CELEX: C1999/226/36
Language: en
Date: 1999-08-07 00:00:00
Title: Case C-213/99: Reference for a preliminary ruling by the Tribunal Fiscal Aduaneiro do Porto by order of that court of 11 May 1999, in the case of José Teodoro de Andrade and the Director da Alfândega de Leixões

C 226/22                 EN                     Official Journal of the European Communities                                       7.8.1999
The applicant claims that the Court should:                                Question 2
— Declare that, in view of the administrative and contractual              In so far as the national administrative customs procedure
     practice established by various public universities, which            provides, as the only measure (applied automatically, as
     entails a failure to respect the vested rights of former              indicated above) to be taken by the national customs auth-
     university language assistants who are not of Italian mother          orities, for recourse to the overdue-clearance procedure, the
     tongue, whereas such recognition is guaranteed for the                sole object of which is to ensure sale of the goods, may it not
     majority of other national workers, the Italian Republic              be regarded as a disproportionate measure infringing taxpayers’
     has failed to fulfil its obligations under Article 39 (ex Article     rights of defence and classifiable as an obstacle to the
     48) of the Treaty establishing the European Community;                free movement of goods, particularly since, being applied
                                                                           automatically, that measure may take effect forthwith, that is
— Order the Italian Republic to pay the costs.                             to say on the first day following the end of the statutory
                                                                           storage period, without the importer of the goods even being
                                                                           warned or advised?
Pleas in law and main arguments
                                                                           Question 3
It appears from the information provided by the Italian
authorities that the infringement of Article 48 of the EC Treaty           By immediately putting up the goods for ‘sale’ in the circum-
(now, after amendment, Article 39 EC), which the Commission                stances described above, does the national customs adminis-
described in detail in its letter under Article 169 (now Article           trative procedure infringe Article 6(3) of the Community
226) of 9 Jul, 1998 and in its reasoned opinion of 28 January              Customs Code?
1999, has not been cured.
In the case of six of the nine universities listed in the above            Question 4
letter and opinion, the Italian Government has failed to provide
the Commission with adequate documentary evidence to show                  Does the national customs administrative procedure, by not
that, for financial and social security purposes, the seniority            making any notification compulsory in the overdue-clearance
acquired by university foreign language assistants before the              procedure, as provided for in Article 638 et seq. of the Customs
entry into force of Law No 236/1995 has been recognised.                   Regulations, infringe Article 243 of the Community Customs
                                                                           Code?
                                                                           Question 5
                                                                           In the event that the overdue-clearance charge provided for in
                                                                           Article 638 et seq. of the Customs Regulations falls to be
                                                                           classified as a procedural administrative penalty (the view
Reference for a preliminary ruling by the Tribunal Fiscal                  taken in the national case-law), is that charge subject to VAT?
Aduaneiro do Porto by order of that court of 11 May
1999, in the case of José Teodoro de Andrade and the
               Director da Alfândega de Leixões                           Question 6
                            (Case C-213/99)                                If the hypothesis outlined in the Question 5 (that the charge
                                                                           constitutes an administrative penalty) is accepted, may the fact
                                                                           that that charge is levied on an ad valorem (objective) basis, but
                            (1999/C 226/36)                                without any reference to fault on the part of the agent or to
                                                                           charges actually borne by the customs authorities in respect of
Reference has been made to the Court of Justice of the                     measures relating to precautionary supervision, warehousing
European Communities by an order of the Tribunal Fiscal                    and other matters, be regarded as constituting an infringement
Aduaneiro do Porto (Customs Court, Oporto) of 11 May 1999,                 of the principle of proportionality?
which was received at the Court Registry on 4 June 1999, for
a preliminary ruling in the case of José Teodoro de Andrade
                                                                           Question 7
and the Director da Alfândega de Leixões, on the following
questions:
                                                                           If it were accepted, on the contrary, that the said charge is not
                                                                           in the nature of a penalty but in fact represents remuneration
                                                                           for services provided by the customs authorities, would the
Question 1                                                                 levying of VAT be justified?
Is the national administrative customs procedure, in so far as
                                                                           (1) Council Regulation (EEC No 2913/92 of 12 October 1992
it means that, automatically and without prior notice, goods                    establishing the Community Customs Code, OJ L 302 of
remaining uncleared beyond the statutory periods are to be                      19.10.1992, p. 1.
subject to the overdue-clearance procedure (sale), compatible
with Article 53 of the Customs Code (1), in particular Article
53(1)?