CELEX: C1995/333/22
Language: en
Date: 1995-12-09 00:00:00
Title: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 12 September 1995 in the case of Wiener S.I. GmbH v. Hauptzollamt Emmerich (Case C-338/95)

9 . 12 . 95           EN                   Official Journal of the European Communities                                      No C 333/ 11
30 October 1995 ( Case C-342/95 ) respectively, for a                 6 . Is the second paragraph of Article 177 of the EC Treaty
preliminary ruling in criminal proceedings against Giuseppe                 to be interpreted as precluding, in cases such as this, the
Piccolo ( Case C-331 /95 ), Mario Corbo and Others ( Case                   grant by the Finance Court of leave to appeal pursuant
C-332/95 ) and Miranda Viola ( Case C-342/95 ). The                         to the second sentence of paragraph 128 ( 3 ) of the
questions referred by the Pretura Circondariale di Roma —                   Finanzgerichtsordnung ( Code of Procedure before
Sezione Distaccata di Tivoli to the Court of Justice for a                  the Finance Court) read in conjunction with
preliminary ruling are identical with those in Case                         paragraph 115 ( 2 ) ( 1 ) thereof?
C-187/95 C ).
                                                                      ( 1 ) OJ, English Special Edition 1968 ( I ), p. 176 .
(') OJ No C 208 , 12 . 8 . 1995 , p . 14 .                            ( 2 ) OJ No L 41 , 18 . 2 . 1992 , p . 9 .
                                                                      ( 3 ) OJ No L 302 , 19 . 10 . 1992 , p . 1 .
Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 21 September 1995 in                Reference for a preliminary ruling by the Bundesfinanzhof
the case of Kriiger GmbH & Co. KG v. Hauptzollamt                     by order of that court of 12 September 1995 in the case of
                        Hamburg-Jonas                                         Wiener S.I. GmbH v. Hauptzollamt Emmerich
                       ( Case C-334/95 )                                                           Case C-338/95 )
                          ( 95/C 333/21 )                                                          ( 95/C 333/22 )
Reference has been made to the Court of Justice of the                Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht                    European Communities by order of the Seventh Chamber
Hamburg ( Finance Court, Hamburg) of 21 September                     of the Bundesfinanzhof ( Federal Finance Court ) of
1995 , which was received at the Court Registry on                    12 September 1995 , which was received at the Court
23 October 1995 , for a preliminary ruling in the case of             Registry on 26 October 1 995 , for a preliminary ruling in the
Kriiger GmbH & Co . KG v. Hauptzollamt Hamburg-Jonas                  case of Wiener S.I. GmbH v. Hauptzollamt Emmerich on the
( Principal Customs Office , Hamburg-Jonas ) on the                   following question:
following questions:
                                                                      Is the term 'nightdresses' within the meaning of tariff
1 . Does Regulation ( EEC ) No 804/68 ( ] ), read in                  heading 60.04 of the 1985 Common Customs Tariff,
     conjunction with the Annex thereto, as amended by                specifically tarif subheading 60.04 B IV b 2 bb, to be
     Regulation ( EEC ) No 374/92 (2 ), infringe the second           interpreted as covering exclusively 'other' under garments
     subparagraph of Article 40 ( 3 ) of the EC Treaty, and is it     which, in view of their characteristics, are clearly intended
     consequently invalid, inasmuch as it does not provide            only to be worn as night wear, or does it also cover products
     for the grant of an export refund for milk and/or milk           which, on the basis of their appearance, are intended mainly,
     products contained in edible preparations falling                but not exclusively, to be worn in bed ?
     within Combined Nomenclature code No 2101 10
     and produced with a basis of extracts, essences or
     concentrates of coffee ?
2 . Does a breach of the prohibition of discrimination                Reference for a preliminary ruling from the Hof van Beroep
     preclude the recovery of an export refund granted in             te Antwerpen by judgment/order of that court of
     respect of milk and/or milk products contained in edible         25 October 1995 in the case of Peter Schepens v. Belgian
     preparations falling within Combined Nomenclature                                                   State
     code No 2101 10 and produced with a basis of extracts                                       ( Case C-340/95 )
     of coffee ?
                                                                                                    ( 95/C 333/23 )
3 . Is Article 244 of Regulation ( EEC ) No 2913/92 ( 3 ) ( the
     Customs Code ) applicable to the suspension of                   Reference has been made to the Court of Justice of the
     implementation of decisions ordering the recovery of an          European Communities by a judgment of the Hof van
     export refund which has been granted ?                           Beroep ( Court of Appeal ) in Antwerp of 25 October 1995 ,
                                                                      which as received at the Court Registry on 30 October 1995 ,
4 . If the answer to question 3 is in the affirmative : in cases      for a preliminary ruling in the case of Peter Schepens v.
     in which there exists doubt as to the validity of the            Belgian State on the following questions :
     Community legislation on which the decision is based, is
     the suspension of implementation to be determined in              1 . Do Articles 18 ( 4 ) and 27 of the Sixth Council Directive
     accordance with Article 244 of the Customs Code or in                  of 17 May 1977 on the harmonization of the laws of
     accordance with which other criteria ?                                 the Member States relating to turnover taxes (VAT
                                                                            Directive 77/388/EEC ) (') have direct effect in the
5 . If the answer to question 3 is in the negative: in cases in             national legal systems of the Member States and thus in
     which there exists doubt as to the validity of the                     Belgian law ?
     Community legislation on which the decision is based,
     what are the criteria according to which the suspension          2 . If so, does Article 18 (4 ) of the Directive preclude a
     of implementation falls to be determined ?                             Member State from refusing to refund to a taxable