Case C-293/04: Judgment of the Court (Second Chamber) of  9 March 2006  (reference for a preliminary ruling from the Gerechtshof te Amsterdam) — Beemsterboer Coldstore Services BV v Inspecteur der Belastingdienst — Douanedistrict Arnhem (Post-clearance recovery of import or export duties — Article 220(2)(b) of Regulation (EEC) No 2913/92 — Application ratione temporis — System of administrative cooperation involving the authorities of a non-member country — Meaning of  incorrect certificate  — Burden of proof)
Date: 2006-06-03
Institutions: Court of Justice
Subjects: customs debt, customs inspection, customs regulations, interpretation of the law, movement certificate, tariff preference

3.6.2006

EN

Official Journal of the European Union

C 131/15

Re:

Re:

for

a preliminary

ruling — Landesgericht
REFERENCE
Innsbruck — Interpretation of Art. I0 EC — Duty of court of
appeal to review and set aside a final first instance judicial deci-
sion on jurisdiction where there is an infringement of Com-
munity law — Interpretation of Art. 15(1)(c) of Council Regu-
lation (EC) No 44/100 of 22 December 2000 on jurisdiction
and the recognition and enforcement of judgements in civil
and commercial matters (OJ 2001 L 12, p.1) — National law
on consumer protection providing for a right to the prize
supposedly won by the addressee of misleading advertising.

Operative part of the judgment

The principle of cooperation under Article 10 EC does not require a
national court to disapply its internal rules of procedure in order to
review and set aside a final judicial decision if that decision should be
contrary to Community law.

(1) OJ C 251 of 09.10.2004.

Judgment of the Court (Second Chamber) of 23 March
2006 (reference for a preliminary ruling from the Tribu-
nale civile e penale di Cagliari) — Enirisorse SpA v Sota-
carbo SpA

(Case C-237/04) (1)

(State aid — Articles 87 EC and 88 EC — Definition of aid
— Shareholding of a public undertaking in the capital of a
private undertaking — Right of withdrawal subject to a prior
relinquishment of all claims over a company's assets)

(2006/C 131/26)

Language of the case: Italian

Referring court

Tribunale civile e penale di Cagliari

Parties to the main proceedings

Applicant: Enirisorse SpA

Defendant: Sotacarbo SpA

Reference for a preliminary ruling — Tribunale di Cagliari —
Interpretation of Articles 87 and 88(3) EC — Meaning of State
aid — Public undertaking holding shares in the capital of a
private undertaking — Compatibility of national rules author-
ising such a shareholding with Articles 43 and 49 EC

Operative part of the judgment

National provisions such as those at issue in the main proceedings,
whereby members of a company controlled by the State may, in dero-
gation from the general law, withdraw from that company on condi-
tion that they relinquish all claims over that company's assets, are not
liable to be considered to be State aid for the purposes of Article 87
EC.

(1) OJ C 201, 07.08.2004.

Judgment of the Court (Second Chamber) of 9 March 2006
(reference for a preliminary ruling from the Gerechtshof
te Amsterdam) — Beemsterboer Coldstore Services BV v
Inspecteur der Belastingdienst — Douanedistrict Arnhem

(Case C-293/04) (1)

(Post-clearance recovery of import or export duties — Article
220(2)(b) of Regulation (EEC) No 2913/92 — Application
ratione temporis — System of administrative cooperation
country —
involving the authorities of a non-member

Meaning of ‘incorrect certificate’ — Burden of proof)

(2006/C 131/27)

Language of the case: Dutch

Referring court

Gerechtshof te Amsterdam (Netherlands)

Parties to the main proceedings

Applicant: Beemsterboer Coldstore Services BV

Defendant:
Arnhem

Inspecteur der Belastingdienst — Douanedistrict

C 131/16

EN

Official Journal of the European Union

3.6.2006

Re:

for

a preliminary

ruling — Gerechtshof

Reference
te
Amsterdam — Interpretation of Article 220(2)(b) of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing
the Community Customs Code (OJ 1992 L 302, p. 1) as
amended by Regulation (EC) No 2700/2000 of the European
Parliament and of the Council of 16 November 2000 (OJ 2000
L 311, p. 17) — Post-clearance recovery of duty resulting from
a customs debt which arose before the entry into force of
Regulation (EC) No 2700/2000 against an importer who
submitted EUR. 1 certificates of origin indicating an origin of
the goods which could not be established upon a subsequent
verification

Judgment of the Court (Second Chamber) of 16 February
2006 (reference for a preliminary ruling from the Juzgado
de lo Social de Madrid) — Carmen Sarkatzis Herrero v
Instituto Madrileño de la Salud (Imsalud)

(Case C-294/04) (1)

treatment for men and
(Directive 76/207/EEC — Equal
women — Maternity leave — Access to the career of official
— Temporary servant on maternity leave who gains a perma-
nent post after taking part in a competition — Calculation of
seniority)

(2006/C 131/28)

Language of the case: Spanish

Operative part of the judgment

Referring court

1. Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of
12 October 1992 establishing the Community Customs Code, as
amended by Regulation (EC) No 2700/2000 of the European
Parliament and of the Council of 16 November 2000, applies to
a customs debt which was incurred and the post-clearance recovery
of which was commenced before that regulation entered into force.

2. Inasmuch as the origin of the goods referred to in a movement
certificate EUR.1 can no longer be confirmed following subsequent
verification, that certificate must be considered to be an ‘incorrect
certificate’ within the meaning of Article 220(2)(b) of Regulation
No 2913/92, as amended by Regulation No 2700/2000.

3. The person who relies on the third subparagraph of Article
220(2)(b) of Regulation No 2913/92, as amended by Regulation
No 2700/2000, must adduce the evidence necessary for his claim
to succeed. It is therefore in principle for the customs authorities
which wish to rely on the beginning of the third subparagraph of
that Article 220(2)(b) in order to carry out post-clearance recovery
to adduce evidence that the incorrect certificates were issued because
of the inaccurate account of the facts provided by the exporter.
Where, however, as a result of negligence wholly attributable to
the exporter, it is impossible for the customs authorities to adduce
the necessary evidence that the movement certificate EUR.1 was
based on the accurate or inaccurate account of the facts provided
by the exporter, the burden of proving that that certificate issued
by the authorities of the non-member country was based on an
accurate account of the facts lies with the person liable for the
duty.

Juzgado de lo Social de Madrid (Spain)

Parties to the main proceedings

Applicant: Carmen Sarkatzis Herrero

Defendant: Instituto Madrileño de la Salud (Imsalud)

Re:

Reference for a preliminary ruling — Juzgado de lo Social de
Madrid — Community rules on maternity leave and equal treat-
ment for men and women as regards access to employment —
Rights of women during maternity leave — Acquisition of the
position of official and of the rights corresponding to that posi-
tion — Temporary employee on maternity leave when she
obtained her permanent post

Operative part of the judgment

Council Directive 76/207/EEC of 9 February 1976 on the imple-
mentation of the principle of equal treatment for men and women as
regards access to employment, vocational training and promotion, and
working conditions, precludes a national law which does not afford a
woman who is on maternity leave the same rights as other successful
applicants from the same recruitment competition as regards condi-
tions for access to the career of an official by deferring the start of her
career to the end of that leave, without taking account of the duration
of the leave, for the purpose of calculating her seniority of service.

(1) OJ C 228, 11.09.2004.

(1) OJ C 106, 30.04.2004.