CELEX: C2001/186/08
Language: en
Date: 2001-06-30 00:00:00
Title: Case C-152/01: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 1 March 2001 in the case of Kyocera Electronics Europe GmbH against Hauptzollamt Krefeld

C 186/4                EN                  Official Journal of the European Communities                                       30.6.2001
Thionville, with an address for service in Luxembourg at the          2.    accordingly, declare the application admissible and send
premises of Borislav Erdeljan, 90 Route de Thionville —                     it back to the Court of First Instance for judgment (or for
Appeal against the unpublished order of the Court of First                  a stay of proceedings pending delivery of the judgment
Instance of the European Communities (First Chamber) of                     of the Court of Justice in Case C-310/99 Italy v Com-
21 May 1999 in Cases T-169/98 and T-170/98 Schiocchet v                     mission);
Commission, seeking to have that order annulled and to have
the forms of order sought by the appellant at first instance          3.    order the Commission to pay the full costs incurred by
granted, the other party to the proceedings being: Commission               the appellants in respect of matters adjunct to proceedings
of the European Communities (Agent: M. Wolfcarius, assisted                 before the Court of First Instance and the present appeal
by J.-L. Fagnart) — The Court (Third Chamber), composed of:                 proceedings, reserving the costs of the main proceedings.
C. Gulmann (Rapporteur), President of the Chamber,
J.-P. Puissochet and F. Macken, Judges; S. Alber, Advocate
General; R. Grass, Registrar, has made an order on 16 Novem-          Pleas in law and main arguments
ber 2000, the operative part of which is as follows:
                                                                      The contested order is vitiated by the following errors in law:
1.    The appeal is dismissed.
                                                                      —     infringement and misapplication of Articles 111 and 114
2.    Schiocchet SARL shall pay the costs.                                  of the Rules of Procedure of the Court of First Instance;
                                                                      —     infringement and misapplication of the provisions of the
                                                                            Rules of Procedure of the Court of First Instance with
(1) OJ C 281 of 2.10.1999.                                                  regard to calculating procedural time-limits in the event
                                                                            of publication of the contested act;
                                                                      —     failure to give reasons in relation to the legal arguments
                                                                            for the application of the rules on time-limits invoked by
                                                                            the appellant;
                                                                      —     in the alternative, error of law and failure to state reasons
                                                                            with regard to the matter of excusable error.
Appeal brought on 27 March 2001 by Confederazione
Generale dell’Industria Italiana (Confindustria), estab-
lished in Rome, Confederazione Generale Italiana del
Commercio, del Turismo, dei Servizi e delle PMI
(Confcommercio), Confartigianato, Associazione Bancaria
Italiana (ABI), established in Rome, Associazione Naziona-
le fra le Imprese Assicuratrici (ANIA), established in Milan          Reference for a preliminary ruling by the Bundesfinanzh-
(Italy), and Banco di Napoli SpA, established in Naples               of by order of that court of 1 March 2001 in the case of
(Italy) against the order made on 19 January 2001 by the              Kyocera Electronics Europe GmbH against Hauptzollamt
                  Second Chamber, Extended                                                          Krefeld
                        (Case C-141/01 P)                                                      (Case C-152/01)
                                                                                               (2001/C 186/08)
                         (2001/C 186/07)
                                                                      Reference has been made to the Court of Justice of the
An appeal against the order made on 19 January 2001 by the            European Communities by order of the Bundesfinanzhof
Second Chamber extended Composition, of the Court of First            (Federal Finance Court) of 1 March 2001, received at the Court
Instance of the European Communities in Case T-126/00                 Registry on 9 April 2001, for a preliminary ruling in the case
between Confederazione Generale dell’Industria Italiana (Con-         of Kyocera Electronics Europe GmbH v Hauptzollamt Krefeld
findustria) and Others and the Commission of the European             on the following questions:
Communities was brought before the Court of Justice of the
European Communities on 27 March 2001 by Confederazione               1.    Must Article 3(2)(a) of Commission Regulation (EEC)
Generale dell’Industria Italiana (Confindustria) and the other              No 1495/80 (1) of 11 June 1980 implementing certain
abovementioned companies.                                                   provisions of Articles 1, 3 and 8 of Council Regulation
                                                                            (EEC) No 1224/80 (2) on the valuation of goods for
                                                                            customs purposes as amended by Regulation (EEC)
The appellant claims that the Court should:                                 No 220/85 (3) be interpreted as meaning that payments
                                                                            of interest are distinct from the price of the goods if at
1.    set aside the order of the Court of First Instance of the             the material time, namely the acceptance of the customs
      European Communities of 19 January 2001;                              declaration, only the invoice for the net price of the goods
 ---pagebreak--- 30.6.2001              EN                    Official Journal of the European Communities                                       C 186/5
      has been submitted to the customs office and that invoice              crops which need little water. The legislation which was
      — like the declaration of customs value — does not                     enacted shortly afterwards in light of experience (Council
      reveal either expressly or by implication that in the                  Regulation No 1422/97) (2) bears out the fact that neither
      context of the transaction to be assessed interest was also            the objectives nor the spirit of the applicable Community
      paid by the buyer to the seller?                                       law were prejudiced.
2.    If the answer to Question 1 is in the negative:
                                                                             As regards the failure to implement the extraordinary set-
      Do the interest payments then form part of the customs                 aside in relation to irrigated arable crops, they rely on
      value of the goods?                                                    the factual circumstances (the drought and the Act of
                                                                             Accession) acknowledged by Commission Regulation
                                                                             No 1040/95 (3) and to an agreement which unfortunately
(1) OJ L 154, 21.6.1980, p. 14.                                              will be put to the test only if it is recognised by the
(2) OJ L 134, 31.5.1980, p. 1.                                               Commission.
(3) OJ L 25, 30.1.1985, p. 7.
                                                                        —    (In the alternative) The financial adjustment includes
                                                                             items which should not be included and has been
                                                                             calculated in a way that is contrary to the applicable rules.
                                                                             Although items which the Commission alleges should be
                                                                             present are included in the adjustment, the way it has
                                                                             been calculated is incorrect.
Action brought on 9 April 2001 by the Kingdom of Spain
  against the Commission of the European Communities
                                                                        (Arable crops: the checks carried out in the Autonomous
                        (Case C-153/01)                                 Community of Andalusia in respect of the 1996 and 1997
                                                                        harvests were inadequate as to quality and quantity)
                        (2001/C 186/09)
                                                                        —    The checks carried out considerably exceed the minimum
An action against the Commission of the European Communi-                    required by the rules. The delays alleged to have occurred
ties was brought before the Court of Justice of the European                 as regards the standard-method checks cannot have any
Communities on 9 April 2001 by the Kingdom of Spain,                         repercussions since the checks carried out by tele-
represented by Mr Santiago Ortiz Vaamonde, Abogado del                       detection, in themselves, exceed the compulsory mini-
Estado, acting as Agent, with an address for service in                      mum. Furthermore, it is not surprising that the additional
Luxembourg at the Spanish Embassy, 4-6 Boulevard E. Servais.                 checks using the standard methods were carried out in
                                                                             part after 31 August, since they are additional checks
The applicant claims that the Court should:                                  taking place later than the initial checks. The Commission
                                                                             failed to respond on both occasions when it was asked
—     annul the Commission’s decision of 5 February 2001 (1)                 whether it was incorrect to carry out additional checks
      excluding from financing certain expenditure incurred by               after 31 August. It is inconsistent to increase the amount
      the Member States under the Guarantee Section of the                   of the adjustment in proportion to the number of
      EAGGF, in so far as that decision is the object of the                 additional checks, since that amounts to inflicting heavier
      present action; and                                                    penalties if more checks are carried out.
—     order the defendant institution to pay the costs.
                                                                             The Spanish authorities consider that the adjustment
                                                                             relating to the tele-detection and standard-method checks
Pleas in law and main arguments                                              in Andalusia for the 1997 harvest is void for two further
                                                                             reasons:
(Arable crops: inadequate extraordinary set-aside for the 1995
harvest)                                                                     1.    The information used by the Commission to assess
                                                                                   the 1997 harvest is incorrect since it concerns the
—     There was no failure to fulfil obligations such as to allow                  1996 harvest. There is, therefore, a manifest error of
      a financial adjustment to be made. The Spanish authorities                   fact.
      consider that they have not acted in breach of Community
      law.                                                                   2.    The adjustment relating to the 1997 harvest is
                                                                                   indefensible because there has been a breach of the
      As regards the failure to implement the extraordinary set-                   principle of the right to a fair hearing.
      aside in the non-irrigated areas, they submit that the
      applicable law should be interpreted purposively and in a
      factual context, on the basis of a fact recognised by the              Even if the Court were to hold that it was appropriate to
      Commission: that the exceptional drought in 1994                       make a financial adjustment, the amount fixed by the
      prompted farmers to have recourse to the production of                 Commission cannot be justified.