CELEX: C1995/333/23
Language: en
Date: 1995-12-09 00:00:00
Title: Reference for a preliminary ruling from the Hof van Beroep te Antwerpen by judgment/order of that court of 25 October 1995 in the case of Peter Schepens v. Belgian State (Case C-340/95)

9 . 12 . 95           EN                   Official Journal of the European Communities                                      No C 333/ 11
30 October 1995 ( Case C-342/95 ) respectively, for a                 6 . Is the second paragraph of Article 177 of the EC Treaty
preliminary ruling in criminal proceedings against Giuseppe                 to be interpreted as precluding, in cases such as this, the
Piccolo ( Case C-331 /95 ), Mario Corbo and Others ( Case                   grant by the Finance Court of leave to appeal pursuant
C-332/95 ) and Miranda Viola ( Case C-342/95 ). The                         to the second sentence of paragraph 128 ( 3 ) of the
questions referred by the Pretura Circondariale di Roma —                   Finanzgerichtsordnung ( Code of Procedure before
Sezione Distaccata di Tivoli to the Court of Justice for a                  the Finance Court) read in conjunction with
preliminary ruling are identical with those in Case                         paragraph 115 ( 2 ) ( 1 ) thereof?
C-187/95 C ).
                                                                      ( 1 ) OJ, English Special Edition 1968 ( I ), p. 176 .
(') OJ No C 208 , 12 . 8 . 1995 , p . 14 .                            ( 2 ) OJ No L 41 , 18 . 2 . 1992 , p . 9 .
                                                                      ( 3 ) OJ No L 302 , 19 . 10 . 1992 , p . 1 .
Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 21 September 1995 in                Reference for a preliminary ruling by the Bundesfinanzhof
the case of Kriiger GmbH & Co. KG v. Hauptzollamt                     by order of that court of 12 September 1995 in the case of
                        Hamburg-Jonas                                         Wiener S.I. GmbH v. Hauptzollamt Emmerich
                       ( Case C-334/95 )                                                           Case C-338/95 )
                          ( 95/C 333/21 )                                                          ( 95/C 333/22 )
Reference has been made to the Court of Justice of the                Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht                    European Communities by order of the Seventh Chamber
Hamburg ( Finance Court, Hamburg) of 21 September                     of the Bundesfinanzhof ( Federal Finance Court ) of
1995 , which was received at the Court Registry on                    12 September 1995 , which was received at the Court
23 October 1995 , for a preliminary ruling in the case of             Registry on 26 October 1 995 , for a preliminary ruling in the
Kriiger GmbH & Co . KG v. Hauptzollamt Hamburg-Jonas                  case of Wiener S.I. GmbH v. Hauptzollamt Emmerich on the
( Principal Customs Office , Hamburg-Jonas ) on the                   following question:
following questions:
                                                                      Is the term 'nightdresses' within the meaning of tariff
1 . Does Regulation ( EEC ) No 804/68 ( ] ), read in                  heading 60.04 of the 1985 Common Customs Tariff,
     conjunction with the Annex thereto, as amended by                specifically tarif subheading 60.04 B IV b 2 bb, to be
     Regulation ( EEC ) No 374/92 (2 ), infringe the second           interpreted as covering exclusively 'other' under garments
     subparagraph of Article 40 ( 3 ) of the EC Treaty, and is it     which, in view of their characteristics, are clearly intended
     consequently invalid, inasmuch as it does not provide            only to be worn as night wear, or does it also cover products
     for the grant of an export refund for milk and/or milk           which, on the basis of their appearance, are intended mainly,
     products contained in edible preparations falling                but not exclusively, to be worn in bed ?
     within Combined Nomenclature code No 2101 10
     and produced with a basis of extracts, essences or
     concentrates of coffee ?
2 . Does a breach of the prohibition of discrimination                Reference for a preliminary ruling from the Hof van Beroep
     preclude the recovery of an export refund granted in             te Antwerpen by judgment/order of that court of
     respect of milk and/or milk products contained in edible         25 October 1995 in the case of Peter Schepens v. Belgian
     preparations falling within Combined Nomenclature                                                   State
     code No 2101 10 and produced with a basis of extracts                                       ( Case C-340/95 )
     of coffee ?
                                                                                                    ( 95/C 333/23 )
3 . Is Article 244 of Regulation ( EEC ) No 2913/92 ( 3 ) ( the
     Customs Code ) applicable to the suspension of                   Reference has been made to the Court of Justice of the
     implementation of decisions ordering the recovery of an          European Communities by a judgment of the Hof van
     export refund which has been granted ?                           Beroep ( Court of Appeal ) in Antwerp of 25 October 1995 ,
                                                                      which as received at the Court Registry on 30 October 1995 ,
4 . If the answer to question 3 is in the affirmative : in cases      for a preliminary ruling in the case of Peter Schepens v.
     in which there exists doubt as to the validity of the            Belgian State on the following questions :
     Community legislation on which the decision is based, is
     the suspension of implementation to be determined in              1 . Do Articles 18 ( 4 ) and 27 of the Sixth Council Directive
     accordance with Article 244 of the Customs Code or in                  of 17 May 1977 on the harmonization of the laws of
     accordance with which other criteria ?                                 the Member States relating to turnover taxes (VAT
                                                                            Directive 77/388/EEC ) (') have direct effect in the
5 . If the answer to question 3 is in the negative: in cases in             national legal systems of the Member States and thus in
     which there exists doubt as to the validity of the                     Belgian law ?
     Community legislation on which the decision is based,
     what are the criteria according to which the suspension          2 . If so, does Article 18 (4 ) of the Directive preclude a
     of implementation falls to be determined ?                             Member State from refusing to refund to a taxable
 ---pagebreak--- No C 333/ 12            EN                 Official Journal of the European Communities                                    9 . 12 . 95
     person a VAT credit in relation to a specific period or                   of Member States but, instead, two successive
     periods during which that credit arose or to carry it over                registration certificates, and by demanding payment
     to a subsequent tax period, and instead withholding it                    for those certificates,
     by means of the Belgian withholding procedure, which
     has the effect of a preventive attachment within the                  — by issuing to employed persons and to seasonal
     meaning of Article 1445 of the Belgian Judicial Code, as                  workers whose anticipated period of work does not
     long as no definitive entitlement has arisen in that regard               exceed three months a document relating to their
     and only up to the amount of the demand relating to that                  residence, and by demanding payment for that
     tax period or earlier periods, where the demand is                        document,
     disputed by the taxable person ?
                                                                      2 . order the Kingdom of Belgium to pay the costs .
3 . Is Article 18 ( 4 ) of the Directive applicable, given that,
     according to the Belgian State , such withholding is a           Pleas in law and main arguments:
     debt-recovery procedure ?
                                                                      — ( As regards the situation of persons seeking work )
    — If so, is Article 27 of the Directive applicable if such
         withholding were to form part of the conditions                  As Community law now stands, and in accordance with
         (modalites)?                                                     the judgment of the Court of Justice of 26 February 1991
                                                                          in Case C-292/89 , nationals of Member States have the
    — If not, is Article 27 applicable, on the assumption                 right to stay in the territory of other Member States in
         that such withholding is a debt-recovery                         order to seek employment there; a Member State may
         procedure ?                                                      limit that right of residence by making it subject to a
                                                                          ' reasonable time-limit', the expiry of which does not
4 . If Article 18 ( 4 ) of the Directive is applicable to the             automatically bring that right to an end, however,
    Belgian withholding procedure, does that procedure                    provided that the person concerned is continuing to seek
    infringe the principle of proportionality as defined by               employment and has genuine chances of being engaged.
    the Court of Justice ?                                                The Belgian rules in force ( 2 ) require such persons
                                                                          seeking employment to leave the territory after a period
(') OJ No L 145 , 1977, p . 1 .                                           of three months and, since no provision is made for the
                                                                          production by the person concerned to produce evidence
                                                                          that he is continuing to seek employment and has
                                                                          genuine chances of being engaged, those rules are
                                                                          contrary to Article 48 of the EC Treaty.
                                                                     — ( As regards the system of registration certificates )
Action brought on 30 October 1995 by the Commission
of the European Communities against the Kingdom of                        Although Article 4 of Directive 68/360/EEC provides
                              Belgium                                     that the Member State must issue a residence permit, the
                         Case C-344/95 )                                  residence of workers in Belgium is covered initially , over
                                                                          a period of six months, by two registration certificates .
                          ( 95/C 333/24 )
                                                                          The issue of a provisional residence document
                                                                          constitutes an additional difficulty over and above the
An action against the Kingdom of Belgium was brought                      difficulties facing a migrant worker when he instals
before the Court of Justice of the European Communities on                himself in another Member State . The Belgian rules in
30 October 1995 by the Commission of the European                         question thus constitute a genuine obstacle to the free
Communities, represented by Pieter van Nuffel, acting as                  movement of workers, and are therefore contrary, in
Agent, with an address for service in Luxembourg at the                   principle, to Article 48 of the EC Treaty.
office of Mr Gomez de la Cruz, Wagner Centre 254,
                                                                          The Commission does not contend that the residence
Kirchberg.
                                                                          permit has to be issued immediately, that is to say, on
                                                                          the same day as the submission of an application
The applicant claims that the Court should :                              accompanied by the supporting documentation, but
                                                                          maintains that the practical effect of Article 4 requires
1 . declare that the Kingdom of Belgium has failed to fulfil              that such an application be dealt with in any event within
    its obligations under Article 48 of the EC Treaty and                 a short period of time, and that a period of three months
     Council Directive 68/360/EEC of 15 October 1968 on
    the abolition of restrictions on movement and residence
                                                                          ( and a fortiori six months ) for dealing with a simple
                                                                          administrative formality is excessive .
    within the Community for workers of Member States
    and their families ( ! )                                              Article 9 ( 1 ) of Directive 68/360/EEC provides that
                                                                          residence permits are to be issued and renewed free of
    — by requiring nationals of other Member States who                   charge or on payment of an amount not exceeding the
         seek employment in Belgium to leave the territory                dues and taxes charged for the issue of identity cards to
         after a period of three months,                                  nationals . The fact that a payment may be demanded by
                                                                          Belgian communes on the issue of the registration
    — by issuing to workers employed for a period of at                   certificate can hardly be said to afford equality of
         least one year, during the first six months of their             treatment between Belgians and nationals of other
         residence, not a residence permit for nationals                  Member States .