Case C-39/07: Action brought on 1 February 2007 — Commission of the European Communities v Kingdom of Spain
Date: 2007-04-14
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, health care profession, pharmacist, professional experience, recognition of diplomas, vocational training

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;

14.4.2007

EN

Official Journal of the European Union

C 82/19

— the diploma shows post-secondary training of more than
three years, since in order to obtain the diploma of
Hospital Pharmacist it is necessary to be in possession of
the university diploma of Licenciado en Farmacia,
to
have completed the training in the corresponding specia-
lisation and to have passed an examination;

— the diploma shows that the holder has the necessary
qualifications to follow the profession of hospital phar-
macist in Spain.

2. In the same way, the profession of hospital pharmacist is a
‘regulated profession’ in Spain within the meaning of Direc-
tive 89/48/EEC.

3. Council Directive 85/433/EEC (2) of 16 September 1985
concerning the mutual recognition of diplomas, certificates
and other evidence of
formal qualifications in pharmacy,
including measures to facilitate the right of establishment
relating to certain activities in the field of pharmacy, is not
applicable to the profession of hospital pharmacist.

4. Consequently, the Kingdom of Spain was required to trans-
pose Directive 89/48/EEC in connection with the profession
of hospital pharmacist. By not adopting the necessary
measures in that regard, the Kingdom of Spain has failed to
fulfil its obligations under that directive.

(1) OJ L 19, p. 16.
(2) OJ L 253, p. 37.

of 27 June 2001 on the assessment of the effects of certain
plans and programmes on the environment (1), the Italian
Republic has
under
Article 13(1) of that directive;

obligations

failed

fulfil

its

to

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The time-limit
expired on 21 July 2004.

for

transposition of Directive 2001/42/EC

(1) OJ 2001 L 197, p. 30.

Action brought on 2 February 2007 — Commission of the
European Communities v Hellenic Republic

(Case C-45/07)

(2007/C 82/35)

Language of the case: Greek

Parties

Action brought on 1 February 2007 — Commission of the
European Communities v Italian Republic

Applicant: Commission of the European Communities (repre-
sented by: K. Simonsson, M. Konstantinidis and F. Hoffmeister)

(Case C-40/07)

(2007/C 82/34)

Language of the case: Italian

Parties

Defendant: Hellenic Republic

Form of order sought

— declare that, by submitting to the International Maritime
Organisation (IMO) on 18 March 2005 a proposal
for
‘Monitoring the compliance of ships and port facilities with
the requirements of Chapter XI-2 of SOLAS and the ISPS
Code’, the Hellenic Republic has failed to fulfil its obligations
under Articles 10, 71 and 80(2) of the Treaty establishing
the European Community;

Applicant: Commission of the European Communities (repre-
sented by: D. Recchia, J.-B. Laignelot, Agents)

— order the Hellenic Republic to pay the costs.

Defendant: Italian Republic

Pleas in law and main arguments

Forms of order sought

— Declare that, by failing to adopt all the laws, regulations and
administrative provisions necessary to comply with Directive
2001/42/EC of the European Parliament and of the Council

According to the Commission, the submission by the Hellenic
Republic to the International Maritime Organisation of a
proposal in respect of a matter covered by Regulation (EC) No
725/2004 (1) on enhancing ship and port
facility security,
without being authorised so to do by the Community, consti-
tutes a breach of its obligations under Articles 10, 71 and 80(2)
of the Treaty establishing the European Community.