CELEX: C2003/275/14
Language: en
Date: 2003-11-15 00:00:00
Title: Judgment of the Court of 23 September 2003 in Case C-78/01 (Reference for a preliminary ruling from the Bundesgerichtshof): Bundesverband Güterkraftverkehr und Logistik eV (BGL) v Bundesrepublik Deutschland, represented by the Hauptzollamt Friedrichshafen (Free movement of goods — External transit operation — Transport under cover of a TIR carnet — Offences or irregularities — Possibility for a guaranteeing association to prove the place where the offence or irregularity was committed — Time-limit for furnishing proof — Existence of an obligation for the Member State which detects an offence or irregularity to investigate the place where it was committed)

C 275/8                 EN                           Official Journal of the European Union                                            15.11.2003
Thiéfosse (France), Filatures et tissages de Saulxures-sur-Mose-                               JUDGMENT OF THE COURT
lotte, established in Saulxures-sur-Moselotte (France), Tissage
Mouline Thillot, established in Thillot (France), Filature Nigge-                                   of 23 September 2003
ler & Küpfer SpA, established in Capriolo (Italy), Standardtela
SpA, established in Milan (Italy), (Agents: C. Stanbrook and                 in Case C-78/01 (Reference for a preliminary ruling from
P. Bentley, QC): Appeal against the judgment of the Court of                 the Bundesgerichtshof): Bundesverband Güterkraftver-
First Instance of the European Communities (Second Chamber,                  kehr und Logistik eV (BGL) v Bundesrepublik Deutsch-
Extended Composition) of 29 November 2002 in Case T-213/                     land, represented by the Hauptzollamt Friedrichshafen (1)
97 Eurocoton and Others v Council [2000] ECR II-3727,
seeking to have that judgment set aside, the other parties to                (Free movement of goods — External transit operation —
the proceedings being: Council of the European Union (Agents:                Transport under cover of a TIR carnet — Offences or
S. Marquardt acting as Agent, assisted by G.M. Berrisch and                  irregularities — Possibility for a guaranteeing association to
H.P. Nehl), United Kingdom of Great Britain and Northern                     prove the place where the offence or irregularity was
Ireland (Agent: K. Manji) and Tessival SpA, established in                   committed — Time-limit for furnishing proof — Existence
Azzano S. Paolo (Italy), the Court, composed of: G.C. Rodrí-                 of an obligation for the Member State which detects an
guez Iglesias, President, M. Wathelet and C.W.A. Timmermans                  offence or irregularity to investigate the place where it was
(Presidents of Chambers), C. Gulmann, D.A.O. Edward, P. Jann,                                             committed)
F. Macken, N. Colneric, S. von Bahr (Rapporteur), J.N. Cunha
Rodrigues and A. Rosas, Judges; F.G. Jacobs, Advocate General;                                         (2003/C 275/14)
L. Hewlett, Principal Administrator, for the Registrar, has given
a judgment on 30 September 2003, in which it:                                                   (Language of the case: German)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                                 in the European Court Reports)
1.    Sets aside the judgment of the Court of First Instance of the
      European Communities of 29 November 2000 in Case T-213/
      97 Eurocoton and Others v Council in so far as it concerns the
      appellants.                                                            In Case C-78/01: Reference to the Court under Article 234 EC
                                                                             by the Bundesgerichtshof (Germany) for a preliminary ruling
                                                                             in the proceedings pending before that court between Bundes-
                                                                             verband Güterkraftverkehr und Logistik eV (BGL) and Bundes-
2.    Sets aside the decision of the Council of the European Union of        republik Deutschland, represented by the Hauptzollamt Fried-
      16 May 1997, which became final on 21 May 1997, not to                 richshafen, third party: Préservatrice Foncière Tiard SA, on
      adopt the proposal for a Council regulation (EC) imposing a            the interpretation of Articles 454 and 455 of Commission
      definitive anti-dumping duty on the import of unbleached               Regulation (EEC) No 2454/93 of 2 July 1993 laying down
      cotton fabric from the People’s Republic of China, Egypt, India,       provisions for the implementation of Council Regulation (EEC)
      Indonesia, Pakistan and Turkey (COM (97) 160 final),                   No 2913/92 establishing the Community Customs Code (OJ
      submitted by the Commission of the European Communities on             1993 L 253, p. 1), the Court, composed of: G.C. Rodríguez
      21 April 1997, in so far as it concerns the appellants.                Iglesias, President, M. Wathelet, R. Schintgen and
                                                                             C.W.A. Timmermans (Presidents of Chambers), C. Gulmann,
                                                                             A. La Pergola, V. Skouris, F. Macken, N. Colneric, J.N. Cunha
3.    Dismisses the action for damages.                                      Rodrigues and A. Rosas (Rapporteur), Judges; P. Léger, Advo-
                                                                             cate General; H. von Holstein, Deputy Registrar, has given a
                                                                             judgment on 23 September 2003, in which it has ruled:
4.    Orders the Council of the European Union and the appellants
      to bear their own costs at first instance.                             1.    The first subparagraph of Article 454(3) of Commission
                                                                                   Regulation (EEC) No 2454/93 of 2 July 1993 laying down
                                                                                   provisions for the implementation of Council Regulation (EEC)
5.    Orders the Council of the European Union to pay the costs of                 No 2913/92 establishing the Community Customs Code
      the appeal.                                                                  does not preclude a guaranteeing association against which
                                                                                   proceedings are brought by a Member State for payment of
                                                                                   customs duties on the basis of the guarantee contract it has
                                                                                   concluded with that State in accordance with the Customs
6.    Orders the United Kingdom of Great Britain and Northern                      Convention on the International Transport of Goods under
      Ireland to bear its own costs both at first instance and on                  cover of TIR Carnets from being able to furnish proof of the
      appeal.                                                                      place where the offence or irregularity was committed, provided
                                                                                   that that proof is furnished within the period laid down in that
                                                                                   provision, that time-limit being peremptory.
(1) OJ C 108 of 7.4.2001.                                                    2.    The first paragraph of Article 454(3) and Article 455 of
                                                                                   Regulation No 2454/93 must be interpreted as meaning that
                                                                                   the guaranteeing association has available, to furnish proof of
                                                                                   the place where the offence or irregularity was actually commit-
                                                                                   ted, a period of two years running from the date of the claim
                                                                                   for payment made to it.
 ---pagebreak--- 15.11.2003             EN                           Official Journal of the European Union                                                C 275/9
3.   Articles 454 and 455 of Regulation No 2454/93 do not                   the national of a Member State, the Court, composed of:
     require the Member State which detects an offence or irregularity      G.C. Rodríguez Iglesias, President, J.-P.- Puissochet, M. Wathe-
     in connection with a transport operation under cover of a TIR          let, R. Schintgen and C.W.A. Timmermans (Presidents of
     carnet, in addition to making the notifications prescribed in          Chambers), D.A.O. Edward, A. La Pergola, P. Jann, F. Macken,
     Article 455(1) of that regulation and an enquiry to the office         N. Colneric (Rapporteur) and S. von Bahr, Judges; L.A. Geel-
     of destination, to investigate the actual place where the offence      hoed, Advocate General; L. Hewlett, Principal Administrator,
     or irregularity was committed and the identity of the customs          for the Registrar, has given a judgment on 23 September
     debtors, by seeking the administrative assistance of another           2003, in which it has ruled:
     Member State for elucidation of the facts.
(1) OJ C 118 of 21.4.2001.                                                  1.   In order to be able to benefit in a situation such as that at issue
                                                                                 in the main proceedings from the rights provided for in
                                                                                 Article 10 of Regulation (EEC) No 1612/68 of the Council of
                                                                                 15 October 1968 on freedom of movement for workers within
                                                                                 the Community, a national of a non-Member State married to
                                                                                 a citizen of the Union must be lawfully resident in a Member
                                                                                 State when he moves to another Member State to which the
                                                                                 citizen of the Union is migrating or has migrated.
                                                                            2.   Article 10 of Regulation No 1612/68 is not applicable where
                                                                                 the national of a Member State and the national of a non-
                 JUDGMENT OF THE COURT                                           Member State have entered into a marriage of convenience in
                                                                                 order to circumvent the provisions relating to entry and residence
                                                                                 of nationals of non-Member States.
                     of 23 September 2003
                                                                            3.   Where the marriage between a national of a Member State and
                                                                                 a national of a non-Member State is genuine, the fact that the
in Case C-109/01 (Reference for a preliminary ruling from
                                                                                 spouses installed themselves in another Member State in order,
the Immigration Appeal Tribunal): Secretary of State for                         on their return to the Member State of which the former is a
         the Home Department v Hacene Akrich (1)                                 national, to obtain the benefit of rights conferred by Community
                                                                                 law is not relevant to an assessment of their legal situation by
                                                                                 the competent authorities of the latter State.
(Freedom of movement for workers — National of a non-
Member State who is the spouse of a national of a Member
State — Spouse under a prohibition on entering and
remaining in that Member State — Temporary establishment                    4.   Where a national of a Member State married to a national of
of the couple in another Member State — Establishment                            a non-Member State with whom she is living in another
with a view to acquisition by spouse of a right under                            Member State returns to the Member State of which she is a
Community law to enter and remain in the first Member                            national in order to work there as an employed person and, at
                          State — Abuse)                                         the time of her return, her spouse does not enjoy the rights
                                                                                 provided for in Article 10 of Regulation No 1612/68 because
                                                                                 he has not resided lawfully on the territory of a Member State,
                                                                                 the competent authorities of the first-mentioned Member State,
                         (2003/C 275/15)                                         in assessing the application by the spouse to enter and remain
                                                                                 in that Member State, must none the less have regard to the
                                                                                 right to respect for family life under Article 8 of the European
                                                                                 Convention for the Protection of Human Rights and Fundamen-
                   (Language of the case: English)
                                                                                 tal Freedoms, signed at Rome on 4 November 1950, provided
                                                                                 that the marriage is genuine.
In Case C-109/01: Reference to the Court under Article 234                  (1) OJ C 150 of 19.5.2001.
EC by the Immigration Appeal Tribunal (United Kingdom) for
a preliminary ruling in the proceedings pending before that
court between Secretary of State for the Home Department
and Hacene Akrich, on the interpretation of Community law
on freedom of movement for persons and the right to remain
of a national of a non-Member State who is the spouse of