Case C-120/05: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 2 March 2005 in Heinrich Schulze GmbH & Co. KG i.L represented by the liquidator, Ravensberger Honig GmbH v Hauptzollamt Hamburg-Jonas
Date: 2005-06-11
Institutions: Court of Justice
Subjects: agro-industry, customs formalities, export refund, interpretation of the law

C 143/16

EN

Official Journal of the European Union

11.6.2005

The right of the Federal Republic of Germany and the Land
Lower Saxony to make appointments to the supervisory board
under the VW-Gesetz, notwithstanding the provisions of the
Aktiengesetz, restricts the rights of other shareholders to appro-
priate representation on the company's supervisory board.
Since, as the Court has held on several occasions, a provision
which restricts the acquisition of shares, or in some other way
restricts the possibility of actual participation in the manage-
ment of a company or in its control, constitutes a restriction
on the free movement of capital,
that statutory provision
constitutes a restriction on the free movement of capital,
contrary to Community law.

A restriction on the free movement of capital is justified only
on the grounds referred to in Article 58 EC or on so-called
overriding grounds relating to the public interest. According to
the criteria established by the Court, such public interest
measures must not be discriminatory, must be objectively
necessary and must be proportionate in relation to the objec-
tive being pursued. In particular, those grounds must apply to
all persons or undertakings pursuing an activity in the territory
of the host Member State. General financial interests which are
outside the scope of those grounds in Article 58 EC relating to
tax law, as well as other economic aims of the Member State
cannot, according to settled case-law,
justify any restriction
prohibited under the EC Treaty. By the standards of Article 56
EC and relevant case-law, the provisions of the aforementioned
VW-Gesetz constitute indirect
for
which there is no relevant justification under Community law.

restrictions on earnings

Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 2 March 2005 in Hein-
rich Schulze GmbH & Co. KG i.L represented by the liqui-
dator, Ravensberger Honig GmbH v Hauptzollamt
Hamburg-Jonas

(Case C-120/05)

(2005/C 143/23)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Hamburg
(Hamburg Finance Court) (Germany) of 2 March 2005, received
at the Court Registry on 15 March 2005, for a preliminary
ruling in the proceedings between Heinrich Schulze GmbH &
Co. KG i.L represented by the liquidator, Ravensberger Honig
GmbH and Hauptzollamt Hamburg-Jonas, on the following
questions:

Can the documentary evidence provided for in the third sub-
paragraph of Article 7(1) of Commission Regulation (EC) No
1222/94 (1) of 30 May 1994 be disregarded and the exporter
permitted to adduce evidence as to the products actually used
in the manufacture of the exported goods by means of other
types of evidence if the exporter cannot (is no longer able to)
adduce the documents relating to production by reason of
force majeure?

Does the incidence of force majeure also lead to a reduction in
the standard of proof in the sense that the exporter merely has
to produce prima facie evidence of or plausibly demonstrate
the products actually used in the manufacture of the exported
goods?

(1) OJ L 136, p. 5.

Appeal brought on 15 March 2005 (fax: 11 March 2005)
by the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) against the judgment delivered
on 12 January 2005 by the Court of First Instance (Third
Chamber) in Case T-334/03 between Deutsche Post Euro
Express GmbH and the Office for Harmonisation in the
Internal Market.

(Case C-121/05 P)

(2005/C 143/24)

(Language of the case: German)

An appeal against the judgment delivered on 12 January 2005
by the Court of First Instance of the European Communities
in Case T-334/03 between Deutsche Post
(Third Chamber)
Euro Express GmbH and the Office for Harmonisation in the
Internal Market was brought before the Court of Justice of the
European Communities on 15 March 2005 (fax: 11 March
2005) by the Office for Harmonisation in the Internal Market,
represented by A. von Mühlendahl, Vice-President of the Office,
and G. Schneider, member of the litigation department in the
field of intellectual property.

The appellant claims that the Court should:

1. set aside the judgment of the Court of First Instance (Third
Chamber) of 12 January 2005 in Case T-334/03 (1) and
dismiss the application;

2. refer the case back to the Court of First Instance.