CELEX: C1999/136/11
Language: en
Date: 1999-05-15 00:00:00
Title: Case C-66/99: Reference for a preliminary ruling by the Finanzgericht Bremen by order of 2 February 1999 in the case of D. Wandel GmbH v Hauptzollamt Bremen

15.5.1999             EN                     Official Journal of the European Communities                                         C 136/7
Appeal brought on 19 February 1999 by Karola Gluiber                    Pleas in law and main arguments
against the order made on 21 December 1998 by the First
Chamber of the Court of First Instance of the European                  — The Court of First Instance wrongly declared that the
Communities in Case T-122/98 Karola Gluiber versus                          claim, based on Article 173 of the EC Treaty and Article
Council of the European Union and Commission of the                         215 of the EC Treaty in conjunction with Article 5 of the
                    European Communities                                    Treaty on European Union, was inadmissible on the
                                                                            ground that the contested acts fell within the competence
                                                                            of a Member State. In the case of a community based on
                        (Case C-57/99 P)                                    law, such as the European Union, it is inappropriate to
                                                                            draw a distinction between acts of a Member State and acts
                                                                            of the Community. Directives constitute legal acts which
                        (1999/C 136/10)                                     impose on the Member States a duty to transpose the
                                                                            objectives fixed by the Commission or the Council. In the
An appeal against the order made on 21 December 1998 by                     event of failure properly to transpose a directive, it is
the first Chamber of the Court of First Instance of the European            incumbent upon the Court of Justice to intervene with a
Communities in Case T-122/98 Karola Gluiber versus Council                  view to rectifying the situation.
of the European Union and Commission of the European                    — Breach of the principle of the right to a fair hearing: the
Communities was brought before the Court of Justice of the                  contested order was made without the application having
European Communties on 19 February 1999 by Karola                           been notified to the defendant. In addition, that order
Gluiber, represented by Dieter Rogalla, Rechtsanwalt, with an               was made without any oral procedure taking place in
address for service in Luxembourg at the Chambers of Messrs                 accordance with Article 55 of the Rules of Procedure.
Decker & Braun, Avenue Marie-Thérèse, L-2013 Luxembourg.
The appellant claims that the Court should:
— set aside the order made by the Court of First Instance of            Reference for a preliminary ruling by the Finanzgericht
    the European Communities on 21 December 1998 in Case                Bremen by order of 2 February 1999 in the case of
    T-122/98;                                                                     D. Wandel GmbH v Hauptzollamt Bremen
— declare null and void the individual measures which                                            (Case C-66/99)
    unlawfully discriminate against the appellant on the
    ground of her sex;                                                                          (1999/C 136/11)
                                                                        Reference has been made to the Court of Justice of the
— order the respondent to retract and terminate, in accord-             European Communities by order of 2 February 1999 from the
    ance with the rules laid down by the Treaty on European             Second Chamber of the Finanzgericht Bremen (Finance Court,
    Union, the discriminatory measures taken against the                Bremen), which was received at the Court Registry on 25 Feb-
    appellant by the Federal Republic of Germany, as a Member           ruary 1999, for a preliminary ruling in the case of D. Wandel
    State of the Community, and by its federal organs;                  GmbH v Hauptzollamt Bremen on the following questions:
— order the respondent to pay to the appellant the total sum            1. Is Article 201(1)(a), in conjunction with Article 201(2),
    of DEM 18 700,32, being the expense incurred by the                     of the Council Regulation (EEC) of 12 October 1992
    appellant in the proceedings brought by her to no avail                 establishing the Community Customs Code (OJ L 302,
    before the German courts;                                               19.10.1992, p. 1) (‘the Customs Code’) to be construed as
                                                                            meaning that a customs debt on importation is incurred
                                                                            once a customs declaration for the release of non-
— order the respondent to pay the costs of the present                      Community goods into free circulation satisfying the
    proceedings;                                                            requirements of Article 62 of the Customs Code has
                                                                            been accepted by the competent customs office and that
— alternatively, stay the proceedings pursuant to Article                   acceptance is evidenced by the attachment of a customs
    82a(1)(b) of the Rules of Procedure of the Court of Justice             registration stamp?
    pending receipt of a preliminary ruling by the European
    Court of Human Rights concerning the finding that the               2. If Question 1 is answered in the affirmative:
    incomplete transposition into German law of Council                     Is Article 75 of the Customs Code to be construed as
    Directive 76/207/EEC infringes                                          meaning that the customs office which has accepted such
                                                                            a customs declaration is entitled to treat the declaration as
    (a) Article 6 of the European Convention on Human                       invalid or to invalidate it without a request by the declarant
         Rights (‘ECHR’);                                                   to that end, with the result that a customs debt incurred
                                                                            under Article 201(1)(a) of the Customs Code is deemed
                                                                            not to have been incurred or is extinguished under the first
    (b) article 11 of the ECHR;                                             indent of Article 233(c) of the Customs Code, if the
                                                                            declared goods cannot be released to the declarant because
    (c) article 14 of the ECHR; and                                         they were removed, before the customs examination
                                                                            ordered was carried out, from their prescribed place of
                                                                            storage and from the area for which the customs office is
    (d) article 50 of the ECHR.                                             responsible?
 ---pagebreak--- C 136/8                EN                   Official Journal of the European Communities                                     15.5.1999
3. If Question 1 is answered in the negative or Question 2 in          Pleas in law and main arguments
    the affirmative:
    Is Article 203(1) of the Customs Code to be construed as           Article 4(1) of the Directive imposes two obligations. Firstly,
    meaning that there is a removal from customs supervision           Member States must propose a list of sites designated as special
    where the non-Community goods declared for release into            areas of conservation and, secondly, they must transmit this
    free circulation are removed from the prescribed place of          list to the Commission, together with the relevant information
    storage/examination and consequently from the local area           on these sites.
    for which the customs office in question is responsible,
    even though the customs office had ordered a customs               The Commission submits that Ireland has proposed no site in
    examination?                                                       respect of 26 of the habitat types of Annex I of the Directive
                                                                       and 20 of Annex II in Ireland. In particular, Ireland has
4. If Question 3 is answered in the negative:                          proposed no sites for certain priority habitat types and species
    Is Article 204(1) of the Customs Code to be construed as           which have a significant presence on Ireland’s territory.
    meaning that the unauthorised removal of the goods from
    their place of storage has had ‘no significant effect’ on the      The Commission also draws attention to the fact that, for
    correct operation of the temporary storage if, after their         some habitat types and species, the competent Irish authority
    removal, the goods could, on request, have been presented          has communicated an intention of not proposing any site. The
    at another customs office?                                         Commission considers that such an exclusion from site
                                                                       proposal of natural habitat types and species is contrary to the
5. Can there be no question of a customs debt on importation           requirements of Article 4(1) of the Directive.
    being incurred
    (a) under Article 201(1)(a), in conjunction with Article           Secondly, the Commission concludes that, in the case of
        201(2), of the Customs Code, where the customs                 certain habitat types and species habitats, the number of sites
        declaration is simply accepted by the customs office,          definitively proposed by Ireland is manifestly insufficient in
        or                                                             the light of the criteria listed in Annex III and in view of the
                                                                       conservation objective pursued by the Directive. The natural
    (b) under Article 203(1) of the Customs Code, or                   importance of such habitats requires both that a larger number
                                                                       of sites be proposed and that the distribution of these sites be
    (c) under Article 204 of the Customs Code,
                                                                       more evenly balanced over the national territory as a whole.
        if formally unobjectionable certificates of origin corres-
        ponding to Form A were attached to the customs
        declaration accepted by the customs office and the             (1) OJ L 206, 22.7.1992, p. 7.
        preferential tariff rate ‘free’ applied to the goods
        covered by the declaration?
                                                                       Action brought on 26 February 1999 by the Commission
Action brought on 25 February 1999 by the Commission                   of the European Communities against the United
       of the European Communities against Ireland                                                  Kingdom
                         (Case C-67/99)
                                                                                                (Case C-69/99)
                        (1999/C 136/12)
                                                                                               (1999/C 136/13)
An action against Ireland was brought before the Court of
Justice of the European Communities on 25 February 1999 by             An action against the United Kingdom was brought before the
the Commission of the European Communities, represented                Court of Justice of the European Communities on 26 February
by Mr Richard Wainwright, Principal Legal Adviser, and Mr              1999 by the Commission of the European Communities,
Paolo Stancanelli, member of the Legal Service, acting as              represented by Mr Richard Wainwright, Principal Legal
agents, with an address for service in Luxembourg at the office        Adviser, acting as agent, with an address for service in
of Mr Carlos Gómez de la Cruz, member of the Legal Service            Luxembourg at the office of Mr Carlos Gómez de la Cruz,
of the Commission, Centre Wagner.                                      member of the Legal Service of the Commission, Centre
                                                                       Wagner.
The Applicant claims that the Court should:
— declare that, by failing to transmit to the Commission the           The Applicant claims that the Court should:
    full list of sites mentioned in the first subparagraph of
    Article 4(1) of Council Directive 92/43/EEC (1) of 21 May          — declare that, by failing to adopt all the measures necessary
    1992 on the conservation of natural habitats and of wild                to comply with its obligations under Article 3(1) and (2),
    fauna and flora, together with the information on each site             and under Article 5 of Council Directive 91/676/EEC (1) of
    required by the second paragraph of Article 4(1) of the                 12 December 1991 concerning the protection of waters
    said Directive, Ireland has failed to fulfil its obligations            against pollution of nitrates from agricultural sources, the
    under the Directive;                                                    United Kingdom has failed to fulfil its obligations under
                                                                            that Directive and under the Treaty establishing the
— order Ireland to bear the costs.                                          European Community;