Case C-330/01 P: Appeal brought on 4 September 2001 by Hortiplant SAT against the judgment delivered on 14 June 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-143/99 between Hortiplant SAT and Commission of the European Communities
Date: 2001-10-27
Institutions: Court of Justice
Subjects: EAGGF Guidance Section, General Court (EU), action for annulment (EU), agricultural policy, aid to agriculture

C 303/12

EN

Official Journal of the European Communities

27.10.2001

(g)

licence extracts were subsequently applied for, and
granted, on the basis that only 2,9 tonnes had earlier
been authorized for export;

7.

In the circumstances referred to in paragraphs 33 to 35
above, is a penalty under Article 3 of Regulation 2670/81
properly levied?

(h)

each subsequent licence extract was duly attributed
and endorsed and all sugar tonnages so noted were
in fact exported;

(i)

in the result, 2 897,1 tonnes of sugar were exported
in excess of the volume authorized in the original
licence.

(1) Commission Regulation (EEC) No 2670/81 of 14 September
1981 laying down detailed implementing rules in respect of sugar
production in excess of the quota (OJ L 262, 16.9.1981, p. 14).
(2) Commission Regulation (EEC) No 3719/88 of 16 November
1988 laying down common detailed rules for the application of
the system of import and export licences and advance fixing
certificates for agricultural products (OJ L 331, 2.12.1988, p. 1).

4. Does Article 24 of the Regulation 3719/88 (2) enable the
competent authority to withdraw the extract or the
licence or certificate as well as any extracts previously
issued and require the competent authority to issue
without delay a corrected licence or extract or any
attribution thereto in circumstances where:

(a)

there is no obvious or manifest error on the face of
the licence or extract itself and where there has been
no error on the part of the issuing agency; and/or

(b)

the amendment is sought to be made after the expiry
of the validity of the relevant extract or head licence?

(c)

does it make a difference if the trader intended to
apply for a licence extract (from a licence already
issued) in respect of a quantity greater than that for
which he called off;

5.

If the answers to the above questions are negative, do the
provisions of Article 24 of Commission Regulation
3719/88 infringe the Community law principles of
proportionality and/or equality in that the absence of any
licence extract or
power to amend the head licence,
attributes thereto may, in the circumstances referred to
above, lead to the imposition of a fine under Article 3 of
Commission Regulation 2670/81?

6.

(a) Does the national court and/or the national auth-
ority have a discretion to vary (downwards) the
amount of the penalty to be imposed under Article 3
of Commission Regulation 2670/81?

(b)

If so, are there any factors in this case which the
Court regards as relevant to the exercise of that
discretion?

Appeal brought on 4 September 2001 by Hortiplant SAT
against the judgment delivered on 14 June 2001 by the
Fourth Chamber of the Court of First Instance of the
European Communities in Case T-143/99 between Horti-
plant SAT and Commission of the European Communities

(Case C-330/01 P)

(2001/C 303/20)

An appeal against the judgment delivered on 14 June 2001 by
the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-143/99 between Hortiplant
SAT and the Commission of the European Communities
was brought before the Court of Justice of the European
Communities on 4 September 2001 by Hortiplant SAT,
represented by C. Ferna´ndez Vicién and I. Moreno-Tapia Rivas,
abogadas, with an address for service at 60 Avenue de
Cortenbergh, 1000 Brussels.

The appellant claims that the Court should:

1.

declare the present case admissible and founded;

2.

3.

4.

set aside the judgment of the Court of First Instance of
14 June 2001 and give a final decision on the dispute;

in the alternative, send the case back to the Court of First
Instance for judgment in accordance with the decision of
the Court of Justice on points of law;

in any event, order the Commission of the European
Communities to pay all the costs arising from these
proceedings,
including those incurred as a result of
proceedings before the Court of First Instance.

27.10.2001

EN

Official Journal of the European Communities

C 303/13

Pleas in law and main arguments

that

the Member State concerned submit

Infringement of Article 24 of Regulation No 4253/88,
in
particular of the procedure laid down therein so far as concerns
the request
its
comments within a specified period of time prior to the
adoption of by the Commission of a decision to reduce,
suspend or cancel assistance. When applying that provision,
the Court of First Instance not only failed to be faithful to its
letter and spirit, which is based on the close cooperation
between Commission and Member State in the management
and assessment of assistance granted,
it also completely
ignored Community case-law which has considered para-
mount the views of Member States in similar circumstances.

Action brought on 6 September 2001 by Kingdom of
Spain against Commission of the European Communities

(Case C-331/01)

(2001/C 303/21)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 6 September 2001 by the Kingdom of Spain,
represented by Mo´ nica Lo´ pez-Monı´s Gallego, Abogado del
Estado, acting as Agent, with an address for service in
Luxembourg.

The applicant claims that the Court should:

— annul the decision of the Commission of 11 July 2001 (1)
excluding from Community financing certain expenditure
incurred by the Member States under the Guarantee
Section of
the European Agricultural Guidance and
Guarantee Fund (EAGGF) so far as concerns the financial
adjustments imposed on the Kingdom of Spain and
challenged in the present application (2);

— order the defendant institution to pay the costs.

Pleas in law and main arguments

— Compliance with applicable Community legislation on
the granting of additional assistance: In the Commissions
view, additional BSE payments in the Kingdom of Spain
in 1996 under Council Regulation No 1357/96 (3), made
in accordance with the Ministerial Order of 19 September
1996 (4), were based on the applications submitted in

1995, which, in its view, is not in compliance with the
applicable legislation inasmuch as it became possible to
make payments to recipients who in 1996 would have
not been entitled to such additional payments. The
Kingdom of Spain does not share that view. The need to
supplement payments before 15 October 1996 prompted
the Kingdom of Spain to make use of the derogation
provided for by Article 5 of Regulation No 1357/96, to
which end, appropriate objective criteria were laid down
in the aforementioned Ministerial Order. Thus, when
granting the additional assistance provided for in Regu-
lation No 1357/96, the Kingdom of Spain resorted to
the derogation provided for in Article 5, so that the
requirements set down in Articles 1 and 2 did not apply.
In particular, that exonerated it from the obligation of
carrying out the adjustments provided for in Article 1(3).
the
That means that, contrary to the arguments of
Commission,
there are no grounds for recovery of
amounts paid to beneficiaries in 1996, given that Article 5
provides that application of that article precludes that of
Articles 1 to 4.

— Failure of the Commission to observe the time limits
regarding notification prescribed by the applicable Com-
munity provisions: The expenditure which is the subject
of the financial adjustment contested in the present action
was incurred by the Kingdom of Spain prior to the
24 months provided for by Article 7(4) of Council
Regulation 1258/99 (5) which preceded the communi-
cation in writing by the Commission to the Member State
concerned of the results of such inquiries.

(1) OJ 2001 L 200, p. 28.
(2) at issue is an adjustment amounting to ESP 185 046 088 referring
to additional payments to beef producers as a result of the bovine
spongiform encephalopathy (BSE) crisis.

(3) Council Regulation (EC) No 1357/96 of 8 July 1996 providing
for additional payments to be made in 1996 with the premiums
referred to in Regulation (EEC) No 805/68 on the common
organization of the market in beef and veal and amending that
Regulation. OJ L 175, 13.7.1996, p. 9.

(4) BOE (Boletin del Estado) 228 of 20 September 1996 of the

Ministerio de Agricultura, Pesca y Alimentacio´ n.

(5) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the
financing of the common agricultural policy (OJ 1999 L 160,
p. 103).

Action brought on 7 September 2001 by the Commission
of the European Communities against the Council of the
European Union

(Case C-338/01)

(2001/C 303/22)

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 7 September 2001 by the Commission of the European