Case C-295/02: Reference for a preliminary ruling by the Niedersächsisches Oberverwaltungsgericht by order of that Court of 1 August 2002 in the administrative-law case of Mrs Gisela Gerken against Amt für Agrarstruktur Verden
Date: 2002-10-26
Institutions: Court of Justice
Subjects: aid system, cattle, farmer, interpretation of the law, management information system

26.10.2002

EN

Official Journal of the European Communities

C 261/5

3. Are the administrative and control procedures for the
reduction in excise duty which is possible under
Article 8(2)(f) of Directive 92/81/EEC governed by
Article 8(8) of Directive 92/81/EEC without the appli-
cation of a marker or by Article 1(1) of Directive 95/60/
EC (2)?

4.

5.

If the third question should be answered to the effect that
the Member States which exercise the power under
Article 8(2)(f) of Directive 92/81/EEC are obliged,
in
an instance comparable to the present case, to grant
reductions in duty also in the form of a refund of excise
duty, is a reduction in excise duty for agricultural works
contrary to the freedom to provide services if
the
reduction is linked to a marking procedure under
Article 1(1) of Directive 95/60/EC that is not applied in
this context by other Member States, which on the
contrary impose excise-duty penalties in the case of
markings for which no provision is made under their
legal systems?

If the answer to the fourth question should be in the
affirmative, does the breach of the freedom to provide
services mean that liability to pay duty is expunged, or
would the claimant, in order to achieve exemption from
duty, be obliged to ask for unmarked mineral oil and
apply for a refund of excise duty in the Member State in
which it obtains marked gas oil at a reduced rate of duty?

( 1) OJ L 316, 31.10.1992, p. 12.
( 2) OJ L 291, 6.12.1995, p. 46.

Is the amount of aid also to be reduced under the second
indent of Article 10(2)(a) of Regulation (EEC) No 3887/92 (1)
where the special premium for male bovine animals applied
for when this provision of Community law was in force cannot
for legal reasons be granted to the farmer but where in the
words of Article 44(1) of Regulation (EC) No 2419/2001 (2),
the farmer submitted factually correct information or can
show otherwise that he was not at fault?

(1) OJ L 391, 31.12.1992, p. 36.
(2) OJ L 327, 12.12.2001, p. 11.

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

(Case C-298/02)

(2002/C 261/09)

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 Commission of the
European Communities, represented by Umberto Leanza,
acting as Agent, assisted by Maurizio Fiorilli, avvocato dello
Stato.

The applicant claims that the Court should:

Reference for a preliminary ruling by the Niedersächsi-
sches Oberverwaltungsgericht by order of that Court of
1 August 2002 in the administrative-law case of Mrs Gisela
Gerken against Amt für Agrarstruktur Verden

— annul Commission decision No 2281 (1) of 26 June
2002 in so far as it makes a financial correction of
EUR 12 253 816 in respect of account headings B1-
1512-001 and B1-1512-004 so far as concerns Italy.

(Case C-295/02)

(2002/C 261/08)

Pleas in law and main arguments

Reference has been made to the Court of Justice of the
European Communities by order of the Niedersächsisches
Oberverwaltungsgericht (Lower Saxony, Higher Administrat-
ive Court) of 1st August 2002, received at the Court Registry
on 19 August 2002, for a preliminary ruling in the administrat-
ive-law case of Mrs Gisela Gerken against Amt für Agrar-
struktur (Office for Agriculture) Verden on the following
question:

Aid for peaches and pears intended for the production of fruit
salad — financial correction

According to the Commission, during the 1995-96, 1996-
97 and 1997-98 marketing years, aid was granted for a final
product which did not conform to the definitions contained in
Regulations (EEC) No 1558/91 (2) and (EC) No 504/97 (3). The
two regulations provided for the payment of aid for whole or
sliced peaches and pears provided that they had undergone