Case C-420/05 P: Appeal brought on  28 November 2005  by Ricosmos B.V. against the judgment delivered by the Court of First Instance of the European Communities (First Chamber) on  13 September 2005  in Case T-53/02 Ricosmos v Commission of the European Communities
Date: 2006-04-22
Institutions: Court of Justice
Subjects: General Court (EU), Union transit, action for annulment (EU), customs duties, interpretation of the law, principle of proportionality, rights of the defence, tobacco industry

22.4.2006

EN

Official Journal of the European Union

C 96/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

JUDGMENT OF THE COURT

(Fifth Chamber)

of 2 February 2006

Appeal brought on 28 November 2005 by Ricosmos B.V.
against the judgment delivered by the Court of First
Instance of the European Communities (First Chamber) on
13 September 2005 in Case T-53/02 Ricosmos v Commis-
sion of the European Communities

in Case C-143/05: Commission of the European Commu-
nities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil obligations — Directive
2002/84/EC — Failure to transpose within the prescribed
period)

(2006/C 96/01)

(Language of the case: Dutch)

In Case C-143/05: Commission of the European Communities
(Agents: K. Simonsson and W.Wils) v Kingdom of Belgium
(Agent: M. Wimmer) — action under Article 226 EC for failure
to fulfil obligations, brought on 29 March 2005 — the Court
(Fifth Chamber), composed of J. Makarczyk, President of the
Chamber, R. Schintgen and J. Klučka (Rapporteur), Judges; C.
Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judg-
ment on 2 February 2006, in which it:

regulations and administrative provisions necessary

1. Declares that, by failing to adopt, within the prescribed period, the
laws,
to
comply with Directive 2002/84/EC of the European Parliament
and of the Council of 5 November 2002 amending the Directives
on maritime safety and the prevention of pollution from ships, the
Kingdom of Belgium has failed to fulfil its obligations under that
directive;

2. Orders the Kingdom of Belgium to pay the costs.

(Case C-420/05 P)

(2006/C 96/02)

(Language of the case: Dutch)

An appeal was brought before the Court of Justice of the Euro-
pean Communities on 28 November 2005 by Ricosmos B.V.,
represented by J.J.M. Hertoghs and J.H. Peek, of the law firm
Hertoghs Advocaten-Belastingkundigen, Parkstraat 8, (4818 SK)
Breda, Netherlands, against the judgment of the Court of First
Instance of
the European Communities (First Chamber) of
13 September 2005 in Case T-53/02 Ricosmos B.V. v Commis-
sion of the European Communities.

The appellant claims that the Court should:

— declare the present appeal

to be admissible and well

founded;

— set aside the judgment delivered by the Court of First

Instance on 13 September 2005;

— grant the application made at first instance for the annul-
ment of Commission Decision REM 09/00 of 16 November
2001 stating that remission of import duties in favour of
the present appellant was not justified;

(1) OJ C 143 of 11.06.2005.

— alternatively, remit the case to the Court of First Instance

for further consideration;

— order the Commission to pay the costs of
proceedings and of those at first instance.

the present

C 96/2

EN

Official Journal of the European Union

22.4.2006

Pleas in law and main arguments

In support of its appeal against the aforementioned judgment,
the appellant makes the following submissions:

interpretation of,

1. The appellant takes the view that the Court of First Instance
proceeded on the basis of an incorrect, or at any rate
unduly restricted,
in particular, Articles
905 to 909 of the regulation implementing the Community
Customs Code (1) with regard to the procedure for the
repayment and/or remission of customs duties. The prin-
ciple of legal certainty requires that the legal situation of
Ricosmos should have been foreseeable in this particular
case. Ricosmos takes the view that, because of suspensions
of the proceedings of which it was not informed, that was
not the case here. The Court of First Instance also proceeded
incorrectly on the basis of an overly restricted view of the
rights of the defence, reflected in its excessively circum-
scribed interpretation of the right to timeous and full access
to the case files (both that of the national customs authori-
ties and that of the Commission):

2. The appellant considers that the decision of the Court of
First Instance is also at variance with Community law. It
takes the view that the principle of
legal certainty also
implies that the criteria for determining that there was no
obvious negligence must be clear and readily identifiable. It
is precisely because of the considerable flexibility of the
term 'obvious negligence' that those criteria ought in prin-
ciple to be construed restrictively and individually. The
negligence must be evident and essential and must also be
in a clear causal relationship with the special situation
which has been established. In this case, the Court of First
Instance wrongly attached in this regard no, or not enough,
weight to the complexity of the legislation and to the signif-
the appellant, and also
icant professional experience of
misconstrued a number of obligations on the appellant, or
at any rate appraised them in an overly formalistic manner;

3. The appellant

is also of the view that

the Commission
infringed the principle of proportionality and that the Court
of First Instance also attached no, or at any rate insufficient,
weight to new facts which suggested that the customs duties
charged ought to have been cancelled;

4. In conclusion, the appellant expresses the view that the
establishment by the Court of First Instance of the facts
underlying the dispute was in part erroneous or in any
event incomplete.

References for a preliminary ruling from the Finanzgericht
Hamburg by orders of that court of 10 and 12 January
2006 in Viamex Agrar Handels GmbH (Case C-37/06) and
ZVK Zuchtvieh-Kontor GmbH (Case C-58/06) v Hauptzol-
lamt Hamburg-Jonas

(Cases C-37/06 and C-58/06)

(2006/C 96/03)

(Language of the cases: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by orders of the Finanzgericht Hamburg
(Hamburg Finance Court) of 10 and 12 January 2006, received
at the Court Registry on 23 January 2006 and 3 February
2006, for a preliminary ruling in the proceedings between
Viamex Agrar Handels GmbH (Case C-37/06) and ZVK Zucht-
vieh-Kontor GmbH (Case C-58/06) v Hauptzollamt Hamburg-
Jonas on the following questions:

1. Is Article 1 of Regulation (EC) No 615/98 (1) valid inasmuch
as it links the grant of an export refund to compliance with
Directive 91/628/EEC (2) on the protection of animals
during transport?

2. If the first question should be answered in the affirmative: Is
Article 5(3) of Regulation (EC) No 615/98, according to
which export refunds are not to be paid for animals for
which the competent authority considers, in the light of all
elements at its disposal concerning compliance with Article
1 of Regulation (EC) No 615/98, that the Directive on the
protection of animals during transport was not complied
with, compatible with the principle of proportionality?

(1) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
down provisions for the implementation of Council Regulation
(EEC) No 2913/92 establishing the Community Customs Code (OJ
1993 L 253, p. 1).

(1) OJ L 82, p. 19.
(2) OJ L 340, p. 17.