CELEX: C1997/054/04
Language: en
Date: 1997-02-22 00:00:00
Title: JUDGMENT OF THE COURT (First Chamber) of 12 December 1996 in Case C-38/95 (reference for a preliminary ruling from the Corte d'Appello di Ancona): Ministero delle Finanze v. Foods Import Srl (Common Customs Tariff - Tariff headings - Fish of the Molva molva kind)

No C 54/2             EN                    Official Journal of the European Communities                                     22 . 2 . 97
Bench Division) for a preliminary ruling in the                                      JUDGMENT OF THE COURT
proceedings pending before that court between the Queen                                          (Fifth Chamber)
and Secretary of State for Trade and Industry, Ex parte:
                                                                                             of 12 December 1996
British Telecommunications pic — on the interpretation
of Council Directive 90/387/EEC of 28 June                 1990        in Case C-3/95 (reference for a preliminary ruling from
on     the   establishment    of    the  internal   market    for      the Landgericht Dortmund ): Reisebiiro Broede v. Gerd
telecommunications services through the implementation                                                Sandker ( 1 )
of open network provision ( OJ No L 192, 24 . 7. 1990,
p. 1 ) and on the interpretation and validity of Council               (Freedom to provide services — Judicial recovery of debts
Directive 92/44/EEC of 5 June 1992 on the application of                     — Authorization — Article 59 of the EC Treaty)
open network provision to leased lines ( OJ No L 165 ,                                              ( 97/C 54/03 )
19 . 6 . 1992 , p. 27 ) — the Court, composed of: G. C.
Rodriguez Iglesias, President, G. F. Mancini and J. C.                                (Language of the case: German)
Moitinho de Almeida ( Presidents of Chambers ), C. N.
Kakouris, C. Gulmann, D. A. O. Edward, J. -P. Puissochet
( Rapporteur ), P. Jann and H. Ragnemalm, Judges; G.                     (Provisional translation; the definitive translation will be
Tesauro, Advocate-General; L. Hewlett, Administrator, for                       published in the European Court Reports)
the Registrar, gave a judgment on 12 December 1996 , the
operative part of which is as follows:                                 In Case C-3/95 : reference to the Court under Article 177
                                                                       of the EC Treaty by the Landgericht ( Regional Court )
                                                                       Dortmund ( Germany ), for a preliminary ruling in the
                                                                       proceedings pending before that court between Reisebiiro
                                                                       Broede and Gerd Sandker on the interpretation of the
1 . Council Directive 92/44/EEC of 5 June 1992 on the                  provisions of the EC Treaty relating to freedom to provide
     application of open network provision to leased lines             services, in particular Article 59 — the Court ( Fifth
     applies to telecomunications organizations within the             Chamber), composed of: J. C. Moitinho de Almeida,
     meaning of Article 2 (1 ) of Council Directive 90/387/            President of the Chamber, L. Sevon, D. A. O. Edward
     EEC of 28 June 1990 on the establishment of the                   ( Rapporteur ), P. Jann and M. Wathelet, Judges; N. Fenelly,
     internal market for telecommunications services
                                                                       Advocate-General ; H. A. Riihl , Principal Administrator,
     through the implementation of open network                        for the Registrar, has given a judgment on 12 December
    provision. Inter alia, the two undertakings to which a             1996 , in which it has ruled :
     Member State has reserved, otherwise than according
     to objective, proportional and non-discriminatory
     criteria, the operation of international and in                   Article 59 of the EC Treaty does not preclude a national
    particular intra- Community telecommunications lines               rule which prohibits an undertaking established in another
     and likewise the undertaking to which a Member State              Member State from securing judicial recovery of debts
     has reserved, on the same terms, the operation of a               owed to others on the ground that the exercise of that
    public telecommunications network in part of its                   activity in a professional capacity is reserved to the legal
     territory constitute telecommunications organizations             profession.
     within the meaning of that provision. A Member State
     is entitled to impose the obligations laid down in                (') OJ No C 54, 4 . 3 . 1995 .
    Article 7 of Directive 92/44/EEC on only some
     telecommunications          organizations,     since    the
     imposition of those obligations is sufficient to make
    available to users throughout the national territory a
     minimum number of leased lines complying with the
    specifications laid down by that Directive. In                                   JUDGMENT OF THE COURT
    particular, a Member State is entitled to impose the                                          ( First Chamber)
     obligations laid down in that provision on only those
     telecommunications organizations which are the                                          of 12 December 1996
    principal operators of telecommuncations lines in each             in Case C-38/95 (reference for a preliminary ruling from
     of the geographical areas comprising its territory.               the Corte d'Appello di Ancona ): Ministero delle Finanze v.
                                                                                              Foods Import Srl ( ] )
                                                                       (Common Customs Tariff — Tariff headings — Fish of
                                                                                            the Molva molva kind)
2 . Examination of the questions referred for a
    preliminary ruling has disclosed no factor capable of                                           ( 97/C 54/04 )
    affecting the validity of Directive 92/44/EEC.
                                                                                       (Language of the case: Italian)
(') OJ No C 380, 31 . 12 . 1994 .                                        (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
                                                                       In Case C-38/95 : reference to the Court under Article 177
                                                                       of the EC Treaty by the Corte d'Appello di Ancona, for a
 ---pagebreak--- 22 . 2 . 97            EN                  Official Journal of the European Communities                                    No C 54/3
preliminary ruling in the proceedings pending before that                            JUDGMENT OF THE COURT
court between Ministero delle Finanze and Foods Import                                         ( Fifth Chamber )
Sri on the interpretation of Council Regulation ( EEC )
No 3796/81 of 29 December 1981 on the common                                               of 12 December 1996
organization of the market in fishery products ( OJ No
L 379, 31 . 12 . 1981 , p. 1 ), and of Article 5 ( 2 ) of Council     in Joined Cases C-47/95 , C-48/95 , C-49/95 , C-50/95 , C­
Regulation ( EEC ) No 1697/79 of 24 July 1979 on the                  60/95 , C-81 /95 , C-92/95 and C-148/95 (reference for a
post-clearance recovery of import duties or export duties             preliminary ruling by the Tribunale di Genova ): Olasagasti
                                                                      and C. Sri and Others v. Amministrazione delle Finanze
which have not been required of the person liable for
payment on goods entered for a customs procedure                                                 dello Stato (M
involving the obligation to pay such duties ( OJ No L 197,            (Regulation (EEC) No 3835/90 — Regulation (EEC)
3 . 8 . 1979, p. 1 ), the Court composed of: L. Sevon,                No 3587/91 — Regulation (EEC) No 3416/91 — Act of
President of the Chamber ( Rapporteur ), P. Jann and M.               Accession of Spain and Portugal — Article 5(1 ) and (2) of
Wathelet, Judges; Advocate-General : N. Fennelly,                     Regulation (EEC) No 1697/79 — Regulation (EEC)
Registrar: D. Louterman-Hubeau, Principal Administrator,              No 1750/90 — Regulation (EEC) No 2164/91 —
has given a judgment on 12 December 1996 in which it                  Customs duties — Tariff preferences — Agricultural
rules :
                                                                      products — Post-clearance recovery — Binding
                                                                                     information — Tuna in olive oil)
                                                                                                  ( 97/C 54/05 )
1 . Tariff headings 03.02 A I (b) and 03.02 A II (a) set
                                                                                       (Language of the case: Italian)
     out in Article 20 of Council Regulation (EEC)
     No 3796/81 of 29 December 1981 on the common
     organization of the market in fishery products are to
     be interpreted as meaning that the list of species                  (Provisional translation; the definitive translation will be
     whose scientific names are indicated in brackets is                        published in the European Court Reports)
     exhaustive and does not include ling, whose scientific
     name is Molva molva, so that imports of this fish may
     not be exempt from customs duties.                                In Joined Cases C-47/95 , C-48/95 , C-49/95 , C-50/95 , C­
                                                                       60/95 , C-81 /95 , C-92/95 and C-148/95 : reference by the
                                                                      Tribunale di Genova ( District Court, Genoa ) for a
                                                                       preliminary ruling in the proceedings pending before that
                                                                       court between Olasagasti & C. Sri ( C-47/95 ), Comarcon
2 . In order to determine whether the error committed by               SNC ( C-48/95 ), Ghezzi Alimentari Sri ( C-49/95 ), Fredo Sri
     the competent authorities 'could not reasonably have              ( C-50/95 ), Cateringros Sri ( C-60/95 ), Intercod Sri ( C-81 /
     been detected by the person liable ' within the meaning           95 ), Nuova Castelli SpA ( C-92/95 ), Igino Mazzola SpA
     of Article 5 (2) of Council Regulation (EEC) No 1697/             ( C-148/95 ) and Amministrazione delle Finanze dello Stato
     79 of 24 July 1979, on the post-clearance recovery of             — on the interpretation of Article 1 ( 1 ) of Commission
     import duties or export duties which have not been                Regulation ( EEC ) No 3416/91 of 25 November 1991 on
     required of the person liable for payment on goods                certain residual duties applicable in 1991 in the
                                                                       framework of the successive reduction in accordance with
     entered for a customs procedure involving the
     obligation to pay such duties, account must be taken,             the Act of Accession of Spain and Portugal ( OJ No L 324,
     in particular, of the nature of the error, the                    26 . 11 . 1991 , p. 11 ), and of Article 5 of Council
     professional experience of the trader concerned and               Regulation ( EEC ) No 1679/79 of 24 July 1979 on the
     the degree of care which he exercised. The relevant               post-clearance recovery of imports duties which have not
     factors to be taken into consideration in assessing the           been required of the person liable for payment on goods
     nature of the error include the possibility that the              entered for a customs procedure involving the obligation
      terminology used may have caused confusion, the fact             to pay such duties ( OJ No L 197, 3 . 8 . 1979 , p. 1 — the
      that a change of rule was not apparent and the time               Court ( Fifth Chamber ), composed of J. C. Moitinho de
      taken by the competent authorities themselves to                 Almeida, President of the Chamber, L. Sevon, D. A. O.
      realize that such a change had been made. It is for the           Edward ( Rapporteur), P. Jann and M. Wathelet, Judges ,
      national court to determine, on the basis of that                 Advocate-General : N. Fennelly, L. Hewlett, Administrator,
      interpretation, whether or not the error which led to             for the Registrar gave a judgment on 12 December 1996 ,
      duties not being collected was detectable by the person           the operative part of which is as follows :
      liable.
                                                                        1 . The suspension of the residual customs duties
                                                                            applicable to imports from Spain into the Community
 (') OJ No C 119 , 13 . 5 . 1995 .                                          of Ten in accordance with Article 75 (1 ) of the Act of
                                                                            Accession, provided for in Article 1 ( 1 ) of Commission
                                                                            Regulation (EEC) No 3416/91 on certain residual
                                                                            duties applicable in 1991 in the framework of the
                                                                            successive reduction in accordance with the Act of
                                                                            Accession of Spain and Portugal for the agricultual