CELEX: C2003/275/25
Language: en
Date: 2003-11-15 00:00:00
Title: Judgment of the Court (First Chamber) of 2 October 2003 in Case C-411/01 (Reference for a preliminary ruling from the Tribunal d'instance de Metz): GEFCO SA v Receveur principal des douanes (Community Customs Code and implementing Regulation — Outward processing procedure — Exemption from the import duties applied to compensating products — Amount deductible in the event of an incorrect indication of a tariff heading in the temporary export declaration for the goods — Failure having no significant effect on the correct operation of the outward processing procedure)

15.11.2003                EN                           Official Journal of the European Union                                                C 275/15
                  JUDGMENT OF THE COURT                                              profesiones marítimas of 30 December 1999, subject to a
                                                                                     condition of reciprocity.
                        of 30 September 2003
                                                                               (1) OJ C 17 of 19.1.2002.
in Case C-405/01 (Reference for a preliminary ruling from
the Tribunal Supremo): Colegio de Oficiales de la Marina
Mercante Española v Administración del Estado, inter-
   vener: Asociación de Navieros Españoles (ANAVE) (1)
                                                                                                JUDGMENT OF THE COURT
(Freedom of movement for workers — Article 39(4) EC —
Employment in the public service — Masters and chief mates                                                (First Chamber)
of merchant navy ships — Conferment of powers of public
authority on board — Posts reserved for nationals of the flag
State — Posts open to nationals of other Member States on                                               of 2 October 2003
                       condition of reciprocity)
                                                                               in Case C-411/01 (Reference for a preliminary ruling from
                                                                               the Tribunal d’instance de Metz): GEFCO SA v Receveur
                           (2003/C 275/24)                                                           principal des douanes (1)
                                                                               (Community Customs Code and implementing Regulation
                    (Language of the case: Spanish)
                                                                               — Outward processing procedure — Exemption from the
                                                                               import duties applied to compensating products — Amount
                                                                               deductible in the event of an incorrect indication of a tariff
(Provisional translation; the definitive translation will be published         heading in the temporary export declaration for the goods —
                     in the European Court Reports)                            Failure having no significant effect on the correct operation
                                                                                             of the outward processing procedure)
                                                                                                         (2003/C 275/25)
In Case C-405/01: Reference to the Court under Article 234
EC by the Tribunal Supremo (Spain) for a preliminary ruling                                         (Language of the case: French)
in the proceedings pending before that court between Colegio
de Oficiales de la Marina Mercante Española and Administra-                    (Provisional translation; the definitive translation will be published
ción del Estado, intervener: Asociación de Navieros Españoles                                      in the European Court Reports)
(ANAVE), on the interpretation of Article 39 EC and Articles 1
and 4 of Council Regulation (EEC) No 1612/68 of 15 October
1968 on freedom of movement for workers within the
Community (OJ, English Special Edition 1968 (II), p. 475), the                 In Case C-411/01: Reference to the Court under Article 234
Court, composed of: G.C. Rodríguez Iglesias, President,                        EC by the Tribunal d’instance de Metz (France) for a preliminary
J.-P. Puissochet, M. Wathelet (Rapporteur), R. Schintgen and                   ruling in the proceedings pending before that court between
C.W.A. Timmermans (Presidents of Chambers), C. Gulmann,                        GEFCO SA and Receveur principal des douanes, on the
D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken,                  interpretation of Articles 145 to 151 of Council Regulation
N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas,                   (EEC) No 2913/92 of 12 October 1992 establishing the
Judges; C. Stix-Hackl, Advocate General; M.-F. Contet, Principal               Community Customs Code (OJ 1992 L 302, p. 1), the Court
Administrator, for the Registrar, has given a judgment on                      (First Chamber), composed of: M. Wathelet, President of the
30 September 2003, in which it has ruled:                                      Chamber, P. Jann and A. Rosas (Rapporteur), Judges; A. Tiz-
                                                                               zano, Advocate General; H. von Holstein, Deputy Registrar,
                                                                               has given a judgment on 2 October 2003, in which it has
1.    Article 39(4) EC is to be construed as allowing a Member State           ruled:
      to reserve for its nationals the posts of master and chief mate of
      merchant ships flying its flag only if the rights under powers
      conferred by public law on masters and chief mates of such               1.    Articles 145 to 151 of Council Regulation (EEC) No 2913/
      ships are actually exercised on a regular basis and do not                     92 of 12 October 1992 establishing the Community Customs
      represent a very minor part of their activities.                               Code must be interpreted as meaning that an economic operator
                                                                                     who has declared goods under an incorrect tariff heading at the
                                                                                     time of their temporary exportation from Community territory
2.    Article 39 EC is to be construed as precluding a Member State                  under the outward processing procedure is not prohibited, even
      making access by nationals of the other Member States to the                   in the absence of a formal amendment of the temporary export
      posts of master and chief mate of merchant ships flying its flag,              declaration, from adducing proof that the incorrect declaration
      such as those covered by Article 8(3) of Royal Decree No 2062/                 had no significant effect on the correct operation of the procedure
      1999 por el que se regula el nivel mínimo de formación en                      for the purposes of Article 150(2) of the Customs Code.
 ---pagebreak--- C 275/16                  EN                         Official Journal of the European Union                                             15.11.2003
2.    Such proof must make it possible to establish, without the             1.    Declares that, by retaining in force a tax on lubricating oils
      slightest ambiguity, that the compensating products have                     under the first paragraph of Article 62 of Legislative Decree
      resulted from processing of the temporary export goods.                      No 504 of 26 October 1995, ‘Testo unico delle disposizioni
                                                                                   legislative concernenti le imposte sulla produzione e sui consumi
3.    It is for the national court to determine, in the light of all the           e relative sanzioni penali e amministrative’ (Consolidated Text
      circumstances of the main proceedings, whether or not the                    of Legislative Provisions relating to duties on production and
      economic operator has adduced that proof.                                    consumption and related criminal and administrative penalties)
                                                                                   beyond the expiry of the period laid down in the reasoned
4.    If so, the amount of the import duty which would be applicable               opinion, the Italian Republic has failed to fulfil its obligations
      to the temporary export goods on the basis of their correct tariff           under Article 3(2) of Council Directive 92/12/EEC of 25 Feb-
      heading may be deducted when the compensating products are                   ruary 1992 on the general arrangements for products subject
      released for free circulation.                                               to excise duty and on the holding, movement and monitoring
                                                                                   of such products, and Article 8(1)(a) of Council Directive 92/
                                                                                   81/EEC of 19 October 1992 on the harmonisation of the
(1) OJ C 369 of 22.12.2001.                                                        structures of excise duties on mineral oils, as amended by
                                                                                   Council Directive 94/74/EC of 22 December 1994;
                                                                             2.    Orders the Italian Republic to pay the costs.
                                                                             (1) OJ C 31 of 2.2.2002.
                  JUDGMENT OF THE COURT
                            (First Chamber)
                                                                                                JUDGMENT OF THE COURT
                       of 25 September 2003
                                                                                                     of 23 September 2003
in Case C-437/01: Commission of the European Communi-
                      ties v Italian Republic (1)                            in Case C-452/01 (Reference for a preliminary ruling
                                                                             from the Verwaltungsgerichtshof): Margarethe Ospelt and
                                                                                       Schlössle Weissenberg Familienstiftung (1)
(Failure of a Member State to fulfil its obligations —
Directives 92/12/EEC and 92/81/EEC — Tax on lubricating
                                                                             (Free movement of capital — Article 73b of the EC Treaty
                oils — Excise duty on mineral oils)
                                                                             (now Article 56 EC) — Article 40 of and Annex XII to the
                                                                             EEA Agreement — Prior authorisation procedure for the
                            (2003/C 275/26)                                  acquisition of agricultural and forestry plots — Admissi-
                                                                                                      bility — Conditions)
                     (Language of the case: Italian)
                                                                                                        (2003/C 275/27)
(Provisional translation; the definitive translation will be published                           (Language of the case: German)
                    in the European Court Reports)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                                  in the European Court Reports)
In Case C-437/01, Commission of the European Communities
(Agents: E. Traversa and K. Gross) v Italian Republic (Agent:
I. M. Braguglia, assisted by G. Aiello): Application for a                   In Case C-452/01: Reference to the Court under Article 234
declaration that, by retaining in force a tax on lubricating oils,           EC by the Verwaltungsgerichtshof (Austria) for a preliminary
the Italian Republic has failed to fulfil its obligations under              ruling in the proceedings pending before that court between
Article 3(2) of Council Directive 92/12/EEC of 25 February                   Margarethe Ospelt and Schlössle Weissenberg Familienstiftung,
1992 on the general arrangements for products subject to                     on the interpretation of Article 6 of the EC Treaty (now, after
excise duty and on the holding, movement and monitoring of                   amendment, Article 12 EC) and Articles 73b to 73d, 73f
such products (OJ 1992 L 76, p. 1), and Article 8(1)(a) of                   and 73g of the EC Treaty (now Articles 56 EC to 60 EC), the
Council Directive 92/81/EEC of 19 October 1992 on the                        Court, composed of: G.C. Rodríguez Iglesias, President,
harmonisation of the structures of excise duties on mineral                  J.-P. Puissochet (Rapporteur), M. Wathelet, R. Schintgen and
oils (OJ 1992 L 316, p. 12), as amended by Council Directive                 C.W.A. Timmermans (Presidents of Chambers), C. Gulmann,
94/74/EEC of 22 December 1994 (OJ 1994 L 365, p. 46), the                    D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken,
Court (First Chamber), composed of: M. Wathelet (Rapporteur),                N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas,
President of the Chamber, P. Jann and A. Rosas, Judges;                      Judges; L.A. Geelhoed, Advocate General; H.A. Rühl, Principal
S. Alber, Advocate General; R. Grass, Registrar, has given a                 Administrator, for the Registrar, has given a judgment on
judgment on 25 September 2003, in which it:                                  23 September 2003, in which it has ruled: