CELEX: C2003/055/15
Language: en
Date: 2003-03-08 00:00:00
Title: Case C-452/02: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 29 October 2002 in the case of Hauptzollamt Bremen against ITG GmbH Internationale Spedition

C 55/8                EN                        Official Journal of the European Union                                            8.3.2003
Reference for a preliminary ruling by the Bundesfinanz-                 Action brought on 18 December 2002 by the Commission
hof by order of that Court of 29 October 2002 in the case               of the European Communities against the United
of Hauptzollamt Bremen against ITG GmbH Inter-                                                       Kingdom
                      nationale Spedition
                                                                                                 (Case C-458/02)
                        (Case C-452/02)
                                                                                                  (2003/C 55/16)
                         (2003/C 55/15)
Reference has been made to the Court of Justice of the                  An action against the United Kingdom was brought before the
European Communities by order of the Bundesfinanzhof                    Court of Justice of the European Communities on 18 December
(Federal Finance Court) of 29 October 2002, received at the             2002 by the Commission of the European Communities,
Court Registry on 12 December 2002, for a preliminary ruling            represented by K. Banks, acting as agent, with an address for
in the case of Hauptzollamt Bremen against ITG GmbH                     service in Luxembourg.
Internationale Spedition on the following questions:
1.    Is a customs debt on importation incurred under                   The applicant claims that the Court should:
      Article 203(1) of Regulation (EEC) No 2913/92 ( 1) where,
      contrary to instructions, goods in temporary storage are
      not presented to the original customs authority but to            —     declare that in providing for an exception to the right to
      another customs authority without having been placed                    equitable remuneration for performers and phonogram
      under the Community transit procedure required for their                producers where a phonogram published for commercial
      movement?                                                               purposes, or a reproduction of such phonogram, is used
                                                                              for any communication to the public (the exception
                                                                              concerning any communication to a non-paying audi-
2.    If Question 1 should be answered in the negative: In the                ence), the United Kingdom has failed to implement
      circumstances described in Question 1 is there a non-                   correctly Article 8(2) of Council Directive 92/100/EEC (1)
      fulfilment of an obligation that could result in the                    on rental right and lending right and on certain rights
      incurrence of a customs debt on importation under                       related to copyright in the field of intellectual property;
      Article 204(1)(a) of Regulation (EEC) No 2913/92?
                                                                        —     order the United Kingdom to pay the costs of this action.
3.    If Question 2 should be answered in the affirmative:
      (a)   Should Article 859, point 5, of Regulation (EEC)
            No 2454/93 (2) be interpreted as referring only to
            an unauthorised movement of goods that could                Pleas in law and main arguments
            have been authorised by the customs office, or does
            it mean any movement of goods at all?
      (b) Should Article 859, point 5, of Regulation (EEC)              The only permissible exceptions to both the producers’ and
            No 2454/93 be interpreted as meaning that the               performers’ right to obtain equitable remuneration under
            condition laid down in that provision, that the             Article 8 of Directive 92/100/EEC are provided for by
            goods in temporary storage can be presented to the          Article 10 of the directive. In the present context, the United
            customs authorities at their request, is fulfilled only     Kingdom can only rely upon limitations allowed under
            if the goods are presented again to the customs             Article 10(2) because the exceptions provided for under
            office where they were originally presented, or is the      paragraph 1 of the said provision are not pertinent.
            condition fulfilled even if the goods are presented
            again to another customs office in the same town
            which comes under the organisation of a different
                                                                        As to the application of the limitations allowed under
            customs authority?
                                                                        Article 10(2), it must be borne in mind that, pursuant to this
                                                                        provision, Member States may only provide for limitations
                                                                        with regard to the protection of performers to the extent that
( 1) OJ L 302, p. 1.                                                    they may lawfully do in connection with the protection of
( 2) OJ L 253, p. 1.                                                    copyright in literary and artistic works. It follows, however,
                                                                        from Article 11 bis (2) of the Berne Convention that domestic
                                                                        legislation shall not in any circumstances be prejudicial to the
                                                                        author’s right to obtain equitable remuneration.