Case C-38/07 P: Appeal brought on 1 February 2007 by Heuschen & Schrouff Oriëntal Foods Trading against the judgment delivered on 30 November 2006 by the Court of First Instance (Third Chamber) in Case T-382/04 Heuschen & Schrouff Oriëntal Foods Trading v Commission of the European Communities
Date: 2007-04-14
Institutions: Court of Justice
Subjects: Combined Nomenclature, European Commission, Netherlands, action for annulment (EU), appeal, customs drawback, foodstuff, import, rice

C 82/18

EN

Official Journal of the European Union

14.4.2007

Appeal brought on 1 February 2007 by Heuschen &
Schrouff Oriëntal Foods Trading against
the judgment
delivered on 30 November 2006 by the Court of First
Instance (Third Chamber) in Case T-382/04 Heuschen &
Schrouff Oriëntal Foods Trading v Commission of the Euro-
pean Communities

being well-versed in regard to import and export formalities. In
the judgment under appeal, the Court of First Instance placed
excessively high requirements with regard to the duty of care
resting on Heuschen & Schrouff, even if it were an experienced
trader. In addition, the Court of First Instance wrongly identified
Heuschen & Schrouff with the direct representative which it had
engaged.

(Case C-38/07 P)

(2007/C 82/32)

Language of the case: Dutch

Parties

Appellant: Heuschen & Schrouff Oriëntal Foods Trading (repre-
sented by: H. de Bie, advocaat)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Set aside the judgment delivered on 30 November 2006 by
in Case

Instance (Third Chamber)

the Court of First
T-382/04;

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab-

lishing the Community Customs Code (OJ L 302, p. 1).

(2) 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 L 253,
p. 1).

(3) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff
and statistical nomenclature and on the Common Customs Tariff (OJ
L 256, p. 1).

Action brought on 1 February 2007 — Commission of the
European Communities v Kingdom of Spain

(Case C-39/07)

(2007/C 82/33)

Language of the case: Spanish

— Annul the decision of the European Commission of 17 June
2004 (REM 19/2002), in which the Commission held that
remission of import duties was not justified in that particu-
lar case;

Parties

— Order the Commission to pay the costs.

Pleas in law and main arguments

The appellant challenges the judgment under appeal on the
following grounds:

Breach of Article 239 of the Customs Code (1), in conjunction
with Articles 899 to 909 inclusive of Commission Regulation
(EEC) No 2454/93 (2) (‘the implementing regulation’) and inade-
quate reasoning of the Court's findings, or at least reasoning
which cannot support those findings.

The test relating to the nature of the mistake, the appellant's
professional experience and the degree of care which it exercised
ought, when considered together, to lead to the conclusion that
remission was inevitable. The Court of First Instance incorrectly
based its judgment on the supposition that
the legislation
applicable in this case in regard to the classification of so-called
rice paper in the tariff and statistical nomenclature and the
common customs
tariff under Council Regulation (EEC)
No 2658/87 (3) was not complex. The appellant challenges the
classification of unbaked rice paper as determined by the Court
of First Instance, the Commission and the Netherlands customs
authorities. The Court of First Instance, it submits, was wrong
to conclude that Heuschen & Schrouff had extensive profes-
sional experience in the domain of imports and exports. In that
connection the Court of First Instance incorrectly categorised
Heuschen & Schrouff as being an experienced trader and thus as

Applicant: Commission of the European Communities (repre-
sented by: H. Støblbæk and R. Vidal Puig, acting as Agents)

Defendan: Kingdom of Spain

Form of order sought

— Declare that the Kingdom of Spain has failed to fulfil

its
obligations under Council Directive 89/48/EEC (1) of
21 December 1988 on a general system for the recognition
of higher-education diplomas awarded on completion of
professional education and training of at least three years'
duration by not adopting all
the necessary measures to
transpose that directive in connection with the profession of
hospital pharmacist;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

1. The Spanish diploma of ‘hospital pharmacist’ is a ‘diploma’

within the meaning of Directive 89/48/EEC, since:

— it

is a diploma awarded by the competent authority

designated by Spanish law;