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Published by: eurolex on Nov 30, 2010
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C 211/6


Official Journal of the European Communities


acknowledgment of receipt, the Member State shall waive application of Article 589(1) of Regulation No 2454/93. Compensatory interest thus comes within the scope of the customs debt. — Infringement of Article 221 of Council Regulation (EEC) No 2913/92 (2) (Community Customs Code) in so far as the contested decision declared part of the application to be inadmissible on the ground that the part in question had become time-barred: the Commission misconstrues Article 221 of the Community Customs Code and fails to appreciate that the question whether a customs debt has become time-barred is a matter coming within the jurisdiction of national courts and not within the power of the Commission. — Infringement of Article 239 of the Community Customs Code and of Article 905 of Regulation No 2454/93; in the alternative, infringement of the principle of proportionality; in the further alternative, infringement of the obligation to state reasons laid down in Article 253 EC so far as Article 1(2) of the contested decision is concerned (rejection of the remainder of the application for remission of import duties): although the Commission is correct in stating that the party concerned has extensive professional experience in the agricultural products sector, the Commission errs in its view that it ought to have been obvious to that party that neither the authorisation for inward processing nor the Community legislation published and in force allows wheat to be used in place of maize for the manufacture of glucose exported by that party. In finding at the same time that the competent customs authorities had not raised a single objection against the transactions of the party concerned, even though these had been carried out for many years, the Commission imposed more stringent requirements on the party concerned than those which could have been imposed by the competent authorities. Furthermore, the Commission fails to take account of the fact that it has also been known to take the view that equivalence may be authorised between two products which do not satisfy the equivalence criteria. The Commission has expressly determined that there was no question of manipulation on the part of the party concerned and that the financial advantage is attributable to price fluctuations under which the procedure followed by the party concerned might just as easily have resulted in a financial loss. That procedure resulted in a total customs debt of NLG 17 491 244,45, while the intended surplus (profit) during the period in question came to NLG 710 700. Under those circumstances and those already pointed out, it would be disproportionate not to proceed with remission of the customs debt in so far as that debt is higher than the advantage obtained by the party concerned.
(1) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92, as last amended by Regulation (EEC) No 1662/99 (OJ 1993 L 253, p. 1). (2) OJ 1992 L 302, p. 1.

Reference for a preliminary ruling from the Bundesarbeitsgericht, by order of that court of 22 March 2000 in the case of Land Nordrhein-Westfalen against Beata Pokrzeptowicz-Meyer (Case C-162/00) (2000/C 211/10) Reference has been made to the Court of Justice of the European Communities by order of the Bundesarbeitsgericht (Federal Labour Court), of 22 March 2000, received at the Court Registry on 2 May 2000, for a preliminary ruling in the case of Land Nordrhein-Westfalen against Beata Pokrzeptowicz-Meyer on the following questions: 1. Does Article 37(1) of the Europe Agreement of 16 December 1991 establishing an association between the European Communities and their Member States and the Republic of Poland preclude the application — to Polish nationals — of national law according to which posts for foreign-language assistants may be filled by means of employment contracts of limited duration whereas, for other teaching staff performing special duties, recourse to such contracts must be individually justified by an objective reason? 2. If the Court of Justice answers the first question in the affirmative: Does Article 37(1) of the Europe Agreement also preclude the application of national law where the employment contract of limited duration was concluded before the Europe Agreement entered into force and the agreed period comes to an end after its entry into force?

Reference for a preliminary ruling from the Landgericht, Cologne, Federal Republic of Germany, by order of that court of 14 April 2000 in the case of Ferring Arzneimittel GmbH v Eurim-Pharm Arzneimittel GmbH (Case C-172/00) (2000/C 211/11) Reference has been made to the Court of Justice of the European Communities by an order of the Landgericht (Regional Court), Cologne, of 14 April 2000, which was received at the Court Registry on 10 May 2000, for a preliminary ruling in the case of Ferring Arzneimittel GmbH v Eurim-Pharm Arzneimittel GmbH, on the following questions:



Official Journal of the European Communities

C 211/7

1. Do Articles 28 EC and 30 EC preclude national law which prohibits the marketing of medicinal product X, — for which there existed hitherto in Member State A an implied licence which has now expired because the licence holder has surrendered it, — which for several years has been brought as a parallel import from Member State B to Member State A and has been placed on the market there with reference to the abovementioned implied licence, — which the manufacturer and licence holder is replacing with a new preparation Y [which it] is placing on the market in Member State A on the basis of an independent licence, and — [where preparation Y] differs from preparation X only in respect of modified excipients, so that those excipients lead to improved temperature stability and thus make storage in the refrigerator unnecessary? 2. Does it affect the judgment if there was available to the holder of the licence which has now expired a lawful means of surrendering that licence in such a way that the marketability of the medicinal product was preserved for a certain (transitional) period? If yes, according to which criteria must the previous holder, when taking a decision on his action, take into consideration the European free movement of goods? 3. Does it affect the judgment if medicinal product Y in the new formulation is placed on the market only in Member State A or if it is also found on the market in other Member States? 4. Does it affect the judgment if, when the two formulations exist side by side simultaneously in Member State A, there is a danger of incorrect storage of medicinal product X?

represented by Maria Kondou-Durande, of its Legal Service, with an address for service in Luxembourg at the office of Carlos Gomez de la Cruz, of its Legal Service, Wagner Centre, ´ Kirchberg. The Commission claims that the Court should: 1. declare that, by not adopting the laws, regulations and administrative provisions required to comply with — Council Directive 96/24/EC (1) of 29 April 1996 amending Directive 79/373/EEC on the marketing of compound feedingstuffs and — Council Directive 96/25/EC (2) of 29 April 1996 on the circulation of feed materials, amending Directives 70/524/EEC, 74/63/EEC, 82/471/EEC and 93/74/EEC and repealing Directive 77/101/EEC, the Hellenic Republic has failed to fulfil its obligations under the Treaty and those directives; 2. order the Hellenic Republic to pay the costs.

Pleas in law and main arguments In accordance with the third paragraph of Article 249 EC, directives are binding, as to the result to be achieved, upon each Member State to which they are addressed. Under the first paragraph of Article 10 EC, Member States are to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Community. It is not disputed by the Hellenic Republic that it must adopt measures to comply with the abovementioned directives. The Commission records that until now the Hellenic Republic has not adopted the appropriate measures for the full incorporation of the directives at issue into Greek law.

Action brought on 11 May 2000 by the Commission of the European Communities against the Hellenic Republic (Case C-176/00) (2000/C 211/12) An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 11 May 2000 by the Commission of the European Communities,
(1) OJ L 125, 23.5.1996, p. 33. (2) OJ L 125, 23.5.1996, p. 35.

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