CELEX: C2003/135/26
Language: en
Date: 2003-06-07 00:00:00
Title: Case C-161/03: Reference for a preliminary ruling by the Commission de Conciliation et d'Expertise Douaniere (France) by decision of that Court of 18 March 2003 in the case of Customs against CAFOM and SAMSUNG Electronics France

C 135/18                 EN                        Official Journal of the European Union                                            7.6.2003
2.    Annul the respondent ECB’s formal warning of 28 Febru-               Reference for a preliminary ruling by the Commission de
      ary 2002;                                                            Conciliation et d’Expertise Douaniere (France) by decision
                                                                           of that Court of 18 March 2003 in the case of Customs
                                                                               against CAFOM and SAMSUNG Electronics France
3.    Order the defendant to pay the costs.
                                                                                                    (Case C-161/03)
Pleas in law and main arguments
                                                                                                    (2003/C 135/26)
The Court of First Instance of the European Communities
failed to recognise that the contested measure is an act
adversely affecting the person concerned against which an
action lies under Article 42(1) of the Conditions of Employ-
ment for staff of the ECB.                                                 Reference has been made to the Court of Justice of the
                                                                           European Communities by decision of the Commission de
                                                                           Conciliation et d’Expertise Douaniere (Customs Arbitration
                                                                           and Advisory Committee) (France) of 18 March 2003, received
                                                                           at the Court Registry on 8 April 2003, for a preliminary ruling
Contrary to the findings of the order under appeal the                     in the case of Customs against CAFOM and SAMSUNG
contested measure is not merely a preparatory act in a multi-              Electronics France on the following questions:
stage procedure which may culminate in dismissal. Rather it is
a direct and immediate infringement (a) of the general right to
protection of personality and (b) of the applicant’s right to
protection of data.                                                        1.    Is Article 27 of Protocol 4 annexed to the EC/Hungary
                                                                                 Agreement of 13 March 1993 to be interpreted as
                                                                                 meaning that the authorities of the importing State must
(a)   First the applicant’s general right to protection of person-               apply the preferential arrangement established by that
      ality is directly and immediately affected because the ECB                 Agreement when the authorities of the exporting State,
      did not confront the applicant at the appropriate time                     to whom they have addressed queries concerning specific
      with the allegations which formed the subject-matter of                    facts on which the granting of the arrangement depends,
      a reproach. The applicant was thus precluded from                          merely declare that the products to which the certificates
      responding to the allegations and obtaining immediate                      of origin which they have issued relate fulfil the conditions
      clarification in regard to them. Secondly, the reproach is                 for granting the arrangement?
      said to be based on inaccurate factual assertions, thus
      constituting a direct and immediate infringement of the
      general right to protection of personality.
                                                                           2.    Is a reply furnished by the authorities of the exporting
                                                                                 State after the expiry of the 10-month period referred to
                                                                                 in Article 27(7) of the [Protocol] to be taken into account
(b)   In the contested order the Court of First Instance failed to               in determining whether the goods in question qualify for
      recognise the direct and immediate infringement of the                     the preferential arrangement?
      applicant’s right to data protection. The applicant’s right
      to be informed, prior to collection of personal data
      concerning him, of the purpose pursued thereby was
      infringed by the contested act.                                      3.    May it be inferred from Article 27(2) of the [Protocol]
                                                                                 that, if the request for verification is made by the
                                                                                 authorities of the importing State more than two years
                                                                                 after the disputed operations, the fact that the authorities
                                                                                 of the exporting State are unable to carry out that
In particular, the Court of First Instance failed to recognise that              investigation since they have not kept the necessary
that infringement is not remedied even where at the end of the                   documents must mean that the goods qualify for the
procedure under Article 2.2.5 of the ECB Staff Rules it is                       preferential arrangement?
decided not to proceed with dismissal.