Ministero dell'Economia e delle Finanze and Others v Francesco Cimmino and Others.
Date: 2015-07-09
32. It should be noted in that respect that, according to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgment in Genil 48 and Comercial Hostelera de Grandes Vinos , C‑604/11, EU:C:2013:344, paragraph 26 and the case-law cited).
35. It must also be recalled that, within the framework of proceedings under Article 267 TFEU, the Court cannot resolve a dispute concerning the facts. Such a dispute, like any other assessment of the facts involved, is within the province of the national court (judgment in CEPSA , C‑279/06, EU:C:2008:485, paragraph 30 and the case-law cited).
37. It should be observed as a preliminary point that, according to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. With this in mind, the Court of Justice may, where necessary, have to reformulate the questions referred to it (see, inter alia, judgment in Douane Advies Bureau Rietveld , C‑541/13, EU:C:2014:2270, paragraph 18 and the case-law cited).
38. The Court may extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject-matter of the dispute (see, to that effect, judgment in eco cosmetics and Raiffeisenbank St. Georgen , C‑119/13 and C‑120/13, EU:C:2014:2144, paragraph 33 and the case-law cited).
49. The consequence of the allocation of tariff quotas between traditional operators and newcomers is that genuine newcomers are able to act on the market and therefore deploy their economic activities fully (see, to that effect, judgment in Di Lenardo and Dilexport , C‑37/02 and C‑38/02, EU:C:2004:443, paragraphs 84 and 87). In that regard, as is apparent from recital 8 in the preamble to Regulation No 2362/98, the purpose of the eligibility criteria for new operators, in the context of the administration of tariff quotas, is to avoid the registration of purely fictitious agents and thereby combat speculative and artificial practices.
53. In the second place, Article 11(1) of Regulation No 2362/98 requires Member States to check that newcomers are commercially active for their own account as importers into the EU and as independent economic units, and, where there is doubt as to whether that condition is met, the operator concerned has to provide evidence of compliance which is considered ‘satisfactory’ by the national competent authorities in order to have their applications for registration and annual allocations accepted and prove their independent management (see, to that effect, judgment in Di Lenardo and Dilexport , C‑37/02 and C‑38/02, EU:C:2004:443, paragraph 86).
58. However, as regards transactions involving imports into the EU that are for all essential purposes comparable to those at issue in the main proceedings, the Court held in its judgment in SICES and Others  (C‑155/13, EU:C:2014:145, paragraph 40) that, while Article 6(4) of Commission Regulation (EC) No 341/2007 of 29 March 2007 opening and providing for the administration of tariff quotas and introducing a system of import licences and certificates of origin for garlic and certain other agricultural products imported from third countries (OJ 2007 L 90, p. 12), which prohibits the transfer of rights arising under import licences, does not, in principle, preclude such transactions, they none the less constitute an abuse of rights when they are artificially created with the essential aim of benefiting from the preferential rate of duty.
60. In that regard, it should be made clear that although the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation, it is none the less for the national court to verify whether the factors constituting abuse are present in the case before it. In that context, checking for abuse requires the referring court to take into account all the facts and circumstances of the case, including the commercial transactions preceding and following the import at issue (judgment in SICES and Others , C‑155/13, EU:C:2014:145, paragraph 34 and the case-law cited).
61. According to the Court’s case-law, evidence of an abusive practice requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved, and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions required for obtaining it (see, inter alia, judgments in Eichsfelder Schlachtbetrieb , C‑515/03, EU:C:2005:491, paragraph 39, and, to that effect, SICES and Others , C‑155/13, EU:C:2014:145, paragraphs 31 to 33).
65. In that regard, as the Court held in SICES and Others  (C‑155/13, EU:C:2014:145, paragraphs 37 to 39), for it to be possible to regard transactions such as those at issue in the main proceedings as being designed to confer an undue advantage on the purchaser in the European Union, it is necessary that the importers intended to confer such an advantage on that purchaser and that the transactions be devoid of any economic and commercial justification for those importers, which it is for the referring court to establish. Even if such transactions are based on the desire of the purchaser to benefit from the preferential rate of duty and even if the importers concerned are aware of that, those transactions may not, a priori, be regarded as being devoid of economic justification for the importers. It cannot, however, be excluded that, in certain circumstances, such transactions were artificially created with the essential aim of benefiting from the preferential rate of duty.
67. For that purpose, the referring court may take into account all the legal, economic and/or personal links between the operators involved in those transactions (judgment in Part Service , C‑425/06, EU:C:2008:108, paragraph 62) and, relying on the factors set out at paragraph 39 of the judgment in SICES and Others (C‑155/13, EU:C:2014:145), take into consideration in particular the fact that the newcomer holding ‘AGRIM’ licences did not assume any commercial risk in the transactions at issue in the main proceedings, because that risk was in reality covered by the purchaser in the EU, which is also a traditional operator, or the fact that, in the light of the sale and resale price of the goods concerned, the newcomers’ profit margin was insignificant.
73. The obligation to give back an advantage improperly received by means of an irregular practice does not constitute a penalty, but is simply the consequence of a finding that the conditions required to obtain the advantage derived from the EU rules were created artificially, thereby rendering the advantage received a payment that was not due and thus justifying the obligation to repay it (see judgment in Pometon , C‑158/08, EU:C:2009:349, paragraph 28 and the case-law cited).
74. It follows that the transactions involved in an abusive practice must be redefined by the national court so as to re-establish the situation that would have prevailed in the absence of the transactions constituting the abusive practice (see, by analogy, judgment in Halifax and Others , C‑255/02, EU:C:2006:121, paragraph 94).
75. Accordingly, an operator who has placed himself artificially in a situation enabling him to obtain unlawfully the benefit of the preferential rate of duty for the importation of bananas is obliged to pay the duties on the goods concerned, without prejudice, where appropriate, to any administrative, civil or criminal-law penalties provided for by national law (see, by analogy, judgment in Christodoulou and Others , C‑116/12, EU:C:2013:825, paragraph 68).