CELEX: C1995/174/04
Language: en
Date: 1995-07-08 00:00:00
Title: Reference for a preliminary ruling from the Polimeles Protodikio, Athens, by judgment of that court of 30 November 1994 in the case of Georgios Kontogeorgas v. Kartonpak AE (Case C-104/95)

!. 7 . 95            I EN                   Official Journal of the European Communities                                  No C 174/3
( f) Does the levying on an importer acting in good faith of                  claims commission was entered into in that place within
        the duties payable on goods in respect of which an                    the agent's geographical area .
        exporter has committed a customs offence, in which the
        importer was in no way involved , infringe the principles
        of justice, prohibition of enrichment at the expense of
        others, proportionality, legal certainty and good
        faith ?
                                                                         Appeal brought on 31 March 1995 by the Bundesverband
(g ) Since the customs authorities in the country of                     der Bilanzbuchhalter against the judgment delivered on
        exportation neglected to carry out a prior inspection of         23 January 1995 by the Fourth Chamber of the Court of
        the exporter 's warehouses before issuing the-movement           First Instance of the European Communities in Case
        certificates EUR.l , and since the Portuguese importer           T-84/94 between the Bundesverband der Bilanzbuchhalter
        cannot remedy the situation arising from such                        and the Commission of the European Communities
        negligence , does that situation not constitute a case of                              ( Case C-107/95 P )
        force majeure for the importer, precluding the
                                                                                                     95 /C 174/05 )
        procedure for post-clearance recovery commenced
        against it ?
                                                                         An appeal against the judgment delivered on 23 January
(') OJ No L 175 , 1 . 7. 1986 , p . 1 .
                                                                         1995 by the Fourth Chamber of the Court of First Instance
( 2 ) OJ No L .302 , 19 . 10 . 1992 , p . 1 .                            of the European Communities in Case T-84/94 between the
(') 1 1993 | ECR , p . 1-6381 .                                          Bundesverband der Bilanzbuchhalter and the Commission
                                                                         of the European Communities was brought before the
                                                                         Court of Justice of the European Communities on 3 1 March
                                                                         1995 by the Bundesverband der Bilanzbuchhalter,
                                                                         represented by Joachim A. Miiller, Rechtsanwalt, Munich,
                                                                         with an address for service in Luxembourg at the Chambers
                                                                         of Arsene Kronshagen, 12 Boulevard de la Foire .
Reference for a preliminary ruling from the Polimeles
Protodikio , Athens , by judgment of that court of                       The appellant claims that the Court should :
30 November 1994 in the case of Georgios Kontogeorgas v.
                            Kartonpak AE                                 set aside the judgment of the Court of First Instance of
                          ( Case C-104/95 )                              23 January 1995 in Case T-84/94 (').
                            ( 95 /C 174/04 )
                                                                         Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the                   Infringement of the provisions of the EC Treaty , in
European Communities by a judgment of the Polimeles                      particular Articles 5 , 59 , 86 and 90 ( 1 ) and ( 3 ), and
Protodikio ( Court of First Instance , several judges ), Athens ,        misinterpretation of Articles 155 and 169 of the EC Treaty .
of 30 November 1994 , which was received at the Court
                                                                         Contrary to the assumption made in the contested
Registry on 31 March 1995 , for a preliminary ruling in the              judgment, an action against a refusal to bring proceedings
case of Georgios Kontogeorgas v. Kartonpak AE pending                    under Article 1 69 or Article 90 ( 3 ) of the EC Treaty must in
before it on the following questions :                                   any event be admissible where it is pleaded that the refusal is
                                                                         based on a defective investigation into the facts or the
 1 . Where the commercial agent is responsible for a specific            assessment by the Commission in the case in point is reduced
      geographical area , is he entitled to commission on                to naught.
       transactions entered into without his involvement at any
       stage and irrespective of whether he himself had found            (') OJ No C 74 , 25 . 3 . 1995 , p . 11 .
       the customers in question, or is he so entitled only on
       transactions concluded in his area of activity as a result
       of his intervention with customers which he himself has
       found ?
2 . What is the meaning to be attached to the term                       Action brought on 10 April 1995 by the Federal Republic of
       'customer belonging ' to that area ? In particular where             Germany against the Council of the European Union
       the customer is a company whose seat is located in a                                       ( Case C-122/95 )
       different place from that in which its managerial and
                                                                                                    ( 95 /C 174/06 )
       commercial activity is carried on , does the word
       ' belonging' refer to the company's seat or to the place in
       which its commercial activity is actually carried on              An action against the Council of the European Union was
       and/or its works or other establishments are located ,            brought before the Court of Justice of the European
       where the transaction in respect of which commission is           Communities on 10 April 1995 by the Federal Republic of
       sought was to supply those works or establishments and            Germany, represented by Ernst Roder and Berndt Kloke,
       the relevant transaction in respect of which the agent            Federal Ministry of Economics, Bonn.