CELEX: C2002/323/13
Language: en
Date: 2002-12-21 00:00:00
Title: Judgment of the Court of 5 November 2002 in Case C-208/00 (Reference for a preliminary ruling from the Bundesgerichtshof ): Überseering BV v Nordic Construction Company Baumanagement GmbH (NCC) (Articles 43 EC and 48 EC — Company formed in accordance with the law of a Member State and having its registered office there — Company exercising its freedom of establishment in another Member State — Company deemed to have transferred its actual centre of administration to the host Member State under the law of that State — Non-recognition by the host Member State of the company's legal capacity and its capacity to be a party to legal proceedings — Restriction on freedom of establishment — Justification)

C 323/12                 EN                       Official Journal of the European Communities                                         21.12.2002
system applicable to the common fisheries policy (OJ 1993                                     JUDGMENT OF THE COURT
L 261, p. 1), Article 11(2) of Regulation No 2241/87 or
Article 21 of Regulation No 2847/93, Article 1(2) of Regu-
lation No 2241/87, or Article 31 of Regulation No 2847/93,
the Court (Fifth Chamber), composed of: M. Wathelet, Presi-                                          of 5 November 2002
dent of the Chamber, C.W.A. Timmermans, A. La Pergola
(Rapporteur), P. Jann and S. von Bahr, Judges; C. Stix-Hackl,
Advocate General; R. Grass, Registrar, has given a judgment                  in Case C-208/00 (Reference for a preliminary ruling
on 14 November 2002, in which it:
                                                                             from the Bundesgerichtshof ): Überseering BV v Nordic
                                                                              Construction Company Baumanagement GmbH (NCC) (1)
1.    Declares that, in respect of each of the years 1991 to 1996,
      by:                                                                    (Articles 43 EC and 48 EC — Company formed in accordance
                                                                             with the law of a Member State and having its registered
                                                                             office there — Company exercising its freedom of establish-
                                                                             ment in another Member State — Company deemed to have
      —     failing to put in place appropriate detailed rules for the       transferred its actual centre of administration to the host
            utilisation of the quotas allocated to it and to carry out       Member State under the law of that State — Non-recognition
            the inspections and other controls required by the relevant      by the host Member State of the company’s legal capacity
            Community regulations,                                           and its capacity to be a party to legal proceedings —
                                                                                Restriction on freedom of establishment — Justification)
      —     failing provisionally to close certain fisheries when quotas
            were exhausted,
                                                                                                        (2002/C 323/13)
      —     failing to take administrative or penal action against the
            masters of vessels infringing those regulations or against                          (Language of the case: German)
            any other person responsible for such infringement,
                                                                             (Provisional translation; the definitive translation will be published
      the United Kingdom of Great Britain and Northern Ireland has                               in the European Court Reports)
      failed to comply with its obligations under Article 5(2) of
      Council Regulation (EEC) No 170/83 of 25 January 1983
      establishing a Community system for the conservation and
      management of fishery resources and, with effect from 1 January
      1993, Article 9(2) of Council Regulation (EEC) No 3760/92
      of 20 December 1992 establishing a Community system for
      fisheries and aquaculture, as well as Article 1(1) of Council          In Case C-208/00: Reference to the Court under Article 234
      Regulation (EEC) No 2241/87 of 23 July 1987 establishing               EC by the Bundesgerichtshof (Germany) for a preliminary
                                                                             ruling in the proceedings pending before that court between
      certain control measures for fishing activities and, with effect
      from 1 January 1994, Article 2 of Council Regulation (EEC)             Überseering BV and Nordic Construction Company Bauma-
                                                                             nagement GmbH (NCC), on the interpretation of Articles 43
      No 2847/93 of 12 October 1993 establishing a control
      system applicable to the common fisheries policy, Article 11(2)        EC and 48 EC, the Court, composed of: G.C. Rodríguez Iglesias,
      of Regulation No 2241/87 and, with effect from 1 January               President, J.-P. Puissochet, M. Wathelet (Rapporteur) and
                                                                             R. Schintgen (Presidents of Chambers), C. Gulmann,
      1994, Article 21 of Regulation No 2847/93, and Article 1(2)
      of Regulation No 2241/87 and, with effect from 1 January               D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken,
                                                                             N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges;
      1994, Article 31 of Regulation No 2847/93;
                                                                             D. Ruiz-Jarabo Colomer, Advocate General; H.A. Rühl, Princi-
                                                                             pal Administrator, for the Registrar, has given a judgment on
                                                                             5 November 2002, in which it has ruled:
2.    Orders the United Kingdom of Great Britain and Northern
      Ireland to pay the costs.
                                                                             1.    Where a company formed in accordance with the law of a
                                                                                   Member State (‘A’) in which it has its registered office is
                                                                                   deemed, under the law of another Member State (‘B’), to have
( 1) OJ C 176 of 24.6.2000.                                                        moved its actual centre of administration to Member State B,
                                                                                   Articles 43 EC and 48 EC preclude Member State B from
                                                                                   denying the company legal capacity and, consequently, the
                                                                                   capacity to bring legal proceedings before its national courts for
                                                                                   the purpose of enforcing rights under a contract with a company
                                                                                   established in Member State B.
 ---pagebreak--- 21.12.2002                EN                     Official Journal of the European Communities                                            C 323/13
2.    Where a company formed in accordance with the law of a                1.    Article 5(2) of Council Regulation (EEC) No 1697/79 of
      Member State (‘A’) in which it has its registered office exercises          24 July 1979 on the post-clearance recovery of import duties
      its freedom of establishment in another Member State (‘B’),                 or export duties which have not been required of the person
      Articles 43 EC and 48 EC require Member State B to recognise                liable for payment on goods entered for a customs procedure
      the legal capacity and, consequently, the capacity to be a party            involving the obligation to pay such duties must be interpreted
      to legal proceedings which the company enjoys under the law of              as meaning that:
      its State of incorporation (’A’).
                                                                                  —     in order to determine whether there is an ’error made by
( 1) OJ C 233 of 12.8.2000.
                                                                                        the competent authorities themselves’, account must be
                                                                                        taken both of the conduct of the customs authorities
                                                                                        which issued the certificate permitting the application of
                                                                                        preferential treatment and of that of the central customs
                                                                                        authorities;
                                                                                  —     the routine issuing by the authorities of the exporting
                   JUDGMENT OF THE COURT                                                country of certificates permitting the application of prefer-
                                                                                        ential treatment under association rules constitutes evi-
                                                                                        dence of such an error when those authorities must have
                            (Fifth Chamber)
                                                                                        been aware, on the one hand, of the existence in the
                                                                                        exporting country of a policy of encouraging exports,
                        of 14 November 2002                                             involving the duty-free importation of components orig-
                                                                                        inating in third countries for incorporation in goods
                                                                                        intended for export to the Community and, on the other
in Case C-251/00 (Reference for a preliminary ruling from                               hand, of the absence in the exporting country of provisions
the Tribunal Tributário de Primeira Instância de Lisboa ):                              enabling collection of the compensatory levy to which the
Ilumitrónica — Iluminação e Electrónica Lda v Chefe da                                  application of preferential treatment to exports to the
Divisão de Procedimentos Aduaneiros e Fiscais/Direcção                                  Community of goods thus obtained was subject;
das Alfândegas de Lisboa, third party: Ministério Púb-
                                  lico (1)
                                                                                  —     the fact that some of the relevant provisions of the
(EEC-Turkey Association Agreement — Importation of                                      association rules were not published in the Official Journal
television sets from Turkey — Determination of the person                               of the European Communities and the circumstance
liable for the customs debt — Post-clearance recovery of                                that those provisions were not implemented, or were
                             customs duties)                                            implemented incorrectly, in the exporting country over a
                                                                                        period of more than 20 years constitute evidence that such
                                                                                        an error could not reasonably have been detected by the
                            (2002/C 323/14)                                             person liable.
                   (Language of the case: Portuguese)
                                                                            2.    The conduct of the authorities of the exporting country does not
                                                                                  affect the determination of the person by whom the customs
(Provisional translation; the definitive translation will be published            debt is payable or the right of the authorities of the importing
                     in the European Court Reports)                               country to take action for post-clearance recovery thereof.
                                                                            3.    Articles 22 and 25 of the Agreement establishing an associ-
In Case C-251/00: Reference to the Court under Article 234
                                                                                  ation between the European Economic Community and Turkey
EC by the Tribunal Tributário de Primeira Instância de Lisboa
                                                                                  do not require the national customs authorities of a Member
(Portugal) for a preliminary ruling in the proceedings pending
                                                                                  State, acting on the Commission’s advice, to have recourse to
before that court between Ilumitrónica — Iluminação e
                                                                                  the procedure provided for by those articles before taking action
Electrónica L da and Chefe da Divisão de Procedimentos
                                                                                  for post-clearance recovery of import duties.
Aduaneiros e Fiscais/Direcção das Alfândegas de Lisboa, third
party: Ministério Público, on the interpretation of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing
the Community Customs Code (OJ 1992 L 302, p. 1) and on
the validity of a Commission decision, the Court (Fifth                     (1 ) OJ C 233 of 12.8.2000.
Chamber), composed of: M. Wathelet, President of the Chamb-
er, C.W.A. Timmermans, A. La Pergola, P. Jann (Rapporteur)
and S. von Bahr, Judges; J. Mischo, Advocate General; L. Hew-
lett, Principal Administrator, for the Registrar, has given a
judgment on 14 November 2002, in which it has ruled: