Case C-230/08: Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 28 May 2008 — Dansk Transport og Logistik v Skatteministeriet
Date: 2008-05-28
Institutions: Court of Justice
Subjects: VAT, customs debt, customs drawback, customs fraud, customs regulations, interpretation of the law, seizure of goods

C 197/14

EN

Official Journal of the European Union

2.8.2008

Form of order sought

Parties to the main proceedings

— declare that, by failing to draw up external emergency plans
for all the establishments for which those plans are required,
the Italian Republic has
its obligations
under Article 11(1)(c) of Council Directive 96/82/EC of
9 December 1996 on the control of major-accident hazards
involving dangerous substances (1), as amended by Directive
2003/105/EC (2);

failed to fulfil

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Seveso II directive pursues the objective of preventing
major-accident hazards involving dangerous substances and
limiting their consequences for man and the environment. It is
clear that the drawing up of external emergency plans is a
fundamental provision of that directive: it ensures that in the
case of accidents urgent measures are adopted to limit their
consequences.

Article 11 applies, by virtue of the references made in Article 9
and Article 2 of
to all establishments where
dangerous substances are present in quantities equal to or in
excess of
the quantities listed in Annex I, Parts 1 and 2,
column 3.

the directive,

The Italian authorities confirm with data from their own
sources that not all the establishments which ought to have
external emergency plans have actually been provided with such
plans.

(1) OJ L 10 of 14.1.1997, p. 13.
(2) OJ L 345 of 31.12.2003, p. 97.

Reference for a preliminary ruling from the Østre Landsret
(Denmark) lodged on 28 May 2008 — Dansk Transport og
Logistik v Skatteministeriet

(Case C-230/08)

(2008/C 197/24)

Language of the case: Danish

Referring court

Østre Landsret

Applicant: Dansk Transport og Logistik

Defendant: Skatteministeriet (Danish Ministry of Taxation)

Questions referred

1. Is the expression ‘seized … and simultaneously or subse-
the
quently confiscated’ contained in Article 233d of
Customs Code (1)
the
to be interpreted as meaning that
provision covers situations where goods detained under the
first sentence of Paragraph 83(1) of the Customs Law on
unlawful
importation are simultaneously or subsequently
destroyed by the customs authorities without their having
left the authorities' possession?

simultaneously or

2. Is the System Directive (2) to be interpreted as meaning that
unlawfully imported goods which are seized on importation
or
subsequently destroyed are to be
deemed to have been placed under ‘a suspension arrange-
ment’ with the effect that the excise duty is not incurred or
is extinguished (see the first subparagraph of Article 5(2) and
Article 6(1)(c) of the System Directive, read in conjunction
with Articles 84(1)(a) and 98 of the Customs Code, and
the implementing provisions (3))? Is the
Article 876a of
answer affected by whether or not a customs debt incurred
extinguished under
importation is
on such unlawful
Article 233d of the Customs Code?

3. Is the Sixth Directive (4) to be interpreted as meaning that
unlawfully imported goods seized on importation and simul-
taneously or subsequently destroyed by the authorities are to
be deemed to have been placed under a ‘customs ware-
housing procedure’ with the effect that the VAT debt is not
extinguished (See Articles 7(3), 10(3)
incurred or
and 16(1)(B)(c) of the Sixth Directive and Article 876a of the
implementing provisions)? Is the answer affected by whether
or not a customs debt incurred on such unlawful importa-
tion is extinguished under Article 233d of
the Customs
Code?

is

4. Are the Customs Code, the implementing provisions and the
the
Sixth Directive to be interpreted as meaning that
customs authorities in the Member State where unlawful
importation of goods during a TIR operation is detected are
competent to charge customs duty, excise duty and VAT on
the operation where the authorities in another Member State,
importation into the Community
where
occurred, did not detect the irregularity and consequently did
not
excise duty and VAT (see
Article 215 of the Customs Code, read in conjunction with

customs duty,

the unlawful

charge

2.8.2008

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Official Journal of the European Union

C 197/15

Article 217 thereof, Articles 454(2) and (3) of the imple-
menting provisions then in force, and Article 7 of the Sixth
Directive)?

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab-
lishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1).
(2) Council Directive 92/12/EEC of 25 February 1992 on the general
arrangements for products subject to excise duty and on the holding,
movement and monitoring of such products (OJ L 76, 23.3.1992,
p. 1).

(3) 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,
11.10.1993, p. 1).

(4) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment
(OJ L 145, 13.6.1977, p. 1).

Action brought on 2 June 2008 — Commission of the
European Communities v French Republic

(Case C-241/08)

(2008/C 197/25)

Language of the case: French

By its first ground for complaint, the applicant insists on the
clarity of Article 6(2) of the Habitats Directive, which prohibits
any deterioration of protected habitats. The introduction into
in order to
national law of the concept of ‘significant effects’
limit the application of the abovementioned provision to certain
human activities, is therefore not justified. Equally, the national
legislature may not assert in a peremptory fashion that certain
activities such as hunting or fishing ‘do not cause a disturbance’
for a
to ‘Natura 2000’ sites, even if
temporary period or under the national legislation in force.

they are carried out

By its second ground for complaint, the Commission points out
first that Article 6(3) of the Habitats Directive requires that any
plan or project not directly connected with or necessary to the
management of the site is to be subject to appropriate assess-
ment, except in strictly defined cases. The defendant's legislation
is problematic in the light of Community law since it systemati-
cally exempts from the procedure for assessment of the environ-
mental implications the works, projects or schemes provided for
under ‘Natura 2000’ contracts.

The Commission points out second that, under French law,
there are projects which do not require authorisation or admin-
istrative approval and which therefore avoid the assessment
procedure. Yet some of these projects have significant effects on
the ‘Natura 2000’ sites, having regard to the objectives of
conservation of species.

According to the Commission, national legislation should finally
impose on applicants a clear obligation to provide for alternative
solutions where there are negative assessments of the implica-
tions of a project or management plan for a site.

Parties

(1) OJ 1992 L 206, p. 7.

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

Defendant: French Republic

Form of order sought

— Declare that, by not adopting the laws or regulations neces-
sary to transpose correctly Article 6(2) and (3) of Council
Directive 92/43/EEC of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora (1),
the
French Republic has failed to fulfil its obligations under that
directive;

— Order the French Republic to bear the costs.

Action brought on 12 June 2008 — Commission of the
European Communities v Republic of Malta

(Case C-252/08)

(2008/C 197/26)

Language of the case: English

Pleas in law and main arguments

Parties

in
The Commission refers to two grounds
support of its action, alleging the infringement of Article 6(2)
and 6(3) of Directive 92/43/EEC (‘the Habitats Directive’),
respectively.

for complaint

Applicant: Commission of the European Communities (repre-
sented by: L. Flynn and A. Alcover San Pedro, Agents)

Defendant: Republic of Malta