Case C-368/01: Action brought on 25 September 2001 by the Kingdom of the Netherlands against the Commission of the European Communities
Date: 2001-11-24
Institutions: Court of Justice
Subjects: European Commission, Netherlands, State aid, action for annulment (EU), control of State aid, merchant fleet

24.11.2001

EN

Official Journal of the European Communities

C 331/13

The Commission claims that the Court should:

— declare that, by failing to adopt and to notify to the
Commission, within the time limit laid down, the laws,
regulations and administrative provisions necessary to
comply fully with Directive 1999/5/EC (1) of the European
Parliament and of the Council of 9 March 1999 on radio
equipment and telecommunications terminal equipment
and the mutual recognition of their conformity, the
Hellenic Republic has failed to fulfil its obligations under
the EC Treaty,

— order the Hellenic Republic to pay the costs.

Communities on 25 September 2001 by the Kingdom of the
Netherlands, represented by H.G. Sevenster and S. Terstal,
acting as Agents.

The applicant claims that the Court should:

1. Annul Commission Decision SG (2001) D/289751 of
11 July 2001 relating to Aid Measure No C 56/2001 on
the granting of State aid in the area of maritime transport
to the activities of Netherlands tug boats in internal waters
and seaports within the EU (by which the Commission
informs the Netherlands of its decision to initiate the
procedure set out in Article 88(2) EC);

Pleas in law and main arguments

2. Order the Commission to pay the costs.

In accordance with the third paragraph of Article 249 of the
Treaty establishing the European Community, directives are
binding, as to the result to be achieved, upon each Member
State to which they are addressed.

Pleas in law and main arguments

Under the first paragraph of Article 10 of the Treaty, Member
States are to take all appropriate measures, whether general or
particular, to ensure fulfilment of the obligations arising out
of the Treaty or resulting from action taken by the institutions
of the Community.

It is not disputed by the Hellenic Republic that it must adopt
measures to comply with the abovementioned Directive.

The Commission records that until now the Hellenic Republic
has not adopted the appropriate measures for the full incorpor-
ation of the Directive at issue into Greek law.

(1) OJ L 91, 7.4.1999, p. 10.

Action brought on 25 September 2001 by the Kingdom of
the Netherlands against the Commission of the European
Communities

(Case C-368/01)

(2001/C 331/21)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European

— Decision contrary to Article 88 EC and Regulation (EC)
No 659/1999: the Commission does not have the power
to classify, as a new aid measure, a measure that has
already been approved. If the Commission, in the exercise
of its duties relating to the continuous monitoring of
existing aid measures, were able, whether of its own
motion or by reason of a complaint, to classify such an
aid measure immediately and with retroactive effect as a
new aid measure, that would be contrary to the system
laid down in Article 88 EC and Regulation (EC)
No 659/1999.

The Commission has in no way decided that the appli-
cation of
‘tax incentives’ and ‘taxation according to
tonnage’ to the activities of tug boats in ports and internal
waters within the European Union is not covered by its
decision approving the aid measure, with the result that
the Commission cannot now decide to consider such
application as constituting a new aid measure. The
Commission’s reasoning that there is now a case of new
aid, on the ground that the Netherlands Government
formally agreed to the Commission proposal to adopt
appropriate measures, within the period specified for that
purpose, which expired on 5 January 1999, in order to
bring the existing aid measures into line with the
Guidelines, which might suggest that the Netherlands aid
measures, as approved, had been brought into line with
the Guidelines and were compatible with them, is without
basis in Article 88 EC or Regulation (EC) No 659/1999.

The Commission’s reasoning in this regard is also entirely
illogical. Assuming that the Netherlands Government had
intended to notify the Commission that the Netherlands
aid measures in question had been brought into line with
the Guidelines and were thus in accordance with the
conditions laid down therein, that must naturally also
have been done on the basis of the Netherlands Govern-
ment’s knowledge of the interpretation of the Guidelines
at that time.

C 331/14

EN

Official Journal of the European Communities

24.11.2001

In so far as the Commission has sought to suggest that
the Netherlands Government had failed to make clear at
an earlier stage that the activities of tug boats were also
intended to be covered by the two measures, which might
have constituted a reason enabling the Commission to
classify that application of the existing measures as ‘new
aid’, the Netherlands Government strenuously denies that
assertion;

— Decision contrary to the principle of the protection of
legitimate expectations and the principle of legal certainty;

— Decision contrary to the principle that reasons must

always be given.

Pleas in law and main arguments

Under Article 249 of the EC Treaty, according to which a
directive is to be binding, as to the result to be achieved, upon
each Member State to which it is addressed, Member States are
required to observe the time limits laid down in directives for
their transposition. Those time limits expired on 30 Avril
2000 and 30 June 2000 respectively without the Italian
Republic having brought into force the necessary provisions
in order to comply with the Directive referred to in the
Commission’s application.

(1) OJ 1999 L 91, p. 29.
(2) OJ 1999 L 139, p. 29.

Action brought on 25 September 2001 by the Com-
mission of the European Communities against the Italian
Republic

Action brought on 27 September 2001 by the Com-
mission of the European Communities against the United
Kingdom

(Case C-370/01)

(2001/C 331/22)

(Case C-373/01)

(2001/C 331/23)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 25 Septem-
ber 2001 by the Commission of the European Communities,
represented by Antonio Aresu, acting as Agent.

An action against the United Kingdom was brought before the
Court of Justice of the European Communities on 27 Septem-
ber 2001 by the Commission of the European Communities,
represented by Richard Wainwright, acting as agent, with an
address for service in Luxembourg.

The applicant claims that the Court should:

The Applicant requests that the Court should:

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with:

(a) Commission Directive 1999/21/EC (1) of 25 March
1999 on dietary foods for special medical purposes;
and

(b) Commission Directive 1999/50/EC (2) of 25 May
1999 amending Directive 91/321/EEC on infant
formulae and follow-on formulae;

or in any event by failing to communicate them to the
Commission, the Italian Republic has failed to fulfil its
obligations under those directives;

— Order the Italian Republic to pay the costs.

— declare that by failing to adopt and publish before
1 January 2000 the provisions necessary to comply with
Commission Directive 98/101/EC of 22 December 1998
adapting to technical progress Commission Directive
91/157/EEC on batteries and accumulators containing
certain dangerous substances (1), or in any event by failing
to inform the Commission thereof, the United Kingdom
has failed to fulfil its obligations under that Directive, and

— order the United Kingdom to pay the costs.

Pleas in law and main arguments

Article 249 EC under which a directive shall be binding as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the