Judgment of the Court (Sixth Chamber) of 3 July 2001 in Case C-378/98: Commission of the European Communities v Kingdom of Belgium (Failure by a Member State to fulfil its obligations — State aid — Article 93(2), second subparagraph, of the EC Treaty (now Article 88(2), second subparagraph, EC) — Obligation to recover aid granted under the Maribel bis and Maribel ter schemes — Impossible to put into effect)
Date: 2001-08-11
Institutions: Court of Justice
Subjects: Belgium, European Commission, State aid, action for annulment (EU), competition policy, control of State aid

11.8.2001

EN

Official Journal of the European Communities

C 227/5

2.

the review to the detriment of

The application by the competent institution of a Member State
of Article 95a(4), (5) and (6) of Regulation No 1408/71 to
a request for review of a retirement pension, thus limiting the
retroactivity of
the person
concerned, constitutes a serious breach of Community law if
those provisions are not applicable to the application in question
and if it follows from a judgment delivered by the Court of
Justice before the decision by the competent institution that the
institution wrongly applied and anti-overlapping rule of that
Member State, and where it cannot be inferred from that
judgment that the retroactive effect of such a review could be
limited.

1. Declares that by not implementing within the prescribed period
the laws, regulations and administrative measures necessary to
comply with Directive 97/36/EC of the European Parliament
and of
the Council of 30 June 1997 amending Council
Directive 89/552/EEC on the coordination of certain provisions
laid down by law, regulation or administrative action in
Member States concerning the pursuit of television broadcasting
activities, the Grand Duchy of Luxembourg has failed to fulfil
its obligations under that directive;

2. Orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 163 of 10.6.2000.

(1) OJ C 163 of 10.6.2000.

JUDGMENT OF THE COURT

(Fourth Chamber)

of 21 June 2001

in Case C-119/00: Commission of the European Communi-
ties v Grand Duchy of Luxembourg (1)

(Failure by a Member State to fulfil its obligations —
Failure to implement Directive 97/36/EC amending Directive
89/552/EEC — Coordination of certain provisions laid down
by law, regulation or administrative action in Member States
concerning the pursuit of television broadcasting activities)

(2001/C 227/07)

(Language of the case: French)

JUDGMENT OF THE COURT

(Sixth Chamber)

of 3 July 2001

in Case C-378/98: Commission of the European Communi-
ties v Kingdom of Belgium (1)

(Failure by a Member State to fulfil its obligations — State
aid — Article 93(2), second subparagraph, of the EC Treaty
(now Article 88(2), second subparagraph, EC) — Obligation
to recover aid granted under the Maribel bis and Maribel ter
schemes — Impossible to put into effect)

(2001/C 227/08)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-119/00: Commission of the European Communities
(Agent: K. Banks) v Grand Duchy of Luxembourg (Agent:
P. Steinmetz) — application for a declaration that, by failing
to adopt the laws, regulations and administrative provisions
necessary to comply with Directive 97/36/EC of the European
Parliament and of the Council of 30 June 1997 amending
Council Directive 89/552/EEC on the coordination of certain
provisions laid down by law, regulation or administrative
action in Member States concerning the pursuit of television
broadcasting activities (OJ 1997 L 202, p. 60), and/or by
failing to inform the Commission thereof, the Grand Duchy of
Luxembourg has failed to fulfil
its obligations under that
directive — the Court (Fourth Chamber), composed of: A. La
Pergola, President of the Chamber, D.A.O. Eward (Rapporteur)
and S. von Bahr, Judges; L.A. Geelhoed, Advocate General;
R. Grass, Registrar, has given a judgment on 21 June 2001, in
which it:

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-378/98: Commission of the European Communities
(Agent: G. Rozet) v Kingdom of Belgium (Agent: A. Snoecx,
assisted by G. van Gerven and K. Coppenholle) — application
for a declaration that, by failing to adopt within the periods
prescribed for under the Maribel bis/ter scheme which was
declared unlawful and incompatible with the common market
by Commission Decision 97/239/EC of 4 December 1996
concerning aid granted by Belgium under the Maribel bis/ter
scheme (OJ 1997 L 95, p. 25), notified to it on 20 December
1996, the Kingdom of Belgium has failed to fulfil its obligations
under the fourth paragraph of Article 189 of the EC Treaty
(now the fourth paragraph of Article 249 EC) and Articles 2
and 3 of the said decision — the Court (Sixth Chamber),
composed of: C. Gulmann, President of
the Chamber,
J.-P. Puissochet, R. Schintgen, F. Macken and N. Colneric
(Rapporteur), Judges; A. Tizzano, Advocate General; D. Louter-
man-Hubeau, Head of Division, for the Registrar, has given a
judgment on 3 July 2001, in which it:

C 227/6

EN

Official Journal of the European Communities

11.8.2001

1. Declares that, by failing to adopt within the period prescribed
the measures necessary to recover from the beneficiary undertak-
ings the aid provided for under the Maribel bis and Maribel ter
schemes which were declared unlawful and incompatible with
the common market by Commission Decision 97/239/EC of
4 December 1996 concerning aid granted by Belgium under
the Maribel bis/ter scheme, the Kingdom of Belgium has
failed to fulfil its obligations under the fourth paragraph of
Article 189 of the EC Treaty (now the fourth paragraph of
Article 249 EC) and Articles 2 and 3 of the said decision;

2. Orders the Kingdom of Belgium to pay the costs.

(1) OJ C 378 of 5.12.1998.

Appeal brought on 13 April 2000 by E. Bouma against the
judgment delivered on 31 January 2001 by the Fourth
Chamber of the Court of First Instance of the European
Communities in Case T-533/93 between, on the one hand,
E. Bouma and, on the other, the Council of the European
Union and the Commission of the European Communities

(Case C-162/01 P)

(2001/C 227/09)

An appeal against the judgment delivered on 31 January 2001
by the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-533/93 between, on the one
hand, E. Bouma and, on the other, the Council of the European
Union and the Commission of the European Communities
was brought before the Court of Justice of the European
Communities on 13 April 2001 by E. Bouma, represented by
E.H. Pijnacker Hordijk, advocaat, the other parties tot the
proceedings being the Council of the European Union, rep-
resented by A.M. Colaert, and the Commission of the European
Communities, represented by T. van Rijn.

The appellant claims that the Court should:

— set aside the judgment delivered by the Court of First
Instance on 31 January 2001 in Case T-533/93 (1);

— refer the case back to the Court of First Instance;

— order the Council and the Commission to pay the costs

of the proceedings before both Courts.

Pleas in law and main arguments

— Breach of the principle of equality, the principle of the
protection of legitimate expectations, the principle of
legal certainty and the obligation to provide a statement
of reasons,
inasmuch as the Court of First Instance
incorrectly assessed the compensation claims of SLOM
83 producers (that is to say, SLOM producers whose non-
marketing undertakings expired during the course of

1983, that being the Netherlands reference year), particu-
larly in the light of the judgment in Spagl (2): there is
nothing to indicate that — as the Court of First Instance
seeks to suggest — the Court of Justice intended to
restrict the invalidity of Regulation No 857/84 (3) to cases
in which the SLOM producers concerned were unable to
resume production during the 1983 reference year,
following the expiry of their non-marketing undertakings,
which had by then come to an end. Had that indeed been
the intention of the Court of Justice, it would have had to
apply that limitation expressly, since the particular case
before it was precisely concerned whit a SLOM producer
in respect of whom it had been established that he had
produced non milk during the entire reference year,
despite the fact that his non-marketing undertaking had
expired during the course of that year (on 31 March
1983). The interpretation arrived at by the Court of First
Instance reflects the principal argument raised as a
defence by the institutions in Spagl, which was manifestly
rejected in the judgment.

The case of Spagl was in the nature of a test case, and
was, moreover, treated as such by the Court of Justice. By
purporting, over ten years later, to limit the scope of the
judgment in Spagl by applying a speculative gloss to the
significance of the underlying facts, the Court of First
Instance has misconstrued the judicial task of the Court
of Justice, thereby seriously undermining the principle of
legal certainty.

The judgment in the present case directly conflicts with
an earlier judgment delivered by the Court of First
Instance itself, in Joined Cases T-195/94 and T-202/94
Quiller and Heusmann.

— Violation of the principle of equality, the principle of the
protection of legitimate expectations, the principle of
legal certainty and the obligation to provide a statement
of reasons, inasmuch as the Court of First Instance, in
assessing Mr Bouma’s compensation claims, attached
significance to the fact that he did not produce any milk
between 31 December 1983 and 1 April 1984: it is
impossible to see why a defence previously rejected by
the Court of Justice (in paragraphs 15 and 16 of its
judgment in Mulder I, paragraph 14 of its judgment in
Spagl and paragraph 17 of
its interim judgment in
Mulder II) and also by the Court of First Instance (see
paragraph 97 of the judgment in Quiller and Heusmann)
should subsequently have been accepted by the Court of
First Instance.

— Violation of the principle of equality, the principle of the
protection of legitimate expectations, the principle of
legal certainty and the obligation to provide a statement
of reasons,
inasmuch as the Court of First Instance
wrongly assessed the compensation claims of SLOM 83
producers, particularly in the light of the judgment in
Mulder II: it is apparent that, in paragraph 23 of the
interim judgment of the Court of Justice of 19 May 1992,
cited by the Court of First
the Court of
Justice merely concluded that the four SLOM producers
concerned had made it sufficiently clear that they did in
fact intend to resume milk production. There is nothing
to indicate that the Court of Justice intended to provide
an exhaustive list of the ways in which that intention

Instance,