CELEX: C1997/295/03
Language: en
Date: 1997-09-27 00:00:00
Title: JUDGMENT OF THE COURT (Sixth Chamber) of 17 July 1997 in Case C-90/94 (reference for a preliminary ruling from the Østre Landsret): Haahr Petroleum Ltd v. Åbenrå Havn, Ålborg Havn, Horsens Havn, Kastrup Havn NKE A/S, Næstved Havn, Odense Havn, Struer Havn, Vejle Havn, also represented: Trafikministeriet (Maritime transport - Goods duty - Import surcharge)

C 295/2               I EN 1                 Official Journal of the European Communities                                      27. 9 . 97
                JUDGMENT OF THE COURT                                        of the fact that they were unable to benefit at the
                          (Fifth Chamber)                                    appropriate time from the financial advantages
                                                                             guaranteed by the Directive with the result that such
                          of 10 July 1997                                    loss must also be made good.
in Case C-373/95 (reference for a preliminary ruling from
the Pretura Circondariale, Venice): Federica Maso and                   2 . The 'onset of the employer's insolvency ', referred to in
Others, Graziano Gazzetta and Others v. Istituto                             Articles 3 (2) and 4 (2) of Directive 80/987/EEC,
Nazionale della Previdenza Sociale (INPS ), Italian                          corresponds to the date of the request that proceedings
                              Republic ( 1 )                                 to satisfy collectively the claims of creditors be
                                                                             opened, since the guarantee cannot be provided prior
(Social policy — Protection of employees in the event of                     to a decision to open such proceedings or to a finding
the insolvency of their employer — Directive 80/987/EEC                      that the business has been definitively closed down
— Liability of the guarantee institutions limited —                          where the assets are insufficient.
Liability of a Member State arising from belated
     transposition of a directive — Adequate reparation)
                                                                        3 . Articles 4 (3) and 10 of Directive 80/987 must be
                            ( 97/C 295/02 )
                                                                             interpreted as meaning that a Member State may not
                                                                             prohibit the aggregation of amounts guaranteed by the
                                                                             Directive with an allowance such as the indennita di
                  (Language of the case: Italian)
                                                                             mobilita (job-seeker's allowance), provided for in
                                                                             Articles 4 and 16 of Law No 223 of 23 July 1991 ,
                                                                             which is aimed at meeting the needs of an employee
   (Provisional translation; the definitive translation will be              who has been dismissed during the three months
           published in the European Court Reports)                          following termination of the employment relationship.
In Case C-3 73/95 : reference to the Court under Article 177            4 . The phrase 'the last three months of the contract of
of the EC Treaty from the Pretura Circondariale ( District                   employment or employment relationship ' used in
Magistrate's Court), Venice ( Italy), for a preliminary                      Article 4 (2) of Directive 80/987/EEC must be
ruling in the proceedings pending before that court                          interpreted as meaning three rolling months.
between Federica Maso and Others, Graziano Gazzetta
and Others and Istituto Nazionale della Previdenza Sociale              (') OJ C 16 , 20 . 1 . 1996 .
( INPS ), Italian Republic — on the interpretation of
Articles 2, 3 ( 2 ), 4 (2 ) and ( 3 ) and 10 of Council Directive
80/987/EEC of 20 October 1980 on the approximation of
the laws of the Member States relating to the protection
of employees in the event of the insolvency of their
employer ( OJ L 283 , 20 . 10 . 1980, p. 23 ) and of the
principle of State liability for loss or damage caused to                              JUDGMENT OF THE COURT
individuals by a breach of Community law attributable to                                          ( Sixth Chamber)
the State — the Court ( Fifth Chamber ), composed of: J. C.
Moitinho de Almeida, President of the Chamber, L. Sevon,                                           of 17 July 1997
D. A. O. Edward, P. Jann and M. Wathelet (Rapporteur),                  in Case C-90/94 (reference for a preliminary ruling from
Judges; G. Cosmas, Advocate-General; L. Hewlett,                        the Østre Landsret ): Haahr Petroleum Ltd v. Åbenrå
Administrator, for the Registrar, has given a judgment on               Havn, Ålborg Havn, Horsens Havn, Kastrup Havn NKE
 10 July 1997, in which it has ruled :                                  A/S, Næstved Havn, Odense Havn, Struer Havn, Vejle
                                                                                 Havn, also represented: Trafikministeriet (')
 1 . In making good the loss or damage sustained by                       (Maritime transport — Goods duty — Import surcharge)
      employees as a result of the belated transposition of                                           ( 97/C 295/03 )
      Council Directive 80/987/EEC of 20 October 1980 on
      the approximation of the laws of the Member States
      relating to the protection of employees in the event of                            (Language of the case: Danish)
      the insolvency of their employer, a Member State is
      entitled to apply retroactively to such employees
      belatedly adopted implementing measures, including                   (Provisional translation; the definitive translation will be
      rules against aggregation or other limitations on the                       published in the European Court Reports)
      liability of the guarantee institution, provided that the
      Directive has been properly transposed. However, it is
      for the national court to ensure that reparation of the           In Case C-90/94 : reference to the Court under Article 177
      loss or damage sustained by the beneficiaries is                  of the EC Treaty from the 0stre Landsret ( Denmark ) for a
      adequate. Retroactive and proper application in full of           preliminary ruling in the proceedings pending before that
      the measures implementing the Directive will suffice              court between Haahr Petroleum Ltd and Abenra Havn,
      for that purpose unless the beneficiaries establish the           Alborg Havn, Horsens Havn, Kastrup Havn NKE A/S,
      existence of complementary loss sustained on account              Nasstved Havn, Odense Havn, Struer Havn, Vejle Havn,
 ---pagebreak--- 27. 9 . 97              EN                 Official Journal of the European Communities                                   C 295/3
also represented: Trafikministeriet, on the interpretation of         Community ( OJ L 175 , 1 . 7. 1986, p. 1 ) and Council
Articles 9 to 13 , 84 and 95 of the EEC Treaty, the Court             Regulation ( EEC ) No 2913/92 of 12 October 1992
( Sixth Chamber ), composed of G. F. Mancini, President of            establishing the Community Customs Code ( OJ L 302,
the Chamber, J. L. Murray and P. J. G. Kapteyn                        19 . 10. 1992, p. 1 ) — the Court ( Fifth Chamber),
( Rapporteur ), Judges; F. G. Jacobs, Advocate-General ; H.           composed of: J. C. Moitinho de Almeida, President of the
von Holstein, Deputy Registrar, for the Registrar, gave a             Chamber, L. Sevon, D. A. O. Edward ( Rapporteur ), P.
judgment on 17 July 1997, in which it has ruled :                     Jann and M. Wathelet, Judges; G. Cosmas, Advocate­
                                                                      General; R. Grass, Registrar, has given a judgment on
                                                                      17 July 1997, in which it has ruled :
1 . It is contrary to Article 95 of the EEC Treaty for a
     Member State to impose a 40% import surcharge on a
     general duty levied on goods loaded, unloaded, or                1 . A communication addressed to the authorities of the
     otherwise taken on board or landed within its ports or               State of importation by the authorities of the State of
     in the deep-water approach channels to its ports where               exportation following subsequent verification of an
     goods are imported by ship from another Member                       EUR.l movement certificate, in which the latter
     State.
                                                                          merely confirm that the certificate in question was
                                                                           improperly issued and must therefore be cancelled,
                                                                           without setting out in detail the reasons justifying
2 . Application to a claim for repayment based on breach                   cancellation, must be regarded as 'results of . . .
     of Article 95 of a rule of national law under which                   verification ' within the meaning of Article 25 (3) of
     proceedings for recovery of charges unduly paid are                  Annex II to Council Decision 86/283/EEC of 30 June
     time-barred after a period of five years is not contrary              1986 on the association of the overseas countries and
     to Community law, even if the effect of that rule is to               territories with the European Economic Community.
     prevent, in whole or in part, the repayment of those                  The authorities of the State of importation are entitled
     charges.                                                              to bring an action for recovery of the uncollected
                                                                           customs duties on the basis of such a communication
(') OJ C 120, 30 . 4 . 1994 .                                             alone, without seeking to establish the true origin of
                                                                           the goods imported.
                                                                      2 . The responsibility of the exporter, as referred to in
                                                                          Article 10 (1 ) of Annex II to Decision 86/283/EEC,
                                                                          does not extend to customs duties which prove to be
               JUDGMENT OF THE COURT                                      due in respect of the importation into the European
                                                                           Community of goods which are the subject of an
                          ( Fifth Chamber)
                                                                          EUR.l movement certificate, even where the latter
                          of 17 July 1997                                 was issued on the basis of false information supplied
                                                                           by the exporter as to the origin of the goods and was
in Case C-97/95 ( reference for a preliminary ruling from                 cancelled following subsequent verification.
the Tribunal Tributário de Segunda Instância ): Pascoal &
               Filhos Lda v. Fazenda Pública (')
(Customs duties — Methods of administrative cooperation               3 . The fact of requiring an importer who has acted in
— Procedures for verifying EUR.l certificates — Post­                     good faith to pay customs duties payable on the
clearance recovery of customs duties — Person responsible                 importation of goods in respect of which the exporter
                       for the customs debt)                              has committed a customs offence, where the importer
                                                                          has played no part in that offence, is not contrary to
                            ( 97/C 295/04                                  the general principles of law which the Court is
                                                                          required to uphold.
              (Language of the case: Portuguese)
                                                                      4 . The fact that the authorities of the State of
                                                                          exportation issued an EUR.l movement certificate
  (Provisional translation; the definitive translation will be            pursuant to Decision 86/283/EEC without having
          published in the European Court Reports)                         carried out any prior check to determine the true
                                                                           origin of the goods in question does not constitute a
                                                                           case of force majeure preventing post-clearance
In Case C-97/95 : reference to the Court under Article 177                recovery of customs duties owed by an importer who
of the EC Treaty from the Tribunal Tributario de Segunda                  has acted in good faith.
Instancia ( Fiscal Court of Second Instance ) ( Portugal ) for a
preliminary ruling in the proceedings pending before that
court between Pascoal & Filhos Lda and Fazenda Publica                (') Of C 174, 8 . 7. 1995 .
— on the interpretation of Council Decision 86/283/EEC
of 30 June 1986 on the association of the overseas
countries and territories with the European Economic