Court of Justice of the European Union
Case Law in the field of Customs Union Law
Cases 2010 - 2014
Last Update 31/12/2014
1
Case C-40/14, 20 November 2014 (Direction générale des douanes et droits indirects
and Others v Utopia SARL)
Direction générale des douanes et droits indirects and Others v Utopia SARL
Reference for a preliminary ruling - Customs union and Common Customs Tariff Importation free of customs duties - Animals specially prepared for laboratory use Public establishment or an authorised private establishment - Importer whose customers
are such establishments - Packing materials or packing containers - Cages used for
transportation of animals
1.
Article 60 of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a
Community system of reliefs from customs duty, as amended by the Act concerning the
conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of
Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the
Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak
Republic and the adjustments to the Treaties on which the European Union is founded,
must be interpreted as meaning that, where animals specially prepared for laboratory
use, which an importer brings into the European Union, are intended for a public
establishment or an authorised private establishment which is principally engaged in
education or scientific research, that importer, although it is not itself such an
establishment, may be entitled to the relief from import duties provided for by that article
for goods of this type.
2.
General rule 5(b) of the Combined Nomenclature contained in Annex I to Council
Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature
and on the Common Customs Tariff, as amended by Commission Regulation (EC)
No 1789/2003 of 11 September 2003, must be interpreted as meaning that cages used for
transportation of live animals intended for laboratory research should not be categorised
as packing materials or packing containers which are to be classified with the goods to
which they relate.
2
Case C-666/13, 20 November 2014 (Rohm Semiconductor GmbH v Hauptzollamt
Krefeld.)
Rohm Semiconductor GmbH v Hauptzollamt Krefeld.
Reference for a preliminary ruling - Customs union - Tariff classification - Common
Customs Tariff - Combined Nomenclature - Headings 8541 and 8543 - Modules for
short-range data transmission and reception - Subheadings 8543 89 95 and 8543 90 80 Definition of parts of electrical machinery and apparatus.
1.
The Combined Nomenclature in Annex 1 to Council Regulation (EEC) No 2658/87
of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs
Tariff, as amended by Commission Regulation (EC) No 1832/2002 of 1 August 2002 must
be interpreted as meaning that modules, each consisting of the interconnection of a light
emitting diode, a photo-diode and a number of other semiconductor devices, and which
may be used as infrared transmitters/receivers where their electricity supply derives from
the devices in which they are incorporated, come under CN heading 8543.
2. The Combined Nomenclature in Annex 1 to Regulation No 2658/87, as amended by
Regulation No 1832/2002 must be interpreted as meaning that modules such as those at
issue in the main proceedings incorporated in devices for the mechanical or electrical
functioning of which they are not necessary, do not constitute parts for the purposes of
subheading 8543 90 80 of that nomenclature, but do come under subheading 8543 89 95
of that nomenclature, relating to other electrical machines and apparatus having
individual functions, not specified or included elsewhere in Chapter 85 of that
nomenclature.
3
Case C-546/13, 6 November 2014 (Agenzia delle Dogane and Ufficio di Verona
dell’Agenzia delle Dogane v ADL American Dataline Srl)
Agenzia delle Dogane and Ufficio di Verona dell’Agenzia delle Dogane v ADL
American Dataline Srl
Reference for a preliminary ruling - Regulation (EEC) No 2658/87 - Common Customs
Tariff - Tariff classification - Combined Nomenclature - Headings 8471 and 8518 Loudspeakers reproducing sound by transforming an electromagnetic signal into sound
waves, which can be connected only to a computer and marketed separately.
The Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87
of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs
Tariff, as amended by Commission Regulation (EC) No 2388/2000 of 13 October 2000,
Commission Regulation (EC) No 2031/2001 of 6 August 2001, Commission Regulation
(EC) No 1832/2002 of 1 August 2002 and Commission Regulation (EC) No 1789/2003 of
11 September 2003, must be interpreted as meaning that goods such as those at issue in
the main proceedings, which are connected to a computer equipped with the operating
system ‘MAC OS 9’ or a more advanced system, must be classified as loudspeakers in
subheading 8518 22 90 of that nomenclature.
4
Case C-139/14, 22 October 2014 (Mineralquelle Zurzach AG v Hauptzollamt Singen.)
Mineralquelle Zurzach AG v Hauptzollamt Singen
Renvoi préjudiciel – Tarif douanier commun – Classement tarifaire – Nomenclature
combinée – Classement des marchandises – Position tarifaire 2202 10 00 – Eaux, y
compris les eaux minérales et les eaux gazéifiées, additionnées de sucre ou d’autres
édulcorants ou aromatisées – Position tarifaire 2202 9010 11 – Jus de fruits ou jus de
légumes dilués avec de l’eau ou gazéifiés
La nomenclature combinée figurant à l’annexe I du règlement (CEE) n° 2658/87 du
Conseil, du 23 juillet 1987, relatif à la nomenclature tarifaire et statistique et au tarif
douanier commun, telle que modifiée par le règlement (CE) n° 1719/2005 de la
Commission, du 27 octobre 2005, doit être interprétée en ce sens qu’une boisson, telle
que celle en cause au principal, constituée notamment d’eau, de sucre, de jus concentré
d’orange, de citron, de raisin, d’ananas, de mandarine, de nectarine, de fruit de la
passion, de pulpe d’abricot, de pulpe de goyave, d’acidifiant, d’un mélange de vitamines,
d’arômes naturels et artificiels et ayant une teneur en jus de fruits qui s’élève à 12 %,
relève de la sous-position 2202 10 00 de cette nomenclature.
5
Case C-541/13, 9 October 2014 (Douane Advies Bureau Rietveld v Hauptzollamt
Hannover)
Douane Advies Bureau Rietveld v Hauptzollamt Hannover
Reference for a preliminary ruling - Customs union and common customs tariff - Tariff
classification - Heading 3822 - Concept of ‘diagnostic or laboratory reagents’ - Indicators
of exposure to a predetermined target temperature.
Heading 3822 of the Combined Nomenclature in Annex 1 to Council Regulation (EEC)
No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation (EU) No 861/2010 of
5 October 2010, must be interpreted as meaning that temperature indicators, such as the
products marketed under the names ‘WarmMark’ and ‘ColdMark’, which, by the effect of
a change in colour caused by the variation in volume of the liquids that they contain,
indicate, irreversibly, whether a temperature higher or lower than a specified threshold
has been reached, are not covered by that heading.
6
Case C-254/13, 2 October 2014 (Orgacom BVBA v Vlaamse Landmaatschappij)
Orgacom BVBA v Vlaamse Landmaatschappij
Reference for a preliminary ruling - Charges having equivalent effect to customs duties Internal taxes - Import levy on manure imported into the Flanders region - Articles 30
TFEU and 110 TFEU - Levy payable by the importer - Different levies on imported
manure and manure produced within the Flanders region
Article 30 TFEU precludes a levy, such as that provided for under Article 21(5) of the
Decree of the Flanders Region of 23 January 1991 on protection of the environment
against fertiliser pollution, as amended by the Decree of 28 March 2003, which is
applicable only to imports into the Flanders Region of surplus livestock manure and
other fertilisers, which is levied on the importer whereas the tax on the surplus manure
produced within the territory of the Flanders Region is levied on the producer and is
calculated differently from the tax on imports. In that regard, it is immaterial that the
Member State from which the surplus manure is imported into the Flanders Region
provides for a tax reduction in the case of export of that surplus to other Member States.
7
Case C-3/13, 17 September 2014 (Baltic Agro AS v Maksu- ja Tolliameti Ida maksu- ja
tollikeskus)
Baltic Agro AS v Maksu- ja Tolliameti Ida maksu- ja tollikeskus
Reference for a preliminary ruling — Dumping — Regulation (EC) No 661/2008 —
Definitive anti-dumping duty on imports of ammonium nitrate originating in Russia —
Conditions for exemption — Article 3(1) — First independent customer in the European
Union — Acquisition of ammonium nitrate fertiliser through another company —
Release of the goods — Application for invalidation of the customs declaration –
Decision 2008/577/EC — Customs Code — Articles 66 and 220 — Error — Regulation
(EEC) No 2454/93 — Article 251 — Post-release verification
1.
Article 3(1) of Regulation (EC) No 661/2008 of 8 July 2008, imposing a definitive
anti-dumping duty on imports of ammonium nitrate originating in Russia following an
expiry review pursuant to Article 11(2) and a partial interim review pursuant to
Article 11(3) of Regulation (EC) No 384/96, must be interpreted as meaning that a
company established in a Member State, which purchased ammonium nitrate originating
in Russia, through another company also established in a Member State, with a view to
importing it into the Union, may not be considered to be the first independent customer in
the Union, within the meaning of that provision, and may not therefore be eligible for the
exemption from definitive anti-dumping duty laid down by that regulation in respect of
the ammonium nitrate.
2.
Articles 66 and 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October
1992 establishing the Community Customs Code, as amended by Council Regulation
(EC) No 1791/2006, of 20 November 2006, must be interpreted as not precluding a
customs authority from making a subsequent entry in the accounts of anti-dumping duty
when, as in the circumstances of the case in the main proceedings, the requests to
invalidate the customs declarations were brought on the ground that the entry for the
consignee was incorrect and that the authority had accepted those declarations or put in
hand a verification exercise after receiving those requests.
3.
Article 66 of Regulation No 2913/92, as amended by Regulation No 1791/2006,
and Article 251 of Commission Regulation (EEC) No 2454/93 of 2 July 1993, laying
down provisions for the implementation of Council Regulation (EEC) No 2913/92
establishing the Community Customs Code, as amended by Commission Regulation (EC)
No 312/2009, of 16 April 2009 are compatible with the fundamental right to equality
before the law affirmed in Article 20 of the Charter in circumstances where, in the
context of the common customs tariff, referred to in Articles 28 TFEU and 31 TFEU,
those provisions of the Customs Code and of Regulation No 2454/93 do not permit the
invalidation, on request, of an incorrect customs declaration and thus the grant of the
benefit of the exemption from anti-dumping duty to the consignee that the latter could
have claimed, if the error had not been made.
8
Case T-34/11, 16 September 2014 (Canon Europa NV v Commission)
Case T-35/11, 16 September 2014, (Kyocera Mita Europe v Commission)
Kyocera Mita Europe v Commission
Actions for annulment - Customs union - Common Customs Tariff - Tariff and statistical
nomenclature - Classification in the Combined Nomenclature - Tariff subheadings Customs duties applicable to goods classified under those tariff subheadings - Regulatory
act entailing implementing measures - Inadmissibility.
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1.
The action is dismissed as inadmissible;
2.
It is not necessary to adjudicate on the applications for leave to intervene
submitted by Konica Minolta Business Solutions Europe GmbH and Olivetti SpA;
3.
Kyocera Mita Europe BV/Canon Europa NV shall bear its own costs and pay
those incurred by the European Commission.
9
Case C-480/13, 17 July 2014 (Sysmex Europe GmbH v Hauptzollamt Hamburg-Hafen)
Sysmex Europe GmbH v Hauptzollamt Hamburg-Hafen
Request for a preliminary ruling - Tariff classification - Common Customs Tariff Combined Nomenclature - Headings 3204, 3212 and 3822 - Substance producing, by
chemical reaction and exposure to a laser light, a fluorescent effect intended for the
analysis of white blood cells
The Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87
of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs
Tariff, as amended by Regulation (EC) No 1810/2004 of 7 September 2004, must be
interpreted as meaning that a product, composed of solvents and of a polymethine-based
substance, which, although it may have a weak and non-permanent dyeing effect on
textiles, is not in practice used for its dyeing properties and is intended exclusively for the
analysis of white blood cells, by means of the deposition of ions in defined components of
those blood cells, which, when exposed to laser light, become fluorescent for a limited
period, comes under heading 3822 of the Combined Nomenclature relating to laboratory
reagents.
10
Case C-472/12, 17 July 2014 (Panasonic Italia SpA and Others v Agenzia delle
Dogane)
Panasonic Italia SpA and Others v Agenzia delle Dogane
Reference for a preliminary ruling - Regulation (EEC) No 2658/87 - Common Customs
Tariff - Tariff classification - Combined Nomenclature - Headings 8471 and 8528 Plasma screens - Function as computer screen - Potential function as a television screen,
after insertion of a video card
1)
For the purposes of tariff classification in the Combined Nomenclature set out in
Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and
statistical nomenclature and on the Common Customs Tariff, in the versions resulting
successively from Commission Regulation (EC) No 2388/2000 of 13 October 2000,
Commission Regulation (EC) No 2031/2001 of 6 August 2001, Commission Regulation
(EC) No 1832/2002 of 1 August 2002, and Commission Regulation (EC) No 1789/2003 of
11 September 2003 of screens with the objective characteristics at issue in the main
proceedings, account should be taken of their inherent intended purpose, which consists
in reproducing the data from an automatic data-processing machine and from composite
video signals. Such screens must be classified under subheading 8471 60 90 of the
Combined Nomenclature if they are used solely or mainly in an automatic dataprocessing system, within the meaning of Note 5B(a) of Chapter 84 of the Combined
Nomenclature, or under subheading 8528 21 90 thereof if that is not the case, which is a
matter for the national court to determine on the basis of the objective characteristics of
the screens at issue in the main proceedings, and in particular those mentioned in the
Explanatory Notes relating to heading 8471 of the Harmonised Commodity Description
and Coding System established by the International Convention on the Harmonised
Commodity Description and Coding System concluded in Brussels on 14 June 1983, with
its amending protocol of 24 June 1986, in particular in points 1 to 5 of the part of
Chapter I D relating to display units for automatic data-processing machines.
2)
Commission Regulation (EC) No 754/2004 of 21 April 2004 concerning the
classification of certain goods in the Combined Nomenclature cannot be applied
retroactively.
11
Joined cases C-129/13 (Kamino International Logistics BV) and C-130/13 (Datema
Hellmann Worldwide Logistics BV v Staatssecretaris van Financiën), 3 July 2014
Kamino International Logistics BV
Datema Hellmann Worldwide Logistics BV v Staatssecretaris van Financiën
Recovery of a customs debt - Principle of respect for the rights of the defence - Right to
be heard - Addressee of the recovery decision not heard by the customs authorities before
its adoption, but only during the subsequent objection stage - Infringement of the rights
of the defence - Determination of the legal consequences of non-observance of the rights
of the defence
1)
The principle of respect for the rights of the defence by the authorities and the
resulting right of every person to be heard before the adoption of any decision liable
adversely to affect his interests, as they apply in the context of Council Regulation (EEC)
No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended
by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16
November 2000, may be relied on directly by individuals before national courts.
2)
The principle of respect for the rights of the defence and, in particular, the right
of every person to be heard before the adoption of an adverse individual measure must be
interpreted as meaning that, where the addressee of a demand for payment adopted in a
procedure for the post-clearance recovery of customs duties on imports, under
Regulation No 2913/92, as amended by Regulation No 2700/2000, he has not been heard
by the authorities before the adoption of the decision, his rights of defence are infringed
even though he can express his views during a subsequent administrative objection stage,
if national legislation does not allow the addressees of such demands, in the absence of a
prior hearing, to obtain suspension of their implementation until their possible
amendment. Such is the case, in any event, if the national administrative procedure
implementing the second subparagraph of Article 244 of Regulation No 2913/92, as
amended by Regulation No 2700/2000, restricts the grant of such suspension where there
is good reason to believe that the disputed decision is inconsistent with customs
legislation or that irreparable damage is to be feared for the person concerned.
3)
The conditions under which observance of the rights of the defence is to be
ensured and the consequences of the infringement of those rights are governed by
national law, provided that the rules adopted to that effect are the same as those to which
individuals in comparable situations under national law are subject (principle of
equivalence) and that they do not make it impossible in practice or excessively difficult to
exercise the rights of defence conferred by the European Union legal order (principle of
effectiveness).
The national court, which is under an obligation to ensure that European Union law is
fully effective, may, when assessing the consequences of an infringement of the rights of
the defence, in particular the right to be heard, consider that such an infringement entails
the annulment of the decision taken at the end of the administrative procedure at issue
only if, had it not been for such an irregularity, the outcome of the procedure might have
been different.
12
Case C-330/13, 12 June 2014 (Lukoyl Neftohim Burgas AD v Nachalnik na
Mitnicheski punkt Pristanishte Burgas Tsentar pri Mitnitsa Burgas)
Lukoyl Neftohim Burgas AD v Nachalnik na Mitnicheski punkt Pristanishte Burgas
Tsentar pri Mitnitsa Burgas
Request for a preliminary ruling - Common Customs Tariff - Combined Nomenclature Classification of goods - Goods described as ‘heavy oils, lubricating oils or other oils for
undergoing a specific process’ - Headings 2707 and 2710 - Aromatic and non-aromatic
constituents - Relationship between the Combined Nomenclature and the Harmonised
System
1)
The criterion to take into consideration in order to classify products with
characteristics such as those of the product at issue in the main proceedings under
Heading 2707 or Heading 2710 of the Combined Nomenclature in Annex I to Council
Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature
and on the Common Customs Tariff, as amended by Commission Regulation (EC) No
1006/2011 of 27 September 2011, is the content by weight of the aromatic constituents in
relation to the non-aromatic constituents.
2)
The expression ‘aromatic constituents’ in Chapter 27 of the Combined
Nomenclature in Annex I to Regulation No 2658/87, as amended by Regulation No
1006/2011, must be interpreted as being wider than ‘aromatic hydrocarbons’.
3)
It is, in principle, for the national courts to establish the most appropriate method
to determine the content of aromatic constituents of a specific product in order to classify
it under Heading 2707 or Heading 2710 of the Combined Nomenclature in Annex I to
Regulation No 2658/87, as amended by Regulation No 1006/2011.
4)
Point 1 of the Explanatory Notes to the Combined Nomenclature in Annex I to
Regulation No 2658/87, as amended by Regulation No 1006/2011, on subheadings 2707
99 91 and 2707 99 99 thereof must be interpreted as being non-exhaustive, so that a
product falling within Heading 2707 of the Combined Nomenclature which cannot be
classified under a specific subheading must be classified under subheading 2707 99 99
thereof.
13
Case C-75/13, 12 June 2014 (SEK Zollagentur GmbH v Hauptzollamt Gießen)
SEK Zollagentur GmbH v Hauptzollamt Gießen
Customs union and Common Customs Tariff - Unlawful removal from customs
supervision of goods liable to import duties - Incurrence of a customs debt
1)
Articles 50 and 203 of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005
of the European Parliament and of the Council of 13 April 2005, must be interpreted as
meaning that an article left for temporary storage must be deemed to have been removed
from customs supervision if it is declared for an external Community transit procedure,
but it does not in fact leave the storage facility and is not presented to the customs office
at the place of destination, although the transit documents have been presented there.
2)
The fourth indent of Article 203(3) of Regulation No 2913/92, as amended by
Regulation No 648/2005, must be interpreted as meaning that, in circumstances such as
those of the main proceedings, where an article is removed from customs supervision, the
person who, as the approved consignor, placed that article in the external Community
transit procedure is a customs debtor under that provision.
14
Case C-297/13, 15 May 2014 (Data I/O GmbH v Hauptzollamt München)
Data I/O GmbH v Hauptzollamt München
Reference for a preliminary ruling - Tariff classification - Common Customs Tariff Combined Nomenclature - Section XVI, note 2 - Headings 8422, 8456, 8473, 8501,
8504, 8543, 8544 and 8473 - Concepts of ‘parts’ and ‘articles’ - Parts and accessories
(motors, power supplies, lasers, generators, cables and heat sealers) intended for
programming systems - No precedence of heading 8473 over other headings of Chapters
84 or 85
Note 2(a) to Section XVI of the Combined Nomenclature in Annex I to Council
Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature
and on the Common Customs Tariff, as amended by Commission Regulation (EC) No
2031/2001 of 6 August 2001, Commission Regulation (EC) No 1832/2002 of 1 August
2002, Commission Regulation (EC) No 1789/2003 of 11 September 2003 and
Commission Regulation (EC) No 1810/2004 of 7 September 2004, must be interpreted as
meaning that goods which may be classified under heading 8473 of the Combined
Nomenclature, as parts of a machine under heading 8471 thereof, and under one of
headings 8422, 8456, 8501, 8504, 8543 and 8544 thereof, as individual goods, are to be
classified as individual goods under one of the latter headings, according to their
individual characteristics.
15
Case C-480/12, 15 May 2014 (Minister van Financiën v X BV)
Minister van Financiën v X BV
Community Customs Code - Scope of Articles 203 and 204(1)(a) of Regulation (EEC)
No 2913/92 - External transit procedure - Customs debt incurred through non-fulfilment
of an obligation - Belated presentation of the goods at the office of destination - Sixth
VAT Directive - Article 10(3) - Link between the incurring of customs debt and the
incurring of VAT debt - Concept of taxable transactions
1)
Articles 203 and 204 of Council Regulation (EEC) No 2913/92 of 12 October
1992 establishing the Community Customs Code, as amended by Regulation (EC) No
648/2005 of the European Parliament and of the Council of 13 April 2005, read in
conjunction with Article 859(2)(c) of Commission Regulation (EEC) No 2454/93 of 2
July 1993 laying down provisions for the implementation of Regulation No 2913/92, as
amended by Commission Regulation (EC) No 444/2002 of 11 March 2002 must be
interpreted as meaning that merely exceeding the time-limit for presentation, set under
Article 356(1) of Regulation No 2454/93, as amended by Regulation No 444/2002, does
not lead to a customs debt being incurred for removal from customs supervision of the
goods in question within the meaning of Article 203 of Regulation No 2913/92, as
amended by Regulation No 648/2005, but to a customs debt being incurred on the basis
of Article 204 of that regulation and that it is not necessary, for a customs debt to be
incurred under Article 204 of that regulation, that the interested parties supply to the
customs authorities information on the reasons for exceeding the time-limit set under
Article 356 of Regulation No 2454/93, as amended by Article No 444/2002, or on the
location of the goods during the time which elapsed between that time-limit and the time
at which they were actually presented at the customs office of destination.
2)
The first paragraph of Article 7(3) of the Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonisation of the laws of the Member States relating to turnover
taxes — Common system of value added tax: uniform basis of assessment, as amended by
Council Directive 2004/66/EC of 26 April 2004 must be interpreted as meaning that
value added tax is due where the goods in question are not covered by the arrangements
provided for in that article, even where a customs debt is incurred exclusively on the
basis of Article 204 of Regulation No 2913/92, as amended by Regulation No 648/2005.
16
Case C-267/13, 30 April 2014 (Nutricia NV v Staatssecretaris van Financiën)
Nutricia NV v Staatssecretaris van Financiën
Combined Nomenclature — Tariff headings — Medicaments within the meaning of
heading 3004 — Notion — Nutritional preparations intended to be administered only
enterally under medical supervision to persons undergoing medical treatment —
Beverages within the meaning of heading 2202 — Notion — Nutritional liquids intended
to be administered enterally and not to be drunk
Tariff heading 3004 of the Combined Nomenclature in Annex I to Council Regulation
(EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation (EC) No 1549/2006 of
17 October 2006, must be interpreted as meaning that the term ‘medicaments’ within the
meaning of that heading includes food preparations intended exclusively to be
administered enterally (by means of a stomach tube) under medical supervision to
persons who are receiving medical care, provided that that product is administered, as
part of the control of the disease or ailment affecting them, in order to prevent or control
their malnutrition.
17
Case C-74/13, 9 April 2014 (GSV Kft. v Nemzeti Adó- és Vámhivatal Észak-Alföldi
Regionális Vám- és Pénzügyőri Főigazgatósága)
GSV Kft. v Nemzeti Adó- és Vámhivatal Észak-Alföldi Regionális Vám- és
Pénzügyőri Főigazgatósága
Reference for a preliminary ruling — Common Customs Tariff — Tariff classification —
Combined Nomenclature — TARIC Codes 7019 59 00 10 and 7019 59 00 90 —
Regulations imposing anti-dumping duties on imports of certain open mesh fabrics of
glass fibres originating in China — Discrepancies between language versions —
Obligation to pay the anti-dumping duty
1)
Code 7019 59 00 10 of the Integrated Tariff of the European Communities
established by Article 2 of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
tariff and statistical nomenclature and on the Common Customs Tariff must be
interpreted as meaning that it covers products such as that at issue in the main
proceedings, comprising in particular fabrics of glass fibres with openings of a cell size
of 4 mm both in length and in width and weighing more than 35 g/m2 and intended for the
field of construction.
2)
The fact that the product covered by the customs declaration at issue in the main
proceedings, while corresponding to the characteristics laid down in code 7019 59 00 10
of the Integrated Tariff of the European Communities and set out in the regulations
subjecting it to anti-dumping duties, does not correspond to the designation given to it in
that code and those regulations as published in the language of the Member State of
origin of the declarant and on which alone the latter based its declaration is not liable to
entail the annulment of its tariff classification under that code made by the customs
authorities on the basis of all the other language versions of that code and those
regulations.
18
Case C-583/12, 9 April 2014 (Sintax Trading OÜ v Maksu- ja Tolliamet)
Sintax Trading OÜ v Maksu- ja Tolliamet
Request for a preliminary ruling — Regulation (EC) No 1383/2003 — Measures to
prevent counterfeit or pirated goods being placed on the market — Article 13(1) —
Powers of the customs authorities to establish the infringement of an intellectual property
right
Article 13(1) of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning
customs action against goods suspected of infringing certain intellectual property rights
and the measures to be taken against goods found to have infringed such rights must be
interpreted as meaning that it does not preclude the customs authorities, in the absence
of any initiative by the holder of the intellectual property right, from initiating and
conducting the proceedings referred to in that provision themselves, provided that the
relevant decisions taken by those authorities may be subject to appeal ensuring that the
rights derived by individuals from EU law and, in particular, from that regulation are
safeguarded.
19
Case C-29/13, 13 March 2014 (Global Trans Lodzhistik OOD v Nachalnik na Mitnitsa
Stolichna)
Global Trans Lodzhistik OOD v Nachalnik na Mitnitsa Stolichna
Reference for a preliminary ruling – Community Customs Code – Articles 243 and 245 –
Regulation (EEC) No 2454/93 – Article 181a – Decision amenable to review –
Admissibility of legal proceedings where a prior administrative complaint has not been
made – Principle of respect for the rights of defence
1)
First, a decision, such as one of those at issue in the main proceedings, rectifying,
on the basis of Article 30(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October
1992 establishing the Community Customs Code, as amended by Regulation (EC) No
82/97 of the European Parliament and of the Council of 19 December 1996, the customs
value of goods with the consequence that the declarant is served with a tax adjustment in
respect of value added tax, constitutes a challengeable act for the purposes of Article 243
of Regulation No 2913/92. Secondly, having regard to the general principles of respect
for the rights of the defence and res judicata, Article 245 of Regulation No 2913/92 does
not preclude national legislation, such as that at issue in the main proceedings, which
makes provision for two separate appeal procedures for challenging decisions of the
customs authorities, where that legislation does not run counter to either the principle of
equivalence or the principle of effectiveness.
2)
Article 243 of Regulation No 2913/92 does not provide that the admissibility of
judicial proceedings against decisions adopted on the basis of Article 181a(2) of
Regulation No 2454/93, as amended by Regulation No 3254/94, is subject to the
condition that the administrative remedies available to challenge those decisions have
been exhausted beforehand.
3)
Article 181a(2) of Regulation No 2454/93, as amended by Regulation No
3254/94, must be interpreted as meaning that a decision adopted under that article must
be regarded as final and capable of being challenged by way of a direct action before an
independent judicial authority, even where it was adopted in breach of the right of the
person concerned to be heard and to raise objections.
4)
In the event of a breach of the right of the person concerned to be heard and to
raise objections under Article 181a(2) of Regulation No 2454/93, as amended by
Regulation No 3254/94, it is for the national court to determine, having regard to the
particular circumstances of the case before it and in the light of the principles of
equivalence and effectiveness, whether, where the decision which was adopted in breach
of the principle of respect for the rights of the defence must be annulled on that ground, it
must give a ruling in the action brought against that decision or whether it can consider
referring the matter back to the competent administrative authority.
20
Case C-571/12, 27 February 2014 (Greencarrier Freight Services Latvia SIA v Valsts
ieņēmumu dienests)
Greencarrier Freight Services Latvia SIA v Valsts ieņēmumu dienests
Request for a preliminary ruling – Community Customs Code – Articles 70(1) and 78 –
Customs declarations – Partial examination of goods – Sampling – Incorrect code –
Application of the results to identical goods covered by earlier customs declarations after
release – Post-release examination – Impossible to request a further examination of the
goods
Article 70(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing
the Community Customs Code must be interpreted as meaning that, since it applies only
to goods covered by ‘a [single] declaration’ where those goods are examined by the
customs authorities before those authorities grant the release of those goods, that
provision does not permit those authorities, in a case such as that in the main
proceedings, to apply the results of the partial examination of goods covered by a
customs declaration to goods covered by earlier customs declarations which have
already been released by those authorities.
However, Article 78 of that Code is to be interpreted as meaning that it permits the
customs authorities to apply the results of a partial examination of goods covered by a
customs declaration, carried out by way of sampling of them, to goods covered by earlier
customs declarations submitted by the same customs declarant, which were not and can
no longer be examined since the release has been granted, where those goods are
identical, which it is for the referring court to ascertain.
21
Case C-2/13, 6 February 2014 (Directeur général des douanes et droits indirects and
Chef de l'agence de la direction nationale du renseignement et des enquêtes
douanières v Humeau Beaupréau SAS)
Directeur général des douanes et droits indirects and Chef de l'agence de la
direction nationale du renseignement et des enquêtes douanières v Humeau
Beaupréau SAS
Common Customs Tariff – Tariff classification – Combined Nomenclature – Chapter 64
– Import of components required for the manufacture of sports footwear – Heading 6404
– Footwear with outer soles of rubber, plastics, leather or composition leather and uppers
of textile materials – Heading 6406 – Parts of footwear – General Rule 2(a) for the
Interpretation of the Combined Nomenclature – Incomplete or unfinished article having
the ‘essential character of the complete or finished article’ – Article ‘presented
unassembled or disassembled’ – Explanatory Note for the interpretation of the
Harmonised System – Assembly operations and not ‘working operations for completion
into the finished state’
General Rule 2(a) for the interpretation of the Combined Nomenclature set out in Annex
I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff, in the version in force at the material
time, must be interpreted as meaning that an upper, an outer sole and an inner sole, as
an article presented unassembled having the essential character of footwear, come under
heading 6404 of the combined nomenclature where, following their import, a counter
must be inserted into the upper and the outer sole and the upper must be roughed for the
purpose of their assembly.
22
Case C-613/12, 6 February 2014 (Helm Düngemittel GmbH v Hauptzollamt Krefeld)
Helm Düngemittel GmbH v Hauptzollamt Krefeld
Request for a preliminary ruling – Customs union and Common Customs Tariff – EuroMediterranean Agreement with Egypt – Article 20 of Protocol 4 – Proof of origin –
Movement certificate EUR.1 – Replacement movement certificate EUR.1 issued at a time
when the goods were no longer under the control of the issuing customs authority –
Refusal to apply preferential treatment
The Euro-Mediterranean Agreement establishing an association between the European
Communities and their Member States, of the one part, and the Arab Republic of Egypt,
of the other part, signed in Luxembourg on 25 June 2001, approved by Council Decision
2004/635/EC of 21 April 2004, must be interpreted as meaning that the Egyptian origin
of goods, within the meaning of the preferential customs arrangement established by that
agreement, can be proved even in the case where the goods were divided up when they
arrived in a first Member State in order that a portion of them could be sent to a second
Member State and where the replacement movement certificate EUR.1 issued by the
customs authorities of the first Member State for the portion of those goods sent to the
second Member State does not satisfy the conditions for the issuance of such a certificate
set out in Article 20 of Protocol 4 to that agreement concerning the definition of the
concept of 'originating products' and methods of administrative cooperation, as amended
by Decision No 1/2006 of the EU-Egypt Association Council of 17 February 2006.
The administration of such proof requires, however, first, that the preferential origin of
the goods initially imported from Egypt be established by means of a movement
certificate EUR.1 issued by the Egyptian customs authorities in accordance with that
protocol and, second, that the importer prove that the portion of the goods divided up in
that first Member State and dispatched to the second Member State corresponds to a
portion of the goods imported from Egypt into the first Member State. It is for the
referring court to determine whether those conditions are satisfied in the main
proceedings.
23
Case C-380/12, 23 January 2014 (X BV v Staatssecretaris van Financiën)
X BV v Staatssecretaris van Financiën
Tariff headings – Decolourising earth – Chapter 25 of the Combined Nomenclature –
Tariff heading 2508 – Concept of washed products – Elimination of impurities without
changing the structure of the product – Chapter 38 of the Combined Nomenclature –
Tariff heading 3802
1)
The concept of ‘eliminating impurities’ referred to in Note 1 to Chapter 25 of the
Combined Nomenclature constituting Annex I to Council Regulation (EEC) No 2658/87
of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs
Tariff, as amended by Commission Regulation (EC) No 1549/2006 of 17 October 2006,
must be interpreted as covering the elimination of chemical components found in a
mineral product in a crude state through natural circumstances, in so far as that
elimination takes place with a view to enhancing the ability of the products at issue to
fulfil their inherent intended use, which it is for the national court to verify.
2)
Note 1 to Chapter 25 of the Combined Nomenclature constituting Annex I to
Regulation No 2658/87, as amended by Regulation No 1549/2006, must be interpreted as
meaning that products which have undergone treatment involving the use of chemical
substances and leading to the elimination of impurities may be classified under CN tariff
heading 2508 only if that treatment has not modified their superficial structure, which it
is for the national court to determine.
24
Case T-468/12, 22 January 2014 (Firma Handlowa Faktor B. i W. Gęsina, Gęsina
Wojciech v European Commission)
Firma Handlowa Faktor B. i W. Gęsina, Gęsina Wojciech v European Commission
Recours en annulation – Délai de recours – Tardiveté – Absence de force majeure ou de
cas fortuit – Irrecevabilité manifeste
Le Tribunal (deuxième chambre) ordonne :
1)
Le recours est rejeté.
2)
Firma Handlowa Faktor B. i W. Gęsina, Gęsina Wojciech est
condamnée aux dépens.
25
Case C-450/12, 12 December 2013 (HARK GmbH & Co KG Kamin- und
Kachelofenbau v Hauptzollamt Duisburg)
HARK GmbH & Co KG Kamin- und Kachelofenbau v Hauptzollamt Duisburg
Common Customs Tariff – Tariff classification – Combined Nomenclature – Headings
7307 and 7321 – Stove pipe sets – Notions of ‘parts’ of stoves and ‘tube or pipe fittings’
The Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23
July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff,
as amended by Commission Regulation (EC) No 1031/2008 of 19 September 2008, must
be interpreted as meaning that a stove pipe set, such as that at issue in the main
proceedings, which comprises a right-angled tubular elbow component in steel with an
external diameter of 154 mm and external dimensions of 495 mm x 595 mm, which is
covered in heat-resistant paint and has a closing flap to allow internal cleaning, a
chimney connection and an appropriate surround, must be classified under CN heading
7321 as a part, in steel, of a stove.
26
Case C-116/12, 12 December 2013 (Ioannis Christodoulou and Others v Elliniko
Dimosio)
Ioannis Christodoulou and others v. Elliniko Dimosio
Customs value – Goods exported to a third country – Export refunds – Processing in the
exporting country regarded as non-substantial – Re-export of goods to the European
Union – Determination of the customs value – Transaction value
1) Articles 29 and 32 of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of
the European Parliament and of the Council of 19 December 1996, must be interpreted
as applying to the determination of the customs value of goods imported on the basis of a
contract which, although described as a contract of sale, in fact proves to be a working
or processing contract. For the purposes of that determination, it is immaterial whether
the working or processing operations satisfy the conditions laid down in Article 24 of
that regulation, so that the goods concerned may be regarded as originating in the
country where those operations took place.
2) Articles 29 and 32 of Regulation No 2913/92, as amended by Regulation No 82/97,
must be interpreted as meaning that, when the customs value is determined, account must
be taken of the value of the export refund which a product has benefited from and which
was obtained by putting into effect a practice involving the application of provisions of
European Union law with the aim of wrongfully securing an advantage.
27
Case C-175/12, 24 October 2013 (Sandler AG v Hauptzollamt Regensburg)
Sandler AG v Hauptzollamt Regensburg
Customs union and Common Customs Tariff – Preferential arrangement for the import of
products originating in the African, Caribbean and Pacific (ACP) States – Articles 16 and
32 of Protocol 1 to Annex V of the Cotonou Agreement – Import of synthetic fibres from
Nigeria into the European Union – Irregularities in the movement certificate EUR.1
established by the competent authorities of the State of export – Stamp not matching the
specimen notified to the Commission – Post-clearance and replacement certificates –
Community Customs Code – Articles 220 and 236 – Possibility of retrospective
application of a preferential customs duty no longer in effect on the date when the request
for repayment is made – Conditions
1.
The second indent of the first subparagraph of Article 889(1) of Commission
Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the
implementation of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended most recently by
Commission Regulation (EC) No 214/2007, must be interpreted as not
precluding a request for repayment of customs duties where preferential
customs treatment was requested and granted at the time the goods were
placed in free circulation and it was only subsequently, in the course of a
post-clearance examination after the expiry of the preferential customs
arrangement and the re-establishment of the customs duties normally due,
that the authorities of the State of import recovered the difference between
that and the customs duty applicable to goods originating from a nonmember country.
2.
Articles 16(1)(b) and 32 of Protocol No 1 of Annex V to the Partnership
agreement between the members of the African, Caribbean and Pacific
Group of States of the one part, and the European Community and its
Member States, of the other part, signed in Cotonou on 23 June 2000, and
approved in behalf of the Community by Council Decision 2003/159/EC of 19
December 2002, must be interpreted as meaning that if it transpires in a postclearance examination that a stamp not matching the specimen notified by the
authorities of the State of export was affixed to the EUR.1 certificate, the
customs authorities of the State of import may refuse that certificate and
return it to the importer in order to allow him to obtain a certificate issued
retrospectively pursuant to Article 16(1)(b) of Protocol No 1 rather than
triggering the procedure provided for in Article 32 of that protocol.
3.
Articles 16(4) and (5) and 32 of Protocol No 1 must be interpreted as
precluding the authorities of a State of import from refusing to accept, as a
EUR.1 certificate issued retrospectively within the meaning of Article 16(1)
of that protocol, a EUR.1 certificate which, whilst complying in all other
respects with the requirements of the provisions of that protocol, does not
contain, in the ‘Remarks’ box, the wording specified by Article 16(4) of
Protocol No 1, but an indication to the effect that the EUR.1 certificate was
issued pursuant to Article 16(1) of that protocol. In cases of doubt as to the
28
authenticity of that document or the originating status of the products
concerned, those authorities are required to initiate the control procedure
provided for in Article 32 of that protocol.
29
Case T-65/11, 5 June 2013 (Recombined Dairy System A/S)
Recombined Dairy System A/S v European Commission
Customs union – Import of lactoglobulin concentrates from New Zealand – Postclearance recovery of import duties – Request for remission of import duties –
Article 220(2)(b) and Article 236 of Regulation (EEC) No 2913/92
The General Court hereby:
1.
Annuls Article 1(2) and (4) of Commission Decision C(2010) 7692 final of 12
November 2010 stating that the post-clearance entry in the accounts of
certain import duties was justified and that the remission of such duties was
not justified (file REC 03/08) as far as it concerns the imports of
lactoglobulin concentrates 131 and 8471;
2.
Orders the European Commission to pay its own costs and those incurred by
Recombined Dairy System A/S.
30
Case T-380/11, 12 September 2013 (Palirria)
Anonymi Viotechniki kai Emporiki Etairia Kataskevis Konservon - Palirria
Souliotis AE v European Commission
Recours en annulation – Tarif douanier commun – Classement dans la nomenclature
combinée – Position tarifaire – Défaut d’affectation individuelle – Acte réglementaire
comportant des mesures d’exécution – Irrecevabilité
The General Court hereby :
1.
Dismisses the application as inadmissible;
2.
Orders Anonymi Viotechniki kai Emporiki Etairia Kataskevis Konservon –
Palirria Souliotis AE to bear its own costs and to pay those of the European
Commission.
31
Case T-457/11, 12 Septembre 2013 (Valeo Vision)
Valeo Vision v Commission européenne
Recours en annulation – Tarif douanier commun – Classement dans la nomenclature
combinée – Position tarifaire – Défaut d’affectation individuelle – Acte réglementaire
comportant des mesures d’exécution – Irrecevabilité
Le Tribunal déclare et arrête:
1)
Le recours est rejeté comme irrecevable.
2)
Valeo Vision est condamnée à supporter ses propres dépens ainsi que ceux
exposés par la Commission européenne.
32
Case C-542/11, 27 June 2013 (Codirex)
Staatssecretaris van Financiën v Codirex Expeditie BV
Community Customs Code – Regulation (EEC) No 2913/92 – Article 50 – Goods in
temporary storage – Non-Community goods – External Community transit procedure –
Point in time at which a customs-approved treatment or use is assigned – Articles 63 and
67 – Acceptance of the customs declaration – Article 73 – Release of the goods – Article
203 – Customs debt
Articles 50, 67 and 73 of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005
of the European Parliament and of the Council of 13 April 2005, must be interpreted as
meaning that the point at which non-Community goods, covered by a customs declaration
accepted by the customs authorities for placing under the external Community transit
procedure and having the status of goods in temporary storage, are placed under that
customs procedure and thereby assigned a customs-approved treatment or use is the
moment at which they are released.
33
Case C-568/11, 20 June 2013 (Agroferm)
Agroferm A/S v Ministeriet for Fødevarer, Landbrug og Fiskeri
Common agricultural policy – Regulation (EC) No 1265/2001 – Production refund for
the processing of sugar – Classification in the Combined Nomenclature of a product
containing lysine sulphate – Regulation (EC) No 1258/1999 – Recovery of unduly paid
sums – Principle of the protection of legitimate expectations
1.
The Combined Nomenclature listed in Annex I to Council Regulation (EEC)
No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on
the Common Customs Tariff, as amended by Commission Regulation (EC) No
1719/2005 of 27 October 2005, must be interpreted as meaning that a
product composed of lysine sulphate and impurities resulting from the
manufacturing process must be classified under heading 2309 as a
preparation of a kind used in animal feeding.
2.
The principle of the protection of legitimate expectations must be interpreted
as meaning that it does not preclude, in a situation such as that in the main
proceedings, the national customs authorities from, first, seeking repayment
of a wrongly paid amount of lysine sulphate production refunds that the
producer has already received and, second, refusing to pay production
refunds on that product which those authorities had given undertakings to
that producer to pay.
34
Case C-667/11, 6 June 2013 (Paltrade)
Paltrade EOOD v Nachalnik na Mitnicheski punkt – Pristanishte Varna pri
Mitnitsa Varna
Commercial policy – Regulation (EC) No 1225/2009 – Articles 13 and 14 – Imports of
products originating in China – Anti-dumping duties – Circumvention – Re-consignment
of goods via Malaysia – Implementing Regulation (EU) No 723/2011 – Registration of
imports – Recovery of anti-dumping duties – Retroactivity
Article 14(5) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on
protection against dumped imports from countries not members of the European
Community, referred to in Article 2 of Commission Regulation (EU) No 966/2010 of
27 October 2010 initiating an investigation concerning the possible circumvention of
anti-dumping measures imposed by Council Regulation (EC) No 91/2009 on imports of
certain iron or steel fasteners originating in the People’s Republic of China by imports of
certain iron or steel fasteners consigned from Malaysia, whether declared as originating
in Malaysia or not, and making such imports subject to registration, must be interpreted
as meaning that means of registration such as those at issue in the main proceedings are
in accordance with that provision, and suffice, therefore, for the retroactive levy of an
anti-dumping duty pursuant to Article 1 of Council Implementing Regulation (EU)
No 723/2011 of 18 July 2011 extending the definitive anti-dumping duty imposed by
Regulation (EC) No 91/2009 on imports of certain iron or steel fasteners originating in
the People’s Republic of China to imports of certain iron or steel fasteners consigned
from Malaysia, whether declared as originating in Malaysia or not, following an
investigation finding circumvention of the definitive anti-dumping duties imposed by
Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive antidumping duty on imports of certain iron or steel fasteners originating in the People’s
Republic of China.
In accordance with Article 1(2) of Regulation No 91/2009, the rate of the extended antidumping duty levied retroactively on goods imported prior to the entry into force of
Implementing Regulation No 723/2011 is 85% for ‘all other companies’.
35
Case C-273/12, 11 July 2013 (Harry Winston)
Directeur général des douanes et droits indirects, Chef de l’agence de poursuites de
la Direction nationale du renseignement et des enquêtes douanières v Harry
Winston SARL
Community Customs Code – Regulation (EEC) No 2913/92 – Article 206 – Incurrence of
a customs debt – Theft of goods placed under customs warehousing arrangements –
Notion of ‘irretrievable loss of goods as a result of force majeure’– Directive
2006/112/EC – Article 71 – Value added tax – Chargeable event – Chargeability of tax
1.
Article 203(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Council
Regulation (EC) No 1791/2006 of 20 November 2006, must be interpreted as
meaning that a theft of goods placed under customs warehousing
arrangements constitutes an unlawful removal of those goods within the
meaning of that provision, giving rise to a customs debt on importation.
Article 206 of that regulation is capable of applying only to situations in
which a customs debt is liable to be incurred pursuant to Articles 202 and
204(1)(a) of that regulation.
2.
The second subparagraph of Article 71(1) of Council Directive 2006/112/EC
of 28 November 2006 on the common system of value added tax must be
interpreted as meaning that the theft of goods placed under customs
warehousing arrangements gives rise to the chargeable event and causes
value added tax to become chargeable.
36
Case T-324/10, 19 March 2013 (Van Parys)
Firma Léon Van Parys NV vs European Commission
Customs union – Imports of bananas from Ecuador – Post-clearance recovery of import
duties – Request for remission of import duties – Article 220(2)(b) and Article 239 of
Regulation (EEC) No 2913/92 – Error by the customs authorities – Obvious negligence
on the part of the interested party
The General Court:
1. annuls Article 1(3) of Commission Decision C (2010) 2858 final of 6 May 2010
finding that post-clearance entry in the accounts of import duties is justified and that
remission of those duties is justified with regard to a debtor but is not justified in the
particular case of another debtor;
2.
dismisses the action as to the remainder;
3.
orders the European Commission to bear its own costs and to pay those incurred by
Firma Léon Van Parys NV;
4. orders the Kingdom of Belgium to bear its own costs.
37
Case C-182/12, 7 March 2013(Fekete)
Gábor Fekete v Nemzeti Adó- és Vámhivatal Közép-dunántúli Regionális Vám- és
Pénzügyőri Főigazgatósága.
Community Customs Code - Article 137 - Regulation implementing the Customs Code Article 561(2) - Conditions for total relief from import duties - Importation into a
Member State of a vehicle whose owner is established in a third country - Private use of
the vehicle authorised by the owner otherwise than by an employment contract concluded
with the user - No relief.
Article 561(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing
the Community Customs Code, as amended by Commission Regulation (EC) No
993/2001 of 4 May 2001 must be interpreted as meaning that the total relief from import
duties provided for by that provision for a means of transport used privately by a person
established in the customs territory of the European Union may be granted only if such
use is provided for in a contract of employment between that person and the owner of the
vehicle established outside that territory.
38
C-361/11, 17 January 2013( Hewlett-Packard Europe )
Hewlett-Packard Europe BV v Inspecteur van de Belastingdienst/Douane West,
kantoor Hoofddorp
Common Customs Tariff – Combined Nomenclature – Tariff classification –
Multifunctional printers combining a laser printing module and a scanning module, with
a copying function – CN code 8443 31 91 – Validity of Regulation (EC) No 1031/2008
Consideration of the question raised has disclosed no factor of such a kind as to affect
the validity of Commission Regulation (EC) No 1031/2008 of 19 September 2008
amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical
nomenclature and on the Common Customs Tariff, in so far as it classifies under CN
code 8443 31 91 of the Combined Nomenclature, contained in Annex I to Regulation No
2568/87, as amended by Council Regulation (EC) No 254/2000 of 31 January 2000,
multifunctional printers, such as those at issue in the main proceedings, combining a
laser printing module and a scanning module, with a copying function, released for free
circulation in April 2009.
39
Case C-558/11, 15 November 2012 (Kurcums Metal)
SIA Kurcums Metal v Valsts ieņēmumu dienests
Common Customs Tariff - Tariff classification - Combined Nomenclature - ‘Taifun’
composite cables manufactured in Russia, made of polypropylene and steel thread Corrugated clips with rounded tips connected by means of a pin - Anti-dumping duties on
imports of certain iron or steel ropes and cables originating in the Czech Republic,
Russia, Thailand and Turkey.
1.
Subheading 5607 49 11 of the Combined Nomenclature in Annex I to Council
Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature
and on the Common Customs Tariff, as amended by Commission Regulation (EC) No
1549/2006 of 17 October 2006, must be interpreted as meaning that cables such as those
at issue in the main proceedings, which consist of both polypropylene and wound steel
thread, do not fall as such within that subheading.
2.
General rule 3(b) for the interpretation of the Combined Nomenclature in Annex I
to Regulation No 2658/87, as amended by Regulation No 1549/2006, must be interpreted
as meaning that the tariff classification of cables such as those at issue in the main
proceedings is not to be carried out pursuant to that rule, subject to verification by the
referring court, in the light of all the elements of fact placed before it, that neither of the
two materials of which those cables are composed in itself gives those cables their
essential character.
3.
Article 1 of Council Regulation (EC) No 1601/2001 of 2 August 2001 imposing a
definitive anti-dumping duty and definitively collecting the provisional anti-dumping duty
imposed on imports of certain iron or steel ropes and cables originating in the Czech
Republic, Russia, Thailand and Turkey must be interpreted as meaning that cables such
as those at issue in the main proceedings, on the assumption that they are covered by
subheading 7312 10 98 of the Combined Nomenclature in Annex I to Regulation No
2658/87, as amended by Regulation No 1549/2006, fall within the scope of that
provision.
4.
Subheading 7317 00 90 of the Combined Nomenclature in Annex I to Regulation No
2658/87, as amended by Regulation No 1549/2006, must be interpreted as meaning that
corrugated clips with rounded tips connected by means of a pin, such as those at issue in
the main proceedings, do not fall within that subheading.
40
Case C-438/11, 8 November 2012 (Lagura Vermögensverwaltung)
Lagura Vermögensverwaltung GmbH v Hauptzollamt Hamburg-Hafen
Community customs code - Article 220(2)(b) - Post-clearance recovery of import duties Legitimate expectations - Impossibility of verifying the accuracy of a certificate of origin
- Notion of ‘certificate based on an incorrect account of the facts provided by the
exporter’ - Burden of proof - Scheme of generalised tariff preferences.
Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Regulation (EC) No
2700/2000 of the European Parliament and of the Council of 16 November 2000, must be
interpreted as meaning that if, owing to the fact that the exporter has ceased production,
the competent authorities of the non‑ member country are unable, through a subsequent
verification, to determine whether the certificate of origin Form A that they issued is
based on a correct account of the facts by the exporter, the burden of proving that the
certificate was based on a correct account of the facts by the exporter rests with the
person liable for payment.
41
Joined cases C-320/11, C-330/11, C-382/11 and C-383/11, 22 November 2012
(Digitalnet)
Digitalnet OOD (C-320/11 and C-383/11), Tsifrova kompania OOD (C-330/11) and
M SAT CABLE AD (C-382/11) v Nachalnik na Mitnicheski punkt - Varna Zapad
pri Mitnitsa Varna
Common Customs Tariff - Tariff classification - Combined Nomenclature - Apparatus
capable of receiving television signals and incorporating a modem for gaining access to
the internet and having a function of interactive information exchange.
1.
The Combined Nomenclature set out in Annex I to Council Regulation (EEC) No
2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common
Customs Tariff, as amended, respectively, by Commission Regulation (EC) No 1214/2007
of 20 September 2007, by Commission Regulation (EC) No 1031/2008 of 19 September
2008, and by Commission Regulation (EC) No 948/2009 of 30 September 2009, must be
interpreted as meaning that, for the purposes of classification of goods under subheading
8528 71 13, a modem for gaining access to the internet is a device which, alone and
without the intervention of any other apparatus or mechanism, is capable of accessing
the internet and of ensuring interactivity and an exchange of information in both
directions. It is solely the capacity to gain access to the internet, and not the technique
used to achieve this, that is relevant for the purposes of classification under that
subheading.
2.
That Combined Nomenclature must be interpreted as meaning that the reception of
television signals and the presence of a modem allowing access to the internet are two
equivalent functions that apparatus must perform in order to be classified under
subheading 8528 71 13. In the absence of one or other of those functions, that apparatus
must be classified under subheading 8528 71 19.
3.
Article 78(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code must be interpreted as meaning that ex post
inspection of goods and the subsequent change in their tariff classification may be made
on the basis of written documents without the customs authorities being required to
physically check those goods.
42
Case C-351/11, 8 November 2012 (KGH Belgium)
KGH Belgium NV v Belgische Staat
Customs debt - Post-clearance recovery of import or export duties - Entry of duty in the
accounts - Practical procedures.
Article 217(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing
the Community Customs Code, as amended by Regulation (EC) No 82/97 of the
European Parliament and of the Council of 19 December 1996, must be interpreted as
meaning that, since that article does not lay down any practical procedures for the entry
in the accounts within the meaning of that provision, the Member States are free to
determine the practical procedures for the entry in the accounts of amounts of duty
resulting from a customs debt, without being under an obligation to determine, in their
national legislation, how the entry in the accounts is to be made. That entry must be
made in a way which ensures that the competent customs authorities enter the exact
amount of the import duty or export duty resulting from a customs debt in the accounting
records or on any other equivalent medium, so that, inter alia, the entry in the accounts
of the amounts concerned may be established with certainty, including with regard to the
person liable.
43
Case C-165/11, 8 November 2012 (Profitube)
Daňové riaditeľstvo Slovenskej republiky v Profitube spol. s r.o.
Sixth VAT Directive - Applicability - Community customs code - Goods from a nonmember State placed under the customs warehousing procedure in the territory of a
Member State - Processing of the goods under inward processing arrangements in the
form of a system of suspension - Goods sold and placed once again under the customs
warehousing procedure - Goods kept in the same customs warehouse during all the
transactions - Supply of goods effected for consideration in national territory Chargeable event for VAT.
Where goods from a non-member State have been placed under the customs warehousing
procedure in a Member State, and have then been processed under inward processing
arrangements in the form of a system of suspension and subsequently sold and placed
once again under the customs warehousing procedure, remaining throughout all those
transactions in the same customs warehouse situated in the territory of that Member
State, the sale of such goods is subject to value added tax under Article 2(1) of Sixth
Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the
Member States relating to turnover taxes - Common system of value added tax: uniform
basis of assessment, as amended by Council Directive 2004/66/EC of 26 April 2004,
unless the said Member State has made use of the facility opened to it to exempt that sale
from the tax under Article 16(1) of that directive, which it is for the national court to
verify.
44
Case C-524/11, 6 September 2012 (Lowlands Design Holding)
Lowlands Design Holding BV v Minister van Financiën
Common Customs Tariff - Combined Nomenclature - Tariff classification - Romper bags
for babies and young children - Subheadings 6209 20 00 or 6211 42 90.
The Combined Nomenclature forming Annex I to Council Regulation (EEC) No 2658/87
of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs
Tariff, as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005,
must be interpreted as meaning that romper bags such as those at issue in the main
proceedings must be classified under subheading 6209 20 00 as ‘babies’ garments and
clothing accessories, of cotton’ if, on account of their size, they are suitable for young
children of a body height not exceeding 86 cm. If that is not the case, those products must
be classified under subheading 6211 42 90 as ‘other garments, women’s or girls’, of
cotton’.
45
Case C-487/11, 6 September 2012 (Treimanis)
Laimonis Treimanis v Valsts ieņēmumu dienests
Regulation (EEC) No 918/83 - Articles 1(2)(c), 2 and 7(1) - Relief from import duties on
personal property - ‘Property intended … for meeting … household needs’ - Motor
vehicle imported into the European Union - Vehicle used by a member of the family of
the importing owner.
Articles 2 and 7(1) of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up
a Community system of reliefs from customs duty must be interpreted as meaning that a
private motor vehicle imported from a third country into the customs territory of the
European Union may be imported free of import duties provided that the importer has
actually transferred his normal place of residence to the customs territory of the
European Union, which is a matter for the national court to determine. A motor vehicle
used free of charge by a member of that importer’s family, that is by a person living
under the same roof as the importer or mainly dependent on him, a matter for the
national court to determine, is to be regarded as being intended for meeting the needs of
the importer’s household, and that use does not result in loss of entitlement to the relief
in question.
46
Case C-28/11, 6 September 2012 (Eurogate Distribution)
Eurogate Distribution GmbH v Hauptzollamt Hamburg-Stadt
Community Customs Code - Regulation (EEC) No 2913/92 - Article 204(1)(a) - Customs
warehousing procedure - Customs debt incurred through non-fulfilment of an obligation Delayed entry in stock records of information concerning the removal of goods from a
customs warehouse.
Article 204(1)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005
of the European Parliament and of the Council of 13 April 2005, must be interpreted as
meaning that, in the case of non-Community goods, non-fulfilment of the obligation to
enter the removal of the goods from the customs warehouse in the appropriate stock
records, at the latest when the goods leave the customs warehouse, gives rise to a
customs debt in respect of those goods, even if they have been re-exported.
47
Case C-262/10, 6 September 2012 (Döhler Neuenkirchen)
Döhler Neuenkirchen GmbH v Hauptzollamt Oldenburg
Community Customs Code - Regulation (EEC) No 2913/92 - Article 204(1)(a) - Inward
processing procedure - System of suspension - Incurrence of a customs debt - Nonfulfilment of an obligation to supply the bill of discharge within the prescribed period.
Article 204(1)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005
of the European Parliament and of the Council of 13 April 2005, must be interpreted as
meaning that the non-fulfilment of the obligation to submit the bill of discharge to the
supervising office within 30 days of the expiry of the period for discharging the relevant
procedure laid down in the first indent of the first subparagraph of Article 521(1) of
Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the
implementation of Regulation No 2913/92, as amended by Commission Regulation (EC)
No 214/2007 of 28 February 2007, gives rise to a customs debt in respect of the entire
quantity of the imported goods covered by the bill of discharge, including those reexported outside the territory of the European Union, where the conditions set out in
Article 859(9) of Regulation No 2454/93 are not considered to be fulfilled.
48
Case C-250/11, 19 July 2012 (Lietuvos geležinkeliai AB)
Lietuvos geležinkeliai AB v Vilniaus teritorinė muitinė, Muitinės departamentas
prie Lietuvos Respublikos finansų ministerijos
(Relief from customs duties and VAT exemptions on imports of goods — Fuel contained
in the standard tanks of land motor vehicles — Notion of ‘motorised road vehicle’ —
Locomotives — Road transport and transport by rail — Principle of equal treatment —
Principle of neutrality
Article 112(1)(a) of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a
Community system of reliefs from customs duty, as amended by Council Regulation
(EEC) No 1315/88 of 3 May 1988, Article 107(1)(a) of Council Regulation (EC) No
1186/2009 of 16 November 2009 setting up a Community system of reliefs from customs
duty, Article 82(1)(a) of Council Directive 83/181/EEC of 28 March 1983 determining
the scope of Article 14(1)(d) of Directive 77/388/EEC as regards exemption from value
added tax on the final importation of certain goods, as amended by Council Directive
88/331/EEC of 13 June 1988 and Article 84(1)(a) of Council Directive 2009/132/EC of
19 October 2009 determining the scope of Article 143(b) and (c) of Directive
2006/112/EC as regards exemption from value added tax on the final importation of
certain goods must be interpreted as meaning that they do not apply to locomotives.
49
Case C-336/11, 19 July 2012 (Rohm & Haas Electronic Materials)
Receveur principal des douanes de Roissy Sud and Others v Rohm & Haas
Electronic Materials CMP Europe GmbH and Others.
Common Customs Tariff - Tariff classification - Combined Nomenclature - Polishing
pads intended exclusively for semiconductor wafer-polishing machines - Tariff headings
3919 and 8466 (or 8486) - Definition of ‘parts’ or ‘accessories’.
The Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23
July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff,
in the successive versions of the following regulations, amending Annex I to Regulation
No 2658/87: Commission Regulations (EC) No 1789/2003 of 11 September 2003; No
1810/2004 of 7 September 2004; No 1719/2005 of 27 October 2005; and No 1549/2006
of 17 October 2006, must be interpreted as meaning that polishing pads intended for a
polishing machine for working semiconductor materials – as such coming under tariff
heading 8464 (or heading 8486 from 1 January 2007) – imported separately from the
machine, in the form of discs perforated in the centre, made up of a hard polyurethane
layer, a layer of polyurethane foam, an adhesive layer and a protective plastic film,
which do not contain any metal part or any abrasive substance and are used to polish
‘wafers’, in combination with an abrasive liquid, and must be replaced at a frequency
determined by their level of wear, come under subheading 3919 90 10, as self-adhesive
flat shapes, other than squares or rectangles, made of plastic.
50
Case C-608/10, 12 July 2012 (Südzucker and Others)
Südzucker AG (C-608/10), WEGO Landwirtschaftliche Schlachtstellen GmbH (C10/11) and Fleischkontor Moksel GmbH (C-23/11) v Hauptzollamt Hamburg-Jonas
Agriculture - Export refunds - Incorrect indication of the exporter in the export
declaration - National legislation making entitlement to an export refund subject to the
entry of the applicant as the exporter in the export declaration - Correction of the export
declaration after the goods have been released.
1.
Article 5(7) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying
down common detailed rules for the application of the system of export refunds on
agricultural products, as amended by Commission Regulation (EC) No 90/2001 of
17 January 2001, must be interpreted as meaning that, in principle, the holder of
an export licence is entitled to an export refund only if he is registered as exporter
in box 2 of the export declaration lodged with the competent customs office.
2.
Article 78(1) and (3) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code must be interpreted as allowing a postclearance revision of the export declaration for the purpose of refunds, in order to
change the name of the exporter featuring in the box provided for that purpose, and
as meaning that the customs authorities are required:
– firstly, to examine whether a revision of that declaration must be considered to be
possible in that, in particular, the objectives of the European Union legislation as
regards export refunds have not been threatened and the goods in question have in fact
been exported, this being a matter for the applicant to establish, as well as
– secondly, where relevant, to take the measures necessary to regularise the situation,
taking account of the new information available to them.
3.
Article 5(7) of Regulation No 800/1999, as amended by Regulation No 90/2001,
and the customs legislation of the European Union must be interpreted as meaning
that, in a case such as Case C-608/10, in which the holder of an export licence is
not registered as the exporter in box 2 of the export declaration, the customs
authorities cannot grant that holder the export refund without prior correction of
the export declaration.
4.
In a case such as those in Cases C-10/11 and C-23/11, the customs legislation of
the European Union must be interpreted as meaning that the customs office
responsible for paying the export refund is bound by a post-clearance revision, by
the customs office of export, of the reference in box 2 of the export declaration, or,
as the case may be, of the T5 control copy, if the amending decision fulfils all the
formal and substantive conditions of a ‘decision’ provided for both by Article 4(5)
of Regulation No 2913/92 and by the relevant provisions of the national law
concerned. It is for the referring court to determine whether those conditions have
been satisfied in the disputes in the main proceedings.
51
5.
Article 5(7) of Regulation No 800/1999, as amended by Regulation No 90/2001,
and the customs legislation of the European Union must be interpreted as meaning
that the customs office responsible for paying the export refund is not entitled, in a
case such as Case C-23/11, and if it is not bound under national law by the revision
made by the customs office of export, to take at face value the reference in box 2 of
the export declaration and to refuse an application for an export refund on the
ground that the party making that application is not the exporter of the goods
covered by that application. By contrast, if the competent customs office grants the
application for amendment and validly rectifies the exporter’s name, the customs
office responsible for paying the export refund is bound by that decision.
52
Case C-291/11, 12 July 2012 (TNT Freight Management)
Staatssecretaris van Financiën v TNT Freight Management (Amsterdam) BV
Common Customs Tariff - Combined Nomenclature - Tariff headings 3002 and 3502 Blood albumin prepared for therapeutic or prophylactic uses - Processing of the product.
Note 1(g) of Chapter 30 of the Combined Nomenclature in Annex I to Council Regulation
(EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation (EC) No 1789/2003 of
11 September 2003, read in conjunction with Note 1(b) of Chapter 35 thereof, must be
interpreted as meaning that a blood albumin which does not itself have a therapeutic or
prophylactic effect, but which was produced for the preparation of products having a
prophylactic or therapeutic effect, which is essential to that preparation, and which, by
its nature, may only be used for that purpose, was prepared for therapeutic or
prophylactic use within the meaning of that note.
53
Case C-533/10, 14 June 2012 (CIVAD)
Compagnie internationale pour la vente à distance (CIVAD) SA v Receveur des
douanes de Roubaix and Others
Preliminary ruling - Article 236(2) CCC – Repayment of duties not legally owed – Timelimit – Regulation (EC) No 2398/97 – Definitive anti-dumping duty on imports of cotton
– type bed linen originating in Egypt, India and Pakistan – Regulation (EC) No
1515/2001 – Repayment of anti-dumping duties paid pursuant to a regulation
subsequently declared invalid – Concept of ‘force majeure’ – Time at which the
obligation to repay import duties arises
1.
The second subparagraph of Article 236(2) of Council Regulation (EEC) No
2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by
Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16
November 2000 must be interpreted as meaning that the unlawfulness of a regulation is
not a case of force majeure within the meaning of that provision, allowing an extension
of the three-year time‑ limit during which an importer can request the repayment of
import duties paid pursuant to that regulation.
2.
The third subparagraph of Article 236(2) of Regulation (EEC) No 2913/92, as
amended by Regulation (EC) No 2700/2000, must be interpreted as not allowing national
customs authorities to repay, on their own initiative, anti-dumping duties collected
pursuant to a European Union regulation, on the basis of a finding by the Disputes
Settlement Body that that regulation was not in accordance with the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, set
out in Annex 1A of the Agreement establishing the World Trade Organisation (WTO),
signed in Marrakech on 15 April 1994 and approved by Council Decision 94/800/EC of
22 December 1994 concerning the conclusion on behalf of the European Community, as
regards matters within its competence, of the agreements reached in the Uruguay Round
multilateral negotiations (1986-1994).
54
Case C-506/09 P, 22 March 2012 (Transnáutica)
Portuguese Republic and others v Transnáutica - Transportes e Navegação SA
Appeal – Customs union – Regulation (EEC) No 2913/92 and Regulation (EEC) No
2454/93 – Remission of import duties – Consignments of tobacco and ethyl alcohol for
third countries – Fraud committed by an employee of the company liable
By its appeal, the Portuguese Republic asks the Court to set aside the judgment of the
Court of First Instance of the European Communities (now the ‘General Court’) of 23
September 2009 in Case T-385/05 Transnáutica v Commission, by which that court
annulled Commission Decision REM 05/2004 of 6 July 2005 refusing Transnáutica –
Transportes e Navegação SA the reimbursement and remission of certain customs duties.
The Court of Justice dismisses the appeal and orders the Portuguese Republic to pay the
costs.
55
Case T-153/10, 28 February 2012 (Schneider España)
Schneider España de Informática, SA v European Commission
Order of the General Court - Customs union - Importation of colour television sets
assembled in Turkey - Post-clearance recovery of import duties - Application for waiver
of post-clearance entry in the accounts of import duties and for remission of those duties Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92 - Commission
decision rejecting that application - Annulment by the national court of decisions taken
by national authorities ordering post-clearance entry of import duties in the accounts - No
need to adjudicate.
The Court of Justice rules that since the annulment of the contested decision cannot
procure an advantage for the applicant, consequently, the present action has become
devoid of purpose. Accordingly, there is no longer any need to adjudicate on the action,
or to adjudicate on the applicant’s request for the adoption of measures of organisation
of procedure, which has also become devoid of purpose.
56
Case T-32/11, 10 February 2012 (Verenigde Douaneagenten BV)
Verenigde Douaneagenten BV v European Commission
Customs Union – Import of cane sugar originating in the Dutch Antilles – Post-clearance
recovery of customs duties – Application for remission of customs duties- Article
220(2)(b) and Article 239 of Regulation (EEC) No. 2913/92 – Infringement of essential
procedural requirements
Not available in English. The Court annulled Commission Decision C (2010)6754 final, ,
in so far as it determines that the remission of import duties in the sum of EUR 531
985,59, pursuant to Article 239 of Council Regulation (EEC) No 2913/92 of 12 October
1992 establishing the Community Customs Code, is not justified;
57
Case C-392/10, 19 January 2012 (Suiker Unie GmbH)
Suiker Unie GmbH – Zuckerfabrik Anklam v Hauptzollamt Hamburg-Jonas
Agricultural products - Regulation (EC) No 800/1999 – Article 15(1) and (3) –System of
export refunds – Differentiated export refund – Conditions for granting – Import of the
product into the third country of destination – Payment of import duties
Article 15(1) and (3) of Commission Regulation (EC) No 800/1999 of 15 April 1999
laying down common detailed rules for the application of the system of export refunds on
agricultural products, as amended by Commission Regulation (EC) No 444/2003 of 11
March 2003, must be interpreted as meaning that the condition for receipt of a
differentiated refund laid down by that article, namely completion of the customs import
formalities, is not satisfied when in the third country of destination, following release for
inward processing without collection of import duties, the product undergoes a
‘substantial processing or working’ within the meaning of Article 24 of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs
Code and the product resulting from that processing or working is exported to a third
country.
58
Case C-227/11, 19 January 2012. ( DHL Danzas Air)
DHL Danzas Air & Ocean (Netherlands) BV v Inspecteur
Belastingdienst/Douane West, kantoor Hoofddorp Saturnusstraat.
van
de
Preliminary ruling - Common customs tariff. – Tariff classification – Network analysers
– Legal value of a classification opinion of the Wold Customs Organization
Not available in English. La nomenclature combinée figurant à l’annexe I du règlement
(CEE) n° 2658/87 du Conseil, du 23 juillet 1987, relatif à la nomenclature tarifaire et
statistique et au tarif douanier commun, telle que modifiée, respectivement par le
règlement (CE) n° 1810/2004 de la Commission, du 7 septembre 2004, et par le
règlement (CE) n° 1719/2005 de la Commission, du 27 octobre 2005, doit être
interprétée en ce sens que des analyseurs de réseau tels que ceux en cause au principal
peuvent être classés dans la sous-position 9030 40 90 de la nomenclature combinée, dans
sa rédaction résultant du règlement n° 1810/2004, ou dans la sous-position 9030 40 00
de la nomenclature combinée, dans sa rédaction résultant du règlement n° 1719/2005,
selon la date de leur importation, à condition que ces appareils aient pour finalité même
d’opérer des mesures ou des contrôles de grandeurs électriques, ce qu’il appartient au
juge national de vérifier. À défaut, ces appareils doivent être classés dans la sousposition 9031 80 39 de la nomenclature combinée, dans sa rédaction résultant du
règlement n° 1810/2004, ou dans la sous-position 9031 80 38 de la nomenclature
combinée, dans sa rédaction résultant du règlement n° 1719/2005, selon la date de leur
importation.
Un avis de classement du comité du SH peut contribuer de manière importante à
l’interprétation de la NC, il ne peut fonder l’invalidité d’un règlement de classement de
la NC en application duquel des marchandises importées antérieurement à son adoption
ont été classées. Dans l’affaire au principal, l’avis de classement du comité du système
harmonisé étant intervenu au mois de septembre 2010, il ne peut fonder l’invalidité du
règlement n° 129/2005 en application duquel des marchandises importées
antérieurement à cet avis ont été classées. La question de cette invalidité est étrangère à
l’affaire au principal (cf. points 43 et 44).
59
Case C-503/10, 21 December 2011 (Evroetil)
Evrotil AD v Direktor na Agentsia ‘Mitnitsi’
Directive 2003/30/EC – Article 2(2)(a) – Concept of bioethanol – Product obtained from
biomass, undenatured and with an ethyl alcohol content of over 98.5% – Relevance of
actual use as a biofuel – Regulation (EEC) No 2658/87 – Combined Nomenclature –
Tariff classification of bioethanol for the purpose of collecting excise duties – Directive
2003/96/EC – Energy products – Directive 92/83/EEC – First indent of Article 20 and
Article 27(1)(a) and (b) – Concept of ethyl alcohol – Exemption from the harmonised
duty – Denaturing
1.
The definition of bioethanol in Article 2(2)(a) of Directive 2003/30/EC of the European
Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or
other renewable fuels for transport must be interpreted as meaning that it includes a
product such as that at issue in the main proceedings, which is obtained inter alia from
biomass and which contains more than 98.5% ethyl alcohol, once it is offered for sale as
biofuel for transport.
2.
European Union law must be interpreted as meaning that a product such as that at issue
in the main proceedings, which contains more than 98.5% ethyl alcohol and has not been
denatured in a special denaturing procedure must be subject to the excise duty provided
for in Article 19(1) of Council Directive 92/83/EEC of 19 October 1992 on the
harmonisation of the structures of excise duties on alcohol and alcoholic beverages, even
where it was obtained from biomass using a technology which differs from the technology
for the production of agricultural ethyl alcohol, contains substances making it unsuitable
for human consumption, satisfies the requirements laid down in European standard prEN
15376 for bioethanol used as fuel and potentially meets the definition of bioethanol in
Article 2(2)(a) of Directive 2003/30.
60
Case
C-409/10,
15
December
2011
(Afasia
Knits
Deutschland)
Hauptzollamt Hamburg-Hafen v Afasia Knits Deutschland GmbH
Preliminary ruling - Common commercial policy – Preferential regime for the
importation of products originating in the African, Caribbean and Pacific (ACP) States –
Irregularities detected during an investigation carried out by the European Anti-Fraud
Office (OLAF) in the exporting ACP State – Post-clearance recovery of the import duties
1.
Article 32 of Protocol 1 to Annex V to the Partnership Agreement between the members of
the African, Caribbean and Pacific Group of States, of the one part, and the European
Community and its Member States, of the other part, signed in Cotonou on 23 June 2000,
and approved on behalf of the Community by Council Decision 2003/159/EC of
19 December 2002, must be interpreted as meaning that the results of a subsequent
verification as to the accuracy of the origin of goods as indicated on the EUR.1
certificates issued by an ACP State and which consisted, for the most part, of an
investigation conducted by the Commission, and more precisely by the European AntiFraud Office, in that State, and at its invitation, are binding on the authorities of the
Member State into which the goods were imported, provided that – and this is a matter
for the national court to establish – those authorities received a document unequivocally
acknowledging that that ACP State endorsed those results.
2.
Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Regulation (EC)
No 2700/2000 of the European Parliament and of the Council of 16 November 2000,
must be interpreted as meaning that, in circumstances where the EUR.1 certificates
issued for the importation of goods into the European Union are cancelled on the ground
that the issue of those certificates was marred by irregularities and that the preferential
origin indicated on those certificates could not be confirmed during a subsequent
verification, the importer cannot object to post-clearance recovery of the import duties by
claiming that the possibility cannot be ruled out that, in reality, some of those goods have
that preferential origin.
61
Joined Cases C-446/09 & C-495/09, 1 December 2011 (Philips, Nokia)
Koninklijke Philips Electronics NV (C-446/09) v Lucheng Meijing Industrial
Company Ltd and Others & Nokia Corporation (C-495/09) v Her Majesty’s
Commissioners of Revenue and Customs.
References for a preliminary ruling: - Common commercial policy – Combating the entry
into the EU of counterfeit and pirated goods – Regulations (EC) No 3295/94 and No
1383/2003 – Customs warehousing and external transit of goods from non-member States
which constitute imitations or copies of goods protected in the EU by intellectual
property rights – Action by the authorities of the Member States – Conditions
Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures
concerning the entry into the Community and the export and re-export from the
Community of goods infringing certain intellectual property rights, as amended by
Council Regulation (EC) No 241/1999 of 25 January 1999, and Council Regulation (EC)
No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of
infringing certain intellectual property rights and the measures to be taken against goods
found to have infringed such rights must be interpreted as meaning that:
–
goods coming from a non-member State which are imitations of goods protected in
the European Union by a trade mark right or copies of goods protected in the European
Union by copyright, a related right or a design cannot be classified as ‘counterfeit
goods’ or ‘pirated goods’ within the meaning of those regulations merely on the basis of
the fact that they are brought into the customs territory of the European Union under a
suspensive procedure;
–
those goods may, on the other hand, infringe the right in question and therefore be
classified as ‘counterfeit goods’ or ‘pirated goods’ where it is proven that they are
intended to be put on sale in the European Union, such proof being provided, inter alia,
where it turns that the goods have been sold to a customer in the European Union or
offered for sale or advertised to consumers in the European Union, or where it is
apparent from documents or correspondence concerning the goods that their diversion to
European Union consumers is envisaged;
–
in order that the authority competent to take a substantive decision may profitably
examine whether such proof and the other elements constituting an infringement of the
intellectual property right relied upon exist, the customs authority to which an
application for action is made must, as soon as there are indications before it giving
grounds for suspecting that such an infringement exists, suspend the release of or detain
those goods; and
–
those indications may include, inter alia, the fact that the destination of the goods
is not declared whereas the suspensive procedure requested requires such a declaration,
the lack of precise or reliable information as to the identity or address of the
manufacturer or consignor of the goods, a lack of cooperation with the customs
authorities or the discovery of documents or correspondence concerning the goods in
question suggesting that there is liable to be a diversion of those goods to European
Union consumers.
62
Joined Cases C-323/10 to C-326/10, 24 November 2011 (Gebr. Stolle GmbH )
Gebr. Stolle GmbH & Co. KG (C-323/10, C-324/10 and C-326/10) and Doux
Geflügel GmbH (C-325/10) v Hauptzollamt Hamburg-Jonas
Reference for a preliminary ruling - Regulation (EEC) No 3846/87 – Agriculture –
Export refunds – Poultrymeat – Fowls of the species Gallus domesticus, drawn and
plucked – Subheading 0207 12
1.
Subheading 0207 12 90 of Annex I to Commission Regulation (EEC) No 3846/87 of 17
December 1987 establishing an agricultural product nomenclature for export refunds, as
amended by Commission Regulation (EC) No 2091/2005 of 15 December 2005
publishing, for 2006, the agricultural product nomenclature for export refunds, must be
interpreted as meaning that a poultry carcass under that subheading has to be completely
drawn, so that it is prejudicial to its tariff classification if part of the guts or trachea, for
example, are still attached to the carcass following a mechanical gutting process.
2.
Product code 0207 12 90 9990 of Annex I to Regulation No 3846/87, as amended by
Commission Regulation (EC) No 2765/1999 of 16 December 1999, must be interpreted
as meaning that an ‘irregular composition’ allows for the presence in a carcass of a
maximum of only four giblets from those which it lists, of one or more than one type,
provided that the total of four is adhered to.
3.
Subheading 0207 12 10 of Annex I to Regulation No 3846/87, as amended by Regulation
No 2765/1999, must be interpreted as meaning that a poultry carcass in which one of the
giblets listed in that subheading, namely the neck, heart, liver and gizzard, is present
more than once, does not come under that subheading.
4.
Subheading 0207 12 10 of Annex I to Regulation No 3846/87, as amended by Regulation
No 2765/1999, must be interpreted as meaning that, for the purposes of the export refund
classification, a poultry carcass to which some small quill feathers, plumage feathers,
quill ends and hairs are still attached after going through a mechanical plucking process
comes under that subheading, provided that those remaining feathers are compatible
with the characteristic of a chicken ready for roasting and with sound and fair
marketable quality.
5.
Product code 0207 12 90 9990 of Annex I to Regulation No 3846/87, as amended by
Regulation No 2765/1999, must be interpreted as meaning that a poultry carcass in
which the trachea is still attached to the neck does not come under that product code.
6.
When a customs office seeks to determine whether goods presented for export comply
with the tariff heading stated in the export declaration, the results of a partial
examination of declared goods are valid for all the goods declared, in accordance with
Article 70(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing
the Community Customs Code. A margin of error does not have to be allowed within
which it may be found that an anomaly is not prejudicial to a refund.
63
Case C-454/10, 17 November 2011 (Oliver Jestel)
Oliver Jestel v Hauptzollamt Aachen
Reference for a preliminary ruling - Community Customs Code - Second indent of
Article 202(3) - Customs debt incurred through unlawful introduction of goods Meaning of ‘debtor’ - Participation in unlawful introduction - Intermediary in conclusion
of contracts of sale relating to goods introduced unlawfully.
The second indent of Article 202(3) of Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code must be interpreted as meaning
that a person who, without being directly involved in the introduction of goods,
participated in the introduction as intermediary in the conclusion of contracts of sale
relating to those goods must be considered to be a debtor of a customs debt incurred
through the unlawful introduction of goods into the customs territory of the European
Union where that person was aware, or should reasonably have been aware, that that
introduction was unlawful, which is a matter for the national court to determine.
64
Joined Cases C-319/10 and C-320/10, 10 November 2011 ( X, X BV)
X (C-319/10) v Inspecteur van de Belastingsdienst & Y and X BV (C-320/10) v
Inspecteur van de Belastingdienst P.
References for a preliminary ruling:- Common Customs Tariff - Combined Nomenclature
- Tariff classification – - Boneless chicken cuts, frozen and impregnated with salt –
Validity and interpretation of the Regulations (EC) nos 535/94, 1832/2002, 1871/2003,
2344/2003 and 1810/2004 – Additional note 7 of Chapter 2 of the Combined
Nomenclature – Decision of the dispute settlement body of the WTO – Legal effects
Dans des circonstances telles que celles en cause au principal, dans lesquelles les
déclarations dans le régime douanier de mise en libre pratique ont été effectuées avant le
27 septembre 2005, il n’est possible de se prévaloir de la décision de l’organe de
règlement des différends de l’Organisation mondiale du commerce (OMC), du 27
septembre 2005, adoptant un rapport de l’organe d’appel de l’OMC (WT/DS269/AB/R,
WT/DS286/AB/R) et deux rapports d’un groupe spécial de l’OMC (WT/DS269/R et
WT/DS286/R), tels que modifiés par le rapport de l’organe d’appel, ni dans le cadre de
l’interprétation de la note complémentaire 7 du chapitre 2 de la nomenclature combinée
figurant dans le règlement (CE) n° 1810/2004 de la Commission, du 7 septembre 2004,
modifiant l’annexe I du règlement (CEE) n° 2658/87 du Conseil, du 23 juillet 1987,
relatif à la nomenclature tarifaire et statistique et au tarif douanier commun, ni dans le
cadre de l’appréciation de la validité de cette note complémentaire.
(Only available in the FR version)
65
Case C-559/10, 27 October 2011 (Deli Ostrich NV)
Deli Ostrich NV v Belgische Staat
Reference for a preliminary ruling - Common Customs Tariff - Combined Nomenclature
- Tariff classification - Frozen camel meat not from farm-raised animals - Subheading
0208 90 40 (other game meat) or 0208 90 95 (other)
The Combined Nomenclature constituting Annex I to Council Regulation (EEC) No
2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common
Customs Tariff, as amended by Commission Regulation (EC) No 1549/2006 of 17
October 2006, must be interpreted as meaning that camel meat must be classified under
subheading 0208 90 40 as ‘other game meat’ if the camels from which that meat comes
lived in the wild and were hunted.
66
Case C-138/10, 15 September 2011 (DP grup EOOD)
DP grup EOOD v Direktor na Agentsia ‘Mitnitsi’
Reference for a preliminary ruling – Customs union – Customs declaration – Acceptance
by the customs authorities of that declaration – Invalidation of a customs declaration
which has already been accepted – Consequences for penal measures
The provisions of European Union law in customs matters must be interpreted as
meaning that a declarant cannot request a court to annul a customs declaration made by
it when that declaration has been accepted by the customs authorities.
By contrast, under the conditions laid down in Article 66 of Council Regulation (EEC)
No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended
by Council Regulation (EC) No 1791/2006 of 20 November 2006, that declarant may
request those authorities to invalidate that declaration, even after they have released the
goods. At the conclusion of their assessment, the customs authorities must, subject to the
possibility of a court action, either reject the declarant’s application by reasoned
decision or proceed with the invalidation requested.
67
Case C-215/10, 28 July 2011 (Pacific World Limited)
Pacific World Limited, FDD International Limited v The Commissioners for Her
Majesty’s Revenue and Customs
Reference for a preliminary ruling – Common Customs Tariff – CN – Tariff
classification – Moulded plastic false nail sets – Validity of Regulation (EC) No
1417/2007 – Other articles of plastics (heading 3926) – Manicure or pedicure
preparations (heading 3304) – Manicure or pedicure sets and instruments (heading 8214)
Commission Regulation (EC) No 1417/2007 of 28 November 2007 concerning the
classification of certain goods in the Combined Nomenclature is valid in so far as it
classifies the false nails and, thereby, the false nail sets described in its annex under
subheading 3926 90 97 of the Combined Nomenclature, set out in Annex I to Council
Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature
and on the Common Customs Tariff, as amended by Commission Regulation (EC) No
1549/2006 of 17 October 2006.
68
Case C-196/10, 14 July 2011 (Paderborner)
Paderborner Brauerei Haus Cramer v Hauptzollamt Bielefeld
Preliminary ruling - Common Customs Tariff – CN – Tariff classification – Headings
2203 and 2208 – Malt beer base intended for use in the production of a mixed drink
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EEC) No 2587/91 of 26 July 1991, must be interpreted as meaning that a
liquid described as a ‘malt beer base’, such as that in issue in the main proceedings, with
an alcoholic strength by volume of 14% and obtained from brewed beer which has been
clarified and then subjected to ultrafiltration, by which the concentration of ingredients
such as bitter substances and proteins has been reduced, must be classified under
heading 2208 of the Combined Nomenclature set out in Annex I to that regulation, as
amended.
69
Case C-324/09, 12 July 2011 (L’Oréal)
L’Oréal and Others v eBay
Preliminary ruling - Trade marks – Offer for sale, on an online marketplace of trademarked goods intended for sale in third States – Removal of the packaging of the goods –
Directive 89/104/EEC – Regulation (EC) No 40/94 – Liability of the online-marketplace
operator – Directive 2000/31/EC (‘Directive on electronic commerce’) – Injunctions–
Directive 2004/48/EC (‘Directive on the enforcement of intellectual property rights’))
1.
Where goods located in a third State, which bear a trade mark registered in a Member
State of the European Union or a Community trade mark and have not previously been
put on the market in the European Economic Area or, in the case of a Community trade
mark, in the European Union, (i) are sold by an economic operator on an online
marketplace without the consent of the trade mark proprietor to a consumer located in
the territory covered by the trade mark or (ii) are offered for sale or advertised on such a
marketplace targeted at consumers located in that territory, the trade mark proprietor
may prevent that sale, offer for sale or advertising by virtue of the rules set out in Article
5 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws
of the Member States relating to trade marks, as amended by the Agreement on the
European Economic Area of 2 May 1992, or in Article 9 of Council Regulation (EC) No
40/94 of 20 December 1993 on the Community trade mark. It is the task of the national
courts to assess on a case-by-case basis whether relevant factors exist, on the basis of
which it may be concluded that an offer for sale or an advertisement displayed on an
online marketplace accessible from the territory covered by the trade mark is targeted at
consumers in that territory.
2.
Where the proprietor of a trade mark supplies to its authorised distributors items bearing
that mark, intended for demonstration to consumers in authorised retail outlets, and
bottles bearing the mark from which small quantities can be taken for supply to
consumers as free samples, those goods, in the absence of any evidence to the contrary,
are not put on the market within the meaning of Directive 89/104 and Regulation
No 40/94.
3.
Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94 must be interpreted as
meaning that the proprietor of a trade mark may, by virtue of the exclusive right
conferred by the mark, oppose the resale of goods such as those at issue in the main
proceedings, on the ground that the person reselling the goods has removed their
packaging, where the consequence of that removal is that essential information, such as
information relating to the identity of the manufacturer or the person responsible for
marketing the cosmetic product, is missing. Where the removal of the packaging has not
resulted in the absence of that information, the trade mark proprietor may nevertheless
oppose the resale of an unboxed perfume or cosmetic product bearing his trade mark, if
he establishes that the removal of the packaging has damaged the image of the product
and, hence, the reputation of the trade mark.
4.
On a proper construction of Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of
Regulation No 40/94, the proprietor of a trade mark is entitled to prevent an online
marketplace operator from advertising – on the basis of a keyword which is identical to
his trade mark and which has been selected in an internet referencing service by that
operator – goods bearing that trade mark which are offered for sale on the marketplace,
70
where the advertising does not enable reasonably well-informed and reasonably
observant internet users, or enables them only with difficulty, to ascertain whether the
goods concerned originate from the proprietor of the trade mark or from an undertaking
economically linked to that proprietor or, on the contrary, originate from a third party.
5.
The operator of an online marketplace does not ‘use’ – for the purposes of Article 5 of
Directive 89/104 or Article 9 of Regulation No 40/94 – signs identical with or similar to
trade marks which appear in offers for sale displayed on its site.
6.
Article 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of
8 June 2000 on certain legal aspects of information society services, in particular
electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must
be interpreted as applying to the operator of an online marketplace where that operator
has not played an active role allowing it to have knowledge or control of the data stored.
The operator plays such a role when it provides assistance which entails, in particular,
optimising the presentation of the offers for sale in question or promoting them.
Where the operator of the online marketplace has not played an active role within the
meaning of the preceding paragraph and the service provided falls, as a consequence,
within the scope of Article 14(1) of Directive 2000/31, the operator none the less cannot,
in a case which may result in an order to pay damages, rely on the exemption from
liability provided for in that provision if it was aware of facts or circumstances on the
basis of which a diligent economic operator should have realised that the offers for sale
in question were unlawful and, in the event of it being so aware, failed to act
expeditiously in accordance with Article 14(1)(b) of Directive 2000/31.
7.
The third sentence of Article 11 of Directive 2004/48/EC of the European Parliament and
of the Council of 29 April 2004 on the enforcement of intellectual property rights must be
interpreted as requiring the Member States to ensure that the national courts with
jurisdiction in relation to the protection of intellectual property rights are able to order
the operator of an online marketplace to take measures which contribute, not only to
bringing to an end infringements of those rights by users of that marketplace, but also to
preventing further infringements of that kind. Those injunctions must be effective,
proportionate, and dissuasive and must not create barriers to legitimate trade.
71
Case C-152/10, 16 June 2011 (Unomedical)
Unomedical A/S v Skatteministeriet
Preliminary ruling - Common Customs Tariff – Tariff classification – Combined
Nomenclature – Plastic dialysis drainage bags intended exclusively for use with dialysers
(artificial kidneys) – Plastic urine drainage bags intended exclusively for use with
catheters – Headings 9018 and 3926 – ‘Parts’ and ‘accessories’ – Other articles of
plastics)
By its two questions, which it is appropriate to consider together, the national court asks
the Court, in essence, whether, for the period from 1 May 2001 to 31 December 2003,
plastic drainage bags were to be regarded as ‘parts’ and/or ‘accessories’ for a catheter
or a dialyser and, therefore, classified under heading 9018 of the CN, or whether they
were to be classified under heading 3926 of the CN as ‘articles of plastics’.
The Combined Nomenclature, in the versions applicable to the dispute in the main
proceedings, must be interpreted as meaning that a dialysis drainage bag, manufactured
from plastic, which is specially designed for, and can be used only with, a dialyser
(artificial kidney), had, between May 2001 and December 2003, to be classified under
subheading 3926 90 99 of the Combined Nomenclature as ‘plastics and articles thereof’
and that a urine drainage bag, manufactured from plastic, which is specially designed
for, and therefore can be used only in connection with, a catheter had, during the same
period, to be classified under subheading 3926 90 99 of the Combined Nomenclature as
‘plastics and articles thereof’.
72
Case C-351/10, 16 June 2011 (Zollamt Linz)
Zollamt Linz Wels v Laki DOOEL
Preliminary ruling - Community Customs Code – Regulation implementing the Customs
Code – Articles 555(1)(c) and 558(1) – Vehicle which has entered the customs territory
under the temporary importation procedure with total relief from import duties – Vehicle
used for internal traffic – Unlawful use – Incurring of a customs debt – National
authorities competent to levy customs duties
Article 555(1) and Article 558(1)(c) of Commission Regulation (EEC) No 2454/93 of 2
July 1993 laying down provisions for the implementation of Council Regulation (EEC)
No 2913/92 establishing the Community Customs Code, as amended by Commission
Regulation (EC) No 993/2001 of 4 May 2001, must be interpreted as meaning that the
irregularity in respect of the use of a vehicle imported into the European Union under the
temporary importation procedure with total relief from import duties which is used for
internal traffic must be regarded as occurring at the moment of crossing the border of the
Member State in which the vehicle is used in breach of the national provisions in the field
of transport, that is to say, without authorisation to unload given by the Member State of
unloading, the authorities of that Member State being responsible for levying those
duties.
73
Case C-423/10, 18 May 2011 (Delphi)
Delphi Deutschland GmbH v Hauptzollamt Düsseldorf
Common Customs Tariff – Combined Nomenclature – Classification for customs
purposes – Electrical connectors – Subheading 8536 69 – Plugs and sockets
Subheading 8536 69 of the Combined Nomenclature in Annex I to Council Regulation
(EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation (EC) No 1810/2004 of
7 September 2004, Commission Regulation (EC) No 1719/2005 of 27 October 2005 and
Commission Regulation (EC) No 1549/2006 of 17 October 2006, must be interpreted as
meaning that electrical connectors, such as those at issue in the main proceedings, are
not excluded from that subheading on the ground that they do not ensure the insulation of
the connection at the connection point or that they represent only some of the plugs and
sockets manufactured subsequently, provided that they permit multi-way connection, for
instance between appliances, cables and connector boards, simply by plugging the
attached plugs into the attached sockets with no assembly work required.
74
Cases C-288/09 and C-289/09 (Joined cases), 14 April 2011 (BskyB, Pace)
British Sky Broadcasting Group plc, Pace plc v The Commissioners for Her
Majesty’s Revenue & Customs
Common Customs Tariff – Tariff classification – Combined Nomenclature – Digital
satellite television receivers and decoders with a recording function – Community
Customs Code – Article 12(5)(a)(i) and (6) – Period of validity of a binding tariff
information
1.
The Combined Nomenclature set out in Annex I to Council Regulation (EEC) No
2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common
Customs Tariff, as amended by Commission Regulation (EC) No 1549/2006 of 17
October 2006 and Commission Regulation (EC) No 1214/2007 of 20 September 2007,
must be interpreted as meaning that set-top boxes with a communication function and a
hard disk drive, such as the Sky+ box, model DRX 280, are to be classified under
subheading 8528 71 13 despite the Explanatory Notes to the Combined Nomenclature.
2.
Article 12(5)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of
the European Parliament and of the Council of 19 December 1996 (hereinafter, the
"CCC"), and Article 12(1) and (2)(a), third indent, of Commission Regulation (EEC) No
2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No
2913/92, as amended by Commission Regulation (EC) No 12/97 of 18 December 1996
(hereinafter, the "CCIP"), must be interpreted as meaning that customs authorities are
obliged to issue binding tariff informations that are in conformity with the Explanatory
Notes to the Combined Nomenclature.
If a disagreement arises between those authorities and economic operators as to whether
those notes are in conformity with the Combined Nomenclature and on the classification
of goods, it is for the economic operators to bring proceedings before the competent
authority pursuant to Article 243 of the CCC. The court seised shall rule on the
classification of the product, if necessary after making a preliminary reference to the
Court of Justice as provided in Article 267 TFEU. Furthermore, the Member State to
which those authorities belong may call upon the committee provided for in Article 247
of the CCC, in accordance with the procedure referred to in Article 8 of Regulation No
2658/87, as amended by Council Regulation (EC) No 254/2000 of 31 January 2000.
3.
Article 12(5)(a)(i) of the CCC, is to be interpreted as meaning that Regulation No
1549/2006 must be considered a regulation within the meaning of that provision. A BTI
which no longer conformed to the Combined Nomenclature because of the entry into
force of Regulation No 1549/2006 ceased to be valid after that date of entry into force.
4.
Article 12(6) of the CCC, is to be interpreted as meaning that, where, pursuant to
Article 12 of Regulation No 2658/87, as amended by Regulation No 254/2000, a
regulation updating the Combined Nomenclature is adopted and that regulation does not
set a time-period during which the holder of a BTI which has ceased to be valid can none
75
the less continue to rely on it, that holder is not entitled to continue relying on that
binding tariff information.
76
Case C-405/09, 7 April 2011 (Commission v Finland)
European Commission v Republic of Finland
Failure of a Member State to fulfil obligations - European Union's own resources Procedures relating to the collection of import or export duties - Delay in establishing the
own resources relating to those rights
The Court declares that by applying an administrative procedure according to which the
European Union's own resources are established only after the debtor has been granted
a period of at least 15 days to submit his observations and by not complying, where there
is post-clearance recovery, with the time limits laid down for the entry of those resources,
which has the consequence of delaying payment of them, the Republic of Finland has
failed to fulfil its obligations under Articles 2, 6 and 9 to 11 of Council Regulation No
1552/89 of 29 May 1989 implementing Decision 88/376/EEC on the system of the
Communities' own resources, as amended by Council Regulation No 1355/96 of 8 July
1996, and Council Regulation No 1150/2000 of 22 May 2000 implementing Decision
94/728/EC, on the system of the Communities' own resources and under Article 220 of
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community
Customs Code;
77
Case C-153/10, 7 April 2010 (Sony Logistics)
Sony Logistics Europe B.V. v Staatssecretaris van Financiën
Community Customs Code – Articles 12(2) and (5), 217(1) and 243 – Regulation (EEC)
No 2454/93 laying down the Implementing provisions of Regulation No 2913/92 –
Articles 10 and 11 – Classification of goods – Binding tariff information – Invocation by
a trader other than the holder with respect to the same goods – Legitimate expectation
Consideration of the questions referred
1. Article 12(2) of Commission Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code (hereinafter, the "CCC"), as amended by
Regulation (EC) No 82/97 of the European Parliament and of the Council of 19
December 1996, and Articles 10 and 11 of Commission Regulation (EEC) No 2454/93 of
2 July 1993 laying down provisions for the implementation of Council Regulation (EEC)
No 2913/92 establishing the Community Customs Code (hereinafter, the "CCIP"), as
amended by Commission Regulation (EC) No 12/97 of 18 December 1996, must be
interpreted as meaning that a person who makes customs declarations in his own name
and on his own behalf cannot rely on a binding tariff information of which he is not the
holder, but which is held by an associated company on whose instructions he made those
declarations.
2. However, a BTI may be relied on as evidence by a person other than its holder. Article
12(2) and (5) of the CCC, and Article 11 of the CCIP, read in conjunction with Article
243 of the CCC, must be interpreted as meaning that, in proceedings relating to the
imposition of customs duties, an interested party may challenge that imposition by
submitting as evidence a binding tariff information issued in respect of the same goods in
another Member State although the binding tariff information cannot produce the legal
effects attaching to it. It is, however, for the national court to determine whether the
relevant procedural rules of the Member State concerned provide for the possibility of
producing such types of evidence.
3. Article 12 of the CCC, and Article 10(1) of the CCIP, must be interpreted as meaning
that a national policy which allows national authorities to refer, for the purpose of the
tariff classification of declared goods, to a binding tariff information issued to a third
party for the same goods, could not give rise, on the part of traders, to a legitimate
expectation that they could rely on that policy. According to established case law, the
principle of the protection of legitimate expectations cannot be relied upon against an
unambiguous provision of European Union law; nor can the conduct of a national
authority responsible for applying European Union law, which acts in breach of that law,
give rise to a legitimate expectation on the part of a trader of beneficial treatment
contrary to European Union law. It appears that the Netherlands customs authorities
responsible for applying European Union law attributed to a BTI the same legal value
whether it was invoked by a third party or its holder. Therefore, those authorities, by
applying the customs manual, acted in a manner which was inconsistent with European
Union law and that conduct could not give rise to a legitimate expectation on the part of
traders.
78
Case C-546/09, 31 March 2011 (Aurubis Balgaria)
Aurubis Balgaria v Nachalnik na Mitnitsa Stolichna
Customs Code – Customs duties – Customs debt on importation – Interest on arrears –
Period for the collection of interest on arrears – Compensatory interest – Penalties
On admissibility of the reference for a preliminary ruling, in accordance with settled
case-law, the Court ruled that it has jurisdiction to rule on questions referred by the
national court even where the facts of the proceedings before that court fall outside
the scope of EU law, provided that, in regulating situations not covered by EU law,
the domestic legislation has adopted the same solutions as those adopted under EU
law.
Consideration of the questions referred
1. Article 232(1)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Council Regulation (EC) No
1791/2006, must be interpreted as meaning that interest on arrears in relation to customs
duties still to be recovered may be charged under that provision only in respect of the
period falling after the deadline by which those duties were to be paid.
2. In the absence of corresponding provisions in Commission Regulation (EEC) No
2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No
2913/92, as amended by Commission Regulation (EC) No 214/2007, Article 214(3) of
Regulation No 2913/92, as amended by Regulation No 1791/2006, must be interpreted as
meaning that national authorities may not, on the basis of that provision, charge the
person owing the customs debt compensatory interest in respect of the period between the
date of the original customs declaration and the date of the subsequent entry in the
accounts.
3. The general principles of EU law and, in particular, the principle of the legality of
criminal offences and penalties preclude national authorities from applying, to a customs
offence, a penalty for which no express provision is made under the national legislation.
79
Case C-11/10, 17 February 2011 (Marishipping)
Staatssecretaris van Financiën v Marishipping and Transport BV
Regulation (EEC) No 2658/87 – Common Customs Tariff – Customs duties – Relief –
Pharmaceutical substances – Composition – Restrictions
Part One, Section II, C, 1(i) of Annex I to Council Regulation (EEC) No 2658/87 of 23
July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff,
as amended by Commission Regulations (EC) Nos 2031/2001 of 6 August 2001 and
1832/2002 of 1 August 2002, must be interpreted as meaning that a pharmaceutical
substance listed in Annex 3 of Part Three of Annex I, to which other substances have
been added, in particular pharmaceutical substances, no longer qualifies for the dutyfree treatment which would have applied if such a substance had been in its pure form.
80
Case C-78/10, 17 February 2011 (Berel)
Marc Berel and Others v Administration des douanes de Rouen
Articles 213, 233 and 239 of the Community Customs Code –– Joint and several
liability of several debtors for the same customs debt – Remission of import duties –
Extinction of the customs debt – No possibility for a jointly and severally liable debtor to
rely on a remission granted to another debtor
Articles 213, 233 and 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of
the European Parliament and of the Council of 19 December 1996, must be interpreted
as precluding the application, in the context of joint and several liability for a customs
debt within the meaning of Article 213 such as that at issue in the main proceedings, of a
principle of national law which has the effect that a partial remission of duty granted on
the basis of Article 239 to one of the debtors may be relied on by all the other debtors, so
that the extinction of the debt provided for in point (b) of Article 233 of that Code relates
to the debt as such and thus releases all the jointly and severally liable debtors from
payment of the debt to the extent of the amount remitted.
81
Case C-494/09, 17 February 2011 (Bolton Alimentari)
Bolton Alimentari SpA v Agenzia Dogane Ufficio delle Dogane di Alessandria
Article 239 of Regulation No 2913/92 - 'special situation' within the meaning of Art.
239(1) - Articles 308a to 308c of Regulation No 2454/93 - Reimbursement or
repayment of import duties - Admissibility – Tariff quota – Exhaustion of quota –
Date of opening
1. Articles 308a to 308c of Commission Regulation (EEC) No 2454/93 of 2 July 1993
laying down provisions for the implementation of Council Regulation (EEC) No 2913/92
establishing the Community Customs Code, as amended by Commission Regulation (EC)
No 214/2007 of 28 February 2007, must be interpreted as not precluding the European
Commission from being able to adopt a decision excluding an operator from a tariff
quota by reason of the fact that that quota was exhausted on the day on which it was
opened, namely a Sunday, that being a day on which the customs offices in the Member
State in which the operator in question is established are closed;
2. Articles 308a to 308c of Regulation No 2454/93, as amended by Regulation No
214/2007, must be interpreted as not requiring a Member State to request the European
Commission to suspend a tariff quota in order to ensure fair and non-discriminatory
treatment of importers in cases where the opening of that tariff quota falls on a Sunday,
that being a day on which the customs offices in the Member State in question are closed,
and where that quota is liable to be exhausted on the day on which it is opened, given
that the customs offices in other Member States are open on Sundays;
3. In circumstances other than those contemplated in Article 899(1) of Regulation No
2454/93, as amended by Regulation No 214/2007, the customs authority of a Member
State has the power itself to rule on the application for repayment referred to in Article
239(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20
November 2006, if that authority takes the view that no irregularity can be attributed to
the European Commission and that the application in question does not come within any
of the other circumstances contemplated in Article 905(1) of Regulation No 2454/93;
4. Article 239 of Regulation No 2913/92, as amended by Regulation No 1791/2006,
must be interpreted as meaning that it can refer to the exclusion of a European Union
importer from a tariff quota, the opening date of which falls on a Sunday, by reason of
the Sunday closing of the customs offices in the Member State in which that importer is
established.
82
Case C-12/10, 22 December 2010 (Lecson)
Lecson Elektrombile GmbH v Hauptzollamt Dortmund
Common Customs Tariff – Tariff classification – Combined Nomenclature – Section
XVII – Transport equipment – Chapter 87 – ‘Vehicles other than railway or tramway
rolling stock, and parts and accessories thereof’ – Headings 8703 and 8713 – Three or
four-wheeled electric vehicles designed for the transport of one person, reaching a
maximum speed of 6 to 15 km/h and having a separate, adjustable steering column,
known as ‘electric mobility scooters’
Heading 8703 of the Combined Nomenclature in Annex 1 to Council Regulation (EEC)
No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation (EC) No 1810/2004 of
7 September 2004 must be interpreted as covering three or four-wheeled vehicles
designed for the transport of one person who is not necessarily a disabled person,
powered by a battery-operated electric motor, reaching a maximum speed of 6 to 15 km/h
and equipped with a separate, adjustable steering column, known as ‘electric mobility
scooters’, such as those at issue in the main proceedings.
83
Case C-488/09, 22 December 2010 (ASTIC)
Asociación de Transporte Internacional por Carretera (ASTIC), v Administración
General del Estado
TIR Convention – Community Customs Code – Transport carried out under cover of a
TIR carnet – Guaranteeing association – Irregular unloading – Determination of the place
of the offence – Recovery of import duties
Articles 454 and 455 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
down provisions for the implementation of Council Regulation (EEC) No 2913/92
establishing the Community Customs Code are to be interpreted as meaning that, where
the presumption that competence to recover a customs debt lies with the Member State on
whose territory an offence committed in the course of a TIR transport operation was
detected is rebutted following a judgment establishing that that offence was committed on
the territory of another Member State, the customs authorities of the latter Member State
become competent to recover that debt, provided that the facts giving rise to the offence
became the subject of legal proceedings within two years of the date on which the
guaranteeing association for the territory on which the offence was detected was notified
thereof.
Article 455(1) of Regulation No 2454/93, read in conjunction with Article 11(1) of the
Customs Convention on the international transport of goods under cover of TIR carnets,
signed at Geneva on 14 November 1975, is to be interpreted as meaning that, in
circumstances such as those of the case before the referring court, a guaranteeing
association cannot rely on the limitation period provided for in those provisions where
the customs authorities of the Member State for whose territory it is responsible notify it,
within a period of one year from the date on which those authorities were informed of an
enforceable judgment identifying them as competent, of the facts which gave rise to the
customs debt for which it is liable up to the amount that it guarantees.
84
Case C-273/09. 22 December 2010 (Premis Medical)
Premis Medical BV v Inspecteur van de Belastingdienst/Douane Rotterdam,
kantoor Laan op Zuid
Regulation (EC) No 729/2004 - Classification of the product ‘walker-rollator’ in
the Combined Nomenclature - Heading 9021 and 8716 - Corrigendum – Validity
Commission Regulation (EC) No 729/2004 of 15 April 2004 concerning the classification
of certain goods in the Combined Nomenclature, in the version resulting from a
corrigendum published on 7 May 2004, is invalid in so far as, first, that corrigendum
extended the scope of application of the initial regulation to walker-rollators consisting
of an aluminium frame on four wheels, two of which are front swivel wheels, handles and
brakes, and designed to assist persons who have difficulties in walking and, secondly, it
classifies those walker-rollators under subheading 8716 80 00 of the Combined
Nomenclature.
85
Case C-339/09, 16 December 2010 (Skoma Lux)
Skoma-Lux s. r. o. v Celní øeditelství Olomouc
Common Customs Tariff - Tariff classification - Combined Nomenclature Headings 2204 and 2206 - Beverage fermented on the basis of fresh grapes Alcohol content of 15.8% to 16.1% by volume - Addition of corn alcohol and
beet sugar during the course of production
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 1719/2005 of 27 October 2005, must be interpreted as meaning that
a beverage fermented on the basis of fresh grapes, sold in 0.75 litre bottles, with an
alcohol content of 15.8% to 16.1% by volume, to which beet sugar and corn alcohol have
been added during the course of its production, must be classified under heading 2206 of
the Combined Nomenclature in Annex I to that regulation.
86
Case C-193/10, Order of the Court of 9 December 2010 (KMB Europe)
KMB Europe BV v Hauptzollamt Duisburg
Article 104(3), first subpara., of the Rules of Procedure - Common customs tariff
Heading 8521 of the Combined Nomenclature in Annex I to Regulation (EEC) No
2658/87 of 23 July 1987 on the tariff and statistical nomenclature and the Common
Customs Tariff, as amended by Regulation (EC) No 1549/2006 of 17 October 2006
should be interpreted as meaning that are excluded from this position MP3/multimédia
readers, such as those at issue, the court finds that the main function which characterizes
the set of such devices resides in the recording and reproducing sound.
87
Case C-199/09, 2 December 2010 (Schenker SIA)
Schenker SIA v Valsts ieòçmumu dienests
Regulation (EEC) No 2454/93 – Provisions for the implementation of the Community
Customs Code – Article 6(2) – Application for binding tariff information – Meaning of
‘one type of goods’
Article 6(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing
the Community Customs Code, as amended by Commission Regulation (EC) No
1602/2000 of 24 July 2000, must be interpreted as meaning that an application for
binding tariff information may relate to different goods provided that these all belong to
one and the same type of goods. Only goods which have similar characteristics and
whose distinguishing features are completely irrelevant for the purposes of their tariff
classification may be regarded as belonging to one type of goods for the purposes of that
provision.
88
Case C-213/09, 25 November 2010 (Barsoum Chabo)
Barsoum Chabo v Hauptzollamt Hamburg-Hafen
Customs union – Regulation (EC) No 1719/2005 – Common Customs Tariff – Recovery
of import customs duties – Imports of processed foodstuffs – Preserved mushrooms – CN
subheading 2003 10 30 – Levy of an additional amount – Principle of proportionality
Examination of the question referred has disclosed nothing capable of affecting the
validity of the amount of the specific customs duty of EUR 222 per 100 kilograms of net
drained weight, which applies under Commission Regulation (EC) No 1719/2005 of
27 October 2005 amending Annex I to Council Regulation (EEC) No 2658/87 on the
tariff and statistical nomenclature and on the Common Customs Tariff and is charged on
imports of preserved mushrooms of the genus Agaricus coming under subheading
2003 10 30 of the Combined Nomenclature in that annex and effected outside the quota
opened by Commission Regulation (EC) No 1864/2004 of 26 October 2004 opening and
providing for the administration of tariff quotas for preserved mushrooms imported from
third countries, as amended by Commission Regulation (EC) No 1995/2005 of
7 December 2005.
89
Case C-423/09, 28 October 2010 (X BV)
Staatssecretaris van Financiën v X BV
Common Customs Tariff – Tariff classification – Combined Nomenclature – Dried
vegetables (garlic bulbs) from which not all moisture has been removed
The Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of
23 July 1987 on the tariff and statistical nomenclature and on the Common Customs
Tariff, as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004,
must be interpreted as meaning that garlic which has undergone an intensive drying
process in accordance with a specific treatment as a result of which all, or almost all, of
the moisture in the product is removed comes under tariff subheading 0712 90 90 of the
Combined Nomenclature, but that partially dried garlic which retains the properties and
characteristics of fresh garlic comes under tariff subheading 0703 20 00 of the Combined
Nomenclature.
90
Case C-382/09, 7 October 2010 (Stils Met SIA)
Stils Met SIA v Valsts ieòçmumu dienests
Common Customs Tariff – Tariff classification – Combined Nomenclature – Chapter 73
– Steel strands, ropes and cables – Heading 7312 – TARIC code – Error in the tariff
classification – Release of goods for free circulation – Regulation (EC) No 384/96 –
Anti-dumping duties – Fine of an amount equal to the total anti-dumping duties
The Integrated Tariff of the European Communities established by Article 2 of Council
Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature
and on the Common Customs Tariff, in the version applying in 2004 and 2005, must be
interpreted as meaning that ropes and cables of steel, other than stainless steel, not
coated or only plated or coated with zinc, with a maximum cross-sectional dimension
exceeding 3 mm but not exceeding 48 mm, not consigned either from Moldova or from
Morocco, fall within TARIC codes 7312 10 82 19, 7312 10 84 19 or 7312 10 86 19,
depending on their cross-sectional dimension.
Article 14(1) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection
against dumped imports from countries not members of the European Community must
be interpreted as not precluding legislation of a Member State which provides for the
imposition, in the event of an error in the tariff classification of goods imported into the
customs territory of the European Union, of a fine equal to the total amount of the antidumping duties applicable to those goods, provided that the conditions in accordance
with which the amount of the fine is to be set are analogous to those applicable to
infringements of national law of a similar nature and importance and which make the
penalty effective, proportionate and dissuasive, a matter which it is for the referring
court to determine.
91
Case C-248/09, 29 July 2010 (Pakora Plus)
Pakora Pluss SIA v Valsts ieòçmumu dienests
Article 4(10) of Council Regulation (EEC) No 2913/92, of Article 448 of Commission
Regulation (EEC) No 2454/93 and of the Act concerning the conditions of accession to
the European Union, Annex IV, Chapter 5, paragraph 1 - Import of a motor vehicle by
sea - Release for free circulation free of customs duties and other customs measures
applicable to goods being, at the date of accession, transported within the enlarged
Community after export formalities have been completed
1. Annex IV, Chapter 5, paragraph 1 of the Act concerning the conditions of accession
of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of
Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the
Republic of Poland, the Republic of Slovenia and the Slovak Republic and the
adjustments to the Treaties on which the European Union is founded must be interpreted
as meaning that, in order to ascertain whether the export formalities referred to therein
have been completed, it is irrelevant that the actions provided for in Article 448 of
Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the
implementation of Council Regulation (EEC) No 2913/92 establishing the Community
Customs Code, as amended by Commission Regulation (EC) No 2787/2000 of 15
December 2000, were performed, even where a cargo manifest has been drawn up.
2.
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code, as amended by Regulation (EC) No 82/97 of the European
Parliament and of the Council of 19 December 1996, and Regulation No 2454/93, as
amended by Regulation No 2787/2000, are applicable in the new Member States as from
1 May 2004, but the procedure provided for in Annex IV, Chapter 5, paragraph 1 of the
Act of Accession cannot be relied on where the export formalities set out therein have not
been completed with respect to goods in transport in the enlarged Community at the date
of accession of those new Member States of the European Union.
3. Article 4(10) of Regulation No 2913/92, as amended by Regulation No 82/97 must be
interpreted as meaning that import duties do not include the value added tax to be levied
on the importation of goods.
4. When goods are imported, the obligation to pay the value added tax is imposed on
the person or persons designated or accepted as being liable by the Member State into
which the goods are imported.
92
Case C-371/09, 29 July 2010 (Isaac)
Commissioners for Her Majesty's Revenue and Customs v Isaac International
Limited
Regulation (EEC) No 2913/92 - Customs Code - Article 212a - Regulation (EEC) No
2454/93 - Article 292 - Regulation (EEC) No 88/97 - Article 14 - Anti-dumping duty Bicycle frames
1. The procedure laid down in Article 292(3) of Commission Regulation (EEC) No
2454/93 of 2 July 1993 laying down provisions for the implementation of Council
Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended
by Commission Regulation (EC) No 1602/2000 of 24 July 2000, cannot be used to
authorise an importer established and operating in two Member States, which imports
goods into the first Member State and transports them immediately to the second Member
State, so as to permit the importer to obtain an exemption from anti-dumping duty under
Article 14(c) of Commission Regulation (EC) No 88/97 of 20 January 1997 on the
authorisation of the exemption of imports of certain bicycle parts originating in the
People’s Republic of China from the extension by Council Regulation (EC) No 71/97 of
the anti dumping duty imposed by Council Regulation (EEC) No 2474/93.
2. Article 212a of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing
the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the
European Parliament and of the Council of 16 November 2000 does not permit an
exemption from anti-dumping duty to be granted to an importer who does not have the
prior authorisation to benefit from the exemption from such duties provided for in Article
14(c) of Regulation No 88/97.
93
Case C-354/09, 15 July 2010 (Gaston Schul)
Gaston Schul BV v Staatssecretaris van Financiën
Interpretation of Article 33(1)(f) and Article 220 of Council Regulation (EEC) No
2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302,
p. 1) - Customs value - Contract containing the term of delivery 'Delivered Duty Paid'
concluded on the assumption that no customs duties would be payable - Amount not
mentioned - Exclusion from or inclusion in the customs value
The condition specified in Article 33 of Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code, to the effect that import duties
must be 'shown separately' from the price actually paid or payable for the imported
goods, is satisfied in the case where the parties to the contract have agreed that those
goods are to be delivered DDP ('Delivered Duty Paid') and have incorporated that
information in the customs declaration but, by reason of a mistake as to the preferential
origin of those goods, have failed to state the amount of the import duties
94
Case C-234/09, 15 July 2010 (Skatteministeriet)
Skatteministeriet v DSV Road A/S
Articles 1, 4(9) and (10), 92, 96 and 204(1)(a) of Council Regulation (EEC) No 2913/92 Authorised consignor generating by mistake two transit documents for the same
consignment of goods in the New Computerised Transit System (NCTS), thus assigning
two different movement reference numbers to a single consignment - Customs debt
arising following the impossibility of discharging the external Community transit
procedure by presenting the goods to the customs office of destination - Charging of
customs duty on goods which have been declared but do not physically exist
Article 204(1)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005
of the European Parliament and of the Council of 13 April 2005, is to be interpreted as
not applying to a situation such as that of the case before the referring court, where an
authorised consignor generated by mistake two external transit procedures for one and
the same consignment of goods, because the goods covered by the extra procedure do not
exist and, as a consequence, that procedure cannot entail the creation of a customs debt
pursuant to the above provision.
95
Case C-75/09, 17 June 2010 (Agra Srl)
Agra Srl v Agenzia Dogane - Ufficio delle Dogane di Alessandria.
Regulation (EEC) No 2913/92 - Community Customs Code - Article 221(3) and (4) Post-clearance recovery of the customs debt - Limitation period - Act which could give
rise to criminal court proceedings.
Article 221(3) and (4) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Regulation (EC) No
2700/2000 of the European Parliament and of the Council of 16 November 2000, must be
interpreted as not precluding national legislation under which, where the failure to pay
customs duty has its origins in a criminal offence, time for the purposes of the limitation
period for recovery of the customs debt is to run from the date on which the order or
judgment in the criminal proceedings becomes final.
96
Case C-370/08, 20 May 2010 (Data I/O)
Data I/O GmbH v Hauptzollamt Hannover
Common Customs Tariff - Tariff classification - Combined Nomenclature - Chapter 84,
Note 5(B) - Adapter containing a memory-chip and designed to provide the electrical
connection between an automatic programming machine and electrical components to be
programmed - Headings 8471, 8473 and 8536
An adapter, such as that at issue in the main proceedings, which performs the functions
of the electrical connection between the programming machine and the components to be
programmed and of the storage of the programming process, which can be retrieved
later, fulfils the condition set out in Note 5(B)(c) to Chapter 84 of the Combined
Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on
the tariff and statistical nomenclature and on the Common Customs Tariff, as amended
by Commission Regulation (EC) No 1810/2004 of 7 September 2004 and must be
classified under heading 8471 thereof as a ‘unit’ of an automatic data-processing
machine, in so far as its main function is to carry out data-processing. Where that
function is absent, such an adapter must be classified under heading 8473 of the
Combined Nomenclature as a ‘part’ or ‘accessory’ of a machine, as the case may be, if it
is either essential to the functioning of that machine or constitutes a part or device
designed to adapt a machine for a particular operation or an element to perform a
particular service relative to the main function of that machine, which it is for the
referring court to determine. Where that adapter cannot be classified under either of the
abovementioned headings, it must be considered to be an ‘electrical apparatus for
making connections to or in electrical circuits’, and consequently to fall under heading
8536 of the Combined Nomenclature.
97
Case C-498/09, Order of the Court of 10 June 2010 (Thomson Sales)
Thomson Sales Europe v European Commission
Appeal - Customs Code - Remission of import duties - Waiver of post-clearance recovery
- Anti-dumping duties - No obvious negligence - Complexity of the legislation Professional experience - Operator's diligence - Colour televisions made in Thailand Challengeable acts
Appeal against the judgment of 29 September 2009 of the Court of First Instance (First
Chamber) in Joined Cases T-225/07 and T-364/07 Thomson Sales Europe v Commission
by which the Court dismissed the appellant's action for annulment of Commission
Decision REM No 03/05 of 7 May 2007 informing the French authorities that remission
of import duties on the colour television receivers manufactured in Thailand covered by
their application of 14 September 2005 was not justified, and for annulment of the
Commission's letter of 20 July 2007 not confirming entitlement to a waiver of postclearance recovery of import duties on those items - Procedure relating to the
application for remission of duties claimed on the basis of Article 239 of the Customs
Code and for waiver of post-clearance recovery of those duties on the basis of Article
220(2)(b) of the Code - Failure to respect the rights of the defence - Error in the legal
characterisation of the facts
The appeal is dismissed;
Thomson Sales Europe shall pay the costs.
98
Case C-123/09, 29 April 2010 (Roeckl Sporthandschuhe)
Roeckl Sporthandschuhe GmbH & Co. KG v Hauptzollamt München.
Common Customs Tariff - Tariff headings - Combined nomenclature classification of
riding gloves - Heading 3926 and 6116
The Combined Nomenclature constituting Annex I to Council Regulation (EEC) No
2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common
Customs Tariff, as amended by Commission Regulation (EC) No 1789/2003 of 11
September 2003, must be interpreted as meaning that riding gloves, such as those at
issue in the main proceedings, made up of fabric raised on one side and covered with a
layer of plastic, where the support fabric is raised on one side and the raised side is then
completely covered with a layer of polyurethane foam, which has an essential function in
use of the gloves as riding gloves, must be classified under subheading 3926 20 00 of the
Combined Nomenclature.
99
Case C-230/08, 29 April 2010 (Dansk Transport)
Dansk Transport og Logistik v Skatteministeriet.
Community Customs Code - Articles 202, 215(1) and (3), 217(1) and point (d) of the first
paragraph of Article 233 - Notion of goods which are ‘seized and simultaneously or
subsequently confiscated’ - Regulation implementing the Customs Code - Article 867a Directive 92/12/EEC - Articles 5(1) and (2), 6, 7(1), 8 and 9 - Sixth VAT Directive Articles 7, 10(3) and 16(1) - Unlawful introduction of goods - Transport of goods with a
TIR carnet - Seizure and destruction - Determination of the Member State in which the
customs debt is incurred and VAT and excise duty become chargeable - Extinction of the
customs and tax debt.
1. A situation in which goods which are detained by the local customs and tax authorities
when introduced into the customs territory of the Community in the area in which the
first customs office is situated at the external border of the Community, and are
simultaneously or subsequently destroyed by those authorities, without having left their
possession, is covered by the concept of goods which are ‘seized and simultaneously or
subsequently confiscated’ in point (d) of the first paragraph of Article 233 of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs
Code, as amended by Regulation (EC) No 955/1999 of the European Parliament and of
the Council of 13 April 1999, with the result that the customs debt is extinguished
pursuant to that provision.
2. The third subparagraph of Article 5(1) and Article 6(1) of Council Directive
92/12/EEC of 25 February 1992 on the general arrangements for products subject to
excise duty and on the holding, movement and monitoring of such products, as amended
by Council Directive 96/99/EC of 30 December 1996, must be interpreted as meaning
that goods seized by the local customs and tax authorities on their introduction into the
territory of the Community and simultaneously or subsequently destroyed by those
authorities, without having left their possession, must be regarded as not having been
imported into the Community, with the result that the chargeable event for excise duty on
them does not occur. Where goods are seized after their unlawful introduction into that
territory, namely once they have gone beyond the area in which the first customs office
inside that territory is situated, and simultaneously or subsequently destroyed by those
authorities, without having left their possession, the excise duty on them is not to be
deemed ‘to have been placed under a suspension arrangement’ for the purposes of the
first subparagraph of Article 5(2) and Article 6(1)(c) of that directive, read in
conjunction with Articles 84(1)(a) and 98 of Regulation No 2913/92, as amended by
Regulation No 955/1999, and Article 867a of Commission Regulation (EEC) No 2454/93
of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92,
as amended by Commission Regulation (EC) No 1662/1999 of 28 July 1999, with the
result that the chargeable event for excise duty on those goods occurs and, consequently,
the excise duty on them becomes chargeable.
3. Articles 2(2), 7 and 10(3) of Sixth Council Directive 77/388/EEC of 17 May 1977 on
the harmonisation of the laws of the Member States relating to turnover taxes – Common
system of value added tax: uniform basis of assessment, as amended by Council Directive
100
1999/85/EC of 22 October 1999, must be interpreted as meaning that goods seized by the
local customs and tax authorities on their introduction into the territory of the
Community and simultaneously or subsequently destroyed by those authorities, without
having left their possession, must be regarded as not having been imported into the
Community, with the result that the chargeable event for value added tax on them does
not occur and, consequently, that tax does not become chargeable. However, the second
subparagraph of Article 10(3) in conjunction with Article 16(1)(B)(c) of that directive
and Article 867a of Regulation No 2454/93, as amended by Regulation No 1662/1999,
must be interpreted as meaning that, for goods which are seized by those authorities after
their unlawful introduction into that territory, namely once they have gone beyond the
area in which the first customs office inside that territory is situated, and are
simultaneously or subsequently destroyed by those authorities, without having left their
possession, the chargeable event for value added tax occurs and that tax is chargeable,
even if those goods are subsequently placed under a customs warehousing procedure.
4. Articles 202, 215(1) and (3), and 217 of Regulation No 2913/92, as amended by
Regulation No 955/1999, and Articles 7(2) and 10(3) of Sixth Directive 77/388, as
amended by Directive 1999/85, must be interpreted as meaning that it is the authorities
in the Member State situated at the external border of the Community at which the goods
were unlawfully introduced into the customs territory of the Community which are
competent to recover the customs debt and the value added tax, even if those goods were
then transported to another Member State where they were discovered then seized.
Articles 6(1) and 7(1) of Directive 92/12, as amended by Directive 96/99, must be
interpreted as meaning that the authorities in that latter Member State are competent to
recover the excise duty, provided that those goods are held for commercial purposes. It is
for the national court to determine whether that condition is satisfied in the dispute
before it.
101
Case C-386/08, 25 February 2010 (Brita)
Brita GmbH v Hauptzollamt Hamburg-Hafen,
EC-Israel Association Agreement – Territorial scope – EC-PLO Association Agreement
– Refusal to apply to products originating in the West Bank the preferential tariff
arrangements granted for products originating in Israel – Doubts as to the origin of the
products – Approved exporter – Subsequent verification of invoice declarations by the
customs authorities of the importing State – Vienna Convention on the Law of Treaties –
Principle of the relative effect of treaties
The customs authorities of the importing Member State may refuse to grant the
preferential treatment provided for under the Euro-Mediterranean Agreement
establishing an association between the European Communities and their Member States,
of the one part, and the State of Israel, of the other part, signed in Brussels on 20
November 1995, where the goods concerned originate in the West Bank. Furthermore,
the customs authorities of the importing Member State may not make an elective
determination, leaving open the questions of which of the agreements to be taken into
account – namely, the Euro-Mediterranean Agreement establishing an association
between the European Communities and their Member States, of the one part, and the
State of Israel, of the other part, and the Euro-Mediterranean Interim Association
Agreement on trade and cooperation between the European Community, of the one part,
and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian
Authority of the West Bank and the Gaza Strip, of the other part, signed in Brussels on 24
February 1997 – applies in the circumstances of the case and of whether proof of origin
falls to be issued by the Israeli authorities or by the Palestinian authorities.
For the purposes of the procedure laid down in Article 32 of Protocol No 4 appended to
the Euro-Mediterranean Agreement establishing an association between the European
Communities and their Member States, of the one part, and the State of Israel, of the
other part, the customs authorities of the importing State are not bound by the proof of
origin submitted or by the reply given by the customs authorities of the exporting State
where that reply does not contain sufficient information, for the purposes of Article 32(6)
of that protocol, to enable the real origin of the products to be determined. Furthermore,
the customs authorities of the importing State are not obliged to refer to the Customs
Cooperation Committee set up under Article 39 of that protocol a dispute concerning the
territorial scope of that agreement.
102
Case C-373/08, 11 February 2010 (Hoesch)
Hoesch Metals and Alloys GmbH v Hauptzollamt Aachen
Community Customs Code – Article 24 – Non-preferential origin of goods – Originconferring processing or working – Silicon blocks originating in China – Separation,
crushing and purification of the blocks and the sieving, sorting by size and packaging of
the grains in India – Dumping – Validity of Regulation (EC) No 398/2004
The separation, crushing and purification of silicon metal blocks and the subsequent
sieving, sorting and packaging of the silicon grains resulting from the crushing, as
carried out in the main proceedings, do not constitute origin-conferring processing or
working for the purposes of Article 24 of Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code.
The examination of the second question raised by the referring court has not revealed
any factors of such a kind as to affect the validity of Council Regulation (EC) No
398/2004 of 2 March 2004 imposing a definitive anti-dumping duty on imports of silicon
originating in the People’s Republic of China.
103
Case C-264/08, 28 January 2010 (Parcel Distribution)
Belgische Staat v Direct Parcel Distribution Belgium NV,
Community Customs Code – Customs debt – Amount of duty – Articles 217 and 221 –
Communities’ own resources – Regulation (EC, Euratom) No 1150/2000 – Article 6 −
Requirement of entry in the accounts of the amount of duty before it is communicated to
the debtor – Definition of ‘legally owed’
Article 221(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing
the Community Customs Code must be interpreted as meaning that ‘entry in the
accounts’ of the amount of duty to be recovered as referred to in that provision is the
same as ‘entry in the accounts’ of that amount as defined in Article 217(1) of that
regulation.
104
Case C-430/08 and C-431/08 (Joined cases), 14 January 2010 (Terex)
Terex Equipment Ltd (C-430/08), FG Wilson (Engineering) Ltd (C-431/08) Caterpillar
EPG Ltd (C-431/08) v The Commissioners for Her Majesty’s Revenue & Customs,
Regulation (EEC) No 2913/92 establishing the Community Customs Code – Articles 78 and
203 – Regulation (EEC) No 2454/93 – Article 865 – Inward processing procedure – Incorrect
customs procedure code – Circumstances under which a customs debt is incurred – Revision
of a customs declaration
The use in the export declarations at issue in the main proceedings of customs code 10 00
indicating the export of Community goods, instead of code 31 51 used for goods for which
duties are suspended under the inward processing procedure, gives rise to a customs debt
pursuant to Article 203(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code and the first paragraph of Article 865 of
Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the
implementation of Regulation No 2913/92 establishing the Community Customs Code, as
amended by Commission Regulation (EC) No 1677/98 of 29 July 1998.
Article 78 of Regulation No 2913/92 permits the revision of the export declaration of the
goods in order to correct the customs procedure code given to them by the declarant, and the
customs authorities are obliged, first, to assess whether the provisions governing the customs
procedure concerned have been applied on the basis of incorrect or incomplete information
and whether the objectives of the inward processing regime have not been threatened, in
particular in that the goods subject to that customs procedure have actually been re-exported,
and, second, where appropriate, to take the measures necessary to regularise the situation,
taking account of the new information available to them.
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