CELEX: C1995/159/19
Language: en
Date: 1995-06-24 00:00:00
Title: Reference for a preliminary ruling by the Østre Landsret by decision of that court of 24 March 1995 in the case of Olieselskabet Danmark A.m.b.a. v. Trafikministeriet and Others (Case C-115/95)

24 . 6 . 95             EN                   Official Journal of the European Communities                                No C 159/9
               on the tariff and statistical nomenclature and           received at the Court Registry on 3 April 1 995 , for a
               on the Common Customs Tariff (*) adopted                 preliminary ruling in the case of Olieselskabet Danmark
               pursuant thereto, or Article 95 of the EC                A.m. b.a . v. Trafikministeriet and Others on the following
               Treaty ?                                                 questions :
            — Or in so far as it is assumed that the case relates
                                                                        1 . Must the compatibility with Community law of a 40 %
               to services in respect of which consideration is             surcharge on a general goods duty, which is levied by a
               paid , under:                                                Member State when goods are imported by ship from
      ( B ) — Article 84 of the EC Treaty and Council                       another Member State, be assessed in the light of:
               Regulation ( EEC ) No 4055/86 of 22 December
               1986 applying the principle of freedom to                    ( A) — the Treaty rules on the Customs Union,
               provide services to maritime transport between                         including Articles 9 to 13 , if necessary in
               Member States and between Member States                                conjunction with Articles 18 to 29 and Council
               and third countries (2 )? Or                                           Regulations ( EEC ) No 950/68 of 28 June 1968
                                                                                      on the Common Customs Tariff ( J ) and ( EEC )
            — Articles 90 and 86 of the EC Treaty on abuse of                         No 2658/87 of 23 July 1987 on the tariff and
               a dominant position, in which connection the                           statistical nomenclature and on the Common
               question arises as to whether Council                                  Customs Tariff ( 2 ) adopted pursuant thereto,
               Regulation ( EEC ) No 4056/86 of 22 December                           or Article 95 of the Treaty ?
               1986 laying down -detailed rules for the
               application of Articles 85 and 86 of the Treaty                        or :
               to maritime transport ( 3 ) is relevant for
               determining whether the surcharge is                         ( B ) — Article 84 of the Treaty and Council Regulation
               compatible with Community law ?                                        ( EEC ) No 4055/86 of 22 December 1986
                                                                                      applying the principle of freedom to provide
2 . Is it consistent with the Community-law provision(s )                             services to maritime transport between
                                                                                      Member States and between Member States
      specified in the reply to Question 1 that a 40 %
      surcharge on a general goods duty should be levied on                           and third countries ( 3 )? Or
      imports of goods by ship from another Member
      State ?                                                                     — Articles 90 and 86 of the Treaty on abuse of a
                                                                                      dominant position, in which connection the
3 . Will the reply to Question 2 be the same if the goods are                         question arises as to whether Council
      imported by ship into a Member State from a                                     Regulation ( EEC ) No 4055/86 is relevant for
      non-member country with which the European                                      determining whether the surcharge is
      Economic Community has an agreement containing                                  compatible with Community law ?
      provisions corresponding to Articles 6 and 18 of the
      agreement between the Kingdom of Sweden and the                   2 . Is it consistent with the Community-law provision(s )
      European       Economic           Community,     and     the          specified in the reply to Question 1 that a 40%
      determination is made in the light of such a ( free-trade )           surcharge on a general goods duty should be levied on
      agreement ?                                                           imports of goods by ship from another Member
                                                                            State ?
4 . Will the reply to Question 2 be the same if the goods are
      imported into a Member State directly from a                      3 . Will the reply to Question 2 be the same if the goods are
      non-member country with which the European                            imported by ship into a Member State from a
      Economic Community does not have a ( free-trade )                     non-member country with which the European
      agreement ?                                                           Economic Community had an agreement containing
                                                                            provisions corresponding to Articles 6 and 18 of the
(M OJ No L 256 , 7 . 9 . 1987, p . 1 .                                      agreement between the Kingdom of Sweden and the
( 2 ) OJ No L 378 , 31 . 12 . 1986 , p . 1 .                                European        Economic       Community,     and      the
( 3 ) OJ No L 378 , 31 . 12 . 1986 , p . 4 .                                determination is made in the light of such a ( free-trade )
                                                                            agreement ?
                                                                        4 . Will the reply to Question 2 be the same if the goods are
                                                                            imported into a Member State directly from a
Reference for a preliminary ruling by the 0stre Landsret by                 non-member country with which the European
decision of that court of 24 March 1995 in the case of
                                                                            Economic Community did not have a ( free-trade )
Olieselskabet Danmark A.m.b.a. v. Trafikministeriet and
                                                                            agreement ?
                                Others
                         ( Case C-115/95 )                              5 . Does it follow from Community law that a Member
                           ( 95/C 159/19 )                                  State which has imposed or approved a duty contrary to
                                                                            Community law is liable to repay the duty, even though
Reference has been made to the Court of Justice of the                      the proceeds of the duty have been allocated to
European Communities by a decision of the 0stre Landsret                    independent operators subject to local authority
( Eastern Regional Court) of 24 March 1 995 , which was                     control ?
 ---pagebreak--- No C 159/ 10              EN                     Official Journal of the European Communities                                     24 . 6 . 95
6 . In view of the fact that it follows from the established                The applicant claims that the Court should :
     case-law of the Court of Justice that the repayment of
     duties levied in breach of Community law must have                     1 , declare that by failing to adopt by law, regulation or
     regard to the substantive and formal requirements laid                     administrative action within the prescribed time limit
     down in national legislation, and that the Court of                        the necessary provisions to comply with Council
     Justice held at paragraph 12 of its judgment in Case                       Directive 92/48/EEC of 16 June 1992 laying down the
      1 99/82 Amministrazione delle Finanze dello Stato v . San
                                                                                minimum hygiene rules applicable to fishery products
      Giorgio of 9 November 1983 ( 4 ) that entitlement to the                  caught on board certain vessels in accordance with
     repayment of charges levied by a Member State contrary                     Article 3 ( 1 ) ( a ) (i ) of Directive 91/493/EEC O , the
      to the rules of Community law is a consequence of, and                    Italian Republic has failed to fulfil its obligations under
      an adjunct to, the rights conferred on individuals by the                 the EC Treaty;
      Community provisions prohibiting charges having an
      effect equivalent to customs duties or, as the case may
      be, the discriminatory application of internal taxes, the             2 , order the Italian Republic to pay the costs .
      following question arises :
                                                                            Pleas in law and main arguments adduced in support:
      must the case-law of the Court of Justice be understood
      as meaning that Community law contains an                             The pleas in law and main arguments are the same as in Case
      unconditional obligation to repay duties which,                       C-79/95 ; the time limit for implementation expired on
      according to the replies to Questions 1 to 4 , may be                 1 January 1993 .
      contrary to Community law, but that this obligation is
      such that the detailed conditions for the actual
                                                                            (!) OJ No L 187, 7. 7. 1992 , p . 41 .
      processing of the claim for repayment are subject, within
      certain limits laid down in the case-law of the Court of
      Justice, to relevant national legislation ?
7. If it is held that the 40 % surcharge on the general goods
      duty is contrary to Community law, including
      ( free-trade ) agreements entered into, it is compatible              Action brought on 4 April 1995 by the Commission of the
      with Community law that a limitation period laid down                     European Communities against the Italian Republic
      in national law for repayment claims runs from an                                              ( Case C-117/95 )
      earlier point in time than that from which the Member
                                                                                                       ( 95/C 159/21 )
      State in question discontinued the duty which was
      contrary to Community law ?
                                                                            An action against the Italian Republic was brought before
                                                                            the Court of Justice of the European Communities on
(M   OJ No    L 172 , 22 . 7 . 1968 , p . 1 .
                                                                            4 April 1995 by the Commission of the European
(2 ) OJ No    L 256 , 7 . 9 . 1987, p . 1 .
(')  OJ No    L 378 , 31 . 12 . 1986 , p . 1 .
                                                                            Communities, represented by Eugenio de March, Legal
(4 ) [ 1983 ] ECR, p . 3595 .                                               Adviser, acting as Agent, with an address for service in
                                                                            Luxembourg at the office of Georgios Kremlis, Wagner
                                                                            Centre, Kirchberg .
                                                                            The applicant claims that the Court should :
                                                                            1 , declare that by failing to adopt by law, regulation or
                                                                                 administrative action within the prescribed time limits
                                                                                 the necessary provisions to comply with Council
                                                                                 Directive 92/35/EEC of 29 April 1992 laying down
Action brought on 4 April 1995 by the Commission of the                          control rules and measures to combat African horse
     European Communities against the Italian Republic
                                                                                 sickness (*) and Council Directive 92/40/EEC of 19 May
                             ( Case C- 1 16/95 )                                 1992 introducing Community measures for the control
                               ( 95/C 159/20 )                                   of avian influenza ( 2 ) the Italian Republic has failed to
                                                                                 fulfil its obligations under the EC Treaty;
An action against the Italian Republic was brought before                   2 , order the Italian Republic to pay the costs .
the Court of Justice of the European Communities on
4 April 1995 by the Commission of the European
Communities, represented by Eugenio de March, Legal                         Pleas in law and main arguments adduced in support:
Adviser, acting as Agent, with an address for service in
Luxembourg at the office of Georgios Kremlis, Wagner                        The pleas in law and main arguments are the same as in Case
Centre, Kirchberg .                                                         C-79/95 ; the time limits for implementation expired on