Case C-297/02: Action brought on 21 August 2002 by the Italian Republic against the Commission of the European Communities
Date: 2002-10-12
Institutions: Court of Justice
Subjects: EU stock, Italy, action for annulment (EU), budget, olive oil, production aid, production control

C 247/6

EN

Official Journal of the European Communities

12.10.2002

2.

Is a statutory Scheme such as that regulating the export
of potatoes from Jersey to the United Kingdom to be
considered incompatible with Articles 23, 25 and 28-29
EC in so far as it may affect trade between that island and
the United Kingdom (together with Guernsey and the Isle
of Man) or may entail the imposition of charges arising
in connection with such trade?

Furthermore, the Italian Government argues that, even if the
regulation were to be considered ‘substantive’, the fact that the
Italian Government is not responsible for the withdrawal of
the amount of alcohol as a result of a judicial decision should
lead to the decision itself being considered a ‘case of force
majeure’ which justifies replacing the product which was
withdrawn. In that case, precisely because the body responsible
for payment is not at fault, there has been no failure to fulfil
the obligation to assign the alcohol to the abovementioned
stock nor, a fortiori, has their been any damage to the
Community, whose sole interest is that Community stocks be
maintained.

Action brought on 21 August 2002 by the Italian Republic
against the Commission of the European Communities

Olive oil production aid

(Case C-297/02)

(2002/C 247/11)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 21 August 2002 by the Italian Republic,
represented by Umberto Leanza, acting as Agent, assisted by
Maurizio Fiorilli, avvocato dello Stato.

The flat-rate financial correction of 2 % of the expenditure
declared by Italy in respect of October 1997 to October 1998
amounting in all to EUR 22 678 386,83 was applied as a
result of the finding that the Italian authorities’ checks and
inspections were inadequate. The finding was based on the
following three factors:

— belated notification of data relating to mill production by
the paying agency AIMA (Azienda di Stato per gli
interventi nel mercato agricolo) to the inspection body
AGECONTROL;

— lack of coordination of the various inspections and checks
between the paying agency and the inspection body;

The applicant claims that the Court should:

— inadequate analysis and assessment of

the available

information on risk factors.

— annul decision C(2002) 2263 (1) def. of 28 July 2002 in
so far as it provides with regard to Italy: — B.4.1. -ITALY
— Investigation No 1999 (666) on alcohol correction to
budget post 1622 in respect of 1998 financial year of
EUR — 4 085 724,85; — B.8.1. Olive oil production aid
— Italy financial correction of EUR — 22 678 386,33
for the financial years 1997, 1998 and 1999

By way of answer to the Commission’s criticisms, the Italian
Government would submit the following:

(a) Coordination between AIMA and AGECONTROL

Pleas in law and main arguments

The Commission takes the view that the proper application of
Regulation (EEC) No 3597/90 (2) requires that wherever there
is stock missing in Community stocks the budget post must
automatically be adjusted without inquiring into the reasons
for the shortfall, the Member State being held objectively liable.
According to the Italian Government, such an interpretation
must be rejected because it does not conform with legal
reasoning, or with the letter and spirit of the provision.

The Agency has always sought to ask AIMA timeously
and with the necessary precision for all
the appropriate
computerised data in order to allow it to carry out the checks
required by the work schedules for each financial year, issuing
reminders for such information when it was late in providing
it. Moreover, AIMA has for some years entered formal
memoranda of understanding with the Agency with the aim
of ensuring a regular and orderly exchange of computerised
information with AGECONTROL. The claim that there was no
coordination is therefore unfounded.

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;