justice of the Euro-
pean Communities by the Tribunal du travail de Bruxelles
(Labour Court, Brussels) (17th Chamber) by judgment of that
court of 8 September 2004, in the case of Gérald de Cuyper v
Office national de l'emploi, received at the Court Registry on
23 September 2004.

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Hoge Raad der Nederlanden
(Supreme Court of the Netherlands) of 24 September 2004,
received at the Court Registry on 29 September 2004, for a
preliminary ruling in the case of Staatssecretaris van Financiën
against Stichting Kinderopvang Enschede on the following
question:

The Tribunal de travail de Bruxelles (17th Chamber) has asked
the Court to give a preliminary ruling on the following ques-
tions:

‘Does the obligation actually to reside in Belgium, which under
Article 66 of the Royal Decree of 25 November 1991 regu-
lating unemployment is a condition for the award of benefits,
applied to an unemployed person aged over 50 who enjoys an
exemption under Article 89 of that Royal Decree from the
requirement to sign on which entails dispensation from the
requirement to be available for work, amount to a fetter on the
freedom of movement and residence of all European citizens
under Articles 17 and 18 of the Treaty establishing the Euro-
pean Community?

Does the obligation of residence in the State competent to
award unemployment benefits, justified in domestic law by the
needs of monitoring compliance with the statutory require-
ments for the payment of benefits to unemployed persons,
satisfy the requirement of proportionality which must be
observed in the pursuit of that objective of general interest in
that it constitutes a limitation on the freedom of movement
and residence of all European citizens under Articles 17 and 18
of the Treaty establishing the European Community?

Does that residence requirement not have the effect of discrimi-
nating between European citizens who are nationals of a
Member State competent to award unemployment benefits by
affording that entitlement to those who do not exercise the
right to freedom of movement and residence of all European
citizens under Articles 17 and 18 of the Treaty, whilst denying
it to those who do seek to exercise that right, by the deterrent
effect which that restriction entails?’

Must Article 13.A(1)(g), (h) and (i) of the Sixth Directive (1) be
construed as meaning that the service provided as described
above, consisting in intermediary activities in connection with
the care of children under school age and of schoolchildren
outside of school hours in the homes of host parents, falls to
be regarded as a service covered by one or more of those provi-
sions?

(1) OJ L 145 of 13.6.1977, p. 1.

Reference for a preliminary ruling by the Cour d'Appel de
Poitiers (2ème Chambre Civile) by order of that court of
21 September 2004 in the case of Conseil Général de la
Vienne against Directeur Général des Douanes et Droits
Indirects

(Case C-419/04)

(2004/C 284/23)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Cour d'Appel de Poitiers
(2ème Chambre Civile) (Court of Appeal, Poitiers, France – 2nd
Civil Chamber) of 21 September 2004 received at the Court
Registry on 30 September 2004, for a preliminary ruling in the
case of Conseil Général de la Vienne against Directeur Général
des Douanes et Droits Indirects on the following question:

C 284/12

EN

Official Journal of the European Union

20.11.2004

‘Is Article 871 of the Community Customs Code relating to the
recovery of the amount of the customs debt to be interpreted
as establishing an essential and obligatory procedure, non-
if the national
compliance with which will result in nullity,
customs authorities have expressed doubts, at any time during
the recovery procedure concerning a person liable for payment
acting in good faith, as regards the precise scope of the criteria
relating to the recovery or the remission of duties resulting
from a customs debt which has been eluded because it was not
entered in the accounts on the date when that debt should
have given rise to recovery (debt relating to the possible incor-
poration into the purchase price of audiovisual equipment
supplied by a Canadian supplier of a flat-rate charge compulso-
rily included in the entry price to the amusement park in
which the equipment is operated, whether or not the visitor
who paid the charge made use of the equipment)?’

his remuneration transferable to Luxembourg during the
period of his secondment;

— give directions granting the applicant leave to amend his

pleas in law and forms of order sought;

— alternatively, annul the Commission's decision of 14 June
2001 in its entirety and the Commission's decision of
30 April 2002 in so far as it restricts to 35 % of his remu-
neration the part transferable to Luxembourg, the place of
his usual posting;

— order the defendant to pay the costs of both cases.

Pleas in law and main arguments:

The Court of First Instance made an error of law in finding that
the Commission had provided the applicant with the informa-
tion necessary to enable him to maintain his interests before
agreeing to be seconded in the interest of the service. In fact, it
did not inform him of the decision to fix his place of posting
in Athens or of the financial consequences thereof such as the
withdrawal of his right to the expatriation allowance and of his
right to the payment of the costs of annual travel as well as the
application to his remuneration of the correction coefficient for
Greece.

Also, the Court of First Instance made an error of law in
finding that the conditions laid down by Article 85 of the Staff
Regulations were satisfied in this case. In fact, the recovery of
sums paid but not due under Article 85 of the Staff Regulations
presupposes a payment irregularity of which the recipient was
aware or whose erroneous nature is so obvious that he could
not fail to be aware of it. In the absence of express provisions
in the Staff Regulations governing the fixing of the place of
posting, it could not be a matter, in this case, of an irregularity,
and, in any event, in the light of the Commission's own uncer-
tainties regarding the applicant's entitlements, he cannot be
presumed to have been aware of it.

Finally, the Court of First Instance made an error of law in
finding that, notwithstanding the exceptional situation of the
applicant whose place of posting was changed more than 9
months after his secondment, the Commission could lawfully
reject his claim made in accordance with Article 38(d) of the
Staff Regulations, for the transfer, in the conditions provided
for by Article 17 of Annex VII to the Staff Regulations, of the
sums indispensable to cover the expenses which he had to
meet in Luxembourg, the place of his usual posting.

Appeal brought on 29 September 2004 by Georgios
Gouvras against the judgment delivered on 15 July 2004
by the Third Chamber of the Court of First Instance of the
European Communities in Joined Cases T-180/02 and T-
113/03 between G. Gouvras and the Commission of the
European Communities

(Case C-420/04 P)

(2004/C 284/24)

An appeal against the judgment delivered on 15 July 2004 by
the Third Chamber of the Court of First Instance of the Euro-
pean Communities in Joined Cases T-180/02 and T-113/03
between G. Gouvras and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 29 September 2004 by Georgios
Gouvras, represented by A. Coolen, J.-N. Louis, E. Marchal and
S. Orlandi.

The appellant claims that the Court should:

— order the annulment of the judgment of the Court of First
Instance of 15 July 2004 in Joined Cases T-180/02 and T-
113/03 (Georgios Gouvras v Commission of the European
Communities) in so far as it rejects the claims for annul-
ment in Case T-180/02 and those against the Commission's
Decision of 30 April 2002 to restrict to 35 % the part of