Case C-318/02: Action brought on 12 September 2002 by the Kingdom of the Netherlands against the Commission of the European Communities
Date: 2002-12-07
Institutions: Court of Justice
Subjects: EAGGF, European Commission, Netherlands, State aid, action for annulment (EU), animal plague, health control, swine, veterinary inspection

7.12.2002

EN

Official Journal of the European Communities

C 305/9

Is Article 12 EC, in conjunction with Article 3 of Regulation
EEC No 1408/71 of the Council of 14 June 1971 (1) on the
application of social security schemes to employed persons
and their families moving within the Community, to be
interpreted as precluding a national rule that discriminates
against a Community citizen in receipt of advances on
maintenance payments, where the father liable for maintaining
that citizen is serving a criminal sentence in his Member State
of origin (i.e. not in Austria); and, where the child of a German
national
in Austria, does denying that child
entitlement to maintenance payments because his father is
serving a criminal sentence, which was handed down in
Austria, in his Member State of origin (and not in Austria)
constitute discrimination against that child?

is resident

( 1) OJ L 149 [1971], p. 2.

Action brought on 12 September 2002 by the Kingdom of
the Netherlands against the Commission of the European
Communities

(Case C-318/02)

(2002/C 305/14)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 12 September 2002 by the Kingdom of the
Netherlands, represented by H.G. Sevenster and N. Bel, acting
as Agents, with an address for service in The Hague.

The Kingdom of the Netherlands claims that the Court should:

(1)

annul the Commission’s decision No C(2002) 2281 def.
of 26 June 2002 excluding from Community financing
certain expenditure incurred by the Member States under
the European Agricultural
the Guarantee Section of
Guidance and Guarantee Fund (EAGGF),
in so far as
that decision concerns the exclusion from Community
financing of expenditure incurred by the Netherlands
under the European Agricultural Guidance and Guarantee
Fund in the financial years 1997 and 1998;

(2) order the Commission to pay the costs.

Pleas in law and main arguments

The Netherlands Government considers that the decision is
unlawful, or at least that it is based on an incorrect determi-
inasmuch as it deducts the sum of
nation of the facts,

20 291 540 euros from the amount of aid declared by the
Netherlands to the EAGGF in connection with the special
market support measures relating to classical swine fever in
the Netherlands in 1997 and 1998, comprising in particular:

— a deduction of 11 148 318,18 euros on account of the
fact that the Netherlands, by failing correctly to apply the
denaturing provisions, allegedly impaired the application
of the monitoring rules and thereby increased the risk of
evasion of the applicable legislation (flat-rate correction
of 5 %): even if it is accepted that, when carrying out the
denaturing of (parts of) pigs pursuant to Annex III to
Regulation (EC) No 413/97 (1), the authorities failed to
do so in the correct order, it cannot be maintained that,
in such denaturing, the objectives of Annex III (namely to
ensure that (parts of) pigs are slaughtered and destroyed
instead of coming back onto the market) were dis-
regarded;

— a deduction of 6 427 370,45 euros on account of the
fact that the Netherlands authorities allegedly miscon-
strued and misapplied the term ‘batch’ within the meaning
of Regulation (EC) No 413/97: having regard to the
wording of that regulation, to the way in which the term
‘batch’ in comparable legislation has been interpreted in
the past and to the fact that the interpretation of that
term advocated by the Commission (which draws a
distinction between different categories of piglets) has
proved unworkable in practice, the Netherlands auth-
orities did not misconstrue or misapply the term ‘batch’.
In the alternative, the Netherlands Government pleads
that the calculation carried out by the Commission to
determine the amount of the reduction is incorrect in
law;

— as regards the deduction of 2 750 070,91 euros on
account of the fact
that the Netherlands authorities
allegedly failed generally to comply with the checking
system and committed other administrative faults (flat-
rate correction of 2 %): the discrepancies established by
the Commission between the number of pigs needing,
according to individual veterinary surgeons,
to be
removed for reasons of wellbeing and the number actually
removed within the period of two days do not in any way
indicate that the numbers of pigs to be removed, as
declared by the individual veterinary surgeons, were
incorrect. As a result of
the
crisis, virtually all the pigs from the affected areas were
ultimately removed and destroyed. Consequently, even if,
and in so far as, it is to be accepted that, in some cases,
the declarations of the individual veterinary surgeons
were not well-founded, those declarations did not in
any way entail any financial prejudice or risk for the
Community budget. As regards the export of carcasses to
Germany, the Netherlands Government argues that the
checking and monitoring of shipments transported from
the Netherlands to the German destruction plants guaran-
teed that the (parts of) pigs were not unlawfully with-
drawn in order to be placed back on the market. The

the long duration of

C 305/10

EN

Official Journal of the European Communities

7.12.2002

Netherlands Government further points out that, to date,
the Commission has been unwilling to grant access to the
German documents which it clearly had in its possession
and on which, inter alia, it based its assessment of the
alleged shortcomings within the German destruction
plants.

( 1) OJ 1997 L 62.

Action brought on 25 September 2002 by the Com-
mission of the European Communities against the Federal
Republic of Germany

(Case C-341/02)

(2002/C 305/16)

Action brought on 23 September 2002 by the Com-
mission of the European Communities against the Portu-
guese Republic

(Case C-339/02)

(2002/C 305/15)

An action against the Portuguese Republic was brought
before the Court of Justice of the European Communities on
23 September 2002 by the Commission of the European
Communities,
represented by António Caeiros, acting as
Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Directive 1999/103/EC of the European Parliament and
of the Council of 24 January 2000 amending Council
Directive 80/181/EEC on the approximation of the laws
of the Member States relating to units of measurement (1),
the Portuguese Republic has failed to fulfil its obligations
under Article 2(1) of the abovementioned Directive 1999/
103/EC; and

— In the alternative, declare that, by failing to inform
the Commission immediately of such measures, the
Portuguese Republic has failed to fulfil its obligations
under Article 2(1) of the abovementioned Directive 1999/
103/EC; and

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The time-limit for implementation expired on 9 February
2001.

( 1) OJ 2000 L 34, p. 17.

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 25 September 2002 by the Commission of
the
European Communities, represented by J. Sack and H. Kreppel,
with an address for service in Luxembourg.

The Commission of the European Communities claims that
the Court should:

(1) declare that, by not recognising as integral parts of the
minimum wage all allowances and supplements — apart
from the construction supplement — paid by employers
in other Member States to their employees in the
construction sector who are posted to Germany, and
consequently by leaving out of account the wage elements
actually paid by such employers to their employees thus
posted, the Federal Republic of Germany has infringed
Article 49 EC and Directive 96/71/EC (1) of the European
Parliament and of the Council of 16 December 1996
concerning the posting of workers in the framework of
the provision of services;

(2) order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The minimum wage fixed by national legislation in a Member
State pursuant to Article 3 of Directive 96/71/EC is to be
assimilated to the earnings received from his employer by an
employee posted abroad. In that connection, regard must be
had to the fact that, in view of the frequent differences in
remuneration structures, a Member State may not impose its
own remuneration structure on employment relationships
with employees posted from other Member States. Conse-
quently, for the purposes of comparison, all of the remuner-
ation paid by his employer to an employee posted abroad in
respect of the full duration of the posting is to be included.
The elements to be left out of account are those expressly
excepted by the directive, namely contributions to supplemen-
tary occupational retirement pension schemes and expenditure
actually incurred during the posting, such as expenditure on
travel, board and lodging. Since the directive does not cover
either social insurance contributions or tax deductions, it is
the gross amounts, not the net ones, which are to be compared.
Although the German Government, in its observations dated
30 May 2001, goes so far as to concede, in part, that the
general practice of leaving all allowances and supplements out
of account is not in accordance with Community law, the
Commission has established that Annex 4 to the ‘Merkblatt