CELEX: C2004/059/21
Language: en
Date: 2004-03-06 00:00:00
Title: Case C-546/03: Action brought on 23 December 2003 by the Commission of the European Communities against the Kingdom of Spain

C 59/12                 EN                         Official Journal of the European Union                                           6.3.2004
Reference for a preliminary ruling by the Bundesfinanzh-                   The applicant claims that the Court should:
of by order of that court of 18 November 2003 in
the case of Hauptzollamt Hamburg-Jonas against Milupa
                         GmbH & Co KG                                      1.    declare that, by failing to observe the mandatory time-
                                                                                 limits for entry in the accounts laid down by Article
                                                                                 220(1) of the Community Customs Code (1) (and by
                         (Case C-542/03)
                                                                                 Article 5 of Regulation No 1854/89 (2)) the Kingdom of
                                                                                 Spain has failed to fulfil its obligations under those
                          (2004/C 59/20)                                         provisions of Community law;
                                                                           2.    declare, furthermore, that inasmuch as late establishment
                                                                                 caused delays to the making available of own resources,
Reference has been made to the Court of Justice of the
                                                                                 by not paying default interest in accordance with
European Communities by order of the Bundesfinanzhof
                                                                                 Article 11 of Regulation 1552/89 (3) up until 31 May
(Federal Finance Court, Germany) of 18 November 2003,
                                                                                 2000 and in accordance with Article 11 of Regulation
received at the Court Registry on 23 December 2003, for a
                                                                                 No 1150/2000 (4) from 31 May 2000, the Kingdom of
preliminary ruling in the case of Hauptzollamt Hamburg-Jonas
                                                                                 Spain has failed to fulfil its obligations under the relevant
against Milupa GmbH & Co KG on the following question:
                                                                                 provision of Community law;
Are the second sentence of the first subparagraph of
                                                                           3.    order the Kingdom of Spain to pay the costs.
Article 7(1), the first subparagraph of Article 7(2) and
Article 7(5) of Regulation (EC) No 1222/94, as amended by
Regulation (EC) 229/96, (1) to be interpreted as meaning that
the party concerned is not entitled to grant of an export refund
if, in the production of the exported goods, it was not the
product declared by him, which under the first indent of
Article 1(2)(c) of Regulation (EC) No 1222/94 (2) is assimilated
to skimmed milk powder of the type described in Annex A                    Pleas in law and main arguments
(PG 2), that was used but another product which, in respect of
the non-fat part of its dry matter content, is also assimilated to
skimmed milk powder of the type described in Annex A (PG 2)
by virtue of the first indent of Article 1(2)(f) of Regulation (EC)        The Community rules on own resources are clear in that they
No 1222/94?                                                                refer to the time when the Spanish authorities are obliged to
                                                                           establish such resources: that moment is when the national
                                                                           authorities are in a position to calculate the amount due and
(1) OJ 1996 L 30, p. 24.                                                   to notify the chargeable person that all the relevant Community
(2) OJ 1994 L 136, p. 5.                                                   provisions have been complied with. In the event of a failure
                                                                           to enter duties deriving from a customs debt in the accounts,
                                                                           those rules do not allow the national administration to apply
                                                                           time-limits provided for in their national legislation, which are
                                                                           different from the compulsory time-limits laid down by
                                                                           Community law. Such time-limits must be observed once the
                                                                           debtor is identified and the amount of the debt can be
                                                                           calculated.
Action brought on 23 December 2003 by the Commission
of the European Communities against the Kingdom of
                               Spain
                                                                           The time at which establishment of own resources must take
                                                                           place is independent of notification to the debtor or of a
                         (Case C-546/03)                                   definitive decision adopted by the national authorities. Those
                                                                           circumstances are relevant only to the relationship between the
                          (2004/C 59/21)                                   national authorities and the debtor, whereas the relationship
                                                                           between the Member State and the Community, as regards
                                                                           own resources, is governed exclusively by compliance with
                                                                           objective conditions concerning entry in the accounts. The
                                                                           obligation to establish own resources and subsequently the
An action against the Kingdom of Spain was brought before the              obligation to make them available is independent of the
Court of Justice of the European Communities on 23 December                additional time-limits provided for by the national legislation
2003 by the Commission of the European Communities,                        in order to allow the debtor to submit his observations.
represented by M. Díaz-Llanos La Roche and G. Wilms, acting                Therefore, the practice followed by the Spanish authorities
as Agents, with an address for service in Luxembourg.                      does not comply with Community rules.
 ---pagebreak--- 6.3.2004                EN                         Official Journal of the European Union                                             C 59/13
As a result of its failure to fulfil those obligations, Spain must               —     2001/12/EC of the European Parliament and of the
pay default interest, in accordance with Community rules on                            Council of 26 February 2001 amending Council
own resources. According to settled case-law, there is an                              Directive 91/440/EEC on the development of the
indissoluble link between the obligation to establish the                              Community’s railways (1);
Community’ own resources, the obligation to credit them to
the Commission’s account within the prescribed time-limit                        —     2001/13/EC of the European Parliament and of the
and, finally, the obligation to pay default interest, which is                         Council of 26 February 2001 amending Council
owed for the whole period of delay and is payable regardless                           Directive 95/18/EC on the licensing of railway
of the reason for the delay in making the entry in the                                 undertakings (2);
Commission’s account. Consequently, the reference made by
the Spanish authorities to their internal procedures, has no
influence as regards its obligation to pay default interest. In                  —     2001/14/EC of the European Parliament and of the
order to enable the Commission to calculate the default                                Council of 26 February 2001 on the allocation of
interest, Spain must communicate to it all the information                             railway infrastructure capacity and the levying of
necessary on the periods which elapsed between the entry in                            charges for the use of railway infrastructure and
the accounts, as the relevant time for the establishment of own                        safety certification (3);
resources, according to the provisions of Community law on
the collection of those resources, and the practice followed by                  and in any event by failing to notify the provisions in
the Spanish authorities. The Kingdom of Spain has failed to                      question to the Commission, the Hellenic Republic has
fulfil that obligation.                                                          failed to fulfil its obligations under those directives.
                                                                           —     order the Hellenic Republic to pay the costs.
(1) Council Regulation (EEC) No 2913 of 12 October 1992 estab-
    lishing the Community Customs Code (OJ 1992 L 302, p. 1).
(2) Council Regulation (EEC) No 1854/89 of 14 June 1989 on the
    entry in the accounts and terms of payment of the amounts of
    import duties or export duties resulting from a customs debt (OJ       Pleas in law and main arguments
    1989 L 186, p. 1).
(3) Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989
    implementing Decision 88/376/EEC, Euratom on the system of
    the Communities own resources (OJ 1989 L 155, p. 1).                   The period prescribed for transposing the directives into
(4) Council Regulation (EC, Euratom) No 1150/2000 of 22 May                national law expired on 15 March 2003.
    2000 implementing Decision 94/728/EC, Euratom on the system
    of the Communities own resources (OJ 2000 L 130, p. 1).
                                                                           (1) OJ L 75 of 15.03.2001, p. 1.
                                                                           (2) OJ L 75 of 15.03.2001, p. 26.
                                                                           (3) OJ L 75 of 15.03.2001, p. 29.
Action brought on 23 December 2003 by the Commission
     of the European Communities against the Hellenic
                             Republic
                                                                           Appeal brought on 29 December 2003 by Unilever
                         (Case C-550/03)                                   Bestfoods (Ireland) Ltd, formerly HB Ice Cream Ltd,
                                                                           against the judgment delivered on 23 October 2003 by
                                                                           the Fifth Chamber of the Court of First Instance of the
                          (2004/C 59/22)
                                                                           European Communities in case T-65/98 between Van den
                                                                           Bergh Foods Ltd, formerly HB Ice Cream Ltd, and the
                                                                                    Commission of the European Communities
An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 23 December                                          (Case C-552/03 P)
2003 by the Commission of the European Communities,
represented by Georgios Zavvos and Wouter Wils, of its Legal
Service.                                                                                               (2004/C 59/23)
The applicant claims that the Court should:
                                                                           An appeal against the judgment delivered on 23 October 2003
—      declare that, by failing to adopt the laws, regulations             by the Fifth Chamber of the Court of First Instance of the
       and administrative provisions necessary to comply with              European Communities in case T-65/98 (1) between Van den
       Directives:                                                         Bergh Foods Ltd, formerly HB Ice Cream Ltd, and the