CELEX: C1999/086/16
Language: en
Date: 1999-03-27 00:00:00
Title: Reference for a preliminary ruling by the Supremo Tribunal Administrativo, Second Chamber, by judgment of that Court of 9 December 1998, in the case of Modelo Continente, SGPS, SA and Fazenda Pública (Case C-19/99)

C 86/8                EN                  Official Journal of the European Communities                                   27.3.1999
at the Court Registry on 20 January 1999, for a                      with an address for service in Luxembourg at the Office of
preliminary ruling in the case of Hans Sommer GmbH &                 Carlos Gómez de la Cruz, of its Legal Service, Wagner
Co v. Hauptzollamt Bremen on the following questions:                Centre, Kirchberg.
1. Are expenses' or handling costs' relating to honey
     imported from the USSR from 1989 to 1991 charged                The Commission claims that the Court sholud:
     by the German import company to the purchaser
     pursuant to separate contractual arrangements part of
     the transaction value under Article 3(1) of Council             Ð order the defendant to refund to the Commission all
     Regulation (EEC) No 1224/80 of 28 May 1988 on the                   the financing which it has received from the
     valuation of goods for customs purposes (OJ L 134,                  Community, namely to pay the entire amount of the
     31.8.1980, p. 1), as ameded by Regulation (EEC)                     debt of ECU (now EUR) 350 641,99 together with
     No 3193/80 (OJ L 333, 11.12.1980, p. 1), if after                   interest calculated in accordance with the provisions of
     importation the import company must take samples                    the agreement amounting, up until 31 December 1998,
     for establishing the quality of the honey in accordance             to ECU (now EUR) 49 129,18, that is to say a total
     with the German Honey Regulation and provide the                    amount of ECU (now EUR) 399 771,17, and
     results of the chemical analyses?                                   additionally interest at 2 % above the rate of the
                                                                         European Monetary Cooperation Fund in respect of
                                                                         the period from 1 January 1999 until the defendant
2. If question 1 is answered in the affirmative:                         has fully discharged its debt;
     Is Commission Decision K(95) 2325 of 28 September
     1995 null and void?                                             Ð order the defendant to pay the Commission's general
                                                                         legal costs including the fees of its authorised lawyers.
3. If question 2 is answered in the affirmative:
                                                                     Pleas in law and main arguments adduced in support:
     Must the authorities refrain from post-clearance
     recovery of duties pursuant to Article 5(2) of Council
     Regulation (EEC) No 1697/79 if, upon an external                The objects of the defendant company are the design,
     check concerning imports in an earlier period and               construction, installation, operation and supervision of
     following a check review, they raised no objection to           apparatus for the exploitation of wind energy in order to
     the fact that a global sum for expenses was not                 produce and sell electric current.
     included in the customs value in the case of similar
     purchase transactions and it is not clear that the trader
     could have been in doubt as to whether the result of            The action, which has been brought pursuant to an
     the check was right?                                            arbitration clause, seeks the refund of financial assistance
                                                                     granted by the Commission to the defendant for the
4. If question 3 is answered in the negative:                        realisation and demonstration of a pilot wind-energy
                                                                     programme under which a wind farm was to be installed
                                                                     on the south-east cost of Crete in the area of Sitia. The
     Do the circumstances set out in question 3 amount               Commission decided to terminate the contract entered into
     to special circumstances' within the meaning of                by the parties under English law, on the ground that the
     Article 13 of Council Regulation (EEC) No 1430/79               defendant had infringed its obligations.
     justifying the remission of import duties?
Action brought on 26 January 1999 by the Commission of               Reference for a preliminary ruling by the Supremo Tribu-
the European Communities against Aiolika Parka Sitias                nal Administrativo, Second Chamber, by judgment of that
                             A.E.                                    Court of 9 December 1998, in the case of Modelo Conti-
                        (Case C-18/99)                                          nente, SGPS, SA and Fazenda PuÂblica
                        (1999/C 86/15)                                                      (Case C-19/99)
                                                                                            (1999/C 86/16)
An action against Aiolika Parka Sitias A.E. was brought
before the Court of Justice of the European Communities
on 26 January 1999 by the Commission of the European                 Reference has been made to the Court of Justice of the
Communities, represented by Richard Wainwright,                      European Communities by an judgment of the Second
Principal Legal Adviser, and Olivier Couvert-CasteÂra, a             Chamber of the Supremo Tribunal Administrativo
civil servant on secondment to its Legal Service under the           (Supreme Administrative Court) of 9 December 1998,
scheme for national experts, assisted by Maria Bra, of the           which was received at the Court Registry on 28 January
Brussels Bar, and Kiriaki Kapoutzidou, of the Athens Bar,            1999, for a preliminary ruling in the case of Modelo Con-
 ---pagebreak--- 27.3.1999                EN                   Official Journal of the European Communities                                       C 86/9
tinente, SGPS, SA and Fazenda PuÂblica, on the following                 Service, acting as Agent, with an address for service in
questions:                                                               Luxembourg at the Office of Carlos Gómez de la Cruz, of
                                                                         its Legal Service, Wagner Centre, Kirchberg.
1. May Articles 10 and 12 of Council Directive
     69/335/EEC (1) be relied on by a private individual in              The applicant claims that the Court should:
     dealings with the State, even if the latter has not
     transposed that directive into national law?
                                                                         1. Declare that, by failing to adopt within the prescribed
                                                                              period the laws, regulations and administrative
2. Must the operations referred to in Article 4(3) of                         provisions necessary to comply with Council Directive
     Directive 69/335/EEC be regarded as covered by the                       90/428/EEC of 26 June 1990 on trade in equidae
     prohibition laid down in Article 10 of the same                          intended for competitions and laying down the
     Community measure, in such a way as to preclude the                      conditions for participation therein (1), the Republic of
     collection, under the directive, not only of the tax on                  Austria has failed to fulfil its obligations under the EC
     the raising of capital but also of any other levy, of                    Treaty and that directive.
     whatever kind, in particular one that is a charge rather
     than a tax?
                                                                         2. Order the defendant to pay the costs.
3. Must Articles 10 and 12(1)(e) of the same directive be
     interpreted as meaning that the fees payable to the                 Pleas in law and main arguments adduced in support:
     notary for recordal in a (legally binding) public
     instrument of resolutions increasing capital or
     amending statutes may not vary according to the
                                                                         On the basis of the mandatory provisions (3) of
     amount of the increase and the amount of the capital,
     respectively?                                                       Article 189 and of Article 5(1) of the EC Treaty, Member
                                                                         States are obliged to transpose the provisions of directives
                                                                         addressed to them into national law within the period
                                                                         prescribed.
4. May those fees Ð see Article 5 of the Schedule of
     Notarial Fees Ð be regarded as depending on the cost
     of the service provided?
                                                                         That period expired for Austria on 1 January 1995, and
                                                                         not all the Austrian Länder have adopted the necessary
                                                                         provisions.
5. What must such cost be construed as comprising?
     Does it include the salary of notaries and of officials in
     their offices, the facilities of such offices and the like?         (1) OJ L 224, 1.8.1990, p. 60.
6. Is it permitted and, consequently legal, having regard
     to Articles 10 and 12(1) of the said directive, for any
     fee to be charged in excess of that cost? And if so, to
     what extent?
                                                                         Reference for a preliminary ruling by the Pretura Circon-
(1) Council Directive 69/335/EEC concerning indirect taxes on the        dariale di Pinerolo by order of that Court of 15 January
    raising of capital (OJ English Special Edition 1969 (II), p. 412).   1999 in the case of Cristoforo Bertinetto against Biraghi
                                                                                                        SpA
                                                                                                 (Case C-22/99)
                                                                                                 (1999/C 86/18)
Action brought on 29 January 1999 by the Commission of                   Reference has been made to the Court of Justice of the
the European Communities against the Republic of                         European Communities by order of the Pretura Circonda-
                               Austria                                   riale (District Magistrate's Court) (Pinerolo) of 15 January
                          (Case C-20/99)                                 1999, received at the Court Registry on 1 February 1999,
                                                                         for a preliminary ruling in the case of Cristoforo
                          (1999/C 86/17)                                 Bertinetto against Biraghi SpA on the following question:
An action against the Republic of Austria was brought                    Does Article 3 of Council Regulation No 804/68 (1)
before the Court of Justice of the European Communities                  preclude the Italian State from regulating by statute the
on 29 January 1999 by the Commission of the European                     terms of intertrade agreements designed to fix milk prices
Communities, represented by Michael Niejahr, of its Legal                in advance in accordance with the procedures and legal