CELEX: C2002/261/07
Language: en
Date: 2002-10-26 00:00:00
Title: Case C-292/02: Reference for a preliminary ruling by the Finanzgericht Düsseldorf by order of that Court of 6 August 2002 in the case of Meiland Azewĳn B.V. against Hauptzollamt Duisburg

C 261/4               EN                     Official Journal of the European Communities                                      26.10.2002
Reference for a preliminary ruling by the Verwaltungs-                  4.    Is the following statement correct:
gerichtshof by order of that Court of 25 July 2002 in the
        appeal by Rethmann Photo Recycling GmbH                               Not all incineration with energy use constitutes recovery
                                                                              for the purposes of operation R1. Operation R1 does not
                                                                              relate just to the use of the heat released through
                        (Case C-291/02)                                       incineration but also requires use as a fuel. A fuel is
                                                                              characterised by the fact that it satisfies certain criteria
                                                                              relating to thermal value, concentration of pollutants and
                                                                              combustion rate and is sufficiently homogeneous with
                        (2002/C 261/06)                                       regard to those characteristics for the process of incin-
                                                                              eration to be able to be controlled. Waste which cannot
                                                                              meet those criteria — that is to say, which possesses
                                                                              insufficient thermal value, whose composition is so
                                                                              variable that incineration (in a conventional incinerator)
Reference has been made to the Court of Justice of the                        cannot be satisfactorily controlled or whose level of
European Communities by order of the Verwaltungsgerichts-                     pollutants is such that their incineration gives rise to
hof of 25 July 2002, received at the Court Registry on                        impermissible emissions — per se cannot be recovered in
12 August 2002, for a preliminary ruling in the appeal by                     accordance with R1.
Rethmann Photo Recycling GmbH on the following questions:
                                                                        (1 ) OJ L 030 [1993], p. 1.
1.   Do the provisions of Regulation (EEC) No 259/93 (1) on             (2 ) OJ L 194 [1975], p. 39.
     the supervision and control of shipments of waste within,
     into and out of the European Community and Council
     Directive 75/442/EEC ( 2) of 15 July 1975 on waste
     display, with respect to the question whether a planned
     shipment of waste is to be assigned to recovery operation
     R1 in Annex II B or disposal operation D10 in Annex
     II A to Directive 75/442, sufficient clarity and definiteness
     to allow the person concerned (private parties as well as
     Member States) to assess the respective legal conse-
     quences of their conduct, or are those provisions invalid          Reference for a preliminary ruling by the Finanzgericht
     because of a lack of certainty and the resulting unen-             Düsseldorf by order of that Court of 6 August 2002 in
     forceability?                                                      the case of Meiland Azewijn B.V. against Hauptzollamt
                                                                                                     Duisburg
2.   Is the sole criterion, in assigning a waste treatment
     measure to recovery operation R1 (use principally as a                                       (Case C-292/02)
     fuel or other means to generate energy) in Annex II B to
     Directive 75/442, that the waste is used entirely to
                                                                                                  (2002/C 261/07)
     generate energy (energy use) and the energy generated is
     also in fact used?
3.   Is it permissible for the competent authority of desti-
                                                                        Reference has been made to the Court of Justice of the
     nation to proceed on the basis of the following criteria in
                                                                        European Communities by order of the Finanzgericht Düssel-
     deciding whether a planned waste shipment is to be
                                                                        dorf (Finance Court, Düsseldorf) of 6 August 2002, received at
     assigned to recovery operation R1 or disposal operation
     D10:                                                               the Court Registry on 13 August 2002, for a preliminary
                                                                        ruling in the case of Meiland Azewijn B.V. against Hauptzoll-
                                                                        amt Duisburg (Principal Customs Office, Duisburg) on the
     (a)   Risk reduction                                               following questions:
                                                                        1.    Is Article 8a(1) of Directive 92/81/EEC ( 1) to be construed
     (b) Conservation of natural resources
                                                                              as quite simply exempting mineral oil intended to be used
                                                                              as motor fuel from excise duty in the Member State to
     (c)   Conservation of energy resources                                   which it is brought in a standard tank of a commercial
                                                                              motor vehicle after it has been released for consumption
                                                                              in another Member State?
     (d) Conservation of landfill space
                                                                        2.    If the answer to the first question should be in the
     (e)   Ecological appropriateness of the operation                        affirmative, is Article 8a(1) of Directive 92/81/EEC
                                                                              directly applicable in relation to the claimant having
                                                                              regard to the rule in Paragraph 19(2) of the Mineralöl-
     (f)   Economic appropriateness of the operation?                         steuergesetz (Law on Excise Duty on Mineral Oils)?
 ---pagebreak--- 26.10.2002             EN                   Official Journal of the European Communities                                     C 261/5
3.    Are the administrative and control procedures for the            Is the amount of aid also to be reduced under the second
      reduction in excise duty which is possible under                 indent of Article 10(2)(a) of Regulation (EEC) No 3887/92 (1)
      Article 8(2)(f) of Directive 92/81/EEC governed by               where the special premium for male bovine animals applied
      Article 8(8) of Directive 92/81/EEC without the appli-           for when this provision of Community law was in force cannot
      cation of a marker or by Article 1(1) of Directive 95/60/        for legal reasons be granted to the farmer but where in the
      EC ( 2)?                                                         words of Article 44(1) of Regulation (EC) No 2419/2001 (2),
                                                                       the farmer submitted factually correct information or can
                                                                       show otherwise that he was not at fault?
4.    If the third question should be answered to the effect that
      the Member States which exercise the power under
      Article 8(2)(f) of Directive 92/81/EEC are obliged, in
      an instance comparable to the present case, to grant             (1 ) OJ L 391, 31.12.1992, p. 36.
                                                                       (2 ) OJ L 327, 12.12.2001, p. 11.
      reductions in duty also in the form of a refund of excise
      duty, is a reduction in excise duty for agricultural works
      contrary to the freedom to provide services if the
      reduction is linked to a marking procedure under
      Article 1(1) of Directive 95/60/EC that is not applied in
      this context by other Member States, which on the
      contrary impose excise-duty penalties in the case of
      markings for which no provision is made under their
      legal systems?
                                                                       Action brought on 21 August 2002 by the Italian Republic
5.    If the answer to the fourth question should be in the               against the Commission of the European Communities
      affirmative, does the breach of the freedom to provide
      services mean that liability to pay duty is expunged, or
                                                                                               (Case C-298/02)
      would the claimant, in order to achieve exemption from
      duty, be obliged to ask for unmarked mineral oil and
      apply for a refund of excise duty in the Member State in                                 (2002/C 261/09)
      which it obtains marked gas oil at a reduced rate of duty?
( 1) OJ L 316, 31.10.1992, p. 12.
( 2) OJ L 291, 6.12.1995, p. 46.                                       An action against the Commission of the European Communi-
                                                                       ties was brought before the Court of Justice of the European
                                                                       Communities on 21 August 2002 by the Commission of the
                                                                       European Communities, represented by Umberto Leanza,
                                                                       acting as Agent, assisted by Maurizio Fiorilli, avvocato dello
                                                                       Stato.
                                                                       The applicant claims that the Court should:
Reference for a preliminary ruling by the Niedersächsi-                —     annul Commission decision No 2281 (1) of 26 June
sches Oberverwaltungsgericht by order of that Court of                       2002 in so far as it makes a financial correction of
1 August 2002 in the administrative-law case of Mrs Gisela                   EUR 12 253 816 in respect of account headings B1-
        Gerken against Amt für Agrarstruktur Verden                          1512-001 and B1-1512-004 so far as concerns Italy.
                         (Case C-295/02)
                                                                       Pleas in law and main arguments
                         (2002/C 261/08)
                                                                       Aid for peaches and pears intended for the production of fruit
                                                                       salad — financial correction
Reference has been made to the Court of Justice of the
European Communities by order of the Niedersächsisches
Oberverwaltungsgericht (Lower Saxony, Higher Administrat-              According to the Commission, during the 1995-96, 1996-
ive Court) of 1st August 2002, received at the Court Registry          97 and 1997-98 marketing years, aid was granted for a final
on 19 August 2002, for a preliminary ruling in the administrat-        product which did not conform to the definitions contained in
ive-law case of Mrs Gisela Gerken against Amt für Agrar-               Regulations (EEC) No 1558/91 (2) and (EC) No 504/97 (3). The
struktur (Office for Agriculture) Verden on the following              two regulations provided for the payment of aid for whole or
question:                                                              sliced peaches and pears provided that they had undergone