JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)
17 December 2003 (1)
(Non-contractual liability - Causal link between the conduct complained of and the alleged damage - No such link)
In Case T-146/01,
DLD Trading Co., established in Brno (Czech Republic), represented by J. Hintermayr, G. Minichmayr, P. Burgstaller and M. Krüger, lawyers,
applicant,
v
Council of the European Union, represented by M.-C. Giorgi, A.-M. Colaert and J.-P. Hix, acting as Agents,
defendant,
supported by
Republic of Austria, represented by C. Pesendorfer, W. Okresek and H. Dossi, acting as Agents, with an address for service in Luxembourg,
by
Commission of the European Communities, represented by J. Schieferer, acting as Agent, with an address for service in Luxembourg,
and by
Republic of Finland, represented by T. Pynnä and A. Guimaraes-Purokoski, acting as Agents, with an address for service in Luxembourg,
interveners,
APPLICATION for compensation for damage claimed to have been suffered by reason of the unlawfulness of, first, Council Regulation (EC) No 2744/98 of 14 December 1998 amending Regulation (EC) No 355/94 and extending the temporary derogation applicable to Austria (OJ 1998 L 345, p. 9) and, second, Council Directive 69/169/EEC of 28 May 1969 on the harmonisation of provisions laid down by law, regulation or administrative action relating to exemption from turnover tax and excise duty on imports in international travel (OJ, English Special Edition 1969 (I), p. 232), as amended,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (First Chamber),
composed of: B. Vesterdorf, President, P. Lindh and H. Legal, Judges,
Registrar: I. Natsinas, Administrator,
having regard to the written procedure and further to the hearing on 18 March 2003,
gives the following
Legal context
Customs allowances, expressed in terms of value, applicable to imports by travellers of products other than tobacco products, alcoholic products, perfume and eau de toilette
From the entry into force of the Treaty of Accession until 31 December 1997, an allowance of ECU 75 shall apply to goods imported by travellers entering the territory to which this Law applies by a land frontier linking that territory to countries other than the Member States and EFTA countries.
The Federal Minister for Finance is empowered to reduce to ECU 75 the allowance applicable to goods imported by travellers entering the territory to which this Law applies by a land frontier linking that territory to countries other than the Member States and EFTA countries.
Fiscal exemptions, expressed in terms of quantity, applicable to imports by travellers of tobacco products, alcoholic beverages, perfume and eau de toilette
1. Without prejudice to national provisions applicable to travellers whose residence is outside Europe, each Member State shall set the following quantitative limits for exemptions from turnover tax and excise duty of the goods listed below:
Travel between third countries and the Community
(a) Tobacco products:
cigarettes200
or
cigarillos (cigars of a maximum
weight of 3 grammes each) 100
or
cigars 50
or
smoking tobacco250 g
(b) Alcohol and alcoholic beverages:
- distilled beverages and spirits of an
alcoholic strength exceeding 22% volume; a total of 1 litre
undenatured ethyl alcohol of 80% vol and over
or distilled beverages and spirits,
and aperitifs with a wine or alcohol
base, tafia, saké or similar beverages a total of 2 litres
of an alcoholic strength not exceeding
22% vol; sparkling wines, fortified wines and
- still wines a total of 2 litres
...
...
8. Member States may reduce the quantities of the goods referred to in Article 4(1)(a) and (d) for travellers coming from a third country who enter a Member State.
The exemption from excise duty applicable to tobacco products imported in the personal luggage of travellers who are resident in the territory to which this order applies and enter that territory by a land frontier with countries other than Member States of the European Union and EFTA members is limited to:
1. 25 cigarettes; or
2. 5 cigars; or
3. 10 cigarillos (cigars of a maximum weight of 3 grammes each); or
4. 25 grammes of smoking tobacco; or
5. an assortment of those products not exceeding 25 grammes.
...
Background
Reference to the Court of Justice for a preliminary ruling
Procedure before the Court of First Instance
Forms of order sought
- order the defendant to pay the applicant EUR 726 728.34 in damages;
- declare Regulation No 2744/98 and Article 5(8) of Directive 69/169, as amended, to be contrary to Community law;
- order the defendant to pay the costs.
- declare the action inadmissible;
- in the alternative, dismiss it as unfounded;
- order the applicant to pay the costs.
Admissibility of the action
Failure of the application to comply with the requirements of Article 44(1)(c) of the Rules of Procedure
The applicant's lack of standing to seek the annulment of legislative provisions
Substance of the action
Arguments of the parties
Findings of the Court
Causal link between the conduct of which the Council is accused and the alleged damage
- The damage said to result from the limitation of the customs allowance, expressed in terms of value, applicable to imports by travellers of products other than tobacco products, alcoholic products, perfume and eau de toilette
- The damage said to result from the limitation on the quantities of tobacco products, alcoholic products, perfume and eau de toilette capable of qualifying for the fiscal exemption applicable to imports by travellers
Costs
101. The Commission, the Republic of Austria and the Republic of Finland must therefore be ordered to bear their own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (First Chamber)
hereby:
1. Dismisses the action;
2. Orders the applicant to bear its own costs and those incurred by the Council;
3. Orders the Commission, the Republic of Austria and the Republic of Finland to bear their own costs.
Vesterdorf
|
Delivered in open court in Luxembourg on 17 December 2003.
H. Jung B. Vesterdorf
Registrar President
1: Language of the case: German.