Case C-430/08: Reference for a preliminary ruling from VAT and Duties Tribunals, London (United Kingdom) made on 29 September 2008 — Terex Equipment Ltd v The Commissioners for Her Majesty's Revenue & Customs
Date: 2008-09-29
Institutions: Court of Justice
Subjects: United Kingdom, courts and tribunals, customs debt, interpretation of the law, oil pollution, transport regulations

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).