Case C-353/04: Judgment of the Court (First Chamber) of 7 September 2006 (Reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Nowaco Germany GmbH v Hauptzollamt Hamburg-Jonas (Regulations (EEC) Nos 1538/91 and 3665/87 — Community Customs Code — Export refunds — Conditions for granting — Sound and fair marketable quality — Customs procedure — Export declaration — Physical check — Sample — Tolerated number of defective units — Uniform quality — Rights and obligations of the exporter and of the customs authority — Poultrymeat)
Date: 2006-11-18
Institutions: Court of Justice
Subjects: customs regulations, export refund, interpretation of the law, marketing standard, poultrymeat, quality standard

18.11.2006

EN

Official Journal of the European Union

C 281/7

Judgment of the Court (First Chamber) of 7 September
2006 (Reference for a preliminary ruling from the Bundes-
finanzhof — Germany) — Nowaco Germany GmbH v
Hauptzollamt Hamburg-Jonas

2.

(Case C-353/04) (1)

(Regulations (EEC) Nos 1538/91 and 3665/87 — Com-
munity Customs Code — Export refunds — Conditions for
granting — Sound and fair marketable quality — Customs
procedure — Export declaration — Physical check — Sample
— Tolerated number of defective units — Uniform quality
— Rights and obligations of the exporter and of the customs
authority — Poultrymeat)

(2006/C 281/11)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Nowaco Germany GmbH

Defendant: Hauptzollamt Hamburg-Jonas

Re:

(a) In circumstances

such as those of

the main proceedings,
Article 70 of Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code, as
the European
amended by Regulation (EC) No 82/97 of
the Council of 19 December 1996,
Parliament and of
applies, subject
the examination
to the proper conduct of
referred to therein, where it is necessary to establish whether a
product in respect of which an export refund is sought is of
‘sound and fair marketable quality’.

(b) The legal fiction relating to uniform quality in the first sub-
paragraph of Article 70(1) of Regulation No 2913/92, as
amended by Regulation No 82/97, does not apply if the size
of the sample taken is insufficient having regard to Article 7
of Regulation No 1538/91.

3. In circumstances such as those of the case in the main proceedings,
it is for the national administrative and judicial authorities to
establish the facts by taking into account all of the evidence. Such
evidence may include available samples but also other information,
in particular the examination account produced in accordance with
Community legislation by the customs officer who carried out the
physical checks. In the event that the facts cannot be conclusively
established for the purpose of entitlement to the refund, it is for
the national court to assess the exporter's conduct and that of the
customs authority by establishing the extent to which each has, or
has not, exercised its rights and fulfilled its obligations and to
draw the appropriate conclusions concerning entitlement to the
export refund.

(1) OJ C 262, 23.10.2004.

Reference for a preliminary ruling — Bundesfinanzhof — Inter-
pretation of Commission Regulation (EEC) No 1538/91 of 5
June 1991 introducing detailed rules for implementing Regu-
lation (EEC) No 1906/90 on certain marketing standards for
poultry (OJ 1991 L 143, p. 11), and of Article 70(1) of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing
the Community Customs Code (OJ 1992 L 302, p. 1) — Appli-
cation for export refunds for frozen chicken — Conditions as
to merchantable quality of products where examination of
samples has shown that a proportion of the chicken did not
meet the requirements laid down in Article 6 of Regulation
(EEC) No 1538/91

Operative part of the judgment

The Court rules:

1. For the purpose of establishing whether a product in respect of
which an export refund is sought is of ‘sound and fair marketable
quality’, Commission Regulation (EEC) No 1538/91 of 5 June
1991 introducing detailed rules for
implementing Regulation
(EEC) No 1906/90, as amended by Commission Regulation (EC)
No 1000/96 of 4 June 1996, which lays down minimum quality
requirements and tolerance margins, in particular Articles 6 and
7, applies.

Judgment of the Court (Grand Chamber) of 19 September
2006 (reference for a preliminary ruling from the
Rechtbank van Koophandel te Brussel, Belgium) — Lidl
Belgium GmbH & Co KG v Etablissementen Franz Colruyt
NV

(Case C-356/04) (1)

(Directives 84/450/EEC and 97/55/EC — Misleading adver-
tising — Comparative advertising — Conditions under which
comparative advertising is permitted — Comparison of the
general level of the prices charged by chains of stores —
Comparison of the prices of a selection of products)

(2006/C 281/12)

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Brussel