Case C-425/08: Reference for a preliminary ruling from the Conseil d'Etat (Belgium) lodged on 26 September 2008 — Enviro Tech (Europe) LTD v Belgian State
Date: 2008-09-26
Institutions: Court of Justice
Subjects: Belgium, animal experimentation, dangerous substance, inflammable product, interpretation of the law, principle of proportionality, toxic substance

C 327/12

EN

Official Journal of the European Union

20.12.2008

the Commission was

Instance committed a number of errors of

By its fifth ground, the appellant contends that the Court of
First
law and
infringed its duty to state adequate grounds, in so far as it held
justified in increasing the fine
that
imposed on the appellant on the ground of repeated infringe-
ment, whereas there was no legal basis or any definitive finding
in that regard capable of
In so
doing, the Court of First Instance also infringed the general prin-
ciple that penalties must have a proper legal basis as well as the
principles of
legal certainty and the sound administration of
justice.

justifying such an increase.

Lastly, by its sixth and final ground, the appellant submits that
the Court of First Instance erred in law by finding that the
Commission was justified in increasing the starting amount of
the fine by way of a deterrent, whereas it should have taken
account of the final amount of that fine in order to determine
whether it was appropriate to increase the fine on such a basis.

(1) Council Regulation No 17 of 7 February 1962: First Regulation
implementing Articles 85 and 86 of the Treaty (OJ English Special
Edition 1959-1962, p. 87.

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ 2003 L 1, p. 1).

(3) Commission Decision

2002
of
COMP/E-1/37.152 — Plasterboard (OJ 2005 L 166, p. 8).

27 November

against
2004/38/EC (1) of 29 April 2004?

expulsion

under Article

28(3)(a)

of Directive

(1) Directive 2004/38/EC of

64/221/EEC,

the European Parliament and of

the
Council of 29 April 2004 on the right of citizens of the Union and
their family members to move and reside freely within the territory
of the Member States, amending Regulation (EEC) No 1612/68 and
72/194/EEC,
repealing Directives
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and
(Corrigendum to Directive
93/96/EEC (OJ 2004 L 158, p. 77).
2004/38/EC of
the Council of
the European Parliament and of
29 April 2004 on the right of citizens of the Union and their family
members to move and reside freely within the territory of
the
Member States, amending Regulation (EEC) No 1612/68 and
repealing Directives
72/194/EEC,
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and
93/96/EEC (OJ 2004 L 229, p. 35)).

64/221/EEC,

68/360/EEC,

68/360/EEC,

Reference for a preliminary ruling from the Conseil d'Etat
(Belgium) lodged on 26 September 2008 — Enviro Tech
(Europe) LTD v Belgian State

in

Case

(Case C-425/08)

(2008/C 327/21)

Language of the case: French

Reference for a preliminary ruling from the Verwaltungs-
gericht Berlin (Germany) lodged on 23 September 2008 —
Yasar Erdil v Land Berlin

Referring court

Conseil d'Etat

(Case C-420/08)

(2008/C 327/20)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Yasar Erdil

Defendant: Land Berlin

Question referred

Can a Turkish national whose legal status is derived from the
second indent of the first paragraph of Article 7 of Decision
No 1/80 of the Association Council of 19 September 1980 on
the Association between the European
the development of
Economic Community and Turkey and who has
lived in
Germany since his birth in 1989 rely on the special protection

Parties to the main proceedings

Applicant: Enviro Tech (Europe) Ltd

Defendant: Belgian State

Questions referred

Question 1:

— In so far as it classifies nPB as a highly flammable substance
(R11) on the basis of a single test carried out at a tempera-
ture of – 10 °C, does Directive 2004/73/EC (1) comply with
Framework Directive 67/548/EEC (2),
in particular with
point A.9 of Annex V to that directive which lays down the
methods for determining flash points?

toxic for

reproduction (R60),

— Does Directive 2004/73/EC comply with Framework Direc-
tive 67/548/EEC, in particular with point 4.2.3 of Annex VI
to that directive, in so far as it classifies nPB as a category 2
substance which is
first,
without clear results in appropriate animal studies where
toxic effects have been observed to provide a strong
presumption that human exposure to the substance may
result in developmental toxicity and, secondly, on the basis
of
tests in which toxicity was detected only in animals
subjected to a concentration of 250 ppm, that is to say
11 times the maximum and 40 times the average of the
concentration of nPB to which a person is exposed when
handling the product?

20.12.2008

EN

Official Journal of the European Union

C 327/13

— Does Directive 2004/73/EC comply with Framework Direc-
in particular with Annexes V and VI
tive 67/548/EEC,
thereto,
in so far as it classifies nPB as highly flammable
(R11) and as a category 2 substance which is toxic for repro-
duction (R60) on the basis of the precautionary principle
without complying with the methods and criteria set out in
Annexes V and VI to Directive 67/548/EEC?

— Does Directive 2004/73/EC comply with Framework Direc-
tive 67/548/EEC in so far as it classifies nPB as highly flam-
mable (R11) and as a category 2 substance which is toxic
for reproduction (R60) on the basis of
tests which are
different from those carried out on competing products,
inter alia chlorinated halogens, and without regard to the
principle of proportionality?

Question 2:

— If Directive 2004/73/EC does not comply with Directive
67/548/EEC, should the Kingdom of Belgium have refrained
from transposing into national law the classification of nPB
which stems from Directive 2004/73/EC or even rejected
that classification, even though under Article 2 of Directive
2004/73/EC ‘Members States shall bring into force the laws,
regulations
and administrative provisions necessary to
comply with this Directive by 31 October 2005 at the
latest’?

(1) Commission Directive 2004/73/EC of 29 April 2004 adapting to
technical progress for
the twenty-ninth time Council Directive
the laws, regulations and
67/548/EEC on the approximation of
administrative provisions relating to the classification, packaging and
labelling of dangerous substances (OJ 2004 L 152, p. 1).

(2) Council Directive 67/548/EEC of 27 June 1967 on the approxima-
tion of laws, regulations and administrative provisions relating to the
classification, packaging and labelling of dangerous substances (OJ,
English Special Edition 1967, p. 234).

Reference for a preliminary ruling from VAT and Duties
Tribunals,
on
29 September 2008 — Terex Equipment Ltd v The
Commissioners for Her Majesty's Revenue & Customs

Kingdom) made

London

(United

(Case C-430/08)

(2008/C 327/22)

Language of the case: English

Referring court

VAT and Duties Tribunals, London (pursuant to a request from
the Edinburgh Tribunal Centre)

Parties to the main proceedings

Applicant: Terex Equipment Ltd

Defendant: The Commissioners for Her Majesty's Revenue &
Customs

Questions referred

1. Does the Code (1), and in particular Article 78, permit revi-
sion of the declaration to correct the CPC and if so, are
HMRC required to amend the declaration and to regularise
the situation?

2. Were the goods in this case unlawfully removed from
customs supervision within the meaning of Article 203(1) of
the Code by reason of the operation of Article 865 IR (2)?

3. If so, was a customs debt on importation thereby incurred

under Article 203 of the Code?

4. Even if there was no customs debt under Article 203 of the
Code, has a customs debt arisen by virtue of Article 204
having regard to

(i) the findings on ‘obvious negligence’ and

(ii) the question whether HMRC failed to comply with
Article 221(3) 45 of the Code by failing to communicate
the Article 204 customs debt within the time limit

5. Given that:

(i) there can be no regularisation under Article 78 of the

Code and

(ii) there was a customs debt and

(iii) there was a special
Article 899 1R,

situation as contemplated by

was it open to the Tribunal to conclude that there was no
obvious negligence present, so that the customs debt should
be remitted under Article 239 of the Code?

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

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

(2) 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).