CELEX: C1995/299/16
Language: en
Date: 1995-11-11 00:00:00
Title: Reference for a preliminary ruling by the Court of Appeal (England), by order of that court of 31 July 1995, in the case of The Queen against Commissioners of Customs and Excise, ex-parte: EMU Tabac Sarl, The Man in Black Ltd and John Anthony Cunningham, Intervener: Imperial Tobacco Ltd (Case C-296/95)

No C 299/ 10          EN                Official Journal of the European Communities                                      11 . 11 . 95
The appellant claims that the Court should :                       Notwithstanding the fact that the Court of First Instance
                                                                   recognized that the border dispute in question created a
— declare the appeal admissible ,                                  situation of uncertainty and that the Commission ought to
                                                                   have informed and was in a position to inform the operators
— set aside the jugdment of the Court of First Instance            in question of the dangers involved in fishing in the disputed
     appealed against,                                             waters , it misdirected itself in holding that the principles of
                                                                   legal certainty and the protection of legitimate expectations
— declare admissible the action brought at first instance          had not been infringed .
     and hold the respondents liable under the second
     paragraph of Article 215 of the EC Treaty ,                   VI .    Procedural and substantive defects in the Court of First
                                                                   Instance judgment appealed against as regards performance
— hold the respondents liable for restitution and order            of the Commission 's duty to provide diplomatic
     them to pay compensation in the amount of                     protection
     Dr 102 446,183 , together with interest as from the date
     of lodgement of the action with the Court of First            In the context of the urgent consultations provided for the
     Instance at the rate of 24 % per annum ,                      Commission ought to have sought the immediate creation of
                                                                   a special committee , ought to have required the immediate
— order the respondents to pay the whole of the legal costs ,      lifting of the unlawful arrest of the appellant's boat, and
     including the lawyers ' fees .                                should have submitted a request for the provision of a bank
                                                                   guarantee . Owing to the failure to order the production of
                                                                   proof,          the   Court of First Instance arrived
Pleas in law and main arguments adduced in support:                at the erroneous and unjustified assessment that the
                                                                   Commission had not infringed its duty to provide
I. Infringement of the general procedural principle that the       diplomatic protection for the appellant .
party making allegations and raising objections must bear
the burden of proof
Although it ought to have ordered the production of proof
in the presence of doubts, the Court of First Instance
accepted the respondents' objection , placed on the appellant      Reference for a preliminary ruling by the Court of Appeal
the burden of proving the Commission 's allegation ,               ( England ), by order of that court of 31 July 1995 , in the case
subsequently considering the appellant's negative reply to its     of The Queen against Commissioners of Customs and
questions to be erroneous and the Commission 's allegation         Excise , ex-parte: EMU Tabac Sari , The Man in Black Ltd
relevant to the outcome of the case to be proven, thereby          and John Anthony Cunningham , Intervener: Imperial
infringing the procedural principle of actore non probante                                       Tobacco Ltd
reus absolvitur, and providing grounds of appeal against the
contested decision .
                                                                                              ( Case C-296/95 )
                                                                                                ( 95 /C 299/ 16 )
II . Severe legal defects in the judgment
                                                                   Reference has been made to the Court of Justice of the
                                                                   European Communities by an order of the Court of Appeal
By relying on hypothetical and doubtful grounds , the              ( England ) of 31 July 1995 , which was received at the Court
judgment of the Court of First Instance does not carry             Registry on 18 September 1995 , for a preliminary ruling in
conviction from a judicial point of view .
                                                                   the case of The Queen against Commissioners of Customs
                                                                   and Excise, ex-parte : EMU Tabac Sari , The Man in Black
III . Inadequate statement of reasons on which the                 Ltd and John Anthony Cunningham , Intervener: Imperial
judgment is based                                                  Tobacco Ltd, on the following questions :
The conjectured factual circumstances and the unclear               1 . Does Directive 92/ 12/EEC ( 1 ) and in particular Article 8
formulation of the reasoning provide grounds for appeal                 have the effect of precluding the charging of excise duty
against the judgment.                                                   on goods in Member State A in circumstances where :
IV . Erroneous assessment of the appellant's allegations at                 ( i ) the goods were acquired for the use of a private
                                                                                  individual in Member State A ;
first instance
                                                                          ( ii ) they were acquired in Member State B by an agent
The appellant alleges that the respondent Commission did                          acting on behalf of that private individual ;
not adopt the requisite protective measures based on the
principles of diligence and effective management and not                ( iii ) transportation of the goods from Member State B
that it did not take a position on the border dispute in                          to Member State A was arranged by the agent;
question .                                                                        and
V. Contradictions in the reasoning of the judgment                      ( iv ) the individual did not himself travel with the goods
appealed against                                                                  from Member State B to Member State A ?
 ---pagebreak--- 11 . 11 . 95                EN                  Official Journal of the European Communities                                     No C 299/ 11
2 . Where a scheme has been commercially devised and                                 has found that, in the criminal proceedings, the
      marketed whereunder purchases made in Member                                   national court was in breach of the procedural
      State B for the personal use of a private individual in                        safeguards       enshrined     in   Article  6  of  the
      Member State A are made by an agent for that                                   Convention ?
      individual and those purchases are transported from
      Member State B to Member State A as a result of                           4. Is the legal entity against which proceedings have
      arrangements made by such an agent, does Directive                             been brought for State liability entitled to plead
      92/ 12/EEC have the effect of precluding the charging of                       that the punishment would have been on no
     excise duty on those purchases in Member State A ?                              different a scale if the violation of Article 6 of the
                                                                                     Convention found by the Court of Human Rights
(') Council Directive 92/ 12/EEC of 25 February 1992 on the                          had not occurred , although the Austrian law of
    general arrangements for products subject to excise duty and on                  criminal procedure — to date — does not provide
    the holding, movement and monitoring of such products                            in such cases for proceedings for the revision of a
    ( OJ No L 76 , 23 . 3 . 1992 , p. 1 ).                                           judgment or other amending proceedings by means
                                                                                     of which the procedural error could have been
                                                                                     remedied ?
Reference for a preliminary ruling from the Oberster                            5 . Does the burden of proving the causal connection
                                                                                     between     the      violation   of Article   6  of the
Gerichtshof by order of that court of 29 August 1995 in the
case of Dr Friedrich Wilhelm Kremzow, intervener: Dr                                 Convention and the deprivation of the plaintiff's
           Wilfried Ludwig Weh, v. Republic of Austria                               liberty fall on the plaintiff or does the burden of
                                                                                     proof in respect of this defect fall on the defendant
                             ( Case C-299/95 )                                       legal entity ?'
                               ( 95/C 299/ 17 )
Reference has been made to the Court of Justice of the
European Communities by an order of the Oberster
Gerichtshof ( Austrian Supreme Court ) of 29 August 1995 ,                 Action brought on 20 September 1995 by Commission of
which was received at the Court Registry on 18 September                   the European Communities against the Federal Republic of
1995 , for a preliminary ruling in the case of Dr. Friedrich                                               Germany
Wilhelm Kremzow, intervener : Dr Wilfried Ludwig Weh, v.                                            ( Case C-301 /95 )
Republic of Austria , on the following questions :                                                     ( 95/C 299/ 18 )
A. ' Are all or at least the substantive-law provisions of the             An action against the Federal Republic of Germany was
      European Convention for the Protection of Human                      brought before the Court of Justice of the European
       Rights and Fundamental Freedoms ( the Convention ) —                Communities on 20 September 1995 by the Commission of
      including the provisions of Articles 5 , 6 and 53 of the             the European Communities , represented by Dr Gotz zur
       Convention which are relevant to the proceedings                    Hausen , Legal Adviser, acting as Agent, with an address for
       before the Oberster Gerichtshof — part of Community                 service in Luxembourg at the office of Carlos Gomez de la
       law ( Article 164 of the EC Treaty ), with the result that          Cruz, of the Commission 's legal Service , Wagner Centre
      the Court of Justice of the European Communities may                 C 254 , Kirchberg .
      give a preliminary ruling on their interpretation
       pursuant to the first paragraph of Article 1 77 of the EC           The applicant claims that the Court should :
      Treaty ?'
                                                                           1 . declare that, by
B. The following further questions are referred to the
       Court of Justice of the European Communities for a                      — failing to adopt the measures necessary to comply
       preliminary ruling only in the event that Question A is                     with Council Directive 85/337/EEC of 27 June 1985
       answered in the affirmative — at least as regards                           on the assessment of certain public and private
       Articles 5 and 6 of the Convention :                                        projects on the environment (') within the
                                                                                   prescribed period ,
       ' 1 . Are national courts bound by judgments of the
                                                                               — failing to communicate to the Commission all the
             European Court of Human Rights finding
             violations of the Convention at least in so far as                    measures which it has taken in order to comply with
                                                                                   the Directive,
             they may not take the view that the conduct of State
             institutions to which the finding of a violation                  — failing to provide for an environmental impact
             relates was in accordance with the Convention ?                       assessment to be carried out for all projects in respect
                                                                                   of which such an assessment is to be carried out
         2 . Are claims for compensation for damage based on                       under the Directive and for which the development
             Article 5 ( 5 ) of the Convention precluded where the                 consent procedure was commenced after 3 July
             damage is derived from a decision of the Oberster                      1988 ,
             Gerichtshof ?
                                                                               — failing to provide that all the projects set out in
         3 . Is detention within the meaning of Article 5 ( 1 ) ( a )              Annex II to the Directive must be examined in order
             of the Convention contrary to the Convention ex                       to determine whether they are likely to have
             tunc where the European Court of Human Rights                         significant effects on the environment,