CELEX: C2003/055/13
Language: en
Date: 2003-03-08 00:00:00
Title: Case C-447/02 P: Appeal brought on 11 December 2002 by KWS Saat AG against the judgment delivered on 9 October 2002 by the Second Chamber of the Court of First Instance of the European Communities in Case T-173/00 between KWS Saat AG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 55/6                  EN                          Official Journal of the European Union                                          8.3.2003
1.     Must Regulation No 2913/92 (1) (the Community Cus-                   Reference for a preliminary ruling by the Bundesfinanz-
       toms Code) and Regulation No 2454/93 ( 2) (the regu-                 hof by order of that Court of 29 October 2002 in the case
       lation implementing the Community Customs Code), in                  of Hauptzollamt Hamburg-Jonas against Gouralnik &
       particular Article 379(1) of the regulation implementing                                      Partner GmbH
       the Community Customs Code, be construed as meaning
       that the customs debt arising by reason of an offence or
       irregularity in connection with external Community                                           (Case C-446/02)
       transit cannot be recovered by the office of departure
       from the principal if the principal did not, before the end
       of the eleventh month following the date of registration                                      (2003/C 55/12)
       of the Community transit declaration, receive the notifi-
       cation referred to in Article 379 of the regulation
       implementing the Community Customs Code?
                                                                            Reference has been made to the Court of Justice of the
2.     Does the fact that the office of departure did not follow
                                                                            European Communities by order of the Bundesfinanzhof
       an administrative instruction for the transmission of
                                                                            (Federal Finance Court) of 29 October 2002, received at the
       information laid down in the Customs Code Committee
                                                                            Court Registry on 10 December 2002, for a preliminary ruling
       (early warning system) or that the authorities in the office
                                                                            in the case of Hauptzollamt Hamburg-Jonas against Gouralnik
       of departure can be criticised for failure to notify in good
                                                                            & Partner GmbH on the following questions:
       time have any bearing on the answer to this question?
                                                                            1.   Does an entitlement to an export refund exist at least at
( 1) OJ L 302 [1992], p. 1.                                                      the rate of refund applicable to the product actually
( 2) OJ L 253 [1993], p. 1.                                                      exported where it is established during a control by
                                                                                 the customs authorities that the declared and exported
                                                                                 consignment did not consist entirely of the declared
                                                                                 product but contained a proportion of another product
                                                                                 to which a lower rate of refund applied?
Reference for a preliminary ruling by the Vestre Landsret                   2.   Does the fact that the product which was incorrectly
by order of that Court of 15 November 2002 in the case                           declared is similar to that actually declared have any
of Fonden Marselisborg Lystbådehavn against Skattemini-                          bearing on the decision?
                                steriet
                                                                            3.   If Question 2 is answered in the affirmative, in accordance
                          (Case C-428/02)                                        with which criteria must it be determined whether the
                                                                                 declaration also covers the incorrectly declared goods?
                           (2003/C 55/11)
Reference has been made to the Court of Justice of the
European Communities by order of the Vestre Landsret
(Western Regional Court) of 15 November 2002, received at
the Court Registry on 26 November 2002, for a preliminary
ruling in the case of Fonden Marselisborg Lystbådehavn against
Skatteministeriet (Ministry of Fiscal Affairs) on the following             Appeal brought on 11 December 2002 by KWS Saat AG
questions:                                                                  against the judgment delivered on 9 October 2002 by the
                                                                            Second Chamber of the Court of First Instance of the
1)     Must Article 13.B(b) of the Sixth VAT Directive (Council             European Communities in Case T-173/00 between KWS
       Directive 77/388) (1) be construed as meaning that the               Saat AG and the Office for Harmonisation in the Internal
       term ‘letting of immovable property’ includes the letting                         Market (Trade Marks and Designs)
       of a boat site consisting of a section of a land-based port
       area and of a defined and identifiable water-based area?
                                                                                                   (Case C-447/02 P)
2)     Must Article 13.B(b)(2) of the Sixth VAT Directive be
       construed as meaning that the term ‘vehicles’ includes
       boats?                                                                                        (2003/C 55/13)
( 1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
     harmonization of the laws of the Member States relating to
     turnover taxes — Common system of value added tax: uniform             An appeal against the judgment delivered on 9 October 2002
     basis of assessment (OJ L 145 of 13.6.1977, p. 1).                     by the Second Chamber of the Court of First Instance of the
                                                                            European Communities in Case T-173/00 between KWS Saat
                                                                            AG and the Office for Harmonisation in the Internal Market
 ---pagebreak--- 8.3.2003               EN                         Official Journal of the European Union                                               C 55/7
(Trade Marks and Designs) was brought before the Court of                 Reference for a preliminary ruling by the Bundesfinanz-
Justice of the European Communities on 11 December 2002                   hof by order of that Court of 29 October 2002 in the case
by KWS Saat AG, represented by Dr Christian Rohnke,                       of Hauptzollamt Bremen against Joh. C. Henschen GmbH
Jungfernstieg 51, D-20354 Hamburg, with an address for                                                 & Co. KG
service in Luxembourg.
                                                                                                  (Case C-451/02)
The appellant claims that the Court should:                                                        (2003/C 55/14)
1.    set aside the judgment of the Court of First Instance of
      9 October 2002 in Case T-173/00 ( 1) in so far as it                Reference has been made to the Court of Justice of the
      dismisses the action;                                               European Communities by order of the Bundesfinanzhof
                                                                          (Federal Finance Court) of 29 October 2002, received at the
2.    annul the decision of the Board of Appeal of 19 April               Court Registry on 12 December 2002, for a preliminary ruling
      2000 in Case R 282/1999-2), in so far as that has not               in the case of Hauptzollamt Bremen against Joh. C. Henschen
      already occurred as a result of the judgment of the Court           GmbH & Co. KG on the following questions:
      of First Instance in Case T-173/00;
                                                                          1.    Is a customs debt on importation incurred under
                                                                                Article 203(1) of Regulation (EEC) No 2913/92 (1) where
3.    order the defendant to pay the costs.                                     goods in temporary storage are removed from their place
                                                                                of storage without the authorisation of the customs
                                                                                authority where the goods were presented and are then
                                                                                presented again to another customs office without first
                                                                                having been placed under the Community transit pro-
Grounds of appeal and main arguments                                            cedure required for their movement?
                                                                          2.    If Question 1 should be answered in the negative: In the
—     The Court of First Instance wrongly rejected the appli-                   circumstances described in Question 1 is there a non-
      cant’s claims. The Court failed to recognise that                         fulfilment of an obligation that could result in the
      Article 74(1) of Regulation No 40/94 was infringed if                     incurrence of a customs debt on importation under
      only because up until the time of its appeal decision the                 Article 204(1)(a) of Regulation (EEC) No 2913/92?
      Office did not in fact carry out any examination of its
      own. The reference for the first time in the appeal decision        3.    If Question 2 should be answered in the affirmative:
      to the web page of a single producer also infringes the                   Should Article 859, point 6, of Regulation (EEC)
      right to a fair hearing. Finally, the Court was compelled,                No 2454/93 (2) be interpreted as meaning that it applies
      in order to support the decision of the Board of Appeal, to               even if goods in temporary storage are moved to a
      construct its own replacement reasoning which, however,                   free warehouse in breach of the formalities relating to
      lacks detail and is formulaic.                                            temporary storage?
—     The Court of First Instance wrongly rejected the factual            4.    If Question 3 should be answered in the negative:
      claims concerning the distinctive character of the colour
      mark ‘orange’ (corresponding to colour code HKS7).                        (a)   Should Article 859, point 5, of Regulation (EEC)
      When assessing the distinctive character of colour marks,                       No 2454/93 be interpreted as referring only to an
      criteria different from those for other types of marks                          unauthorised movement of goods that could have
      cannot be applied. It is immaterial whether other colours                       been authorised by the customs office, or does it
      are used for identifying certain characteristics of the                         mean any movement of goods at all?
      goods at issue. Rather, it must be examined whether the
      specific colour applied for is understood by the public as                (b) Should Article 859, point 5, of Regulation (EEC)
      a reference to a characteristic. If different manufacturers                     No 2454/93 be interpreted as meaning that the
      use different colours as references to a characteristic, the                    condition laid down in that provision, that the
      public will see in those colours at least at the same time a                    goods in temporary storage can be presented to the
      reference to the producer. The colour ‘orange’ is not                           customs authorities at their request, is fulfilled only
      understood by the relevant public as a reference to a                           if the goods are presented again to the customs
      characteristic of the goods at issue. Nor is a decorative or                    office where they were originally presented, or is the
      functional use possible. Therefore the mark has distinctive                     condition fulfilled even if the goods are presented
      character.                                                                      again to any customs office at all — even if it is in
                                                                                      another Member State?
( 1) OJ C 323, 21.12.2002.                                                (1 ) OJ L 302, p. 1.
                                                                          (2 ) OJ L 253, p. 1.