CELEX: C2001/028/42
Language: en
Date: 2001-01-27 00:00:00
Title: Case C-434/00: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that court of 21 November 2000 in the criminal proceedings against G. Cuomo

C 28/22                EN                     Official Journal of the European Communities                                     27.1.2001
Reference for a preliminary ruling by the Hoge Raad der                  3.    For the purposes of the application of criminal law, may
Nederlanden by judgment of that court of 21 November                           ‘leaves’ or ‘ceases to be covered’ also be taken to refer
   2000 in the criminal proceedings against G. Cuomo                           to the mere placing and transport of goods under a
                                                                               Community customs procedure where a third country, as
                                                                               referred to in the directive, is entered as the destination
                                                                               of that transport operation in the accompanying docu-
                         (Case C-434/00)                                       ments but the intention of placing the goods on the
                                                                               market in another Member State was present at the start
                                                                               of the transport operation?
                          (2001/C 28/42)
                                                                         (1) Council Directive 92/12/EEC of 25 February 1992 on the general
                                                                             arrangements for products subject to excise duty and on the
Reference has been made to the Court of Justice of the                       holding, movement and monitoring of such products (OJ 1992
European Communities by judgment of the Hoge Raad                            L 76, p. 1).
der Nederlanden (Supreme Court of the Netherlands) of                    (2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
21 November 2000, received at the Court Registry on                          harmonization of the laws of the Member States relating to
27 November 2000, for a preliminary ruling in the criminal                   turnover taxes — Common system of value added tax: uniform
proceedings against G. Cuomo on the following questions:                     basis of assessment (OJ 1977 L 145, p. 1).
1.   What is to be understood by ‘leaves’ or ‘ceases to be
     covered by’ (onttrekken) the external transit procedure
     within the meaning of the third subparagraph of Article
     5(1) of the Directive on products subject to excise duty (1)
     and of Article 7(3) of the Sixth Directive (2), where such
     leaving or cessation is irregular — that is to say, it occurs
     otherwise than by declaring the goods for release for free
     circulation:
                                                                         Action brought on 28 November 2000 by the Com-
                                                                         mission of the European Communities against the French
                                                                                                       Republic
     (a)   is it the first action in relation to the goods
           which contravenes a provision connected with that
           procedure, and is the presence of an intention to                                       (Case C-439/00)
           place the goods — partly by that action — on the
           Community market in breach of that provision
           relevant; or                                                                             (2001/C 28/43)
     (b) does it occur (only) when the goods — in this case              An action against the French Republic was brought before the
           after breaking the seal — are unloaded from the               Court of Justice on 28 November 2000 by the Commission of
           vehicle without satisfying the requirement to pro-            the European Communities, represented by Michel Nolin, of
           duce the goods together with the relevant document            its Legal Service, acting as Agent, with an address for service
           at the office of destination in accordance with Article       in Luxembourg at the office of Carlos Gómez de la Cruz,
           22(1) of Regulation (EEC) No 2726/90 (OJ 1990                 Wagner Centre, Kirchberg.
           L 262, p. 1), and is the presence of an intention to
           place the goods — partly by that action — on the
           Community market in breach of Community law                   The Commission of the European Communities claims that
           relevant; or                                                  the Court should:
     (c)   must ‘leaves’ or ‘ceases to be covered by’ be taken to        —     declare that, by failing to adopt all the laws, regulations
           refer to all the actions (taken together) resulting in              and administrative measures necessary in order to comply
           the goods being placed unlawfully on the Com-                       with Directive 98/4/EC of the European Parliament and
           munity market?                                                      of the Council of 16 February 1998 amending Directive
                                                                               93/38/EEC coordinating the procurement procedures of
                                                                               entities operating in the water, energy, transport and
                                                                               telecommunications sectors (1), or at all events by failing
2.   If the answer to the first question is as indicated in (c),               to communicate the same to the Commission, the French
     where does the ‘leaving’ or ‘cessation of coverage’ occur:                Republic has failed to comply with its obligations under
     where the first unlawful action is performed or where a                   that directive;
     subsequent action is performed, in particular where the
     goods — in this case after breaking the seal — are
     unloaded from the vehicle?                                          —     order the French Republic to pay the costs.