You are on page 1of 2

15.8.

98 EN Official Journal of the European Communities C 258/15

of the European Communities in Case T-42/96 between Hewlett Packard judgment that Article 13 of
Eyckeler & Malt AG, supported by the United Kingdom Regulation (EEC) No 1430/79 and Article 5(2) of
of Great Britain and Northern Ireland, and the Regulation (EEC) No 1697/79 pursue the same aim,
Commission of the European Communities was brought namely to limit the post-clearance payment of import
before the Court of Justice of the European Communities and export duties to cases where such payment is
on 24 April 1998 by the Commission of the European justified and is compatible with a fundamental
Communities, represented by Jean-Louis Dewost, principle such as that of the protection of legitimate
Director-General of the Legal Service, and Götz zur expectations'. The Court of Justice thereby assumes a
Hausen, Legal Adviser, with an address for service in general comparability between the two provisions.
Luxembourg at the Office of Carlos Gómez de la Cruz, a
Member of the Commission's Legal Service, Wagner
(1) OJ 1998 C 113, p. 13.
Centre, Kirchberg.

The appellant claims that the Court should:

1. set aside the judgment of the Court of First Instance of
19 February 1998 in Case T-42/96 (1); Action brought on 8 May 1998 by the Commission of the
European Communities against the Kingdom of Belgium
2. dismiss the action; (Case C-170/98)
(98/C 258/27)
3. order the applicant to pay the costs.

An action against the Kingdom of Belgium was brought
Pleas in law and main arguments adduced in support:
before the Court of Justice of the European Communities
on 8 May 1998 by the Commission of the European
Ð Error of law in relation to the plea alleging breach of Communities, represented by Frank Benyon, Legal
the rights of the defence: Adviser, and Bernard Mongin, of its Legal Service, acting
as Agents, with an address for service in Luxembourg at
the office of Carlos Gómez de la Cruz, Wagner Centre,
The contested judgment erroneously transposes Kirchberg.
considerations applicable to competition proceedings
to the procedure for remission of import duties and
thereby concludes that in the procedure for remission The Commission of the European Communities claims
of such duties the Commission should allow the that the Court should:
undertaking access to all non-confidential
administrative papers, including those which the
Commission regards as irrelevant or which might be (1) declare that, by omitting either to adjust the
detrimental to it. That requirement fails to take into agreement with Zaire (1) in such a way as to provide
account the particular features of the procedure for for fair, free and non-discriminatory access by
remission of customs duties, in which not only the Community nationals to cargo-shares due to Belgium
conduct of the undertaking but also that of the or to denounce that agreement, Belgium has failed to
authorities of Member States and non-member fulfil its obligations under Council Regulation (EEC)
countries is to be assessed. No 4055/86 of 22 December 1986 applying the
principle of freedom to provide services to maritime
transport between Member States and between
Ð Error of law in relation to the plea alleging
Member States and third countries (2), in particular
infringement of Article 13 of Council Regulation
Articles 3 and 4(1) thereof;
(EEC) No 1430/79 on the repayment or remission of
import or export duties:
(2) order the Kingdom of Belgium to pay the costs.
The contested judgment wrongly held the existence of
an error (within the meaning of Article 5(2) of
Regulation (EEC) No 1697/79) by the competent Pleas in law and main arguments adduced in support:
authorities not to be a necessary precondition for the
remission of duties. The Court of First Instance
interprets the judgment of the Court of Justice in Case Article 18 of the agreement with Zaire makes provision
C-250/91 Hewlett Packard France [1993] ECR I-1819 for the two parties' intention not to be bound thereby
too narrowly. Contrary to the finding in paragraph 137 until after completion of the formalities required under
of the contested judgment, the Court of Justice did not their respective laws'. Those formalities were completed
merely hold the subjective elements of the two by Belgium upon adoption of the Law of 21 April 1983
provisions to be comparable. On the contrary, the approving the agreement, which was notified to Zaire on
Court of Justice makes it clear in paragraph 46 of the 13 June 1983, that is to say, prior to the entry into force
C 258/16 EN Official Journal of the European Communities 15.8.98

of Regulation (EEC) No 4055/86. Consequently, that on 8 May 1998 by the Commission of the European
agreement is an existing agreement which is subject to the Communities, represented by Frank Benyon, Legal
provisions of Articles 3 and 4 of the Regulation. Adviser, and Bernard Mongin, of its Legal Service, acting
as Agents, with an address for service in Luxembourg at
the Office of Carlos Gómez de la Cruz, Wagner Centre,
Kirchberg.
The only exceptions to the application of freedom to
provide services introduced on 1 January 1987 by
Article 1(1) of the Regulation are those laid down in
Article 2 in relation to unilateral restrictions, which was The Commission of the European Communities claims
introduced by way of derogation from Article 1', and in that the Court should:
Article 4(1)(b) relating to trades not governed by the Code
of Conduct for Liner Conferences, which grants a period
of grace expiring on 1 January 1993 at the latest.
(1) declare that, by introducing and maintaining in force
cargo-sharing arrangements, in the agreement
concluded with the Republic of Togo, which was
As regards trades governed by the Code of Conduct for approved by Belgium by the Law of 9 October 1987
Liner Conferences, which are covered by Article 4(1)(a), and entered into force after 1 January 1987, the
no period of grace is granted for the requisite adjustment. Kingdom of Belgium has failed to fulfil its obligations
However, since the Code of Conduct entered into force on under Article 5 of Council Regulation (EEC) No 4055/
6 October 1983 for Zaire but not until 30 March 1988 86 of 22 December 1986 applying the principle of
for Belgium, the provisions of Article 4(1)(a) could not freedom to provide services to maritime transport
have applied to that agreement before 30 March 1988 and between Member States and between Member States
the adjustment should therefore have been completed by and third countries (1);
that date as regards trades governed by the Code.
Consequently, whether trades are governed by
Article 4(1)(a) or by Article 4(1)(b), the time-limit for (2) order the Kingdom of Belgium to pay the costs.
adjustment of the cargo-sharing provisions expired long
ago.

Pleas in law and main arguments adduced in support:

The Kingdom of Belgium is therefore wrong in
maintaining that the time-limits for adjusting the cargo-
sharing arrangements in respect of trades governed by the The agreement concluded with Togo on 19 October 1984,
United Nations Code of Conduct for Liner Conferences which was approved by Belgium on 9 October 1987 and
have not expired and that the date on which Belgium entered into force on 19 October 1987, is not an existing'
signed the Code of Conduct did not constitute the agreement within the meaning of Article 3 of Regulation
deadline for adjusting the arrangement. The Commission (EEC) No 4055/86. Contrary to the assertion of the
observes that, in any event, no adjustment has been made Kingdom of Belgium, it is a future' agremeent prohibited
11 years after the entry into force of the Regulation and by Article 5 of that Regulation.
5 years after expiry of the final deadline for adjustment
laid down by that Regulation.
The agreement provides in Article 21 that it is to enter
into force as soon as each of the contracting parties has
( ) Bilateral maritime agreement concluded between Belgium and
1

Zaire. notified the other, through diplomatic channels, of the
(2) OJ L 378 of 31.12.1986, p. 1. completion of the requisite constitutional procedures'. It
therefore provides that the parties are to express their
willingness to be bound by its terms only by means of a
subsequent approval or ratification procedure. In those
circumstances, the signature of the agreement in 1984
constituted no more than an authentication of the texts
(see Article 10(b) of the Vienna Convention) and did not
in any way signify Belgium's willingness to be bound by
the agreement. No such obligation was entered into by
Action brought on 8 May 1998 by the Commission of the
Belgium in accordance with the agreement until
European Communities against the Kingdom of Belgium
19 October 1987, when approval of the agreement by
(Case C-171/98) means of the Belgian Law approving the agreement' of
19 October 1984 was notified, that is to say, well after the
(98/C 258/28) regulation entered into force. Until that date, Belgium was
free, particularly in the light of the new obligations
imposed on it by Regulation (EEC) No 4055/86, to refrain
from consenting to be bound, vis-aÁ-vis Togo, by
An action against the Kingdom of Belgium was brought obligations concerning cargo-sharing arrangements which
before the Court of Justice of the European Communities were not in accordance with the Regulation.