CELEX: C2002/084/51
Language: en
Date: 2002-04-06 00:00:00
Title: Order of the Court (Second Chamber) 3 December 2001 in Case C-59/00 (Reference for a preliminary ruling from the Vestre Landsret): Bent Mousten Vestergaard v Spøttrup Boligselskab (Article 104(3) of the Rules of Procedure — Public works contracts — Contracts with a value below the threshold values laid down in Directive 93/37/EEC — Clause requiring the use of a product of a specified make, without any possibility of using a similar product — Free movement of goods)

6.4.2002                 EN                         Official Journal of the European Communities                                             C 84/31
Portugal on 1 March 1986 (OJ 1986 57, p. 21) — the Court                             —     the person liable has complied with all of the provisions
(First Chamber), composed of: P. Jann (Rapporteur), President                              laid down by the rules in force as far as concerns the
of the Chamber, L. Sevón and M. Wathelet, Judges; A. Tizzano,                             declaration of the event to which the collection of the levy
Advocate General; R. Grass, Registrar, has made an order on                                in question relates.
11 October 2001, in which it has ruled:
                                                                               (1) OJ No C 122 of 29 April 2000.
1.    Article 1(2)(c) and the second subparagraph of Article 2(1) of
      Council Regulation (EEC) No 1697/79 of 24 July 1979 on
      the post-clearance recovery of import duties or export duties                                 ORDER OF THE COURT
      which have not been required of the person liable for payment
      on goods entered for a customs procedure involving the                                            (Second Chamber)
      obligation to pay such duties must be interpreted as meaning
      that entry in the accounts of the amount originally required of
                                                                                                        3 December 2001
      the person liable for payment is an official act which precedes
      notification regarding recovery and actual recovery and which
      does not necessarily consist in entry by the customs authority in        in Case C-59/00 (Reference for a preliminary ruling
      the accounts books, or any other medium used in their stead, of          from the Vestre Landsret): Bent Mousten Vestergaard v
      the amount in question.                                                                       Spøttrup Boligselskab (1)
                                                                               (Article 104(3) of the Rules of Procedure — Public works
                                                                               contracts — Contracts with a value below the threshold
2.    Article 2(2) of Regulation No 1697/79 must be interpreted as             values laid down in Directive 93/37/EEC — Clause requiring
      meaning that, where an initial act determining the amount of             the use of a product of a specified make, without any
      levies payable is annulled and replaced by a second act which,           possibility of using a similar product — Free movement of
      without altering the basis for recovery, fixes such levies in an                                          goods)
      amount lower than that which was initially decided, the action
      for recovery must be considered to have been set in motion by                                       (2002/C 84/51)
      the initial act.
                                                                                                   (Language of the case: Danish)
                                                                               (Provisional translation; the definitive translation will be published
3.    Neither Article 254 of the Act of Accession nor the provisions of                            in the European Court Reports)
      Commission Regulation (EEC) No 3771/85 of 20 December
      1985 on stocks of agricultural products in Portugal nor of
      Commission Regulation (EEC) No 579/86 of 28 February                     In Case C-59/00: Reference to the Court under Article 234 EC
      1986 laying down detailed rules relating to stocks of products           by the Vestre Landsret (Denmark) for a preliminary ruling in
      in the sugar sector in Spain and Portugal preclude the                   the proceedings pending before that court between Bent
      Portuguese Republic from requiring of traders holding surplus            Mousten Vestergaard and Spøttrup Boligselskab, on the
      stocks of sugar which they should have been able to export               interpretation of Articles 6 and 30 of the EC Treaty (now, after
      within the period prescribed for that purpose to pay the levy            amendment, Articles 12 EC and 28 EC), the Court (Second
      provided for by Article 7(1) of Regulation No 579/86.                    Chamber) composed of: N. Colneric, President of the Chamber,
                                                                               R. Schintgen and V. Skouris (Rapporteur), Judges, Advocate
                                                                               General: P. Léger, Registrar: R. Grass, after informing the
                                                                               referring court of its intention to give its decision by reasoned
4.    The customs authorities of a Member State must refrain from              order in accordance with Article 104(3) of the Rules of
      carrying out post-clearance recovery of duties pursuant to               Procedure, after inviting the parties referred to in Article 20 of
      Article 5(2) of Regulation No 1697/79 where:                             the EC Statute of the Court of Justice to submit observations,
                                                                               has made an order on 3 December 2001, in which it has ruled:
                                                                               Article 30 of the EC Treaty (now, after amendment, Article 28 EC)
      —      the duties have not been collected on account of an error         precludes a contracting authority from including in the contract
             of interpretation or application of the provisions on the         documents for a public works contract which does not exceed the
             levy in question in so far as it is the consequence of acts of    threshold laid down in Council Directive 93/37/EEC of 14 June
             the competent authorities, which excludes errors caused by        1993 concerning the coordination of procedures for the award of
             incorrect declarations by the person liable                       public works contracts a clause requiring the use in carrying out the
                                                                               contract of a product of a specified make, where that clause does not
                                                                               include the words ‘or equivalent’.
      —      the person liable acting in good faith could not reasonably       (1) OJ C 122 of 29.4.2000.
             have detected that error, despite his professional experience
             and the diligence shown by him