Case C-338/01: Action brought on 7 September 2001 by the Commission of the European Communities against the Council of the European Union
Date: 2001-10-27
Institutions: Court of Justice
Subjects: Council of the European Union, EAGGF, European Commission, action for annulment (EU), distribution of EU funding, legal basis

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

C 303/14

EN

Official Journal of the European Communities

27.10.2001

Communities, represented by Richard Lyal, acting as agent,
with an address for service in Luxembourg.

The applicant claims that the Court should:

The Applicant claims that the Court should:

(1) declare that Council Directive 2001/44/EC of 15 June
2001 (1) amending Directive 76/308/EEC on mutual
assistance for the recovery of claims resulting from
operations forming part of the system of financing the
European Agricultural Guidance and Guarantee Fund,
and of agricultural
levies and customs duties and in
respect of value added tax and certain excise duties is
void;

(2) maintain the effects of the directive until the entry into
force of a directive adopted on the correct legal basic;

— Declare that, by refusing access to the Spanish market to
products lawfully manufactured and commercialised in
other Member States under the name of ‘limpiador con
lejı´a’ (cleaning product containing bleach) or similar, with
an active chlorine content of less than 35 grams per litre,
the Kingdom of Spain has failed to fulfil its obligations
under Article 28 of the EC Treaty; and

— Order the Kingdom of Spain to pay the costs.

(3) order the Council of the European Union to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The Council adopted Directive 2001/44/EC on the basis of
Articles 93 and 94 EC, rather than on the basis of Article 99
EC, as proposed by the Commission, deeming the measure to
concern fiscal provisions.

The Commission considers that the object of the legislation in
question is the completion of the internal market and that it
does not constitute a set of measures harmonising tax pro-
visions. The correct legal base is, therefore, Article 95 EC.

The Commission accordingly submits that the directive has
been adopted on an incorrect legal basis and should be
annulled.

(1) OJ L 175, 28.6.2001, p. 17.

Action brought on 19 September 2001 by the Com-
the
mission of

the European Communities against

Kingdom of Spain

(Case C-358/01)

(2001/C 303/23)

The provisions of law in force in Spain, as interpreted and
applied by the Spanish authorities, contain restrictions which
apply without distinction to domestic products and imported
products, with regard to the naming and labelling of the
product in question [‘limpiador con lejı´a’ (cleaning product
containing bleach)]. Although the objective of consumer
protection may justify national measures which hinder intra-
Community trade, such measures must be necessary and
proportionate to the achievement of that objective.

The Commission rejects the argument put forward by the
Spanish authorities that it is essential for the protection of
Spanish consumers because, in the view of those authorities,
the word ‘bleach’ is indissociable from a product with the
disinfecting power associated with that level of active chlorine.
First, it is not possible, and thus disproportionate, to require
that an end product (bleach cleaners) composed of various
ingredients (including bleach) should present the same disinfec-
tant characteristics as a single one of those ingredients (bleach).
Secondly, the Commission considers that consumer protection
may be achieved by means other than by allowing only certain
marketing names, such as by the affixing of appropriate
labelling. Moreover, the Commission would draw attention to
Council Directive 88/379/EEC (1) of 7 June 1988 on the
approximation of the laws, regulations and administrative
provisions of the Member States relating to the classification,
packaging and labelling of dangerous preparations and Com-
mission Recommendation 89/542/EEC (2) of 13 September
1989 for the labelling of detergents and cleaning products.
The application of the aforementioned provisions allows the
consumer to be informed about
the composition of the
product which he is about to purchase.

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 19 Sep-
tember 2001 by the Commission of the European Communi-
ties, represented by Gregorio Valero Jordana, of the Com-
missions Legal Service, acting as Agent, with an address for
service at the office of Luis Escobar Guerrero, also of the Legal
Service, Wagner Centre, Luxembourg.

(1) OJ L 187, 16.7.1988, p. 14.
(2) OJ L 291, 10.10.1989, p. 55.