Case C-205/07: Reference for a preliminary ruling from the Hof van Beroep, Ghent lodged on 19 April 2007 — Criminal proceedings against Lodewijk Gysbrechts and Santurel Inter BVBA
Date: 2007-06-23
Institutions: Court of Justice
Subjects: advance payment, consumer protection, foreign national, free movement of goods, interpretation of the law

C 140/14

EN

Official Journal of the European Union

23.6.2007

The first ground of appeal relates to the exclusive competence
which the Court of First Instance considered the Turkish autho-
rities to have to determine whether the A.TR.1 movement of
goods certificates issued by them and produced on import clear-
ance were ‘authentic’ or ‘false’, or ‘correct’ or ‘incorrect’. The
appellant takes the view that in cases in which there are suffi-
cient and conclusive objective indications that the competent
customs authorities of a country of export were involved in irre-
gularities in the issue (delivery of forms, stamps and signatures)
of movement certificates and the export clearance of the goods
on the basis of those certificates, the exclusive jurisdiction of
the customs authorities of the country of export ends. Later
explanations provided by the Turkish authorities concerning the
movement certificates could not be regarded as credible and
solely determinative.

By the second ground of appeal the appellant criticises the
view taken in the contested judgment of the extent of the right
of access to documents and the rights of defence of an appli-
cant. The right of access to documents cannot relate only to
documents on which the Commission, according to its internal
decision and its statements, based its contested decision. The
right of access to documents covers also all further confidential
and non-confidential documents which could be of importance
to the applicant's factual and legal submissions with respect to
the assessment of the facts.

The appellant's third ground of appeal is that the Court of
First Instance imposed on it the entire burden of proof for the
factual circumstances which justified a ‘special situation’ within
the meaning of Article 239 of the Customs Code and Article
905 of the implementation regulation. The appellant considers
that in certain cases the burden of proof is reversed or at least
the obligation to provide proof is reduced. In no case is the
burden on the applicant to prove certain facts, adduced by it, in
third countries (in this case Turkey) which can best be ascer-
tained, and must be ascertained, by the Commission/OLAF
within the framework of
the possibilities available to those
authorities. The same applies to facts which are within the
sphere of action and influence of the Commission.

As its fourth ground of appeal the appellant submits that the
Court of First Instance wrongly — also in view of the full
burden of proof imposed on it in the judgment — failed to
order the measures of organisation of procedure it applied for,
in particular
Instead the offers to
produce evidence were dismissed as immaterial.

the taking of evidence.

As fifth ground of appeal the appellant submits that the Court
of First Instance interpreted and classified wrongly in law all the
documentation produced and facts and evidence adduced by it
which pointed to the involvement of the Turkish authorities in
(allegedly) ‘false’ (but really ‘incorrect’) A.TR.1 movement certifi-
cates. As a result it reached incorrect legal conclusions. The
Court
clearly
submitted by the appellant.

also completely ignored essential

facts

as

As the sixth ground of appeal it is submitted that the Court of
First Instance failed to classify the Commission's failure to call
on the Customs Committee/Association Council as a fault on
the part of the Commission.

The seventh ground of appeal
the Court of First
Instance did not recognise the appellant's legitimate interest in
the annulment of the Commission's partly contested decision
with respect to a particular A.TR.1 movement certificate.

is that

The eighth ground of appeal complains that the Court of First
Instance erred in law by omitting to carry out a balancing of
fairness and risk related to the specific case. The Court thereby
failed to recognise that, even on the assumption that there were
false A.TR.1 movement certificates, in view of the gross miscon-
the Turkish authorities and the Commission it was
duct of
unfair, given the relationship between economic operators and
the administration,
to leave the appellant as an economic
operator to bear a loss it would not have incurred if things had
been done correctly.

As the ninth ground of appeal the appellant criticises the
contested judgment for finding pursuant to Article 220(2)(b) of
the Customs Code, on the basis of the facts submitted and ascer-
tained, that there was no active involvement of the Turkish
customs authorities in the issue and use of the 32 A.TR.1 certi-
ficates in question in this case.

(1) OJ C 82, 14.4.2007, p. 30.

Reference for a preliminary ruling from the Hof van
lodged on 19 April 2007 — Criminal
Beroep, Ghent
proceedings against Lodewijk Gysbrechts and Santurel
Inter BVBA

(Case C-205/07)

(2007/C 140/23)

Language of the case: Dutch

Referring court

Hof van Beroep, Ghent

Party to the main proceedings

Lodewijk Gysbrechts and Santurel Inter BVBA

23.6.2007

EN

Official Journal of the European Union

C 140/15

Question referred

inasmuch as Article 80(3) of

Does the Belgian Law of 14 July 1991 on commercial practices
information to and the protection of
and the provision of
consumers constitute a measure having equivalent effect, as
prohibited in Articles 28 to 30 of the Treaty establishing the
European Community,
that
national law prohibits demands for an advance or for payment
from the consumer during the compulsory period for with-
drawal, as a result of which the actual effect of the Law of 14
July 1991 on the trading of goods in the trader's own country
differs from its effect on trading with nationals of another
Member State and does this give rise in fact to an obstacle to
the free movement of goods, which is protected by Article 23
of the Treaty establishing the European Community?

Action brought on 19 April 2007 — Commission of the
European Communities v Kingdom of Spain

(Case C-207/07)

(2007/C 140/24)

Language of the case: Spanish

Parties

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

Defendant: Kingdom of Spain

Form of order sought

— declare that, by adopting the first indent of the second para-
graph of the single article of Royal Decree-Law 4/2006 of
24 February 2006, amending the fourteenth function of the
National Energy Commission provided for in Supplementary
Provision No 11, part 3, point 1 of Law 34/1998 of 7
October 1998 on the hydrocarbon sector, in order to make
the acquisition of certain shareholdings in undertakings
which carry on certain regulated activities in the energy
sector and the acquisition of the assets necessary to carry on
such activities subject to the prior approval of the National
Energy Commission, the Kingdom of Spain has failed to
fulfil its obligations under Article 56 EC and 43 EC;

— order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

1. The Spanish legislation which is the subject of these proceed-
ings makes the following transactions subject to the prior
approval of the National Energy Commission (‘the NEC’):

energy sector, where that shareholding exceeds 10 %, or
any other percentage giving a significant influence over
that undertaking;

— the acquisition of the assets necessary to carry on such

activities.

2. The Commission takes the view that the provision in ques-
tion is incompatible with Article 56 of the EC Treaty for the
following reasons:

— the acquisition of shares in undertakings which carry on
activities in the energy sector or the assets necessary to
carry on such activities are ‘movements of capital’ within
the meaning of Article 56 EC;

— the requirement of prior approval by the NEC constitutes
a ‘restriction’ on the free movement of capital prohibited
in principle by Article 56 EC; and

— that restriction is not justified under the EC Treaty.

3. In particular, the Commission takes the view that the legisla-
tion at issue is not justified by the objective of safeguarding
the energy supply for the following reasons:

— the contested measure is not an appropriate means of
safeguarding the energy supply, there being other more
suitable means of doing so;

— in any event, the contested measure is disproportionate,
since prior approval
limited to either certain
is not
specific aspects of the management of the undertaking in
which a shareholding has been acquired or the manage-
ment of the assets;

— the power of the NEC to withhold the approval or to
make it subject to conditions is not governed by criteria
which are objective and sufficiently precise, so as to be
amenable to effective review by the courts.

The Commission considers that the legislation at
issue also
constitutes a restriction on the right to establishment contrary
to Article 43 EC which, for the reasons already mentioned in
relation to Article 56 EC, are not justified by the objective of
safeguarding energy resources.

Reference for a preliminary ruling from Supreme Court
(Ireland) made on 20 April 2007 — The Competition
Authority v Beef Industry Development Society Ltd, Barry
Brothers (Carrigmore) Meats Ltd

(Case C-209/07)

(2007/C 140/25)

Language of the case: English

— the acquisition of a shareholding in an undertaking
which carries on itself or through other undertakings
belonging to the same group certain activities in the

Referring court

Supreme Court