CELEX: C2001/303/19
Language: en
Date: 2001-10-27 00:00:00
Title: Case C-329/01: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division, Administrative Court, by order of that court of 20 July 2001, in the case of the Queen on the application of British Sugar plc against Intervention Board for Agricultural Produce

27.10.2001            EN                    Official Journal of the European Communities                                        C 303/11
Action brought on 29 August 2001 by the Kingdom of                     1.   In circumstances where:
the Netherlands against the Commission of the European
                          Communities
                                                                            (a)   a trader has exported a quantity of C sugar which
                                                                                  exceeds the amount for which export was authorised
                        (Case C-325/01)                                           by the licence concerned; and/or
                        (2001/C 303/18)
                                                                            (b) a trader has exported C sugar after the expiry of the
                                                                                  validity of the licence authorising the said export;
An action against the Commission of the European Communi-                         and
ties was brought before the Court of Justice of the European
Communities on 29 August 2001 by the Kingdom of the
Netherlands, represented by H.G. Sevenster, Head of the                     (c)   even if, as a matter of fact, the relevant C sugar left
European Law Section in the Ministry of Foreign Affairs.                          the Customs territory of the Community;
The applicant claims that the Court should:                                 has the proof required by the first indent of Article 2(2)
                                                                            of Regulation 2670/81 (1) been furnished in relation to
1.    Annul Commission Regulation (EC) No 1325/2001 (1) of                  that export, or that element of the relevant export, which
      29 June 2001 providing for the continued application of               was not covered by a valid licence?
      safeguard measures with regard to imports of sugar
      sector products with EC/OCT originating status from the          2.   In the circumstances described in paragraph 1(a) above is
      overseas countries and territories for the period 1 July to           the answer to the above question different in circum-
      1 December 2001;                                                      stances where:
2.    Order the Commission to pay the costs of the proceed-
      ings.                                                                 (a)   the trader presented to the customs authority a
                                                                                  customs declaration form (C88) amended in manu-
                                                                                  script to reflect the amount actually exported; and
Pleas in law and main arguments
                                                                            (b) the customs authority has endorsed the relevant
                                                                                  licence extract against the trader’s entry in the actual
The Netherlands refer to the application submitted in Case                        amount exported?
C-452/00 (2).
                                                                       3.   Is the answer to question 1 above different on the
(1) OJ L 177 of 30.6.2001, p. 57.                                           assumption that the circumstances were as follows:
(2) OJ C 45 of 10.2.2001, p. 12.
                                                                            (a)   the trader intended to apply for an extract for
                                                                                  2 900 tonnes;
                                                                            (b) owing to an error on the part of the trader, a licence
                                                                                  extract was issued for 2,9 tonnes and this 2,9 tonnes
Reference for a preliminary ruling by the High Court                              was recorded in the records of both the Intervention
of Justice (England & Wales), Queen’s Bench Division,                             Board and the trader;
Administrative Court, by order of that court of 20 July
2001, in the case of the Queen on the application of British
Sugar plc against Intervention Board for Agricultural                       (c)   the licence extract was attributed, with the authority
                             Produce                                              of the trader, by the trader’s agent, accurately to
                                                                                  record the trader’s intention of exporting
                        (Case C-329/01)                                           2 900 tonnes;
                        (2001/C 303/19)                                     (d) that licence extract was subsequently endorsed by
                                                                                  H.M. Customs & Excise to certify the export of
Reference has been made to the Court of Justice of the                            2 900 tonnes of sugar;
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division, Adminis-                 (e)   the sugar was subject to a Form C88 export licence
trative Court, of 20 July 2001, which was received at the Court                   for 2 900 tonnes, which was subsequently attributed
Registry on 4 September 2001, for a preliminary ruling in the                     and endorsed by H.M. Customs & Excise;
case of the Queen on the application of British Sugar plc
against Intervention Board for Agricultural Produce, on the
following questions:                                                        (f)   2 900 tonnes of sugar were in fact exported;
 ---pagebreak--- C 303/12              EN                     Official Journal of the European Communities                                         27.10.2001
    (g)   licence extracts were subsequently applied for, and           7.    In the circumstances referred to in paragraphs 33 to 35
          granted, on the basis that only 2,9 tonnes had earlier              above, is a penalty under Article 3 of Regulation 2670/81
          been authorized for export;                                         properly levied?
    (h) each subsequent licence extract was duly attributed             (1) Commission Regulation (EEC) No 2670/81 of 14 September
          and endorsed and all sugar tonnages so noted were                 1981 laying down detailed implementing rules in respect of sugar
          in fact exported;                                                 production in excess of the quota (OJ L 262, 16.9.1981, p. 14).
                                                                        (2) Commission Regulation (EEC) No 3719/88 of 16 November
                                                                            1988 laying down common detailed rules for the application of
                                                                            the system of import and export licences and advance fixing
    (i)   in the result, 2 897,1 tonnes of sugar were exported              certificates for agricultural products (OJ L 331, 2.12.1988, p. 1).
          in excess of the volume authorized in the original
          licence.
4.  Does Article 24 of the Regulation 3719/88 (2) enable the
    competent authority to withdraw the extract or the
    licence or certificate as well as any extracts previously
    issued and require the competent authority to issue
    without delay a corrected licence or extract or any                 Appeal brought on 4 September 2001 by Hortiplant SAT
    attribution thereto in circumstances where:                         against the judgment delivered on 14 June 2001 by the
                                                                        Fourth Chamber of the Court of First Instance of the
                                                                        European Communities in Case T-143/99 between Horti-
                                                                        plant SAT and Commission of the European Communities
    (a)   there is no obvious or manifest error on the face of
          the licence or extract itself and where there has been
          no error on the part of the issuing agency; and/or                                       (Case C-330/01 P)
                                                                                                    (2001/C 303/20)
    (b) the amendment is sought to be made after the expiry
          of the validity of the relevant extract or head licence?
                                                                        An appeal against the judgment delivered on 14 June 2001 by
                                                                        the Fourth Chamber of the Court of First Instance of the
    (c)   does it make a difference if the trader intended to           European Communities in Case T-143/99 between Hortiplant
          apply for a licence extract (from a licence already           SAT and the Commission of the European Communities
          issued) in respect of a quantity greater than that for        was brought before the Court of Justice of the European
          which he called off;                                          Communities on 4 September 2001 by Hortiplant SAT,
                                                                        represented by C. Fernández Vicién and I. Moreno-Tapia Rivas,
                                                                        abogadas, with an address for service at 60 Avenue de
                                                                        Cortenbergh, 1000 Brussels.
5.  If the answers to the above questions are negative, do the
    provisions of Article 24 of Commission Regulation
    3719/88 infringe the Community law principles of
    proportionality and/or equality in that the absence of any          The appellant claims that the Court should:
    power to amend the head licence, licence extract or
    attributes thereto may, in the circumstances referred to
    above, lead to the imposition of a fine under Article 3 of          1.    declare the present case admissible and founded;
    Commission Regulation 2670/81?
                                                                        2.    set aside the judgment of the Court of First Instance of
                                                                              14 June 2001 and give a final decision on the dispute;
6.  (a)   Does the national court and/or the national auth-
          ority have a discretion to vary (downwards) the               3.    in the alternative, send the case back to the Court of First
          amount of the penalty to be imposed under Article 3                 Instance for judgment in accordance with the decision of
          of Commission Regulation 2670/81?                                   the Court of Justice on points of law;
                                                                        4.    in any event, order the Commission of the European
    (b) If so, are there any factors in this case which the                   Communities to pay all the costs arising from these
          Court regards as relevant to the exercise of that                   proceedings, including those incurred as a result of
          discretion?                                                         proceedings before the Court of First Instance.