CELEX: C1995/174/06
Language: en
Date: 1995-07-08 00:00:00
Title: Action brought on 10 April 1995 by the Federal Republic of Germany against the Council of the European Union (Case C-122/95)

!. 7 . 95            I EN                   Official Journal of the European Communities                                  No C 174/3
( f) Does the levying on an importer acting in good faith of                  claims commission was entered into in that place within
        the duties payable on goods in respect of which an                    the agent's geographical area .
        exporter has committed a customs offence, in which the
        importer was in no way involved , infringe the principles
        of justice, prohibition of enrichment at the expense of
        others, proportionality, legal certainty and good
        faith ?
                                                                         Appeal brought on 31 March 1995 by the Bundesverband
(g ) Since the customs authorities in the country of                     der Bilanzbuchhalter against the judgment delivered on
        exportation neglected to carry out a prior inspection of         23 January 1995 by the Fourth Chamber of the Court of
        the exporter 's warehouses before issuing the-movement           First Instance of the European Communities in Case
        certificates EUR.l , and since the Portuguese importer           T-84/94 between the Bundesverband der Bilanzbuchhalter
        cannot remedy the situation arising from such                        and the Commission of the European Communities
        negligence , does that situation not constitute a case of                              ( Case C-107/95 P )
        force majeure for the importer, precluding the
                                                                                                     95 /C 174/05 )
        procedure for post-clearance recovery commenced
        against it ?
                                                                         An appeal against the judgment delivered on 23 January
(') OJ No L 175 , 1 . 7. 1986 , p . 1 .
                                                                         1995 by the Fourth Chamber of the Court of First Instance
( 2 ) OJ No L .302 , 19 . 10 . 1992 , p . 1 .                            of the European Communities in Case T-84/94 between the
(') 1 1993 | ECR , p . 1-6381 .                                          Bundesverband der Bilanzbuchhalter and the Commission
                                                                         of the European Communities was brought before the
                                                                         Court of Justice of the European Communities on 3 1 March
                                                                         1995 by the Bundesverband der Bilanzbuchhalter,
                                                                         represented by Joachim A. Miiller, Rechtsanwalt, Munich,
                                                                         with an address for service in Luxembourg at the Chambers
                                                                         of Arsene Kronshagen, 12 Boulevard de la Foire .
Reference for a preliminary ruling from the Polimeles
Protodikio , Athens , by judgment of that court of                       The appellant claims that the Court should :
30 November 1994 in the case of Georgios Kontogeorgas v.
                            Kartonpak AE                                 set aside the judgment of the Court of First Instance of
                          ( Case C-104/95 )                              23 January 1995 in Case T-84/94 (').
                            ( 95 /C 174/04 )
                                                                         Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the                   Infringement of the provisions of the EC Treaty , in
European Communities by a judgment of the Polimeles                      particular Articles 5 , 59 , 86 and 90 ( 1 ) and ( 3 ), and
Protodikio ( Court of First Instance , several judges ), Athens ,        misinterpretation of Articles 155 and 169 of the EC Treaty .
of 30 November 1994 , which was received at the Court
                                                                         Contrary to the assumption made in the contested
Registry on 31 March 1995 , for a preliminary ruling in the              judgment, an action against a refusal to bring proceedings
case of Georgios Kontogeorgas v. Kartonpak AE pending                    under Article 1 69 or Article 90 ( 3 ) of the EC Treaty must in
before it on the following questions :                                   any event be admissible where it is pleaded that the refusal is
                                                                         based on a defective investigation into the facts or the
 1 . Where the commercial agent is responsible for a specific            assessment by the Commission in the case in point is reduced
      geographical area , is he entitled to commission on                to naught.
       transactions entered into without his involvement at any
       stage and irrespective of whether he himself had found            (') OJ No C 74 , 25 . 3 . 1995 , p . 11 .
       the customers in question, or is he so entitled only on
       transactions concluded in his area of activity as a result
       of his intervention with customers which he himself has
       found ?
2 . What is the meaning to be attached to the term                       Action brought on 10 April 1995 by the Federal Republic of
       'customer belonging ' to that area ? In particular where             Germany against the Council of the European Union
       the customer is a company whose seat is located in a                                       ( Case C-122/95 )
       different place from that in which its managerial and
                                                                                                    ( 95 /C 174/06 )
       commercial activity is carried on , does the word
       ' belonging' refer to the company's seat or to the place in
       which its commercial activity is actually carried on              An action against the Council of the European Union was
       and/or its works or other establishments are located ,            brought before the Court of Justice of the European
       where the transaction in respect of which commission is           Communities on 10 April 1995 by the Federal Republic of
       sought was to supply those works or establishments and            Germany, represented by Ernst Roder and Berndt Kloke,
       the relevant transaction in respect of which the agent            Federal Ministry of Economics, Bonn.
 ---pagebreak--- No C 174/4            EN                     Official Journal of the European Communities                                            8 . 7 . 95
The applicant claims that the Court should :                                 1 . release of the funds is sought to pay a national of
                                                                                   Member State B for goods exported by him from
1 . declare void the first indent of Article 1 ( 1 ) of Council                    Member State B to Serbia or Montenegro;
     Decision   94/ 800/EC        of 22     December     1994   in
     connection with Paragraph 1 of the Marrakesh Protocol                   2 . ( a ) the goods have been formally approved as
     and Article 4 ( 1 ) of the Agreement on Agriculture in                              intended strictly for medical purposes by the
     Annex 1A to the Agreement Establishing the World                                    United Nations Sanctions Committee pursuant
     Trade Organization ( WTO ), in so far as the Council has                            to UN Security Council Resolution 757;
     thereby confirmed the conclusion of the Community's                           ( b ) they have been exported pursuant to a prior
     Framework Agreement on Bananas with Costa Rica,                                     export authorization issued by the competent
     Colombia , Nicaragua and Venezuela ;                                                authorities of Member State B pursuant to
                                                                                         Regulation ( EEC ) No 1432/92 ;
2 . order the Council to pay the costs .
                                                                             3 . the national measures permit the release of funds in
Pleas in law and main arguments adduced in support:                                payment for the export of such goods from Member
                                                                                   State A itself where the export authorization
                                                                                   referred to at paragraph 2 ( b ) has been issued by the
Infringement of Community law of a higher order : The                              competent authorities of Member State A; and
Framework Agreement approved by the Council infringes
the fundamental rights of market operators in Groups A and                   4 . Member State A has decided that the adoption of
C ( within the meaning of Council Regulation ( EEC )                               such national measures is necessary or expedient for
No 404/93 ) to the freedom to pursue an occupation, to                             enabling UN Security Council Resolution 757 to be
equal treatment and to property ( in the business established                      effectively applied ?
and carried on by them ). The Framework Agreement leads
to the purchase of third-country bananas being made more                2 . Is the answer to question 1 affected by the provisions of
difficult than hitherto under Regulation ( EEC ) No 404/93 ,                 Article 234 of the EC Treaty ?
because a part of the tariff quota may henceforth be derived
only from certain countries, and those countries are                    (') OJ No L 151 , 3 . 6 . 1992 , p . 4 .
additionally authorized to issue export licences the
production of which is a precondition for the issuing of
import licences by the Community to operators of Groups A
and C. There are no obvious technical reasons to justify the
consequent further worsening in the position of traditional             Reference for a preliminary ruling by the Court of Appeal in
importers of third-country bananas .                                    Northern Ireland , by order of that court of 27 March 1995 ,
                                                                        in the case of Norbrook Laboratories Ltd against the
                                                                                   Ministry of Agriculture , Fisheries and Food
                                                                                                    ( Case C-127/95 )
                                                                                                      ( 95/C 174/08 )
                                                                        Reference has been made to the Court of Justice of the
 Reference for a preliminary ruling by the Court of Appeal,
                                                                        European Communities by an order of the Court of Appeal
 London, by order of that court of 27 May 1994 , in the case            in Northern Ireland of 27 March 1995 , which was received
 of The Queen against HM Treasury and the Bank of                       at the Court Registry on 18 April 1995 , for a preliminary
              England , ex parte: Centro-Com srl                        ruling in the case of Norbrook Laboratories Ltd against the
                         ( Case C-124/95 )                              Ministry of Agriculture , Fisheries and Food , on the
                            ( 95/C 174/07 )                              following questions :
                                                                         1 . Are Council Directive 81 /851 /EEC of 28 September
 Reference has been made to the Court of Justice of the                       1981 on the approximation of the laws of the Member
 European Communities by an order of the Court of Appeal,                     States relating to veterinary medicinal products (') and
 London, of 27 May 1994, which was received at the Court                      Council Directive 8 1/852/EEC of 28 September 1981 on
 Registry on 11 April 1995 , for a preliminary ruling in the                  the approximation of the laws of the Member States
 case of The Queen against HM Treasury and the Bank of                        relating to analytical , pharmaco-toxicological and
 England, ex parte -. Centro-Com srl , on the following                       clinical standards and protocols in respect of the testing
 questions :                                                                  of veterinary medicinal products ( 2 ) ( and in particular
                                                                              Articles 5 , 8 , 9 , 11 , 29 to 31 , 35 , 40 and 41 of Directive
 1 . Is it compatible with the common commercial policy of                    81 / 851 /EEC and Part 1 of the Annex to Directive
      the Community and , in particular, Article 1 1 3 of the EC              8 1 /852/EEC in the form in which they existed prior to
      Treaty and Council Regulation ( EEC ) No 1432/92 of                     any amendment ) to be interpeted as permitting the
      1 June 1992 prohibiting trade between the European                      competent        authority      of    a    Member     State ,    in
      Economic Community and the Republics of Serbia and                      circumstances such as those hereinbefore described :
      Montenegro (') for Member State A to adopt national
      measures which prohibit the release of funds located in                 ( a ) to require an applicant for a marketing
      Member State A but belonging to a person in Serbia or                           authorization in respect of a veterinary medicinal
      Montenegro in circumstances where :                                             product ('the Product') to identify or to arrange to