Judgment of the Court (Second Chamber) of 8 November 2001 in Case C-228/99 (reference for a preliminary ruling from the Tribunale civile e penale di Cagliari): Silos e Mangimi Martini SpA v Ministero delle Finanze (Agriculture — Common organisation of the markets — Export refunds — Withdrawal — Interpretation and validity of Regulations (EC) Nos 1521/95 and 1576/95 — Failure to state reasons)
Date: 2002-01-05
Institutions: Court of Justice
Subjects: animal nutrition, cereal product, export refund, interpretation of the law, maize, manufactured feedingstuffs

C 3/6

EN

Official Journal of the European Communities

5.1.2002

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Fifth Chamber)

(Second Chamber)

of 8 November 2001

of 8 November 2001

in Case C-143/99 (reference for a preliminary ruling from
the Verfassungsgerichtshof): Adria-Wien Pipeline GmbH,
and Wietersdorfer & Peggauer Zementwerke GmbH v
Finanzlandesdirektion für Kärnten (1)

in Case C-228/99 (reference for a preliminary ruling from
the Tribunale civile e penale di Cagliari): Silos e Mangimi
Martini SpA v Ministero delle Finanze (1)

(Tax on energy — Rebate granted only to undertakings
manufacturing goods — State aid)

(Agriculture — Common organisation of the markets —
Export refunds — Withdrawal — Interpretation and validity
of Regulations (EC) Nos 1521/95 and 1576/95 — Failure
to state reasons)

(2002/C 3/08)

(Language of the case: German)

(2002/C 3/09)

(Language of the case: Italian)

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

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

In Case C-143/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Verfassungsge-
richtshof (Constitutional Court) (Austria) for a preliminary
ruling in the proceedings pending before that court between
Adria-Wien Pipeline GmbH and Wietersdorfer & Peggauer
Zementwerke GmbH and Finanzlandesdirektion für Kärnten
— on the interpretation of Article 92 of the EC Treaty (now,
after amendment, Article 87 EC) — the Court, composed of:
P. Jann, President of the Chamber, A. La Pergola, L. Sevo´ n,
M. Wathelet (Rapporteur), and C.W.A. Timmermans, Judges;
J. Mischo, Advocate General; H.A. Rühl, Principal Adminis-
trator, for the Registrar, has given a judgment on 8 November
2001, in which it has ruled:

1. National measures which provide for a rebate of energy taxes
on natural gas and electricity do not constitute State aid within
the meaning of Article 92 of the EC Treaty (now, after
amendment, Article 87 EC) where they apply to all undertakings
in national territory, regardless of their activity.

2. National measures which provide for a rebate of energy taxes
on natural gas and electricity only in the case of undertakings
whose activity is shown to consist primarily in the manufacture
of goods must be regarded as State aid within the meaning of
Article 92 of the Treaty.

(1) OJ C 188 of 3.7.1999.

In Case C-228/99: reference to the Court under Article 234
EC from the Tribunale civile e penale di Cagliari (Italy) for a
preliminary ruling in the proceedings pending before that
court between Silos e Mangimi Martini SpA and Ministero delle
Finanze — on the interpretation and validity of Commission
Regulations (EC) Nos 1521/95 of 29 June 1995 and 1576/95
of 30 June 1995 fixing the export refunds on cereal-based
compound feedingstuffs (OJ 1995 L 147, p. 65, and OJ 1995
L 150, p. 64) — the Court, composed of: N. Colneric, President
of the Chamber, R. Schintgen (Rapporteur) and V. Skouris,
Judges; L.A. Geelhoed, Advocate General; L. Hewlett, Adminis-
trator, for the Registrar, has given a judgment on 8 November
2001, in which it has ruled:

1.

2.

3.

Commission Regulation (EC) No 1521/95 of 29 June
1995 fixing the export refunds on cereal-based compound
feedingstuffs applied to the exports for which the competent
customs service accepted, on the date of its publication, export
declarations stating that an export refund was going to be
claimed and for which advance fixing of the export refund had
not been requested.

Commission Regulation (EC) No 1576/95 of 30 June
1995 fixing the export refunds on cereal-based compound
feedingstuffs did not revoke Regulation No 1521/95 and
therefore had no effect on the applicability of
the latter
regulation on 30 June 1995.

Commission Regulation No 1521/95 does not satisfy the
requirement to state reasons laid down in Article 190 of the
EC Treaty (now Article 253 EC) and is therefore invalid.

5.1.2002

EN

Official Journal of the European Communities

C 3/7

4. As a result of

the invalidity of Commission Regulation
No 1521/95, the export refunds for cereal-based feedingstuffs,
for which the application was made in export declarations
accepted by the competent customs service on 30 June 1995
and for which advance fixing had not been requested, are to be
calculated in accordance with Commission Regulation (EC)
No 1415/95 of 22 June 1995 fixing the export refunds on
cereal-based compound feedingstuffs.

(1) OJ C 246 of 28.8.1999.

JUDGMENT OF THE COURT

of 27 September 2001

in Case C-235/99 (reference for a preliminary ruling from
the High Court of Justice of England and Wales, Queen’s
Bench Division (Divisional Court)): The Queen v Sec-
retary of State for the Home Department, ex parte:
Eleonora Ivanova Kondova (1)

(External relations — Association Agreement between the
Communities and Bulgaria — Freedom of establishment —
Leave to enter fraudulently obtained — Obligation on a
Member State to pay compensation for damage caused to an
individual invoking a right of establishment which is directly
effective under the Association Agreement)

(2002/C 3/10)

(Language of the case: English)

In Case C-235/99: reference to the Court under Article 234
EC from the High Court of Justice of England and Wales,
Queen’s Bench Division (Divisional Court), for a preliminary
ruling in the proceedings pending before that court between
The Queen and Secretary of State for the Home Department,
ex parte: Eleanora Ivanova Kondova — on the interpretation
of Articles 45 and 59 of the Europe Agreement establishing
an association between the European Communities and their
Member States, of the one part, and the Republic of Bulgaria,
of the other part, concluded and approved on behalf of the
Community by Decision 94/908/ECSC, EC, Euratom of the
Council and the Commission of 19 December 1994 (OJ 1994
L 358, p. 1) — the Court, composed of: G.C. Rodrı´guez
Iglesias, President, C. Gulmann, A. La Pergola (Rapporteur),

M. Wathelet and V. Skouris
(Presidents of Chambers),
D.A.O. Edward, J.P. Puissochet, P. Jann, L. Sevo´ n, R. Schintgen
and F. Macken, Judges; S. Alber, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 27 Sep-
tember 2001, the operative part of which is as follows:

1. Article 45(1) of the Europe Agreement establishing an associ-
ation between the European Communities and their Member
States, of the one part, and the Republic of Bulgaria, of the
other part, concluded and approved on behalf of the Community
by Decision 94/908/ECSC, EC, Euratom of the Council and
the Commission of 19 December 1994, is to be construed as
establishing, within the scope of application of that Agreement,
a precise and unconditional principle which is sufficiently
operational to be applied by a national court and which is
therefore capable of governing the legal position of individuals.
The direct effect which that provision must
therefore be
recognised as having means that Bulgarian nationals relying
on it have the right to invoke it before the courts of the host
Member State, notwithstanding the fact that the authorities of
that State remain competent to apply to those nationals their
own national laws and regulations regarding entry, stay and
establishment,
that
Agreement.

in accordance with Article 59(1) of

2.

The right of establishment, as defined by Article 45(1) of the
above Association Agreement, means that rights of entry and
residence, as corollaries of
the right of establishment, are
conferred on Bulgarian nationals wishing to pursue activities of
an industrial or commercial character, activities of craftsmen, or
activities of the professions in a Member State. However, it
follows from Article 59(1) of that Agreement that those rights
of entry and residence are not absolute privileges, inasmuch as
their exercise may, in some circumstances, be limited by the
rules of the host Member State governing the entry, stay and
establishment of Bulgarian nationals.

3. Articles 45(1) and 59(1) of the above Association Agreement,
read together, do not in principle preclude a system of prior
control which makes the issue by the competent immigration
authorities of leave to enter and remain subject to the condition
that the applicant must show that he genuinely intends to take
up an activity as a self-employed person without at the same
time entering into employment or having recourse to public
funds, and that he possesses, from the outset, sufficient financial
resources and has reasonable chances of success. Substantive
requirements such as those set out in paragraphs 217 and 219
of the United Kingdom Immigration Rules (House of Commons
Paper 395) have as their very purpose to enable the competent
authorities to carry out such checks and are appropriate for
achieving such a purpose.

4. Article 59(1) of the above Association Agreement must be
construed as meaning that the competent authorities of the host
Member State may reject an application made pursuant to
Article 45(1) of that Agreement on the sole ground that, when
that application was submitted, the Bulgarian national was
residing illegally within the territory of that State because of
false representations made to those authorities or non-disclosure
of material facts for the purpose of obtaining initial leave to
enter that Member State on a different basis. Consequently,
those authorities may require that national to submit, in due