Case C-299/02: Action brought on 23 August 2002 by the Commission of the European Communities against the Kingdom of the Netherlands
Date: 2002-10-12
Institutions: Court of Justice
Subjects: Netherlands, action for failure to fulfil an obligation, management, maritime law, nationality, ship's flag, vessel

12.10.2002

EN

Official Journal of the European Communities

C 247/7

(b)

Selection criteria for mill samples for inspection

So far as concerns selection criteria for mill samples for
inspection, the applicant points out that the various parameters
are laid down in the work schedules submitted beforehand for
approval by the Member State and the European Commission.
In particular, the Commission was in a position to know of
those criteria and it is unacceptable that its services should
argue,
in support of the claim that those criteria were not
transparent, that ‘even where the Commission’s services receive
and approve the schedules submitted by the inspection bodies,
that does not mean that they cannot criticise the management
system following an in-depth analysis on the spot’, inasmuch
as it is no more than a formal interpretation of the Com-
mission’s own powers and a breach of the obligation to
implement the aid provided for by under Community law. The
great importance attributed by the Commission to the allegedly
inadequate analysis carried out by the Italian authorities of
‘non-compliant’ producers in order to identify those mills most
‘at risk’ which ought to be inspected is inconsistent with
institutional procedure as laid down, moreover, in Community
regulations (Regulation (EEC) No 27/85) (3), which enable the
Member States and the European Community to guide the
work of the inspection bodies by means of the approval or
modification of the draft schedules in each financial year.

(c)

Inspection of producers

So far as concerns the selection criteria for identifying ‘non-
compliant’ producers to be inspected on the spot, the applicant
states that such criteria, agreed with the competent authority
of the Italian State, are based essentially on examination of the
agronomic characteristics of the olive groves arising from the
register of olive cultivation available in Italy, which thus fulfils
the purpose for which such a register was provided for by
Community legislation.

(1) Commission Decision 2002/523/EC of 28 June 2002 excluding
from Community financing certain expenditure incurred by the
Member States under the Guarantee Section of the European
Agricultural Guidance and Guarantee Fund (EAGGF), OJ 2002
L 170, p. 73.

(2) Commission Regulation (EEC) No 3597/90 of 12 December 1990
on the accounting rules for intervention measures involving the
buying-in, storage and sale of agricultural products by intervention
agencies, OJ 1990 L 350, p. 43.

(3) Commission Regulation (EEC) No 27/85 of 4 January 1985 laying
down detailed rules for the application of Regulation (EEC)
No 2262/84 laying down special measures in respect of olive oil,
OJ 1985 L 4, p. 5.

Action brought on 23 August 2002 by the Commission
of the European Communities against the Kingdom of the
Netherlands

(Case C-299/02)

(2002/C 247/12)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities
on 23 August 2002 by the Commission of the European
Communities,
and
H.M.H. Speyaert, acting as Agents.

represented

Simonsson

by K.H.I.

The Commission complains that very few inspections were
carried out at the premises of ‘non-compliant’ producers and
that such inspections were carried out excessively late and that
the most ‘at risk’ cases were not checked. The number of
inspections carried out in each financial year at the premises
of various producers is set out in the draft work schedule
drawn up by the agency and approved by the Italian State and
by the European Commission. As regards the number of
inspections carried out, the agency did not fail to fulfil the
obligations accepted and approved by the national authorities
and the Commission’s inspectors. So far as concerns the
alleged delay in carrying out inspections of ‘non-compliant’
producers, the applicant states that such inspections of olive
producers and of surplus production cannot be carried out
until requests for aid are submitted by the producers them-
selves and after publication in the Official Journal of yields in
similar areas. That means that, at the earliest, there can be an
inspection in November or December of the financial year
following that in which aid to be checked is requested, that is
to say when there is already another olive crop and harvest
following the one which has given rise to the aid request.

The applicant claims that the Court should:

(1) declare that, by enacting and maintaining in force
Article 311 of the Wetboek van Koophandel (Commercial
Code) and Article 8:169 of the Burgerlijk Wetboek (Civil
Code), imposing requirements with regard to:

— the nationality of the shareholders and directors of
any company owning a sea-going vessel which they
wish to have entered in the Netherlands register; and

— the nationality and place of residence of the directors
of companies owning sea-going vessels entered in
the Netherlands register and of the natural persons
responsible for the day-to-day management of the
establishment from which, in the Netherlands, the
shipping business necessary for entry of a sea-going
vessel in the Netherlands register is conducted,

the Kingdom of the Netherlands has failed to fulfil its
obligations under Articles 43 and 48 EC;

C 247/8

EN

Official Journal of the European Communities

12.10.2002

(2) order the Netherlands Government to pay the costs.

Action brought on 26 August 2002 by the Hellenic
Republic against the Commission of the European Com-
munities

Pleas in law and main arguments

(As to the conditions concerning the status as Community
nationals of the shareholders and directors of companies,
pursuant to Article 311(3) of the Wetboek van Koophandel)

(Case C-300/02)

(2002/C 247/13)

It follows from the wording of Article 48 EC that a company’s
connection with the Community may not be based on the
nationality of the persons owning or managing it, but rather
on the following circumstances:

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 26 August 2002 by the Hellenic Republic,
represented by Ioannis Khalkias and Georgios Kanellopoulos.

(1)

incorporation of the company in accordance with the
laws of a Member State; and

The applicant claims that the Court should:

(2) maintenance by the company of its registered office,
central administration or principal place of business
within the Community.

A condition requiring possession of the status of a Community
national cannot constitute an appropriate means by which a
Member State may exercise control, as required by Article 91
of the UN Convention on the Law of the Sea, over sea-going
vessels which fly its flag. The Commission is unable to see
what advantage the authority of a Member State having
responsibility for the shipping register may derive from the
Greek, Finnish or French nationality of the actual managers of
a shipping company which would be denied to it if those
managers were Japanese or American nationals. The argument
that, in order for the State whose flag a vessel flies to be able
to exercise actual control over that vessel, the shareholders
must be Community nationals, is equally disputable.

(As to the condition concerning the status as Community
nationals of the persons responsible for the day-to-day man-
agement and of the directors of a shipping company, pursuant
to Article 311(1)(c) of the Wetboek van Koophandel and
Article 8:169 of the Burgerlijk Wetboek)

The Commission refers to its submissions concerning its first
plea in law. It maintains that it can find no justification for a
measure whereby a company may have a sea-going vessel
registered in the Netherlands where the day-to-day manage-
ment of the company is entrusted to a Community national,
regardless of the latter’s place of residence, but prohibiting
registration where such day-to-day management is entrusted
to a national of a third country who resides in the Netherlands.

— annul Decision C(2002) 2281 final of 26 June 2002 (1)
excluding from Community financing certain expenditure
incurred by the Member States under the Guarantee
Section of the EAGGF, in so far as it relates to financial
corrections to the detriment of the Hellenic Republic in
the arable crops sector;

— allow the present application and annul or,

in the
alternative, amend the contested Commission decision
with regard to its particular chapters concerning financial
corrections to the detriment of the Hellenic Republic.

Pleas in law and main arguments

— Incorrect legislative interpretation;

— incorrect interpretation and application of Article 5(2)(c)

of Regulation (EEC) No 729/70;

— incorrect assessment of the facts;

— defective statement of reasons;

— breach of the principle of proportionality.

(1) OJ No L 170, 29.6.2002, p. 77.