Case C-392/02: Action brought on 8 November 2002 by the Commission of the European Communities against the Kingdom of Denmark
Date: 2003-02-08
Institutions: Court of Justice
Subjects: Denmark, European Commission, Member States' contribution, action for failure to fulfil an obligation, customs regulations, own resources

C 31/4

EN

Official Journal of the European Union

8.2.2003

court between The Queen and Secretary of State for Health, ex
parte: British American Tobacco (Investments) Ltd and
Imperial Tobacco Ltd, supported by Japan Tobacco Inc. and JT
International SA, on the validity and interpretation of Directive
2001/37/EC of the European Parliament and of the Council of
5 June 2001 on the approximation of the laws, regulations
and administrative provisions of the Member States concerning
the manufacture, presentation and sale of tobacco products
(OJ 2001 L 194, p. 26), the Court, composed of: G.C. Rodrí-
guez Iglesias, President,
J.-P. Puissochet, M. Wathelet,
R. Schintgen and C.W.A. Timmermans (Presidents of Cham-
bers), D.A.O. Edward, A. La Pergola (Rapporteur), P. Jann,
V. Skouris, F. Macken, N. Colneric, S. von Bahr and J.N. Cunha
Rodrigues, Judges; L.A. Geelhoed, Advocate General; L. Hew-
lett, Principal Administrator, and M.-F. Contet, Administrator,
for the Registrar, has given a judgment on 10 December 2002,
in which it has ruled:

1.

Consideration of the first question has not disclosed any factor
of such a kind as to affect the validity of Directive 2001/37/
EC of the European Parliament and of the Council of 5 June
2001 on the approximation of the laws, regulations and
administrative provisions of the Member States concerning the
manufacture, presentation and sale of tobacco products.

2. Article 7 of Directive 2001/37 is to be construed as applying
only to tobacco products marketed within the European
Community.

( 1) OJ C 56 of 02.03.2002.

Action brought on 8 November 2002 by the Commission
of the European Communities against the Kingdom of
Denmark

(Case C-392/02)

(2003/C 31/07)

has failed to fulfil its obligations under Community law
and in particular infringed Article 10 EC and Articles 2
and 8 of Council Decision 94/728/EC, Euratom of
31 October 1994 on the system of
the European
Communities own resources (1);

— order the Kingdom of Denmark to pay the costs of the

present proceedings.

Pleas in law and main arguments

the Community financing scheme,

The Community Customs Code regulates the relationship
between undertakings and the national authorities, which
governs the collection of the traditional own resources on
behalf of the Community, whereas the relationship between
the Community and the Member States is regulated by the
is,
provisions of
that
in particular, Council Decision 94/728/EC, Euratom,
the
implementing provisions of Council Regulation No 1552/
89 (2) and also the general obligations under Article 10 EC.
The fact that a purely technical link is created between the two
aforementioned sets of rules, in that Regulation No 1552/89
covers to a certain extent various stages which under the
Community Customs Code are carried out as part of the
determination of the amount of duty owing and the rules for
collection thereof, has no bearing on the issue of national
authorities’ financial liability to the Community for any errors
committed in the course of collecting the traditional own
resources. The protection given to the person liable for
payment by the Customs Code, in particular Article 220(2)(b)
thereof, cannot be relied on by the Member State as against
the Commission when that Member State has not collected the
resources in question. If a Member State fails to collect the
traditional own resources, it can, subject to certain conditions,
be freed from the obligation to place those resources at the
disposal of the Commission only under Article 17 of Regu-
lation No 1552/89.

An action against the Kingdom of Denmark was brought
before the Court of Justice of the European Communities on
8 November 2002 by the Commission of the European
Communities, represented by H.P. Hartvig and G Wilms, acting
as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

— rule that since the Danish authorities have not transferred
to the Commission an amount of DKK 140 409,60 from
its own resources together with default interest thereon
as from 20 December 1999, the Kingdom of Denmark

In a number of cases in the period 1996-1997 the Danish
authorities allowed the zero-rated import of frozen sugar peas
from the People’s Republic of China, despite the fact that the
undertaking in question did not have a permit to import the
goods at such a rate because of their particular end-use. There
were even divergent opinions amongst the regional Danish
authorities, which led to a finding on the part of
the
Commission, at the request of the Danish authorities and
pursuant to Article 220(2)(b) of Council Regulation (EEC)
No 2913/92 of 12 October 1992 establishing the Community
Customs Code (3) that, due to an error on the part of the
Danish authorities, it could not require the importer to pay
duty for any of the imports in question.

8.2.2003

EN

Official Journal of the European Union

C 31/5

The determination of the time when the fixing (finding) should
have taken place makes it possible to calculate the period
within which the own resources in question should have been
credited to the Commission’s account,
in accordance with
Article 10 of Regulation No 1552/89. Failure to comply within
that period triggers the obligation to pay default interest
pursuant to Article 11 of Regulation No 1552/89, an obli-
gation which, according to the case-law of the Court, arises
without its being necessary to examine the reasons for the
failure to comply within that period.

( 1) OJ 1994 L 293, p. 9.
( 2) OJ 1989 L 155, p. 1.
( 3) OJ 1992 L 302, p. 1.

Reference for a preliminary ruling by the Bundesarbeits-
gericht by order of that Court of 27 June 2002 in the case
of Gérard Merida against Federal Republic of Germany,
represented by the Amt für Verteidigungslasten

(Case C-400/02)

(2003/C 31/08)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesarbeitsgericht
(Federal Labour Court) of 27 June 2002, received at the Court
Registry on 12 November 2002, for a preliminary ruling in
the case of Gérard Merida against Federal Republic of Germany,
represented by the Amt für Verteidigungslasten (Local Office
for Defence Expenditure) on the following question:

Is Article 39 EC infringed by the fact that for the purposes of
calculating the basis of assessment of interim assistance in a
case arising under Paragraph 4(1)(b) of the collective agreement
on social security account must be taken of the notional
(second sentence of Para-
German tax on emoluments
the former
if
graph 4(3)(b) of that collective agreement)
employee lives and is subject to tax abroad?

Action brought on 19 November 2002 by the Com-
the
mission of

the European Communities against

Kingdom of Spain

(Case C-416/02)

(2003/C 31/09)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 19 No-
vember 2002 by the Commission of the European Communi-
ties, represented by Gregorio Valero Jordana, of its Legal
Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that

(a)

by failing to adopt the measures necessary to comply
with Articles 4, 9 and 13 of Council Directive 75/
442/EEC (1), amended by Directive 91/156/EEC (2),
inasmuch as it failed to take the necessary measures
to ensure that waste from the pig farm located in ‘El
Pago de la Media Legua’ is recovered or disposed of
without endangering human health and without
harming the environment and insofar as the farm
was not covered by the authorisation required under
the directive and by failing to carry out the requisite
regular checks in respect of such establishments;

(b) by failing to carry out an impact assessment prior to
the construction or modification of the project,
contrary to the requirements of Articles 2 and 4(2)
of Council Directive 85/337/EEC (3), either in its
original wording or as amended by Directive 97/11/
EC (4);

(c)

by failing to carry out the requisite hydrological
studies in the area affected by pollution, in accord-
ance with Articles 3(b), 5(1) and 7 of Council
Directive 80/68/EEC (5);

(d) by not subjecting urban waste-water

from the
agglomeration of Vera to treatment which is more
stringent than that described in Article 4, as required
under Article 5(2) of Council Directive 91/271/
EEC (6);

(e)

by failing to declare the Rambla de Mojácar a
vulnerable area, contrary to Article 3(1), (2) and (4)
of Directive 91/676/EEC (7);

the Kingdom of Spain has failed to fulfil its obligations
under the abovementioned directives; and

— Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

— Infringements (a) to (c) relate to the construction and
running of an intensive pig farm situated in ‘El pago de la
Media Legua’, in the municipal district of Vera, in the
province of Almeria. The Spanish authorities admit that
that pig farm is illegal and is not covered by a municipal
licence, so that it must be deemed not to have the
requisite authorisation required by Article 9 of Directive