Case C-264/08: Reference for a preliminary ruling from the Hof van Cassatie van België lodged on 19 June 2008 — Belgische Staat v Direct Parcel Distribution Belgium NV
Date: 2008-06-19
Institutions: Court of Justice
Subjects: customs duties, customs regulations, interpretation of the law, management accounting, own resources

27.9.2008

EN

Official Journal of the European Union

C 247/3

Questions referred

Question referred

1. Can Article 6(1) of Council Directive 93/13/EEC of 5 April
1993 on unfair terms in consumer contracts (1) — pursuant
to which Member States are to provide that unfair terms
used in a contract concluded with a consumer by a seller or
supplier shall, as provided for under their national law, not
be binding on the consumer — be construed as meaning
that the non-binding nature vis-à-vis the consumer of an
unfair term introduced by the seller or supplier does not
have effect ipso jure but only where the consumer successfully
contests the unfair term by lodging the relevant application?

Is the only substantial processing or working of products
coming under heading 7312 of the Combined Nomenclature
which confers non-preferential origin in accordance with
Article 24 of Council Regulation (EEC) No 2913/92 of
12 October 1992 establishing the Community Customs
Code (1) that which has the effect that the product resulting
from that processing or working is to be classified under a
different heading of the Combined Nomenclature?

(1) OJ 1992 L 302, p. 1.

2. Does

the

consumer protection provided by Directive
93/13/EEC require the national court of its own motion —
irrespective of the type of proceedings in question and of
whether or not they are contentious — to determine that the
contract before it contains unfair terms, even where no appli-
cation contesting the unfair nature of the term has been
lodged, thereby carrying out, of its own motion, a review of
the terms introduced by the seller or supplier in the context
of exercising control over its own jurisdiction?

Reference for a preliminary ruling from the Hof van
Cassatie van België lodged on 19 June 2008 — Belgische
Staat v Direct Parcel Distribution Belgium NV

3. In the event that the second question is answered in the affir-
mative, what are the factors which the national court must
take into account and evaluate in the context of exercising
this control?

(1) OJ 1993 L 95, p. 29.

(Case C-264/08)

(2008/C 247/05)

Language of the case: Dutch

Reference for a preliminary ruling from the Bundes-
finanzhof (Germany) lodged on 18 June 2008 — Bundes-
finanzdirektion West v HEKO Industrieerzeugnisse GmbH

(Case C-260/08)

(2008/C 247/04)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Bundesfinanzdirektion West

Respondent: HEKO Industrieerzeugnisse GmbH

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Appellant: Belgische Staat

Respondent: Direct Parcel Distribution Belgium NV

Questions referred

1. Is the entry in the accounts referred to in Article 221 of the
Community Customs Code (1) the same as the entry in the
accounts referred to in Article 217, which consists in the
amount of duty being entered by the customs authorities in
the accounting records or on any other equivalent medium?

2. If the first question is answered in the affirmative, how is the
rule laid down in Article 217 of the Community Customs
Code that the amount of duty is to be ‘entered … in the
accounting records or on any other equivalent medium’ to
be construed? Are certain technical or formal minimum
requirements attached thereto, or does Article 217 leave the
establishment of more detailed rules on the practice of
entering the amount of duty in the accounts entirely to the
Member States, without
imposing any minimum require-
ments? Should that entry in the accounts be distinguished

C 247/4

EN

Official Journal of the European Union

27.9.2008

from the entry of the amount of duty in the accounts for
own resources as referred to in Article 6 of Regulation
No 1150/2000 (2) of 22 May 2000 implementing Decision
the Communities'
94/728/EC, Euratom on the system of
own resources?

Reference for a preliminary ruling from the Unabhängiger
Finanzsenat, Außenstelle Klagenfurt (Austria) lodged on
20 June 2008 — SPÖ Landesorganisation Kärnten v
Finanzamt Klagenfurt

3. Should Article 221(1) of the Community Customs Code be
understood to mean that a notification of the amount of
duty by the customs authorities to the debtor in accordance
with appropriate procedures can be regarded as the commu-
nication of the amount of duty by the customs authorities as
referred to in Article 221(1) only if the amount of duty was
entered in the accounts before being brought to the debtor's
is meant by the words ‘in
attention? In addition, what
accordance with
in
Article 221(1)?

appropriate

procedures’

used

4. If the answer to the third question is affirmative, can an
assumption be made to the advantage of the State that the
amount of duty was entered in the accounts before being
communicated to the debtor? Can the national court also
proceed on the assumption that
the declaration by the
customs authorities that the amount of duty was entered in
the accounts before being communicated to the debtor is
true, or should those authorities submit written evidence of
the entry of the amount of duty in the accounts to the
national court as a matter of course?

5. Must

the entry of

the amount of duty in the accounts
required by Article 221(1) of the Community Customs Code
precede its communication to the debtor on pain of the
annulment or expiry of the right to proceed to recovery or
post-clearance recovery of the customs debt? In other words,
should Article 221(1) be understood to mean that,
if the
amount of duty is brought to the attention of the debtor by
in accordance with appropriate
the customs authorities
procedures, but without the amount of duty having been
entered in the accounts by the customs authorities prior to
that notification, the amount of duty cannot be recovered,
unless the customs authorities again bring the amount of
duty to the debtor's attention in accordance with appropriate
procedures after the amount of duty has been entered in the
accounts and in so far as that occurs within the limitation
period laid down in Article 221 of the Community Customs
Code?

6. If the fifth question is answered in the affirmative, what is
the consequence of
the
amount of duty communicated to him without its having
been previously entered in the accounts? Should this be
regarded as an undue payment which he may recover from
the State?

the payment by the debtor of

(1) OJ 1992 L 302, p. 1.
(2) OJ 2000 L 130, p. 1.

(Case C-267/08)

(2008/C 247/06)

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Klagenfurt

Parties to the main proceedings

Applicant: SPÖ Landesorganisation Kärnten

Defendant: Finanzamt Klagenfurt

Questions referred

relating to turnover

1. Is Article 4(1) of Sixth Council Directive 77/388/EEC of
the
the laws of
17 May 1977 on the harmonisation of
Member States
taxes — Common
system of value added tax: uniform basis of assessment (1)
(the Sixth Directive) to be interpreted in such a way that
‘external advertising’ by the legally independent provincial
organisation of a political party, taking the form of publicity,
information provision, the staging of party events, the supply
of advertising material to district organisations and the orga-
nisation and holding of an annual ball (the SPÖ Ball), is to
be regarded as an economic activity if revenue is obtained
from (partially) passing the expense of the ‘external adver-
tising’ on to the likewise legally independent party structures
(district organisations etc.) and from entrance fees from the
holding of the ball?

2. In the assessment of whether there is ‘economic activity’
within the meaning of Article 4(1) and (2) of the Sixth Direc-
tive, is it prejudicial that the activities mentioned in Ques-
tion 1 are also ‘reflected’ back to the provincial organisation
and hence are beneficial to it too? It is in the nature of
things that as a result of those activities the party as such
and its political objectives and views are always also being
publicised, if not in the forefront, nevertheless as an inevi-
table side effect.

3. Can there still be ‘economic activity’

in the above sense
where the expenditure on ‘external advertising’ persistently
exceeds many times over the revenue obtained from that
activity by passing on the expense and the revenue obtained
from holding the ball?

economic

4. Is there an ‘economic activity’ even where the passing on of
the expense does not take place according to readily ascer-
tainable
charges
according to cause or benefit) and it is essentially left to the
subordinate organisations to determine whether and to what
extent they wish to contribute to the expenditure of the
provincial organisations?

allocation of

criteria

(e.g.