Case C-239/01: Action brought on 21 June 2001 by the Federal Republic of Germany against the Commission of the European Communities
Date: 2001-09-01
Institutions: Court of Justice
Subjects: European Commission, Germany, action for annulment (EU), beef, market support, purchase price

1.9.2001

EN

Official Journal of the European Communities

C 245/5

(3) Must the third subparagraph of Article 8(3) of Council
Directive 73/239/EEC, as amended by Article 6 of
Council Directive 92/49/EEC, be interpreted as precluding
national legislation which, for the purposes of curbing
inflation, also requires insurance undertakings,
if the
client so requests, to draw up policies the terms of which
incorporate a bonus-malus arrangement
(positive or
negative adjustment of the premium on the basis of the
claims record) subject to an excess in an amount set
between the minimum and the maximum level permitted
by law?

(4) Must the third subparagraph of Article 8(3) of Council
Directive 73/239/EEC, as amended by Article 6 of
Council Directive 92/49/EEC, be interpreted as precluding
national legislation which, for the purposes of curbing
inflation, provides that, on expiry of the period during
which premium rates were frozen, the insured person
may withdraw from the contract if, on the date for annual
renewal of the policy, an increase is applied to the
premium (not provided for under a customised arrange-
ment) higher than the scheduled rate of inflation decided
by the Government?

(1) OJ L 228 of 16.8.1973, p. 3.
(2) OJ L 228 of 11.8.1992, p. 1.

Reference for a preliminary ruling by the Finanzgericht
Berlin by order of that court of 28 May 2001 in the case
of Arnoud Gerritse against Finanzamt Neukölln-Nord

(Case C-234/O1)

(2001/C 245/09)

Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht (Finance
Court), Berlin, of 28 May 2001, which was received at the
Court Registry on 19 June 2001, for a preliminary ruling in
the case of Arnoud Gerritse against Finanzamt (District Tax
Office) Neukölln-Nord on the following question:

taxable

Is there an infringement of Article 52 of the EC Treaty (now
Article 43 EC) where, under Paragraph 50a(4), first sentence,
point (1) and second sentence, of the Einkommensteuergesetz
(Law on Income Tax) as in force in 1996 (’EStG 1996’), a
Netherlands national who earns in the Federal Republic of
Germany
approximately
DEM 5 000 from self-employed activity in the calendar year is
subject to deduction of tax at source by the person liable to
pay his fees at the rate of 25 % his (gross) revenue of
approximately DEM 6 000 plus solidarity surcharge, where it
is not possible, by means of an application for a refund or an
application for a tax assessment, for him to recover, in whole
or in part, the taxes paid?

income

net

of

Action brought on 19 June 2001 by the Commission of
the European Communities against the Italian Republic

(Case C-235/01)

(2001/C 245/10)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 19 June
2001 by the Commission of the European Communities,
represented by Bernard Mongin and Roberto Amorosi, acting
as Agents.

The applicant claims that the Court should:

— Declare that, by failing to adopt the laws, regulation and
administrative provisions necessary for compliance with
Council Directive 98/35/EC of 25 May 1998 amending
Directive 94/58/EC on the minimum level of training of
seafarers (1), or in any event by not forwarding those
provisions to the Commission, the Italian Republic has
failed to fulfil its obligations under that directive;

— Order the Italian Republic to pay the costs of

the

proceedings.

Pleas in law and main arguments

Article 249 EC (formerly Article 189 of the EC Treaty), which
provides that a directive is binding on each Member State to
which it is addressed as to the result to be achieved, involves
an obligation on Member States to respect the periods for
transposition laid down in directives. That period expired on
1 July 1999 without the Italian Republic having issued the
provisions necessary for compliance with the directive cited in
the forms of order sought by the Commission.

(1) OJ L 172 of 17.06.1998, p. 1.

Action brought on 21 June 2001 by the Federal Republic
of Germany against the Commission of the European
Communities

(Case C-239/01)

(2001/C 245/11)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 21 June 2001 by the Federal Republic of
Germany, represented by W.-D. Plessing and J. Sedemund,
acting as Agents.

C 245/6

EN

Official Journal of the European Communities

1.9.2001

The applicant claims that the Court should:

1.

annul Article 5(5) of Commission Regulation (EC)
No 690/2001 of 3 April 2001 on special market support
measures in the beef sector (1), in so far as that provision
requires the Member State concerned to finance 30 % of
the meat purchase referred to in that
the cost of
regulation;

2.

order the Commission to pay the costs.

Pleas in law and main arguments

— The Commission had no power to order a compulsory co-
financing in the context of an implementing regulation.
Article 5(5) of the contested regulation does not serve to
‘implement’ a corresponding general provision of the
basic regulation, allowing co-financing in principle.
Rather, it represents a clear departure from the provisions
of Council Regulations Nos 1254/1999 and 1258/1999,
which assume 100 % financing from the Community
budget. The question of the financing of a specific support
measure in the agricultural sector necessarily forms part
of the essential features of the subject-matter of the
legislation, which must be governed in the basic Council
regulation. That is especially so since all the decisive
questions on the financing of the common agricultural
policy — including the Community beef market — are
dealt with by Council Regulation No 1258/1999 (or
Council Regulation No 1883/78, as the case may be).

in

to

the

recital

preamble

— Infringement of the financial provisions of the Treaty. By
virtue of the system of the common organisation of the
market in beef and the prohibition of State aid laid down
by Article 87(1) EC, expressly confirmed in the thirty-
third
Regulation
No 1254/1999, the support measures provided for by
the contested regulation constitute, despite the partial
financing by national budgetary resources, Community
aid and therefore ‘expenditure of the Community’ within
the meaning of the first paragraph of Article 268 EC. In
accordance with that latter provision, ‘all items of revenue
and expenditure of the Community [...] shall be included
in estimates to be drawn up for each financial year and
shall be shown in the budget’. The use of the adjective ‘all’
(revenue and expenditure)
in the first paragraph of
Article 268 EC establishes the principle of the complete-
ness/unity of the budget, which is a basic condition for a
political weighting of revenue and expenditure in the
budget procedure and democratic
the
execution of the budget. That basic principle is not
complied with where Community expenditure is (par-
tially) financed on the basis of an imperative regulation
of secondary law from sources that are not part of the

control of

in

the

first

provision

paragraph

budgetary plan. For the same reason, the co-financing
regulation in dispute amounts to a circumvention of the
of
budgetary
Article 269 EC. Moreover, the capping of own resources
in accordance with Articles 269 and 270 EC would not
constitute an effective limit on Community expenditure
if the Commission had the power to order Community
expenditure without it being totally financed by the
Community budget. By acting in that way, the procedure
laid down in the second paragraph of Article 269 EC,
requiring not only a unanimous decision of the Council
(after consultation with the Parliament) but also a ratifi-
cation of that decision by the Parliaments of the Member
States, could easily be circumvented.

— Infringement of Article 253 EC. Reference to the limited
nature of budgetary resources does not explain either
justification the Commission purports to
with what
modify the principle of
financing of support
measures in the beef sector by the Community budget by
establishing compulsory co-financing, or why basis for
allocation of 70 % — 30 % was necessary.

total

The applicant suggests that, in so far as it allows the action,
the Court should maintain the effects of the regulation in order
to protect the position of the operators concerned.

(1) OJ L 95, 5.4.2001, p. 8.

Action brought on 21 June 2001 by the Commission of
the European Communities against the Federal Republic
of Germany

(Case C-240/01)

(2001/C 245/12)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 21 June 2001 by the Commission of the European
Communities, represented by Enrico Traversa, Legal Adviser,
and Kilian Gross, a member of the Legal Service, with an
address for service in Luxembourg.