2.4.2011

Official Journal of the European Union

C 103/6

Judgment of the Court (Third Chamber) of 17 February 2011 (reference for a preliminary ruling from the Commissione tributaria provinciale di Alessandria — Italy) — Bolton Alimentari SpA v Agenzia Dogane Ufficio delle Dogane di Alessandria

(Case C-494/09) (1)

(Preliminary ruling - Admissibility - Customs duty - Tariff quota - Customs Code - Article 239 - Regulation (EEC) No 2454/93 - Articles 308a, 308b and 905 - Regulation (EC) No 975/2003 - Tuna - Exhaustion of quota - Date of opening - Sunday)

2011/C 103/09

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Alessandria

Parties to the main proceedings

Applicant: Bolton Alimentari SpA

Defendant: Agenzia Dogane Ufficio delle Dogane di Alessandria

Re:

Reference for a preliminary ruling — Commissione Tributaria Provinciale di Alessandria — Interpretation of Article 239 of Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Interpretation of Articles 308a to 308c of Regulation (EC) No 2454/93 laying down provisions for the implementation of the Community Customs Code (OJ 1993 L 253, p. 1) — Reimbursement or repayment of import duties — Possibility for a Member State itself to rule on a claim for reimbursement — Concept of ‘special situation’ within the meaning of Art. 239(1) of Regulation No 2913/92 — Community importer excluded from a tariff quota opened on a Sunday due to the closure of national customs offices

Operative part of the judgment

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;

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;

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;

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.

(1) OJ C 24, 30.1.2010.