Case C-111/03: Action brought on 12 March 2003 by the Commission of the European Communities against the Kingdom of Sweden
Date: 2003-05-10
Institutions: Court of Justice
Subjects: European Commission, Sweden, action for failure to fulfil an obligation, animal product, health control, intra-EU trade, veterinary inspection

10.5.2003

EN

Official Journal of the European Union

C 112/15

Pleas in law and main arguments

— Infringement of Council Regulation (EC) No 994/98,
hereinafter ‘the enabling regulation’. Commission Regu-
lation (EC) No 2204/2002, hereinafter ‘the regulation at
issue’, does not observe the enabling regulation in that it
does not attain any of the objectives relating to trans-
parency and legal certainty pursued by the enabling
regulation. First, the regulation at issue is not clear as
regards the circumstances in which it applies, in view of
the parallel existence of guidelines and frameworks which
the Commission can apply at the same time to aid for
employment. Secondly, the regulation at issue is not clear
either as regards the rules it contains. Finally, the lack of
clarity affects the very measures which should fall within
the scope of Article 87(1) of the EC Treaty and in respect
of which the application of the regulation is necessary.
Indeed, the regulation at issue gives the impression that it
must also be applied to measures of general scope, that is
to say, general measures adopted at regional level, when
such measures should automatically have been excluded
from the scope of Article 87(1) of the EC Treaty.

— Breach of the principle of subsidiarity, by failing to take
account of the constitutional organisation prevailing in
Belgium and by therefore considering every action by a
regional authority, which is exclusively competent in the
field of employment, as specific and thus as falling within
the scope of the regulation at issue.

— Breach of the principle of non-discrimination: by main-
taining earlier aid schemes which had previously been
authorised while introducing a scheme which is altogether
stricter for new aid and allowing to exist side by side two
schemes which are diametrically different depending on
the date on which the aid was implemented, the regu-
lation at issue also entails breach of the principle of non-
discrimination, which is a general legal principle which
must be observed when implementing Community
administrative policy in general and in matters of compe-
tition and State aid in particular. By leaving intact
previously authorised aid schemes, the regulation at issue
discriminates between undertakings which will benefit
from aid granted on the basis of earlier schemes and
those which will be eligible to receive only lower levels
of aid on the basis of the new scheme.

— Breach of the principle of proportionality, by making it
difficult or impossible for Member States to pursue a
genuine employment policy because of such lack of
transparency, clarity and coherence of the legislation.

Finally, the Kingdom of Belgium wonders whether the regu-
lation at issue should not be annulled for infringing the Treaty
inasmuch as the regulation is based on the wrong legal basis.
The Treaty provides for a specific legal basis for Community
action in the field of employment. The enabling regulation
enabled the Council to confer on the Commission the power
to adopt actions in the field of employment; to that extent,
that regulation should also be declared unlawful, since it runs
counter to the provisions of the Amsterdam Treaty which does
not permit any such conferment of powers by way of a
Council regulation.

(1) OJ 2002 L 337, p. 3.
(2) OJ 1998 L 142, p. 1.

Action brought on 12 March 2003 by the Commission
of the European Communities against the Kingdom of
Sweden

(Case C-111/03)

(2003/C 112/25)

An action against the Kingdom of Sweden was brought before
the Court of Justice of the European Communities on 12 March
2003 by the Commission of the European Communities,
represented by L. Ström and A. Borders, acting as Agents, with
an address for service in Luxembourg.

The Commission claims that the Court should:

1. Declare that by retaining a system of prior notification
and health checks for importers of certain food products
of animal origin from other Member States the Kingdom
of Sweden has failed to fulfil its obligations under Council
Directive 89/662/EEC of 11 December 1989 concerning
veterinary checks in intra-Community trade with a view
to the completion of the internal market (1), and

2. Order the Kingdom of Sweden to pay the costs.

C 112/16

EN

Official Journal of the European Union

10.5.2003

Pleas in law and main arguments

The Swedish provisions on compulsory prior notification
(announcement by the national food administration (Livsmed-
elsverket) of 25 December 1998 — SLV FS 1998:39) are
inconsistent with the purpose of Directive 89/662/EEC in so
far as they do not recognise other checks carried out in other
Member States. It is true that spot checks are allowed under
Directive 89/662/EEC but the possibility of carrying out spot
checks cannot be used by a Member State to monitor the
effectiveness of the observance by other Member States of
another regulatory system. Article 3 of Directive 89/662/EEC
provides not only for official veterinary checks on production
establishments but also for regular checks to be carried out by
the competent authorities on establishments to ensure that the
products comply with the Community requirements or the
requirements of the Member State of destination. Furthermore,
under Article 5(1)(b) of Directive 89/662 goods cannot
circulate freely if they are not marked in a certain manner and
accompanied by the necessary documentation.

The Swedish Government has submitted that the notification
requirement is necessary to ensure observance of the special
salmonella guarantees which apply on importation of certain
animal products into Sweden. In that connection, the Com-
mission points out that Directive 89/662/EEC offers a Member
State ample opportunity to take steps in the event that
breaches of Community rules are discovered when samples are
taken. For instance, Article 8 of the Directive lays down the
procedure to be applied if breaches are discovered by the
Member State of destination.

( 1) OJ 1989 L 395, p. 13.

Reference for a preliminary ruling by the Cour d’Appel,
Grenoble, by judgment of that Court of 20 February 2003
in the case of Société Financière & Industrielle du Peloux,
formerly known as Sodequip Isolation, against Société
AXA Belgium, formerly known as AXA Royale Belge, and
Others

(Case C-112/03)

(2003/C 112/26)

Grenoble (Commercial Chamber) of 20 February 2003,
received at the Court Registry on 13 March 2003, for a
preliminary ruling in the case of Société Financière & Industriel-
le du Peloux, formerly known as Sodequip Isolation, against
Société AXA Belgium, formerly known as AXA Royale Belge,
and Others on the following question:

May the insured beneficiary of a contract of
insurance
concluded on its behalf between a policyholder (subscribed)
and an insurer who are domiciled in the same Member State,
be made subject to the clause conferring jurisdiction on the
courts of that State, when it has not personally approved the
clause, when the damage occurred in another Member State
and when it has also applied for insurers domiciled in the same
State to be joined as parties to proceedings before a court of
that State?

Action brought on 13 March 2003 by the Commission of
the European Communities against the French Republic

(Case C-113/03)

(2003/C 112/27)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 13 March
2003 by the Commission of the European Communities,
represented by Ch. Giolitto and M. Shotter, acting as Agents,
with an address for service in Luxembourg.

The applicant claims that the Court should :

— Declare that, by failing to ensure that portability of non-
geographic numbers was available on 1 January 2000 at
the latest, as required by Article 12(5) of Directive 97/33/
EC (1), as amended by Article 1(2) of Directive 98/61/EC
the Council of
of
24 September 1998 with regard to operator number
portability and carrier pre-selection (2), the French Repub-
lic has failed to fulfil its obligations under that directive;
and

the European Parliament and of

Reference has been made to the Court of Justice of the
European Communities by judgment of the Cour d’Appel,

— Order the French Republic to pay the costs.