Case C-176/02 P: 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 European Communities
Date: 2002-07-13
Institutions: Court of Justice
Subjects: European Commission, action brought before an administrative court, floriculture, research body, suspension of aid

C 169/22

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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

13.7.2002

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Official Journal of the European Communities

C 169/23

European Communities in Case T-218/01 between Laboratoire
Monique Rémy and Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 13 May 2002 by Laboratoire Monique Rémy,
represented by J.F. Pupel, avocat, with an address for service in
Luxembourg.

The appellant claims that the Court should:

— reverse the order of
21 March 2002;

the Court of First

Instance of

ties (Fourth Chamber, Extended Composition) in Joined Cases
T-227/99 and T-134/00 Kvaerner Warnow Werft GmbH v
the European Communities was brought
Commission of
before the Court of Justice of the European Communities on
15 May 2002 by the Commission of the European Communi-
ties, represented by Professor Klaus-Dieter Borchardt of its
legal service and Viktor Kreuschitz,
legal adviser to the
European Commission, with an address for service in Luxem-
bourg at the office of Luis Escobar Guerrero, of its legal service,
Wagner Centre C 254, Kirchberg, Luxembourg.

— suspend operation of the order in respect of Laboratoire

Monique Rémy;

The appellant claims that the Court should:

— order the Commission to pay the costs incurred at first

instance and in the appeal.

Pleas and main arguments

— Failure to respect the right to a fair hearing: although
Article 230 EC prescribes a period of two months for
bringing an appeal, the applicant was able to make use of
only a few days of that period because it had not been
informed that it could appeal, as provided for by the
internal rules of
the Commission, as amended after
November 2001.

— Unforeseeable circumstances and force majeure: in the days
following the events of 11 September 2001, postal and
transport services put in place altogether exceptional
security measures which gave rise to unforeseen and
indefinite delays. In the instant case, transmittal of the
appeal documents was delayed by 6 days longer than the
usual delivery period.

Appeal brought on 15 May 2002 by the Commission of
the European Communities against the judgment deliver-
ed on 28 February 2002 by the Court of First Instance of
the European Communities (Fourth Chamber, Extended
Composition) in Joined Cases T-227/99 and T-134/00
Kvaerner Warnow Werft GmbH v Commission of the
European Communities

(1)

set aside the judgment of the Court of First Instance of
28 February 2002 in Joined Cases T-227/99 and T-134/
00 Kvaerner Warnow Werft GmbH v Commission of the
European Communities (1);

(2)

refer the case back to the Court of First Instance for
judgment.

Pleas in law and main arguments

— Incomplete appraisal of the legal background to the
authorising decisions: when the meaning and purpose of
the capacity restriction is also regarded as a set-off in
conjunction with the specific terms of the undertaking
given by the Federal Government, it becomes apparent
that, in order not to undermine the aim of the set-off for
distortions of competition resulting from the grant of
State aid, the capacity restriction had to refer not only to
limits on technical capacity but also to restrictions on
actual production levels.

— Incorrect interpretation of the authorising decisions: the
authorising decisions were based on a concept of ‘capacity
restriction’ which covered both technical restrictions
relating to the production plants and limits on actual
production levels.

(Case C-181/02 P)

(2002/C 169/41)

(1) Not yet published in the European Court Reports.

An appeal against the judgment delivered on 28 February
2002 by the Court of First Instance of the European Communi-