Case C-174/02: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 8 March 2002 in the appeal brought by Streekgewest Westelijk Noord-Brabant and Staatssecretaris van Financiën
Date: 2002-07-13
Institutions: Court of Justice
Subjects: competition, economic support, frontier region, interpretation of the law, tax exemption, tax law

13.7.2002

EN

Official Journal of the European Communities

C 169/21

Action brought on 13 May 2002 by the Kingdom of Spain
against the Commission of the European Communities

(Case C-173/02)

(2002/C 169/37)

to gain access to an additional quota which it would be
impossible to finance in full (by means of an allocation free of
charge), given the limited funds available. Finally, the aid
granted does not, and cannot, affect either prices or the total
quantities produced.

(1) Council Regulation (EEC) No 3950/92 of 28 December 1992
establishing an additional levy in the milk and milk products
sector, amended by Council Regulation (EC) No 1256/1999 of
17 May 1999 (OJ L 160 of 16.6.1999, p. 73).

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 13 May 2002 by the Kingdom of Spain
represented by S. Ortiz Vaamonde, Abogado del Estado, with
an address for service in Luxembourg at the Spanish Embassy,
4-6 Boulevard Emmanuel Servais.

The applicant claims that the Court should:

— annul the Commission’s decision of 12 March 2002
declaring the aid paid to producers of cows’ milk for the
purchase of reference quantities incompatible with the
common market and ordering it to be repaid; and

— order the Commission to pay the costs.

Pleas in law and main arguments

Infringement of Articles 87 EC and 88 EC in that the measure
at
issue is protected by the regulation on the common
organisation of the market (COM) in milk and milk products.
The measures at issue cannot be challenged as contrary to the
COM in a case in which the latter specifically provides for
mechanisms comparable to those adopted and which are
directed to the same end. The aid granted is not intended to
cover operating costs but is granted in respect of a production
right, which is a capital asset of the agricultural holding itself.
The aid is consonant with the objectives laid down in the rules
establishing the additional levy, namely the restructuring of
the milk sector, given that its aim is to improve production
structures in the dairy sector, which is fundamental to the
regional economy of Asturias. The fact that it does not exactly
coincide with the mechanism provided for in the COM does
not render it contrary to the scheme, since the degree of
intervention involved is less than that provided for and
authorised.
Instead of allocating quotas free of charge as
provided for in the first indent of Article 8 of Regulation (EEC)
No 3950/92 (1), the Asturian authorities are making more
efficient use of public resources, enabling a group of farmers

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 8 March 2002
in the appeal brought by Streekgewest Westelijk Noord-
Brabant and Staatssecretaris van Financiën

(Case C-174/02)

(2002/C 169/38)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands) of 8 March
2002, received at the Court Registry on 10 May 2002, for a
preliminary ruling in the appeal brought by Streekgewest
Westelijk Noord-Brabant and Staatssecretaris van Financiën,
on the following questions:

1. May only an individual who is affected by a distortion of
cross-border competition as a result of an aid measure
rely on the last sentence of Article 93(3) of the EC Treaty
(now the last sentence of Article 88(3) EC)?

2. Where an aid measure within the meaning of the last
sentence of Article 93(3) of the EC Treaty (now the last
sentence of Article 88(3) EC) consists of an exemption
from a tax (which is to be construed as also meaning a
reduction in or relief on such tax) whose proceeds are
paid into the public coffers, and no provision in that
respect is made for suspending the exemption pending
the notification procedure, must that tax be regarded as
part of that aid measure, by virtue of the very fact that
the levying of the tax on persons who do not enjoy an
exemption is the means whereby a favourable effect is
produced, so that as long as the implementation of that
aid measure is not permitted under the abovementioned
provision, the prohibition laid down therein is also
applicable to (the levying of) that tax?

C 169/22

EN

Official Journal of the European Communities

13.7.2002

3.

4.

5.

6.

In the event that the answer to the previous question is
in the negative: Where a connection as described in the
final sentence of point 3.4.3 can be identified between
the increase in a particular tax whose proceeds are paid
into the public coffers and a proposed aid measure within
the meaning of the last sentence of Article 93(3) of the
EC Treaty (now the last sentence of Article 88(3) EC),
must the introduction of that increase be regarded as a
(start on the) putting into effect of that aid measure
within the meaning of this provision? If the answer to
this question turns on the intensity of that connection,
what circumstances are of relevance in this respect?

If the prohibition on implementation of the aid measure
also relates to the tax, does a final decision by the
Commission declaring the aid measure compatible with
the common market not mean that the unlawfulness of
the tax is retroactively corrected?

If the prohibition on implementation also relates to the
tax, can persons on whom the tax is levied oppose such
tax in law by relying on the direct effect of Article 93(3)
of the EC Treaty in respect of the total amount of the tax
or only in respect of part thereof?

In the latter case, do specific requirements stem from
Community law as regards the manner in which it must
be determined which part of the tax is covered by the
prohibition in the last sentence of Article 93(2) of the EC
Treaty?

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 8 March 2002
in the case of F. J. Pape against Ministry of Agriculture,
Nature Management and Fisheries

(Case C-175/02)

(2002/C 169/39)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands) of 8 March
2002, received at the Court Registry on 10 May 2002, for a
preliminary ruling in the case of F. J. Pape against Ministry of
Agriculture, Nature Management and Fisheries on the follow-
ing questions:

1.

For so long as the implementation of an aid measure is
not permitted under the last sentence of Article 93(3) of
the EC Treaty (now the last sentence of Article 88(3) EC),
does the prohibition laid down in that provision also
apply to the introduction of a levy the revenue from
which is earmarked under the relevant law in part for the
financing of that measure, regardless of whether there

has been any disturbance of trade between Member States
which can (partly) be attributed to the levy as the method
financing the aid measure? If the answer to this
of
question depends on the closeness of the connection
between the levy and the aid measure, or on the time
when the revenue from the levy is actually used for the
aid measure, or on other circumstances, what circum-
stances are relevant in that regard?

2.

If the prohibition on implementing the aid measure also
applies to the earmarked levy, can the person on whom
the levy is imposed then, by relying on the direct effect of
Article 93(3), oppose in legal proceedings the full amount
levied on him or only that portion which corresponds to
the part of the revenue which is expected to be spent or
has actually been spent during the period in which the
implementation of the aid measure is or was prohibited
under that provision?

3. Do specific requirements arise from Community law with
regard to the method of determining what portion of a
levy falls under the prohibition laid down in the last
sentence of Article 93(3) of the EC Treaty in the case of a
levy the revenue from which is earmarked for various
purposes for which there are also other sources of
financing in addition to the levy and which are not all
covered by Article 93 of
the EC Treaty, where no
apportionment formula is specified in the national pro-
vision instituting the levy? In such a case, must the
portion of the levy which can be allocated to financing
the aid measure falling under Article 93 of the EC Treaty
be determined on an estimated basis according to the
time when the levy was imposed or must it be based on
subsequently available data relating to the total revenue
from the levy and to the actual expenditure for each of
the various purposes?

Appeal brought on 13 May 2002 by Laboratoire Monique
Rémy against the order delivered on 26 March 2002 by
the First Chamber of the Court of First Instance of
the European Communities in Case T-218/01 between
Laboratoire Monique Rémy and Commission of the Euro-
pean Communities

(Case C-176/02 P)

(2002/C 169/40)

An appeal against the order delivered on 26 March 2002 by
the First Chamber of the Court of First Instance of the