CELEX: C1998/137/18
Language: en
Date: 1998-05-02 00:00:00
Title: Reference for a preliminary ruling from the Finanzgericht Bremen by order of that court of 2 February 1998 in the case of Söhl & Söhlke against Hauptzollamt Bremen (Case C-48/98)

C 137/8              EN                  Official Journal of the European Communities                                     2.5.98
Appeal brought on 23 February 1998 by European                           analyses, submitted by EFMA to demonstrate the
Fertiliser Manufacturers Association (EFMA) against the                  absence of difference between Russian and
judgment delivered on 17 December 1997 by the Fourth                     Community urea, concerned ex-Russian factory urea
Chamber, Extended Composition, of the Court of First                     whereas the Russian urea used for the purpose of these
Instance of the European Communities in case T-121/                      analyses was, in fact, taken from the Community
95 (1) between European Fertiliser Manufacturers                         market,
Association (EFMA) and Council of the European Union,
       supported by the Commission of the European
                         Communities                                Ð incorrect legal characterisation of the facts by the
                                                                         Court of First Instance in that, on the basis of the
                      (Case C-46/98 P)                                   information/evidence available to EFMA during the
                        (98/C 137/17)                                    administrative proceedings, the Court of First Instance
                                                                         could not reasonably affirm that EFMA's right to a
                                                                         fair hearing was not infringed,
An appeal against the judgment delivered on 17 December
1997 by the Fourth Chamber, Extended Composition, of
the Court of First Instance of the European Communities             Ð violation of Article 173 of the EC Treaty in the sense
in    case    T-121/95     between      European     Fertiliser          that the Court of First Instance failed to grant a
Manufacturers Association (EFMA) and the Council of                      judicial protection to EFMA by its refusal to take into
the European Union, supported by the Commission of the                   account the Z/Yen report.
European Communities, was brought before the Court of
Justice of the European Communities on 23 February                  (1) OJ C 189, 22.7.1995, p. 18.
1998 by European Fertiliser Manufacturers Association
(EFMA), represented by Dominique Voillemot and Olivier
Prost, of the Paris Bar, with an address for service in
Luxembourg at the Chambers of Loesch and Wolter, 11,
rue Goethe.
The Appellant claims that the Court should:                         Reference for a preliminary ruling from the Finanzgericht
                                                                    Bremen by order of that court of 2 February 1998 in the
                                                                        case of Söhl & Söhlke against Hauptzollamt Bremen
1. annul the decision of the Court of First Instance dated
    17 December 1997 on the points of law described in                                      (Case C-48/98)
    the present appeal;                                                                      (98/C 137/18)
2. refer the matter back to the Court of First Instance if
    necessary;                                                      Reference has been made to the Court of Justice of the
                                                                    European Communities by order of the Finanzgericht
3. order the Council to pay the costs of the proceeding             Bremen (Finance Court, Bremen) of 2 February 1998,
    before the Court of First Instance and the costs of the         received at the Court Registry on 24 February 1998, for a
    present proceeding before the Court of Justice.                 preliminary ruling in the case of Söhl & Söhlke against
                                                                    Hauptzollamt Bremen on the following questions.
Pleas in law and main arguments adduced in support:
                                                                    1. Does Article 859 of Commission Regulation (EEC)
Ð absence of statement of reasons in that the Court of                   No 2454/93 of 2 July 1993 laying down provisions for
    First Instance failed to indicate the reason for which it            the implementation of Council Regulation (EEC)
    refused to examine the first and the second pleas in                 No 2913/92 establishing the Community Customs
    law put forward by EFMA in its application before                    Code (1) (the implementing Regulation) contain a
    the Court of First Instance,                                         validly constituted and exhaustive set of rules on
                                                                         failures, within the meaning of Article 204(1)(a) of
Ð violation of Article 173 of the EC Treaty in that the                  Council Regulation (EEC) No 2913/92 of 12 October
    Court of First Instance apparently considered that                   1992 establishing the Community Customs Code (2)
    EFMA did not have an interest for the determination                  (the Customs Code), which have no significant effect
    of the first and second pleas in law it put forward in               on the correct operation of the temporary storage or
    its application before the Court of First Instance,                  customs procedure in question'?
Ð substantive inaccuracy of the Court of First Instance             2. If question 1 is to be answered in the affirmative:
    findings and distortion of evidence in that the Court of
    First Instance based its findings for the quality                    (a) Where an application is made in time for an
    adjustment on a percentage figure allegedly agreed by                     extension of the time limit referred to in
    EFMA, but which, in fact, was not,                                        Article 859(1) of the implementing Regulation, is
                                                                              the national court precluded from examining of its
Ð substantive inaccuracy of the Court of First Instance                       own motion the criteria for the grant of such an
    findings and distortion of evidence in that the Court of                  extension where it has been refused by a now
    First Instance affirmed that the technical and chemical                   unappealable decision of the customs authority?
 ---pagebreak--- 2.5.98                 EN                 Official Journal of the European Communities                                  C 137/9
    (b) Is it permissible for an application for an extension        6. Where the repayment criteria laid down in
         to relate not to declarations to be listed                      Article 900(1)(o) of the implementing Regulation are
         individually but instead globally to all declarations           fulfilled, can it ordinarily be assumed that the person
        to be made within a given period (in this case,                  concerned has not acted with any fraudulent intent or
        several months), where reference is made, by way                 in a manner which is obviously negligent?
         of justification, to special problems existing during
         that period in the applicant's business (for                7. If question 6 and/or question 4 are to be answered in
         example, the fact that employees have suddenly                  the negative:
         fallen ill or have been absent on leave, the
                                                                         Should the term obvious negligence' in the second
         induction of new employees, problems with the
                                                                         indent of Article 239(1) of the Customs Code be
         application of a data-processing system developed
                                                                         defined according to objective and/or subjective
         for the purposes of carrying out customs
                                                                         criteria, and does it have the same meaning as the
         formalities or, in cases involving outward
                                                                         term obvious negligence' in the second indent of
         processing, the excessive work involved in the
                                                                         Article 859 of the implementing Regulation and the
         preparation of attributions which should in fact
                                                                         term manifest negligence' in Article 212a? Can no
         have been prepared by the customs authorities),
                                                                         obvious negligence' be said to exist within the
         without obvious negligence arising within the
                                                                         meaning of Article 239 of the Customs Code where
         meaning of the second indent of Article 859 on the
                                                                         customs debts on importation have been incurred
         implementing Regulation?
                                                                         pursuant to Article 204(1)(a) because, for reasons such
                                                                         as those given by way of example in question 2(b),
3. If question 1 is to be answered in the negative:
                                                                         there has been non-compliance over a period of many
                                                                         months with the time limit laid down in Article 49(1)
    Must it be assumed that the numerous instances of                    of the Customs Code and no circumstances justifying
    failure to comply in time with the obligation to assign              extensions of time existed, with the result that there
    to goods presented to customs a customs-approved                     was also obvious negligence within the meaning of the
    treatment or use are to be considered to have no                    second indent of Article 859 of the implementing
    significant effect on the correct operation of the                   Regulation?
    temporary storage or customs procedure in question'
    where such treatment or use is assigned to the goods             (1) OJ L 253, 11.10.1993, p. 1.
    after the time limit has expired and an extension of             (2) OJ L 302, 19.10.1992, p. 1.
    the time allowed for such assignment would not have              (3) OJ L 346, 31.12.1994, p. 1.
    been justified pursuant to Article 49(2) of the Customs
    Code?
4. If question 2(b) or question 3 is to be answered in the
    negative:
                                                                     References for a preliminary ruling by the Arbeitsgericht,
                                                                     Wiesbaden, by orders of that court of 10, 13, 16 and
    Is Article 900(1)(o) of the implementing Regulation, as
                                                                     17 February 1998 in the cases of Finalarte Sociedade de
    inserted by Article 1(29) of Commission Regulation
                                                                     ConstrucËao Civil, Lda against Urlaubs- und Lohnaus-
    (EC) No 3254/94 (3), concerning eligibility for
                                                                     gleichskasse der Bauwirtschaft (C-49/98) and Urlaubs-
    preferential rates or Community treatment, also
                                                                     und Lohnausgleichskasse der Bauwirtschaft against
    applicable to the grant of other forms of preferential
                                                                     1. Amilcar Oliveira Rocha (C-50/98), 2. Works in the
    tariff treatment?
                                                                     World Srl (C-51/98), 3. Tudor Stone Ltd (C-52/98),
                                                                     4. Tecnamb-Tecnologia do Ambiente, Lda (C-53/98) and
5. If question 4 is to be answered in the negative:                         5. Turiprata ConstrucËoes Civil, Lda (C-54/98)
                                                                     (Cases C-49/98, C-50/98, C-51/98, C-52/98, C-53/98 and
    Where a claim is made for repayment, are the customs
                                                                                                C-54/98)
    authorities and courts required to examine of their
    own motion whether all relevant criteria for                                             (98/C 137/19)
    repayment are fulfilled, even in the event that the
    claimant expressly bases his claim for repayment on              Reference has been made to the Court of Justice of the
    one legal criterion only, thus rendering it necessary, in        European Communities by orders of the First, Fifth,
    circumstances such as those of the present case, to              Seventh and Eighth Chambers of the Arbeitsgericht
    examine whether the conditions laid down in the                  (Labour Court), Wiesbaden, of 10, 13, 16 and 17 February
    second indent of Article 239(1) of the Customs Code              1998, received at the Court Registry on 24 February
    in conjunction with the first sentence of Article 905(1)         1998, for a preliminary ruling in the cases of Finalarte
    of the implementing Regulation are fulfilled with                Sociedade de ConstrucËao Civil, Lda against Urlaubs- und
    regard to declarations for entry into free circulation in        Lohnausgleichskasse der Bauwirtschaft (Holiday and Wage
    which valid movement certificates on form EUR.1 or               Equalisation Fund of the Construction Industry) (C-49/98)
    certificates of origin on form A have been produced,             and Urlaubs- und Lohnausgleichskasse der Bauwirtschaft
    and where there exists the possibility of total or               against 1. Amilcar Oliveira Rocha (C-50/98), 2. Works in
    partial exemption from import duties of goods which              the World Srl (C-51/98), 3. Tudor Stone Ltd (C-52/98), 4.
    have been reimported following outward processing                Tecnamb-Tecnologia do Ambiente, Lda (C-53/98) and 5.
    (differential customs clearance) or goods returned               Turiprata ConstrucËoes Civil, Lda (C-54/98) on the
    following repair?                                                following questions.