CELEX: C2000/211/15
Language: en
Date: 2000-07-22 00:00:00
Title: Case C-179/00: Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 17 April 2000 in the case of Dr Gerald Weidacher, Rechtsanwalt, as trustee in bankruptcy of Thakis Vertriebs- und HandelsgesmbH v Federal Minister for Agriculture and Forestry

22.7.2000             EN                     Official Journal of the European Communities                                         C 211/9
     and Guarantee Fund, in so far as it excludes from                  2. Does the fundamental right to protect disposals or the
     Community funding certain amounts relating to the cereal              principle of proportionality preclude the application of
     sector, and                                                           Article 4 of Regulation (EC) No 3108/94 to surplus stocks
                                                                           which were attributable to disposals (purchases or resales)
                                                                           made
— Order the Commission to pay the costs.
                                                                           (A) before the date on which that regulation was published,
Pleas in law and main arguments                                                 or
The Italian Government claims that the Commission’s decision               (B) before the time at which the circles concerned had to
is unlawful in so far as it proposes a financial correction for                 be notified that levies on surpluses were planned?
the purposes of the clearance of the EAGGF accounts in
respect of the amounts set out in the application, or, in the
alternative, in so far as concerns the final settlement of the             If so, is that regulation wholly or partially void because it
invoices for sale of cereal into intervention, in so far as it does        infringes those fundamental rights, or is it to be interpreted
not accept LIT 11 952 457 079 claimed by the Italian State.                as meaning that no levy is payable in such cases?
                                                                        3. (A) Is the vendor of goods which it had already resold
(1) OJ 2000 L 61, p. 15.                                                        prior to 1 January 1995, but without physically hand-
(2) OJ 1999 L 61, p. 37.
                                                                                ing them over to the customer, to be regarded as the
                                                                                ‘holder’ of those goods on 1 January 1995 where
                                                                                I.  the goods and the proceeds therefrom were pledged
                                                                                    to a bank, and pursuant to the pledging agreement:
                                                                                    (a) that bank held, as at 1 January 1995, the keys
                                                                                         to the proportion of the goods stored in a
                                                                                         pledge warehouse, or
Reference for a preliminary ruling by the Verwaltungsge-
richtshof by order of that court of 17 April 2000 in the
case of Dr Gerald Weidacher, Rechtsanwalt, as trustee in                            (b) the transport documents, in particular the
bankruptcy of Thakis Vertriebs- und HandelsgesmbH                                        multimodal bill of lading relating to the remain-
       v Federal Minister for Agriculture and Forestry                                   ing proportion of the goods which, having
                                                                                         cleared customs, were situated in railway trucks
                                                                                         at an Austrian railway station on 1 January
                         (Case C-179/00)                                                 1995, are made out to the order of that bank
                                                                                         and are in its possession, and
                         (2000/C 211/15)                                            (c) that bank had a 20 % interest in the proceeds
                                                                                         of the sales transaction concluded by the
                                                                                         pledgor,
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichts-
hof (Higher Administrative Court) of 17 April 2000, received                    and, furthermore, where
at the Court Registry on 12 May 2000, for a preliminary ruling
in the case of Dr Gerald Weidacher, as trustee in bankruptcy
of Thakis Vertriebs- und HandelsgesmbH v Federal Minister                       II. (a) the import charges were paid by the pledgor,
for Agriculture and Forestry, on the following questions:
                                                                                    (b) the purchase money due to the pledgor was
1. Does the levying of tax on surplus stocks in the new                                  subsequently paid into the account which he
     Member States as from 1 January 1995, as provided for in                            held with that bank but which he was unable
     Article 4 of Commission Regulation (EC) No 3108/94 of                               to use on account of the pledging agreement?
     19 December 1994 (1), constitute a transitional measure
     necessary to facilitate the transition from the existing
     regime in the new Member States to that resulting from                (B) Is the pledgor of the goods not the holder thereof if,
     application of the common organisation of the markets                      on 1 January 1995, he already intended to hold them
     under the conditions set out in Title IV: Agriculture of the               for his customer subject to the restrictions arising
     Act of Accession, within the meaning of Article 149(1) of                  under the pledge agreement? In that connection, does
     that Act, or is that regulation wholly or partially void                   the matter turn on whether or not that intention
     because of the Commission’s lack of competence?                            became outwardly apparent?
 ---pagebreak--- C 211/10                 EN                   Official Journal of the European Communities                                        22.7.2000
     (C) In a situation such as that described in (A) or (B), is the     The applicant claims that the Court should:
         pledgee, the pledgor’s customer, the forwarder, the
         warehouse keeper or the carrier the ‘holder’ for the            — Annul Commission Regulation (EC) No 465/2000 (1) of
         purposes of this regulation?                                        29 February 2000 introducing safeguard measures for
                                                                             imports from the overseas countries and territories of
4. In the case of Tunisian olive oil falling within CN code                  sugar sector products with EC/OCT cumulation of origin;
     1509 10, is the term ‘the import charge applicable in the
     Community of Twelve as at 31 December 1994’ within                  — Order the Commission to pay the costs of the proceedings.
     the meaning of Article 4(3) of Regulation (EC) No 3108/94
     invariably to be understood as meaning
     (A) the special levy of ECU 7,8 per 100 kilograms laid              Pleas in law and main arguments
         down in Article 1(1) of Council Regulation (EC)
         No 287/94 of 7 February 1994 or                                 — Infringement of Article 109(1) of OCT Decision
                                                                             91/482/EEC of 25 July 1991 on the association of the
     (B) the levy of ECU 79 minus ECU 12,69, that is to say,                 overseas countries and territories with the European Econ-
         ECU 66,31 per 100 kilograms, as provided for in                     omic Community (2), as last amended by Decision
         Annex I to Commission Regulation (EC) No 3307/94                    2000/169/EC (3). The Commission has manifestly miscon-
                                                                             strued the facts, in particular so far as concerns the amounts
     or                                                                      of OCT sugar products imported into the Community,
                                                                             the situation on the Community sugar market and the
     (C) does the answer to this question turn on whether the                consequences for Community market participants. The
         importation of Tunisian olive oil within the quota laid             grounds on which Article 109(1) of the OCT Decision
         down in Article 1(2) of Regulation (EC) No 287/94 was               makes application of the power to introduce safeguard
         still possible in the Member States of the Community of             measures dependent are not present here. The Commission
         Twelve without any difficulty even at the end of 1994               consequently erred in concluding that the importation of
         or                                                                  OCT sugar could lead to a serious deterioration in the
                                                                             sugar sector and that safeguard measures were justified
     (D) is the rate of duty to be determined in each case on the            under Article 109(1) of the OCT Decision;
         basis of whether, if importation into an EC Member
         State had been planned, the taxable person would have           — Infringement of Article 109(2) of the OCT Decision:
         been able to acquire a (preferential) quota at the time
         when the transaction was concluded?                                 — The contested safeguard measure fails to take account
                                                                                  of the preferential position enjoyed by the OCT vis-à-
5. If Article 4 of Commission Regulation (EC) 3108/94 is                          vis the ACP States and non-member countries;
     understood as having the meaning set out at 4(b), would
     it be void because it infringed the principle of equal
                                                                             — In view of the far-reaching consequences which the
     treatment?
                                                                                  safeguard measures have for the Netherlands Antilles,
                                                                                  Aruba and the undertakings concerned, the Nether-
(1) OJ 1994 L 328, p. 42.                                                         lands take the view that the safeguard measures under
                                                                                  challenge are disproportionate, or at any rate that the
                                                                                  Commission, contrary to the obligation imposed on it,
                                                                                  failed to take those consequences into account when
                                                                                  reaching its decision;
                                                                             — In so far as safeguard measures are necessary, less
                                                                                  restrictive safeguard measures are possible, in particular
Action brought on 12 May 2000 by the Kingdom of the                               the provision of a minimum selling price;
Netherlands against the Commission of the European
                            Communities                                      — Article 3(3) of Regulation No 2553/97 in conjunction
                                                                                  with Article 2(2) of Regulation No 465/2000 infringes
                           (Case C-180/00)                                        the principle of proportionality set out in
                                                                                  Article 109(2) of the OCT Decision, since the amount
                                                                                  of security bears no relation to the amount of security
                          (2000/C 211/16)                                         for imports of sugar from ACP States and from non-
                                                                                  member countries;
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European             — Misuse of powers: after the Council had, following protrac-
Communities on 12 May 2000 by the Kingdom of the                             ted deliberation, voted unanimously, as required, to add
Netherlands, represented by Marc Fierstra, Head of the Euro-                 Article 108b to the OCT Decision by Decision 97/803/EC
pean Law Section in the Legal Service of the Ministry of                     — whereby the importation of sugar with ACP/OCT
Foreign Affairs, and Jantine van Bakel, of the Legal Service of              cumulation of origin was restricted — the importation of
that Ministry, The Hague, acting as Agents.                                  sugar with EC/OCT cumulation of origin and of mixtures