CELEX: C1995/119/11
Language: en
Date: 1995-05-13 00:00:00
Title: Appeal brought on 28 February 1995 by Unifruit Hellas EPE against the judgment delivered on 15 December 1994 by the Third Chamber of the Court of First Instance of the European Communities in Case T-489/93 between Unifruit Hellas EPE and the Commission of the European Communities (Case C-51/95 P)

13 . 5 . 95             EN                Official Journal of the European Communities                                   No C 119/5
     exempt transfers of goods used wholly for an activity                 products listed in the Annex to Regulation (EEC)
     which is exempted, or goods which are in any event                    No 3835/90 (2)' also apply to imports from Spain of
     not deductible, the Italian Republic has failed to fulfil             tuna in olive oil ?
     its obligations under Article 13B (c ) of Council
     Directive 77/388/EEC ( J ) of 17 May 1977 ( Sixth VAT           ( b ) May the competent customs authorities, pursuant to
     Directive).                                                           Article 5(1 ) and (2 ) of Regulation (EEC) No 1697/79
                                                                           of 24 July 1979, as supplemented by Regulation (EEC)
Pleas in law and main arguments adduced in support:                        No 1715/90 ( 3 ) of 20 June 1990, and Article 2 of
                                                                           implementing Regulation ( EEC ) No 2164/91 (4 ) of
As regards 'supplies of goods used wholly for an activity                  23 July 1991 , initiate action for the recovery of customs
exempted under this Article . . . when these goods have not                duties which were not collected at the time of
given rise to the right to deduction', Article 10 of                       importation because they were regarded as having been
Presidential Decree No 633 omits to list among                             totally suspended as a result of an erroneous
approximately 30 examples which it gives of 'transactions                  interpretation of the Cpmmunity legislation in force,
exempt from duty' the situation envisaged at the beginning                 but which subsequently proved to be due on the basis of
of Article 13B (c) of the Directive .                                      a different interpretation of the same Community
                                                                           legislation provided by the Commission of the EEC
Âs regards 'supplies . . . of goods on the acquisition or                  after consulting its Legal Service, where the person
production of which, by virtue of Article 17(6 ), value added              liable observed all the provisions laid down by the rules
                                                                           in force as far as his customs declaration was concerned
tax did not become deductible', the corresponding provision
of Presidential Decree No 633/72 (third paragraph of                       and it does not appear that that person was aware that
Article 2 ) provides that transactions involving the goods                 the interpretation initially given to the Community
referred to in Article 19 of that Decree, such as motor                    legislation by the Italian authorities was erroneous ?
vehicles and pleasure craft, 'are not considered to be
transfers of goods'. That specification precludes the                (!)  OJ  No L  324,  26 . 11 . 1991 , p. 11 .
application of VAT to transactions of that kind, and thus            (2 ) OJ  No L  370,  31 . 12. 1990, p. 126 .
likewise fails to implement Article 13B (cj of the Sixth VAT         (3 ) OJ  No L  160 , 26 . 6 . 1990, p . 1 .
Directive correctly.                                                 (4 ) OJ  No L  201 , 24 . 7. 1991 , p . 16 .
(!) OJ No L 145, 13 . 6 . 1977, p. 1 .
                                                                     Appeal brought on 28 February 1995 by Unifruit Hellas
                                                                     EPE against the judgment delivered on 15 December 1994
References for preliminary rulings from the Tribunale di             by the Third Chamber of the Court of First Instance of the
Genova, Sezione Prima Civile, by orders of that court of             European Communities in Case T-489/93 between Unifruit
26 January 1995 and 16 February 1995 in the cases of                 Hellas EPE and the Commission of the European
                                                                                                    Communities
1 . Olasagasti & Co. Sri, 2. Comarcon SNC, 3 . Ghezzi
Alimentari Sri, 4. Fredo Sri, and 5 . Cateringros v.                                           ( Case C-51/95 P
          Amministrazione delle Finanze dello Stato                                                ( 95/C 119/11 )
      (Cases C-47/95 , C-48/95 , C-49/95 , C-50/95 and
                             C-60/95 )                               An appeal against the judgment delivered on 15 December
                           (95/C 119/10 )                             1 994 by the Third Chamber of the Court of First Instance of
                                                                     the European Communities in Case T-489/93 between
Reference has been made to the Court of Justice of the               Unifruit Hellas EPE and the Commission of the European
European Communities by orders of the Tribunale di                   Communities was brought before the Court of Justice of the
Genova, Sezione Prima Civile (District Court, Genoa, First           European Communities on 28 February 1995 by Unifruit
Civil Section) of 26 January 1995 and 16 February 1995 ,             Hellas EPE, established in Athens, represented by Elias
which were received at the Court Registry on 23 February             Souflero, of the Athens Bar, with an address for service in
1995 and 8 March 1 995, for preliminary rulings in the cases         Luxembourg at the Chambers of Aloyse May, 31 Grand
                                                                     Rue .
of 1 . Olasagasti & Co. Sri, 2. Comarcon SNC, 3 . Ghezzi
Alimentari Sri, 4. Fredo Sri, and 5 . Cateringros v.
Amministrazione delle Finanze dello Stato on the following           The appellant claims that the Court should:
questions:
                                                                      1 . déclaré the appeal admissible;
(a ) Does the suspension of the residual customs duties
       applicable to imports from Spain into the Community
       of Ten in accordance with Article 75 ( 1 ) of the Act of      2, set aside the judgment appealed against to the extent to
       Accession of that country which was provided for by                 which it rejected the claim for damages;
       Article 1 ( 1 ) of Regulation (EEC ) No 3416/91 O of
       25 November 1991 as regards 'the agricultural                  3 , award costs to the appellant.
 ---pagebreak--- No C 119/6               EN                Official Journal of the European Communities                                       13 . 5 . 95
Pleas in law and main arguments adduced in support:                   — on the one hand, only profits made at the balance sheet
                                                                            date are to be included, and
1 . The Court of First Instance misinterpreted the
      expression 'exceptional circumstances' in Article 25 ( 1 )      — on the other hand, account must be taken of income for
      of Regulation (EEC) No 1035/72. It was held                           the financial year to which the annual accounts relate,
      (paragraph 54 ) that that expression applies to                       irrespective of the date of receipt of such income,
      circumstances in which the Commission has discretion
      not to impose a countervailing charge, even though all
      the preconditions for the imposition thereof are met.           where a claim to a distribution on the basis of participating
      The appellant maintains that those are circumstances in         certificates ( GenuEscheine) conditional on sufficient
      which the Commission is obliged not to impose a                 distributable profit is capitalized in phase with the inclusion
      countervailing charge .                                         of profits by the distributing undertaking, even where the
                                                                      distribution does not become due until one bank working
                                                                      day following the general meeting of the distributing
2. The judgment appealed against was wrong to hold                    undertaking at which a resolution is passed appropriating
      (paragraph 62 ) that Article 3 ( 3 ) of Regulation ( EEC )      the profits for the preceding financial year ?
      No 2707/72 cannot be applied by analogy to a measure
      imposing a countervailing charge . According to the
      appellant, the effect sought to be achieved by a                (!) OJ No L 222, 14 . 8 . 1978 , p . 11 .
      protective measure adopted under Regulation ( EEC )
      No 2707/72 is absolutely equivalent to the effect sought
      by the countervailing charge .
3 . Manifestly erroneous and lacking in justification is the
      assessment by the Court of First Instance (paragraph 63 )
      that it is permissible concurrently to require the
      imposition of surveillance measures ( in the form for           References for a preliminary ruling by the Pretura
      example of an import certificate and security) and a            Circondariale di Roma — Sezione distaccata di Tivoli — by
      countervailing charge.                                          orders of that court of 15 and 22 February 1995 in criminal
                                                                      proceedings pending before it against Sandro Gallotti and
                                                                                                 Roberto Censi
4. Contrary to the holding in the judgment appealed
                                                                                        ( Cases C-58/95 and C - 75/95 )
      against (paragraph 66 ), the 1990 framework agreement
      between the Community and Chile precludes the                                              (95/C 119/13 ).
      adoption of any unilateral measure including the
      imposition of a countervailing charge.
                                                                      References have been made to the Court of Justice of
                                                                      the European Communities by orders of the Pretura
5 . The appellant maintains that the Court of First Instance          Circondariale di Roma — Sezione Distaccata di Tivoli
      ignored its entirely particular situation which is              (Rome District Magistrates' Court — Tivoli Division ) of 15
      attributable to the fact that at the material time certain
                                                                      and 22 February 1995 , which were received at the Court
      restrictions still applied to the movement of capital in        Registry on 6 and 14 March 1995 respectively, for a
      Greece under Directive 88/361/EEC of 24 June 1988 .             preliminary ruling in criminal proceedings against Sandro
                                                                      Gallotti and Roberto Censi on the following questions:
                                                                      1 . What is the legal effect of the Italian Republic's failure to
                                                                             bring into force the necessary measures to implement
Reference for a preliminary ruling from the Finanzgericht                    Council Directive 91/156/EEC ( ] ) within the prescribed
KoIn by order of that court of 8 February 1995 in the case of               time limit ?
          Bruhler Kreditbank eG v. Finanzamt Briihl
                          (Case C-56/95 )                             2. In particular, may the existence of criminal penalties,
                           ( 95/C 119/12 )                                  and in particular those provided for in Articles 10 and
                                                                             25 ( Case C-75/95 ) and Article 25 etseq. ( Case C-58/95 )
                                                                             of Presidential Decree No 915/82 for failure to observe
Reference has been made to the Court of Justice of the
European Communities by an order of the Finanzgericht                       the Italian rules, be considered to conflict with
Kôln ( Finance Court, Cologne ) of 8 February 1995, which                    Community legislation where it seeks to ensure uniform
was received at the Court Registry on 3 March 1995 , for a                  treatment, from the point of view of penalties as well, for
preliminary ruling in the case of Bruhler Kreditbank eG v.                   operators in the Single Market.
Finanzamt (Tax Office) Briihl on the following question:
                                                                      i 1 ) Council    Directive   91/156/EEC       amending   Directive
Is it in accordance with the provisions of Article 31 ( 1 ) (c), in         75/442/EEC, OJ No L 78 , 26 . 3 . 1991 , p. 32 .
particular indent ( aa ), and Article 31 ( 1 ) (d ) of the Fourth
Directive ( 78/660/EEC ) of 25 July 1978 ( 1 ), according to
which: