61987O0378

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APPLICATION FOR INTERIM MEASURES - SUSPENSION OF OPERATION OF A DECISION - CONDITIONS FOR GRANTING - SERIOUS AND IRREPARABLE DAMAGE

( EEC TREATY, ART . 185; RULES OF PROCEDURE, ART . 83 ( 2 ) )

IN SUPPORT OF AN APPLICATION FOR THE SUSPENSION OF THE OPERATION OF A DECISION, IT IS NOT SUFFICIENT FOR THE PURPOSE OF SATISFYING THE REQUIREMENTS OF ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE TO ALLEGE MERELY THAT THE MEASURE THE SUSPENSION OF WHOSE OPERATION IS BEING SOUGHT IS ABOUT TO BE PUT INTO EFFECT BUT IT IS ALSO NECESSARY TO PUT FORWARD CIRCUMSTANCES OF SUCH A NATURE AS TO ESTABLISH A CASE OF URGENCY AND CAPABLE OF SHOWING THAT IN THE ABSENCE OF AN ORDER SUSPENDING THE OPERATION OF THE MEASURE SERIOUS AND IRREPARABLE DAMAGE WOULD BE CAUSED TO THE PARTY APPLYING FOR THE ORDER .

IN CASE 378/87 R,

TOP HIT HOLZVERTRIEB GMBH, A COMPANY INCORPORATED UNDER GERMAN LAW, FORMERLY INTRAS HOLZIMPORT GMBH, WHOSE REGISTERED OFFICE IS AT 40 FABRICIUSSTRASSE, 4010 HILDEN, REPRESENTED BY A . HOFMANN, RECHTSANWALT, FRANKFURT AM MAIN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF G . ARENDT, 12 AVENUE DE LA PORTE-NEUVE,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS AGENT, J . SACK, A MEMBER OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANT,

APPLICATION FOR THE SUSPENSION OF THE OPERATION, WITHOUT SECURITY, OF COMMISSION DECISION REC 5/85 ( COM(85 ) 1457 FINAL ) OF 16 SEPTEMBER 1985 ADDRESSED TO THE FEDERAL REPUBLIC OF GERMANY INSTRUCTING IT TO RECOVER FROM TOP HIT HOLZVERTRIEB IMPORT DUTIES ON GOODS ALREADY CLEARED THROUGH CUSTOMS AMOUNTING TO DM 244 590.29, AND REFUSING TO ABATE THE SAID DUTIES,

THE PRESIDENT OF THE COURT OF JUSTICE

OF THE EUROPEAN COMMUNITIES

MAKES THE FOLLOWING

ORDER

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 21 DECEMBER 1987, TOP HIT HOLZVERTRIEB ( HEREINAFTER REFERRED TO AS "TOP HIT "), A COMPANY IN THE COURSE OF BEING WOUND UP, BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION DECISION REC 5/85 OF 16 SEPTEMBER 1985 ADDRESSED TO THE FEDERAL REPUBLIC OF GERMANY INSTRUCTING IT RECOVER FROM TOP HIT IMPORT DUTIES ON GOODS ALREADY CLEARED THROUGH CUSTOMS AMOUNTING TO DM 244 590.29, IS VOID AND FOR A DECLARATION THAT THE FAILURE TO TAKE ACTION TO RECOVER THAT AMOUNT IS JUSTIFIED UNDER ARTICLE 5 ( 2 ) OF COUNCIL REGULATION ( EEC ) NO 1697/79 OF 24 JULY 1979 ON THE POST-CLEARANCE RECOVERY OF IMPORT DUTIES OR EXPORT DUTIES WHICH HAVE NOT BEEN REQUIRED OF THE PERSON LIABLE FOR PAYMENT ON GOODS ENTERED FOR A CUSTOMS PROCEDURE INVOLVING THE OBLIGATION TO PAY SUCH DUTIES ( OFFICIAL JOURNAL 1979, L 197, P . 1 ).

2 BY AN APPLICATION FOR INTERIM MEASURES LODGED AT THE COURT REGISTRY ON THE SAME DAY THE APPLICANT SOUGHT AN ORDER UNDER ARTICLE 185 OF THE EEC TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE SUSPENDING THE OPERATION, WITHOUT SECURITY, OF THE AFOREMENTIONED COMMISSION DECISION OF 16 SEPTEMBER 1985 ADDRESSED TO THE FEDERAL REPUBLIC OF GERMANY .

3 THE DEFENDANT SUBMITTED ITS WRITTEN OBSERVATIONS ON 13 JANUARY 1988 . SINCE THE WRITTEN SUBMISSIONS CONTAIN ALL THE INFORMATION NEEDED TO RULE ON THE APPLICATION, IT HAS NOT APPEARED NECESSARY TO HEAR ORAL ARGUMENT FROM THE PARTIES .

4 BEFORE CONSIDERING WHETHER THIS APPLICATION FOR INTERIM MEASURES IS WELL FOUNDED, IT MAY BE HELPFUL TO GIVE A BRIEF ACCOUNT OF THE FACTS AND LEGISLATIVE BACKGROUND OF THIS CASE AS WELL AS THE PRINCIPAL STEPS IN THE PROCEDURE LEADING TO THE ADOPTION BY THE COMMISSION OF ITS AFOREMENTIONED DECISION OF 16 SEPTEMBER 1985 .

5 BETWEEN OCTOBER 1980 AND THE END OF 1981 INTRAS HOLZIMPORT GMBH, HEREINAFTER REFERRED TO AS "INTRAS", IMPORTED 105 CONSIGNMENTS OF GOODS FROM RUMANIA, WHICH WERE DESCRIBED IN THE INVOICES AS "SHELVES, MODEL NICO" AND "BATTEN CONSTRUCTION, MODEL VIKTOR" AND WHICH IT DECLARED AS FALLING WITHIN SUBHEADING 44.28 D II OF THE COMMON CUSTOMS TARIFF . ACCORDING TO ITS CUSTOMS DECLARATIONS, THE GOODS WERE PUT INTO CIRCULATION AND IMPORTED FREE OF IMPORT DUTIES BECAUSE GOODS FALLING WITHIN THAT SUBHEADING ARE EXEMPT FROM DUTY UNDER THE SYSTEM OF GENERALIZED PREFERENCES .

6 HOWEVER, IN REPLY TO A REQUEST MADE BY INTRAS ON 10 DECEMBER 1981, THE OBERFINANZDIREKTION ( PRINCIPAL REVENUE OFFICE ) STATED IN THE OFFICIAL TARIFF CLASSIFICATION NOTIFICATIONS ISSUED BY IT IN RESPECT OF THE GOODS THAT BOTH THE "SHELVES, MODEL NICO" AND THE "BATTEN CONSTRUCTION, MODEL VIKTOR" MUST BE REGARDED AS FALLING, AS SHELVING, WITHIN TARIFF SUBHEADING 94.03 B .

7 CONSEQUENTLY, AS THE GOODS WERE NO LONGER ELIGIBLE FOR PREFERENTIAL TARIFF TREATMENT, THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) COLOGNE-DEUTZ, ON THE BASIS OF POST-CLEARANCE RECOVERY IN ACCORDANCE WITH ARTICLE 2 OF COUNCIL REGULATION NO 1697/79, ISSUED AN AMENDED TAX NOTICE ON 19 OCTOBER 1983, WHICH WAS FURTHER AMENDED ON 7 MARCH 1985, REQUESTING INTRAS TO PAY IMPORT DUTY AMOUNTING TO DM 244 590.29 WHICH HAD NOT BEEN REQUIRED ON THE GOODS WHICH IT HAD IMPORTED BETWEEN OCTOBER 1980 AND THE END OF 1981 .

8 ON 15 NOVEMBER 1983 INTRAS RAISED AN OBJECTION AGAINST THAT AMENDED NOTICE IN WHICH IT REQUESTED THAT NO ACTION SHOULD BE TAKEN FOR POST-CLEARANCE RECOVERY OF THE IMPORT DUTY ON THE BASIS OF ARTICLE 5 ( 2 ) OF COUNCIL REGULATION NO 1697/79 OR THAT THE DUTY SHOULD BE REMITTED ON THE GROUND OF SPECIAL CIRCUMSTANCES UNDER THE FIRST PARAGRAPH OF ARTICLE 13 OF COUNCIL REGULATION ( EEC ) NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES ( OFFICIAL JOURNAL 1979, L 175, P . 1 ). ON THE SAME DAY INTRAS ALSO REQUESTED THE SUSPENSION OF THE OPERATION OF THE SAID NOTICE .

9 BY DECISION OF 21 DECEMBER 1983 THE HAUPTZOLLAMT COLOGNE-DEUTZ ACCEDED TO THAT REQUEST AND SUSPENDED THE OPERATION OF THE NOTICE UNTIL ONE MONTH AFTER THE ADOPTION OF A DECISION ON THE OBJECTION RAISED BY INTRAS .

10 WITH REGARD TO THE REQUEST TO REFRAIN FROM POST-CLEARANCE RECOVERY IN VIEW OF THE FACT THAT THE AMOUNT OF CUSTOMS DUTY INVOLVED WAS GREATER THAN ECU 2 000, THE GERMAN AUTHORITIES REQUESTED THE COMMISSION ON 10 MAY 1985, PURSUANT TO ARTICLE 4 OF COMMISSION REGULATION ( EEC ) NO 1573/80 OF 20 JUNE 1980 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF ARTICLE 5 ( 2 ) OF REGULATION NO 1697/79 ( OFFICIAL JOURNAL 1980, L 161, P . 1 ), TO DECIDE WHETHER THERE WAS JUSTIFICATION FOR TAKING NO ACTION FOR THE RECOVERY OF THE IMPORT DUTY AT ISSUE IN THIS CASE .

11 PURSUANT TO ARTICLE 3 OF COMMISSION REGULATION ( EEC ) NO 1575/80 OF 20 JUNE 1980 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF ARTICLE 13 OF REGULATION NO 1430/79 ( OFFICIAL JOURNAL 1980, L 161, P . 13 ) THE FEDERAL REPUBLIC OF GERMANY ALSO REQUESTED THE COMMISSION TO DECIDE WHETHER THERE WAS JUSTIFICATION FOR REMITTING THE IMPORT DUTY AT ISSUE IN THE EVENT THAT ACTION HAD BEEN TAKEN FOR THE POST-CLEARANCE RECOVERY OF THE DUTY .

12 ON 21 JANUARY 1986 THE HAUPTZOLLAMT COLOGNE-DEUTZ REJECTED INTRAS' S REQUEST THAT THE IMPORT DUTY BE REMITTED BECAUSE IT CONSIDERED THAT THE CONDITIONS LAID DOWN IN THE FIRST PARAGRAPH OF ARTICLE 13 OF COUNCIL REGULATION NO 1430/79 HAD NOT BEEN SATISFIED . BY DECISION OF 21 OCTOBER 1987, NOTIFIED TO INTRAS ON 30 OCTOBER 1987, IT ALSO REFUSED TO ACCEDE TO THE REQUEST TO REFRAIN FROM POST-CLEARANCE RECOVERY OF THE DUTY ON THE GROUND THAT INTRAS HAD NOT SATISFIED THE CONDITIONS LAID DOWN IN ARTICLE 5 ( 2 ) OF REGULATION NO 1697/79 IN ORDER FOR THE COMPETENT AUTHORITIES TO BE ENTITLED TO REFRAIN FROM TAKING SUCH ACTION .

13 THOSE DECISIONS STATED THAT THE REJECTION OF THE TWO REQUESTS MADE BY INTRAS IN ITS OBJECTION WERE BASED ON THE COMMISSION' S DECISION OF 16 SEPTEMBER 1985 .

14 SINCE THE SUSPENSION OF THE OPERATION OF THE AMENDED TAX NOTICE CONSENTED TO BY DECISION OF 21 DECEMBER 1983 WAS TO EXPIRE ON 30 NOVEMBER 1987, INTRAS MADE A FURTHER REQUEST FOR THE SUSPENSION OF THE OPERATION THEREOF WHICH WAS REJECTED ON 25 NOVEMBER 1987 . CONSEQUENTLY, THE APPLICANT DECIDED TO BRING THESE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES .

15 ACCORDING TO ARTICLE 185 OF THE EEC TREATY ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE DO NOT HAVE SUSPENSORY EFFECT . THE COURT OF JUSTICE MAY, HOWEVER, IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE, ORDER THAT APPLICATION OF THE CONTESTED ACT BE SUSPENDED .

16 ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES, AS A CONDITION FOR THE GRANT OF INTERIM MEASURES SUCH AS THOSE REQUESTED, THAT THE APPLICATION MUST STATE THE SUBJECT-MATTER OF THE DISPUTE, THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA-FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR .

17 THE COURT HAS HELD IN NUMEROUS PREVIOUS CASES THAT THE URGENCY OF AN APPLICATION FOR INTERIM MEASURES, AS REFERRED TO IN ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE, MUST BE ASSESSED BY REFERENCE TO THE NEED FOR AN INTERIM ORDER IN ORDER TO PREVENT SERIOUS AND IRREPARABLE DAMAGE TO THE PARTY REQUESTING THOSE MEASURES .

18 CONSEQUENTLY, IT FOLLOWS FROM THOSE CASES THAT, IN THE CONTEXT OF PROCEEDINGS FOR INTERIM MEASURES, IT IS NOT SUFFICIENT FOR THE PURPOSE OF SATISFYING THE REQUIREMENTS OF THAT PROVISION TO ALLEGE MERELY, AS INTRAS HAS DONE, THAT THE MEASURE THE SUSPENSION OF WHOSE OPERATION IS BEING SOUGHT IS ABOUT TO BE PUT INTO EFFECT BUT IT IS ALSO NECESSARY TO PUT FORWARD CIRCUMSTANCES OF SUCH A NATURE AS TO ESTABLISH A CASE OF URGENCY AND CAPABLE OF SHOWING THAT IN THE ABSENCE OF AN ORDER SUSPENDING THE OPERATION OF THE MEASURE SERIOUS AND IRREPARABLE DAMAGE WOULD BE CAUSED TO THE PARTY APPLYING FOR THE ORDER .

19 IN THIS CASE INTRAS HAS CLEARLY FAILED TO SATISFY THAT LAST REQUIREMENT . IT IS EVIDENT FROM THE DOCUMENTS BEFORE THE COURT THAT ITS APPLICATION REFERS TO NO CIRCUMSTANCES OF SUCH A NATURE AS TO ESTABLISH A CASE OF URGENCY .

20 CONSEQUENTLY, THE APPLICATION MUST BE DECLARED INADMISSIBLE ( SEE, IN PARTICULAR, THE ORDERS OF THE PRESIDENT OF THE COURT OF 12 FEBRUARY 1965 IN CASE 2/65 R FERRIERA ERNESTO PREO E FIGLI V HIGH AUTHORITY OF THE ECSC (( 1966 )) ECR 231 AND OF 7 DECEMBER 1984 IN CASE 240/84 R NTN TOYO BEARING COMPANY LIMITED V COUNCIL (( 1984 )) ECR 4093 ).

ON THOSE GROUNDS,

THE PRESIDENT

BY WAY OF INTERIM DECISION,

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION FOR INTERIM MEASURES IS DISMISSED .

( 2 ) THE COSTS ARE RESERVED .

LUXEMBOURG, 22 JANUARY 1988 .