Case C-312/02: Action brought on 5 September 2002 by the Kingdom of Sweden against the Commission of the European Communities
Date: 2002-10-26
Institutions: Court of Justice
Subjects: EU financing, Sweden, action for annulment (EU), agricultural expenditure, aid per hectare, aid system, regional aid

C 261/6

EN

Official Journal of the European Communities

26.10.2002

heat treatment or had been packaged in airtight containers.
The Commission claims that the peaches and pears intended
for the production of fruit salad had not undergone adequate
heat treatment (pasteurisation or sterilisation) and had been
stored in open containers, irrespective of the fact that those
products had been stored for only a few days before being
included in fruit salads. The infringement of the regulations
those products as
was in respect of the classification of
‘intermediate products for the production of fruit salad’. Such
a product was not approved for aid until 1997-1998. The
Commission’s position is not valid. Payment of the aid to the
processing industries was effected pursuant to Regulation (EC)
No 504/97, which defines peaches in syrup and/or in natural
fruit juice as whole peaches or pieces of peaches, without peel,
having undergone a heat treatment, packed in hermetically
sealed containers with a covering liquid of sugar syrup or
natural fruit juice. The regulation does not specify the type of
container, require that heat treatment should be applied, nor
lay down the intended use. The Italian Government claims that
the financial correction applied to 100 % of the products
subsequently intended for the production of fruit salad con-
tained in 200 kilogram containers is unlawful and should be
annulled.

Inadequate checks on stocks

The Commission may claim that checks were inadequate only
if it should be found that the objectives laid down in the
regulation relating to the determination of the methods for
applying the production aid scheme for such processed
products containing fruit and vegetables had not been attained.
In the present case, no evidence to that effect has even
been proffered.
It follows that the complaint is general,
unsubstantiated and, therefore, unlawful. Moreover, it should
be observed that the EAGGF has never given any indication as
to what method to apply for inspecting stocks, nor is such a
method mentioned in the regulations governing the sector. It
follows that the Commission cannot claim that a prescribed
accounting and verification method was infringed. Accord-
ingly, the financial correction of 10 % by way of a penalty for
the alleged inadequate implementation of checks is unlawful.

( 1) OJ 2002 L 170, p. 77. Commission Decision excluding from
Community financing certain expenditure incurred by the Member
States under the Guarantee Section of the European Agricultural
Guidance and Guarantee Fund (EAGGF).

( 2) OJ L 144, 8.6.1991, p. 31.
( 3) OJ 1997 L 78, p. 14.

Reference for a preliminary ruling by the Commissione
Tributaria di Primo Grado di Trento, Sezione No 6 by
order of that Court of 6 June 2002 in the cases pending
between Petrolvilla & Bortolotti Spa (previously S.C.D.
Srl), Energy Service Srl, Panarotta 2002 Srl, Tumedei Spa,
NTB Spa (previously Nuova Tessilbrenta Spa), Hotel
Bellavista di Litterini Valter e Nadia Snc, Cattoni Hotel
Plaza di Cartoni Giancarlo and C Snc, Villa Luti Srl,
Pavarini Components Srl, Tecnopal Srl, Funivie Madonna
di Campiglio Spa against Agenzia delle Entrate (previously
Direzione delle Entrate) per la Provincia di Trento

(Case C-306/02)

(2002/C 261/10)

Reference has been made to the Court of
Justice of the
European Communities by order of the Commissione Tributa-
ria di Primo Grado di Trento, Sezione No 6 (Tax Court of First
Instance, Trento, Sixth Chamber) of 6 June 2002, received at
the Court Registry on 27 August 2002, for a preliminary
ruling in the cases pending between Petrolvilla & Bortolotti
Spa (previously S.C.D. Srl), Energy Service Srl, Panarotta 2002
Srl, Tumedei Spa, NTB Spa (previously Nuova Tessilbrenta
Spa), Hotel Bellavista di Litterini Valter e Nadia Snc, Cattoni
Hotel Plaza di Cartoni Giancarlo and C Snc, Villa Luti Srl,
Pavarini Components Srl, Tecnopal Srl, Funivie Madonna
di Campiglio Spa against Agenzia delle Entrate (previously
Direzione delle Entrate) per la Provincia di Trento on the
following question:

the net assets consisting exclusively of

‘Does the annual assessment to tax at the rate of 0.75 % per
annum of a company’s net assets pursuant to Decree-Law
No 324 of 30 September 1992 in so far as it relates solely to
that part of
the
company’s capital as disclosed annually in the balance sheet,
constitute a tax having equivalent economic effect to capital
duty already levied at the maximum rate of 1 %, thus rendering
it
in particular,
incompatible with Community law and,
Council Directive 69/335/EEC of 17 July 1969 (1)?’

(1) OJ L 249, 3.10.1969, p. 25.

Action brought on 5 September 2002 by the Kingdom
of Sweden against the Commission of the European
Communities

(Case C-312/02)

(2002/C 261/11)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European

26.10.2002

EN

Official Journal of the European Communities

C 261/7

Communities on 24 July 2002 by the Kingdom of Sweden,
represented by A. Kruse and K. Renman, acting as Agents, with
an address for service in Luxembourg.

of an application for aid. The cards were sent to all the farmers
concerned and the card fees were then invoiced separately.
Applications were considered and aid granted whether the
card fee had been paid or not. Moreover farmers were also
able to use the cards for other purposes than aid applications.

Sweden claims that the Court should:

— first, on the basis of Article 230 EC, declare Commission
Decision 2002/524/EC (1) void in so far as it excludes
from
of
SEK 18 555 850 incurred in Sweden;

Community

expenditure

financing

— in the alternative, reduce the amount to be excluded from

Community financing to SEK 11 817 748;

— in the further alternative, reduce the amount to be
excluded from Community financing to SEK 12 436 091;

— order the Commission to pay Sweden’s costs.

Pleas in law and main arguments

(Claim in the alternative)

The government considers that the card fees paid for forage
areas cannot be taken as a basis for the calculation of the
amount excluded from Community financing. The govern-
ment also takes the view that card fees for areas in respect of
which both area aid or livestock aid and environmental or
regional aid is applied for cannot be included in the calculation
of the amount excluded from Comunity financing. There was
no provision requiring card fees to be calculated primarily
from outside the area covered by an application for area aid.
The Commission’s position therefore has no basis in the
Swedish legislation on the calculation of the fees and gives rise
to unreasonable consequences. The Commission’s reasoning
would, moreover, imply that anyone who applied for environ-
ment aid would be liable to pay the card fee but would evade
such liability by applying at the same time for area aid in
respect of the same area.

(First claim)

(Claim in the further alternative)

The communication referred to in the first subparagraph of
Article 8(1) of Commission Regulation (EC) No 1663/95 (2) of
7 July 1995 laying down detailed rules for the application of
Council Regulation (EEC) No 729/70 regarding the procedure
for the clearance of the accounts of the EAGGF Guarantee
Section and received by Sweden on 24 October 2000 con-
tained no assessment of the expenditure the Commission
proposed to exclude from Community financing.

In the event that the Court considers that forage areas can be
taken as a basis for the calculation of the amount excluded
from Community financing, the government takes the view
that card fees for areas in respect of which both area aid or
livestock aid and environmental or regional aid is applied for
cannot be included in that calculation.

The collection of card fees cannot be regarded as an adminis-
trative fee for the handling of applications for aid and thus did
not entail any breach of Article 15 of Council Regulation (EEC)
No 1765/92 (3) of 30 June 1992 establishing a support system
for producers of certain arable crops or of Article 30a of
Regulation (EEC) No 805/68 (4) of the Council of 27 June
1968 on the common organisation of the market in beef and
veal. The amount due to Swedish farmers under Community
legislation was paid out in full to the recipients of aid. The fact
that the Swedish card fee was not levied as consideration for
the receipt of a card is of key importance. Payment of the card
fee was not a pre-condition for the examination and approval

(1) of 26 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, 29.6.2002, p. 77.

(2) OJ 1995 L 158, 8.7.1995, p. 6.
(3) OJ 1992 L 181, 1.7.1992, p. 12.
(4) OJ, English Special Edition 1968 (I), p. 187.