OGH Entscheidungstext 30.07.2015 10Ob70/14p
The present case concerns an agreement for the transfer of import certificate for obtaining a license for the import of poultry on preferential terms and the contentious issue whether this agreement is void. In that regard the Austrian Supreme Court (OGH) interpreted Regulation (EC ) No 1301/2006 of the Commission of 31 August 2006 laying down common rules for the administration of import tariff quotas for agricultural products managed by a system of import licences (Regulation) and with the provisions in Articles 5 and 6, as well as with the provisions in § 879 and § 914 of the Austrian General Civil Code (ABGB).
The Austrian Supreme Court (OGH) ruled that according to Article 6 of the Regulation , the customs documents were required as a proof of trade with third countries that contain a reference to the applicant concerned as being the consignee. The obviously established practice of responsible authorities was not dependent on the award of import licences to approve customs documents as evidence to identify other persons as the intended recipients, if they in their own name waived the approval of import licences. Even if that approach is not in accordance with the Regulation, there is a violation of the European legislation of issuing a licence, but not of the transfer of customs documents from one importer to another.
Furthermore, the Austrian Supreme Court (OGH) decided that with the agreement of the transfer of customs documents and at the same time with the denying by own application, there was no conflicting status, according to the Regulation, neither was there deception to the licence issuing authority, which autonomously and on the basis of the submitted data have to consider the conditions for the allocation of authorizations. The Austrian Federal Court (OGH) had further decided that there was no abusive acting for the purposes of obtaining benefits under the Union law.
The full text is available on EuroCases