CELEX: C2004/007/43
Language: en
Date: 2004-01-10 00:00:00
Title: Case C-474/03: Action brought on 17 November 2003 by the Commission of the European Communities against the Hellenic Republic

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.
 ---pagebreak--- C 7/26                 EN                       Official Journal of the European Union                                        10.1.2004
The Commission claims that the Court should:                            Pleas in law and main arguments
—     declare that, by failing to adopt or, in any event, to
      notify to the Commission the laws, regulations and                The period prescribed for the transposition of the directive
      administrative provisions necessary to comply with Direc-         expired on 8 August 2002.
      tive 2000/9/EC (1) of the European Parliament and of
      the Council of 20 March 2000 relating to cableway
                                                                        (1) OJ 2000 L 200, p. 35.
      installations designed to carry persons, the Hellenic
      Republic has failed to fulfil its obligations under that
      directive;
—     order the Hellenic Republic to pay the costs.
                                                                        Action brought on 19 November 2003 by the Com-
Pleas in law and main arguments                                         mission of the European Communities against the Grand
                                                                                             Duchy of Luxembourg
The time-limit for transposition of the directive into national                                  (Case C-481/03)
law expired on 3 May 2002.
                                                                                                  (2004/C 7/45)
(1 ) OJ L 106, 3.5.2000, p. 21.
                                                                        An action against the Grand Duchy of Luxembourg was
                                                                        brought before the Court of Justice of the European Communi-
                                                                        ties on 19 November 2003 by the Commission of the
                                                                        European Communities, represented by W. Wils, acting as
                                                                        Agent, with an address for service in Luxembourg.
Action brought on 18 November 2003 by the Com-
mission of the European Communities against the Grand                   The Commission of the European Communities claims that
                     Duchy of Luxembourg                                the Court should:
                                                                        1.    declare that, by failing to adopt the laws, regulations
                         (Case C-479/03)                                      and administrative provisions necessary to comply with
                                                                              Directive 2001/12/EC of the European Parliament and of
                           (2004/C 7/44)                                      the Council of 26 February 2001 amending Council
                                                                              Directive 91/440/EEC on the development of the Com-
                                                                              munity’s railways (1) and Directive 2001/13/EC of the
                                                                              European Parliament and of the Council of 26 February
                                                                              2001 amending Council Directive 95/18/EC on the
An action against the Grand Duchy of Luxembourg was                           licensing of railway undertakings (2) and, in any event, by
brought before the Court of Justice of the European Communi-                  failing to inform the Commission thereof, the Grand
ties on 18 November 2003 by the Commission of the                             Duchy of Luxembourg has failed to fulfil its obligations
European Communities, represented by M. Patakia, acting as                    under those directives;
Agent, with an address for service in Luxembourg.
                                                                        2.    order the Grand Duchy of Luxembourg to pay the costs.
The Commission of the European Communities claims that
the Court should:
                                                                        Pleas in law and principal arguments
1.    declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with
      Directive 2000/35/EC of the European Parliament and of            The period prescribed for the transposition of those directives
      the Council of 29 June 2000 on combating late payment             expired on 15 March 2003.
      in commercial transactions (1) and, in any event, by failing
      to inform the Commission thereof, the Grand Duchy of
      Luxembourg has failed to fulfil its obligations under that        (1) OJ L 75, 15.3.2001, p. 1.
      directive;                                                        (2) OJ L 75, 15.3.2001, p. 26.
2.    order the Grand Duchy of Luxembourg to pay the costs.