CELEX: C1998/258/27
Language: en
Date: 1998-08-15 00:00:00
Title: Action brought on 8 May 1998 by the Commission of the European Communities against the Kingdom of Belgium (Case C-170/98)

15.8.98              EN                 Official Journal of the European Communities                                 C 258/15
of the European Communities in Case T-42/96 between                    Hewlett Packard judgment that Article 13 of
Eyckeler & Malt AG, supported by the United Kingdom                    Regulation (EEC) No 1430/79 and Article 5(2) of
of Great Britain and Northern Ireland, and the                         Regulation (EEC) No 1697/79 pursue the same aim,
Commission of the European Communities was brought                     namely to limit the post-clearance payment of import
before the Court of Justice of the European Communities                and export duties to cases where such payment is
on 24 April 1998 by the Commission of the European                     justified and is compatible with a fundamental
Communities, represented by Jean-Louis Dewost,                         principle such as that of the protection of legitimate
Director-General of the Legal Service, and Götz zur                    expectations'. The Court of Justice thereby assumes a
Hausen, Legal Adviser, with an address for service in                  general comparability between the two provisions.
Luxembourg at the Office of Carlos Gómez de la Cruz, a
Member of the Commission's Legal Service, Wagner
                                                                   (1) OJ 1998 C 113, p. 13.
Centre, Kirchberg.
The appellant claims that the Court should:
1. set aside the judgment of the Court of First Instance of
    19 February 1998 in Case T-42/96 (1);                          Action brought on 8 May 1998 by the Commission of the
                                                                     European Communities against the Kingdom of Belgium
2. dismiss the action;                                                                    (Case C-170/98)
                                                                                           (98/C 258/27)
3. order the applicant to pay the costs.
                                                                   An action against the Kingdom of Belgium was brought
Pleas in law and main arguments adduced in support:
                                                                   before the Court of Justice of the European Communities
                                                                   on 8 May 1998 by the Commission of the European
Ð Error of law in relation to the plea alleging breach of          Communities, represented by Frank Benyon, Legal
    the rights of the defence:                                     Adviser, and Bernard Mongin, of its Legal Service, acting
                                                                   as Agents, with an address for service in Luxembourg at
                                                                   the office of Carlos Gómez de la Cruz, Wagner Centre,
    The contested judgment erroneously transposes                  Kirchberg.
    considerations applicable to competition proceedings
    to the procedure for remission of import duties and
    thereby concludes that in the procedure for remission          The Commission of the European Communities claims
    of such duties the Commission should allow the                 that the Court should:
    undertaking      access     to  all    non-confidential
    administrative papers, including those which the
    Commission regards as irrelevant or which might be             (1) declare that, by omitting either to adjust the
    detrimental to it. That requirement fails to take into             agreement with Zaire (1) in such a way as to provide
    account the particular features of the procedure for               for fair, free and non-discriminatory access by
    remission of customs duties, in which not only the                 Community nationals to cargo-shares due to Belgium
    conduct of the undertaking but also that of the                    or to denounce that agreement, Belgium has failed to
    authorities of Member States and non-member                        fulfil its obligations under Council Regulation (EEC)
    countries is to be assessed.                                       No 4055/86 of 22 December 1986 applying the
                                                                       principle of freedom to provide services to maritime
                                                                       transport between Member States and between
Ð Error of law in relation to the plea alleging
                                                                       Member States and third countries (2), in particular
    infringement of Article 13 of Council Regulation
                                                                       Articles 3 and 4(1) thereof;
    (EEC) No 1430/79 on the repayment or remission of
    import or export duties:
                                                                   (2) order the Kingdom of Belgium to pay the costs.
    The contested judgment wrongly held the existence of
    an error (within the meaning of Article 5(2) of
    Regulation (EEC) No 1697/79) by the competent                  Pleas in law and main arguments adduced in support:
    authorities not to be a necessary precondition for the
    remission of duties. The Court of First Instance
    interprets the judgment of the Court of Justice in Case        Article 18 of the agreement with Zaire makes provision
    C-250/91 Hewlett Packard France [1993] ECR I-1819              for the two parties' intention not to be bound thereby
    too narrowly. Contrary to the finding in paragraph 137         until after completion of the formalities required under
    of the contested judgment, the Court of Justice did not        their respective laws'. Those formalities were completed
    merely hold the subjective elements of the two                 by Belgium upon adoption of the Law of 21 April 1983
    provisions to be comparable. On the contrary, the              approving the agreement, which was notified to Zaire on
    Court of Justice makes it clear in paragraph 46 of the         13 June 1983, that is to say, prior to the entry into force
 ---pagebreak--- C 258/16               EN                 Official Journal of the European Communities                                    15.8.98
of Regulation (EEC) No 4055/86. Consequently, that                   on 8 May 1998 by the Commission of the European
agreement is an existing agreement which is subject to the           Communities, represented by Frank Benyon, Legal
provisions of Articles 3 and 4 of the Regulation.                    Adviser, and Bernard Mongin, of its Legal Service, acting
                                                                     as Agents, with an address for service in Luxembourg at
                                                                     the Office of Carlos Gómez de la Cruz, Wagner Centre,
                                                                     Kirchberg.
The only exceptions to the application of freedom to
provide services introduced on 1 January 1987 by
Article 1(1) of the Regulation are those laid down in
Article 2 in relation to unilateral restrictions, which was          The Commission of the European Communities claims
introduced by way of derogation from Article 1', and in             that the Court should:
Article 4(1)(b) relating to trades not governed by the Code
of Conduct for Liner Conferences, which grants a period
of grace expiring on 1 January 1993 at the latest.
                                                                     (1) declare that, by introducing and maintaining in force
                                                                         cargo-sharing arrangements, in the agreement
                                                                         concluded with the Republic of Togo, which was
As regards trades governed by the Code of Conduct for                    approved by Belgium by the Law of 9 October 1987
Liner Conferences, which are covered by Article 4(1)(a),                 and entered into force after 1 January 1987, the
no period of grace is granted for the requisite adjustment.              Kingdom of Belgium has failed to fulfil its obligations
However, since the Code of Conduct entered into force on                 under Article 5 of Council Regulation (EEC) No 4055/
6 October 1983 for Zaire but not until 30 March 1988                     86 of 22 December 1986 applying the principle of
for Belgium, the provisions of Article 4(1)(a) could not                 freedom to provide services to maritime transport
have applied to that agreement before 30 March 1988 and                  between Member States and between Member States
the adjustment should therefore have been completed by                   and third countries (1);
that date as regards trades governed by the Code.
Consequently, whether trades are governed by
Article 4(1)(a) or by Article 4(1)(b), the time-limit for            (2) order the Kingdom of Belgium to pay the costs.
adjustment of the cargo-sharing provisions expired long
ago.
                                                                     Pleas in law and main arguments adduced in support:
The Kingdom of Belgium is therefore wrong in
maintaining that the time-limits for adjusting the cargo-
sharing arrangements in respect of trades governed by the            The agreement concluded with Togo on 19 October 1984,
United Nations Code of Conduct for Liner Conferences                 which was approved by Belgium on 9 October 1987 and
have not expired and that the date on which Belgium                  entered into force on 19 October 1987, is not an existing'
signed the Code of Conduct did not constitute the                    agreement within the meaning of Article 3 of Regulation
deadline for adjusting the arrangement. The Commission               (EEC) No 4055/86. Contrary to the assertion of the
observes that, in any event, no adjustment has been made             Kingdom of Belgium, it is a future' agremeent prohibited
11 years after the entry into force of the Regulation and            by Article 5 of that Regulation.
5 years after expiry of the final deadline for adjustment
laid down by that Regulation.
                                                                     The agreement provides in Article 21 that it is to enter
                                                                     into force as soon as each of the contracting parties has
( ) Bilateral maritime agreement concluded between Belgium and
 1
    Zaire.                                                           notified the other, through diplomatic channels, of the
(2) OJ L 378 of 31.12.1986, p. 1.                                    completion of the requisite constitutional procedures'. It
                                                                     therefore provides that the parties are to express their
                                                                     willingness to be bound by its terms only by means of a
                                                                     subsequent approval or ratification procedure. In those
                                                                     circumstances, the signature of the agreement in 1984
                                                                     constituted no more than an authentication of the texts
                                                                     (see Article 10(b) of the Vienna Convention) and did not
                                                                     in any way signify Belgium's willingness to be bound by
                                                                     the agreement. No such obligation was entered into by
Action brought on 8 May 1998 by the Commission of the
                                                                     Belgium in accordance with the agreement until
  European Communities against the Kingdom of Belgium
                                                                     19 October 1987, when approval of the agreement by
                        (Case C-171/98)                              means of the Belgian Law approving the agreement' of
                                                                     19 October 1984 was notified, that is to say, well after the
                          (98/C 258/28)                              regulation entered into force. Until that date, Belgium was
                                                                     free, particularly in the light of the new obligations
                                                                     imposed on it by Regulation (EEC) No 4055/86, to refrain
                                                                     from consenting to be bound, vis-aÁ-vis Togo, by
An action against the Kingdom of Belgium was brought                 obligations concerning cargo-sharing arrangements which
before the Court of Justice of the European Communities              were not in accordance with the Regulation.