CELEX: C2004/007/41
Language: en
Date: 2004-01-10 00:00:00
Title: Case C-464/03: Action brought on 4 November 2003 by Kingdom of Spain against the Commission of the European Communities

C 7/24                 EN                         Official Journal of the European Union                                          10.1.2004
Action brought on 30 October 2003 by the Commission                       Industry) of 24 October 2003, received at the Court Registry
        of the European Communities against Ireland                       on 4 November 2003, for a preliminary ruling in the case of
                                                                          Gaston Schul Douane-Expediteur B.V. against the Minister van
                         (Case C-459/03)                                  Landbouw, Natuur en Voedselkwaliteit on the following
                                                                          questions:
                          (2004/C 7/39)
                                                                          1.    Is a court or tribunal as referred to in the third paragraph
                                                                                of Article 234 EC also required under that provision to
                                                                                submit to the Court of Justice a question such as that set
An action against Ireland was brought before the Court of                       out below, concerning the validity of provisions of a
Justice of the European Communities on 30 October 2003 by                       regulation where the Court of Justice has ruled that
the Commission of the European Communities, represented                         analogous provisions of another, comparable regulation
by P.J. Kuijper and B. Martenczuk, acting as agents, with an                    are invalid, or may it refrain from applying the first-
address for service in Luxembourg.                                              mentioned provisions in view of the clear analogies
                                                                                between them and the provisions declared invalid?
The Applicant claims that the Court should:
                                                                          2.    Are Article 4(1) and (2) of Commission Regulation (EC)
—     declare that, by instituting dispute settlement proceedings               No 1423/95 (1) of 23 June 1995 laying down detailed
      against the United Kingdom under the UN Convention                        implementing rules for the import of products in the
      for the Law of the Sea concerning the MOX Plant located                   sugar sector other than molasses invalid inasmuch as
      at Sellafield, Ireland has failed to fulfil its obligations               they provide that the additional duty referred to therein
      under Article 10 and 292 EC and Article 192 and 193                       is, as a general rule, established on the basis of the
      Euratom;                                                                  representative price referred to in Article 1(2) of Regu-
                                                                                lation (EC) No 1423/95 and that that duty is established
—     order Ireland to pay the costs.                                           on the basis of the cif import price of the shipment
                                                                                concerned only if the importer so requests?
Pleas in law and main arguments                                           (1) Commission Regulation (EC) No 1423/95 of 23 June 1995 laying
                                                                              down detailed implementing rules for the import of products in
The Commission submits that Ireland has instituted the                        the sugar sector other than molasses (OJ L 141 of 24.06.1995,
                                                                              p. 16).
proceedings against the United Kingdom without taking due
account of the fact that the European Community is a party to
the UN Convention for the Law of the Sea (UNCLOS). It has
further failed to appreciate that the provisions of UNCLOS
invoked by it, as well as a number of other Community acts
invoked by Ireland, are provisions of Community law. By
submitting the dispute to a Tribunal outside the Community
legal order, Ireland has violated the exclusive jurisdiction of
the Court of Justice enshrined in Articles 292 EC and 193                 Action brought on 4 November 2003 by Kingdom of
Euratom. Furthermore, Ireland has also violated the duty of               Spain against the Commission of the European Communi-
cooperation incumbent on it under Articles 10 EC and 192                                                  ties
Euratom.
                                                                                                   (Case C-464/03)
                                                                                                    (2004/C 7/41)
Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by order of that Court of
24 October 2003 in the case of Gaston Schul Douane-                       An action against the Commission of the European Communi-
Expediteur B.V. against the Minister van Landbouw,                        ties was brought before the Court of Justice of the European
                  Natuur en Voedselkwaliteit                              Communities on 4 November 2003 by the Kingdom of Spain,
                                                                          represented by Nuria Díaz Abad, Abogado del Estado, with an
                                                                          address for service in Luxembourg.
                         (Case C-461/03)
                          (2004/C 7/40)                                   The applicant claims that the Court should:
                                                                          —     annul Commission Regulation (EC) No 1438/2003 (1) of
Reference has been made to the Court of Justice of the                          12 August 2003 laying down implementing rules on the
European Communities by order of the College van Beroep                         Community Fleet Policy as defined in Chapter III of
voor het bedrijfsleven (Administrative Court for Trade and                      Council Regulation (EC) No 2371/2002; and
 ---pagebreak--- 10.1.2004             EN                        Official Journal of the European Union                                            C 7/25
—     order the defendant institution to pay the costs.                 On the basis of the Council Regulation 2913/92 (‘the Customs
                                                                        Code’), in particular Articles 29, 32 and 33 thereof, and the
                                                                        case law of the Court, where, at the time of customs clearance,
                                                                        an importer inadvertently declares as the price paid or payable
Pleas in law and main arguments                                         for the goods an amount inclusive of buying commission and
                                                                        inadvertently fails to show the buying commission separately
                                                                        on the import declaration from the price actually paid or
1. Breach of essential procedural requirements as a result of
                                                                        payable but, after the goods have been released into free
infringement of the Council’s language rules: the Spanish
                                                                        circulation, shows to the satisfaction of the Customs authorities
delegation did not receive an invitation in Spanish to the
                                                                        that the declared price paid or payable for the goods included
meeting of the Management Committee for Fisheries and
                                                                        bona fide buying commission, which could have been properly
Aquaculture at which the proposed regulation was discussed.
                                                                        deducted at importation, and makes a claim for repayment of
Furthermore, during that meeting the Commission put forward
                                                                        the duty paid on the buying commission within three years of
a substantive amendment to its proposal but only in English.
                                                                        the date on which amount of customs duty was communicated:
2. Breach of the hierarchy of norms: Article 7(1) of                    1.     Could the bona fide buying commission be dutiable as
Regulation No 1438/2003 infringes the provisions of:                           part of the price actually paid or payable for the goods
                                                                               under Article 29 of the Customs Code?
—     Article 13 of Regulation No 2371/2002 which does not
      require the Member State to guarantee that the tonnage
      capacity does not exceed certain limits; and                      2.     If the answer to question 1 is negative, could the bona
                                                                               fide buying commission be deductible from the declared
—     Article 11 of Regulation No 2371/2002 which requires                     transaction value bearing in mind the provisions of
      that, when establishing the balance of entries and exits                 Articles 32.3 and 33 of the Customs Code?
      the corresponding capacity of the fleet is not to be taken
      into account.
                                                                        3.     In such circumstances are the customs authorities obliged
                                                                               under the Customs Code, and in particular Article 78.3
3. Breach of the principle of legitimate expectations: the                     thereof, to accept the amendment to the price paid or
retrospective nature of the provision could be detrimental to                  payable for the imported goods and thereby reduced
the interested of the persons concerned.                                       customs value?
4. Arbitrariness: the provision lays down as the period for             4.     Is the importer therefore entitled under the Customs
exits the range of 2000 to 2002 for no technical reason                        Code, and in particular Article 236 thereof, to a refund
whatever.                                                                      of the duty paid on the buying commission?
(1) OJ L 204 of 13.08.2003, p. 21.
Reference for a preliminary ruling by the VAT and Duties
Tribunals, London Tribunal Centre, by direction of that                 Action brought on 17 November 2003 by the Com-
court dated 29 October 2003, in the case of Overland                    mission of the European Communities against the
Footwear Ltd against Commissioners of Customs and                                               Hellenic Republic
                             Excise
                        (Case C-468/03)                                                          (Case C-474/03)
                         (2004/C 7/42)
                                                                                                  (2004/C 7/43)
Reference has been made to the Court of Justice of the
European Communities by a direction of the VAT and Duties
Tribunals, London Tribunal Centre, dated 29 October 2003,
which was received at the Court Registry on 6 November                  An action against the Hellenic Republic was brought before
2003, for a preliminary ruling in the case of Overland                  the Court of Justice of the European Communities on 17 Nov-
Footwear Ltd and Commissioners of Customs and Excise on                 ember 2003 by the Commission of the European Communi-
the following questions:                                                ties, represented by Maria Patakia, of its Legal Service.