Case C-197/01: Action brought on 9 May 2001 by the Kingdom of the Netherlands against the Commission of the European Communities
Date: 2001-08-11
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for annulment (EU), import policy, overseas countries and territories, sugar product

C 227/8

EN

Official Journal of the European Communities

11.8.2001

Pleas in law and main arguments

— Infringement of Article 288 EC, violation of the principle
of the protection of legitimate expectations, non-com-
pliance with the obligation to provide a statement of
reasons and misinterpretation of
the requirement of
causality, inasmuch as the Court of First Instance held
that the damage suffered by Mr van den Berg after 13 May
1986 was not attributable to the Community: the Court
of First Instance misconstrued the scope of the principle
of the protection of legitimate expectations, and applied
it in a manifestly incorrect way vis-à-vis Mr van den Berg.
The fact is that, having in 1985-1986 deliberately taken
the requisite steps to relocate his holding whilst retaining
— had he had a ‘normal’ quota — the quota in question,
Mr van den Berg had a legitimate expectation that he
would not be treated differently from a comparable
‘normal’ producer merely because he was a SLOM
producer. Furthermore, at the time when hechanged his
holding, Mr van den Berg was entitled to expect that he
would not thereafter, in 1989, be treated, on a retroactive
basis, differently from ‘normal’ producers.

Moreover, the Court of First Instance seriously miscon-
strued the real scope of the judgment in Herbrink. If, by
way of derogation from the principle of attachment to
the land, which forms part of the milk quota system, a
departing tenant is to be permitted to take his quota with
him to his new holding, a SLOM tenant should also be
allowed, in the same way, to take his milk quota with
him to a new holding.

— Violation of the principle of equality, the principle of
legal certainty, the principle of the protection of legitimate
expectations and the obligation to provide a statement of
reasons, inasmuch as the Court of First Instance, when
ruling on the question of prescription, disregarded essen-
tial facts, or at any rate set out those facts in a manifestly
erroneous manner in its judgment, and omitted to find
that the Commission had waived the possibility of relying
on a plea of prescription as against certain SLOM
producers, including Mr van den Berg: the SLOM pro-
ducers made it quite clear that the institutions could not
plead prescription, since the institutions must have been
well aware of the fact that the case of Mulder II was
meant to be a test case in relation to SLOM producers as
a whole. There can be no doubt whatever that the
communication of 5 August 1992 was deliberately
framed in terms wider than those of Article 43 of the
Statute;
that
communication that the Community waived its right to
plead prescription in respect of periods prior to 5 August
1992 as against any milk producer who had applied to
the institutions prior to that date, regardless of when that
happened.

is quite clear from the wording of

it

The Court of First Instance failed to mention certain
established facts in the contested judgment, in particular
the fact that:

— prescription was not taken into consideration with
regard to any of the SLOM producers whose names

appeared on the list of 31 March 1989, to whom a
settlement proposal was put forward pursuant to
Regulation No 2187/93 (2);

— in the course of settlement negotiations conducted
after 1993 with SLOM producers not
initially
covered by the terms of Regulation No 2187/93
but in respect of whom liability was subsequently
admitted, the Commission did not invoke prescrip-
tion where the names of
the SLOM producers
concerned appeared on the list in question, regard-
less of whether or not the producers concerned had
in the interim brought proceedings before the Court
of First Instance under Article 215 of the EC Treaty;

— in its rejoinder in Case T-179/96 Antonissen, the
Commission withdrew the plea of prescription
initially put forward by it, after being confronted
with the letter of 31 March 1989.

— Violation of the principle of equality, the principle of
legal certainty, the principle of the protection of legitimate
expectations and the obligation to provide a statement of
reasons, inasmuch as the Gourt of First Instance ruled
that Mr van den Berg’s claim was wholly time-barred: the
Court of First Instance overlooked (i) the discrepancy
between the wording of the communication of 5 August
1992 and that of Article 43 of the Statute and (ii) the
manner in which the Commission had in practice
interpreted and applied that communication in relation
to those SLOM producers to whom the letter of 31 March
1989 had been addressed.

(1) OJ 1997 C 199, p. 37.
(2) OJ 1993 L 196, p. 6.

Action brought on 9 May 2001 by the Kingdom of the
Netherlands against the Commission of the European
Communities

(Case C-197/01)

(2001/C 227/12)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 9 May 2001 by the Kingdom of
the
Netherlands, represented by H.G. van Sevenster and C.A.H.M.
ten Dam, as Agents.

The applicant claims that the Court should:

1. Annul Regulation No 396/2001 (1) of 27 February 2001
providing for the continued application of safeguard
measures for imports from overseas countries and terri-

11.8.2001

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Official Journal of the European Communities

C 227/9

tories of sugar sector products with EC/OCT cumulation
of origin for the period 1 March to 30 June 2001;

2. Order the Commission to pay the costs.

Reference for a preliminary ruling by the Supremo
Tribunal Administrativo, 2a Secçao, by judgment of that
court of 4 April 2001 in the case of Fazenda Pu´ blica
against Antero & CC.a, Lda

Pleas in law and main arguments

The Netherlands refers to the application made in Case
C-452/00 (2).

(1) OJ L 58 of 28.02.2001, p. 13.
(2) OJ C 45 of 10.02.2001, p. 12.

(Case C-203/01)

(2001/C 227/14)

Reference for a preliminary ruling by the Tribunale
Amministrativo Regionale, Lazio, by order of 24 January
2001 in the case of Consorzio Industrie Fiammiferi (CIF)
v Autorità Garante della Concorrenza e del Mercato

(Case C-198/01)

(2001/C 227/13)

Reference has been made to the Court of Justice of the
European Communities by order of 24 January 2001 by the
First Chamber of the Tribunale Amministrativo Regionale
(Regional Administrative Court), Lazio, which was received at
the Court Registry on 11 March 2001, for a preliminary ruling
in the case of Consorzio Industrie Fiammiferi (CIF) v Autorità
Garante della Concorrenza e del Mercato on the following
questions:

(1) Where an agreement between undertakings adversely
affects Community trade, and where that agreement is
legislation which
required or facilitated by national
legitimises or reinforces those effects, specifically with
regard to the determination of prices or market-sharing
arrangements, does Article 81 [EC] require or permit the
official anti-trust Authority to disapply that measure
the
and to penalise the anti-competitive conduct of
undertakings or, in any event, to prohibit it for the future,
and if so, with what legal consequences?

(2)

is
For the purposes of applying Article 81(1) [EC],
it possible to regard national
legislation under which
competence to fix the selling prices of a product is
delegated to a ministry and power to allocate production
between undertakings is entrusted to a consortium to
which the relevant producers are obliged to belong, as
leaving room for competition which is open to hindrance,
restriction or distortion by the autonomous conduct of
those undertakings?

Reference has been made to the Court of Justice of the
European Communities by judgment of the Supremo Tribunal
Administrativo, 2a Secçao (Second Chamber of the Supreme
Administrative Court), of 4 April 2001, which was received at
the Court Registry on 17 May 2001, for a preliminary ruling
in the case of Fazenda Pu´ blica against Antero & CC.a, Lda on
the following questions:

1. What

is the meaning and scope of

the expression
‘prise en compte’ used in the second subparagraph of
Article 2(1) of Council Regulation (EEC) No 1697/79 (1)
of 24 July 1979?

2. Was the official act by which the amount of the import
duties or export duties to be collected by the competent
authorities is duly determined referred to in Article 1(2)(c)
of that regulation ‘registo de liquidaçao’ (entry in the
accounts) or was it ‘liquidaçao’ (assessment), calculation
or computation of those duties by the customs auth-
orities?

3. On 19 April 1988, was ‘registo de liquidaçao’ (entry in
the accounts) a procedural requirement essential
for
the validity of the assessment or was it a procedural
requirement rendering it enforceable or payable?

4. On 19 April 1988, did assessment (calculation or compu-
tation) of import duties duly notified to the debtor for
post-clearance recovery, even where there is no entry in
the accounts, render the customs debt due and payable?

5. Did the appeal against the order for payment of the
customs authorities which had refused to grant
the
application for remission of post-clearance recovery of
duty and which was before the Portuguese courts from
1988 until 15 November 1995 have the effect of
suspending the period of three years for post-clearance
recovery?