Case C-110/03: Action brought on 10 March 2003 by the Kingdom of Belgium against the Commission of the European Communities
Date: 2003-05-10
Institutions: Court of Justice
Subjects: Belgium, European Commission, State aid, aid system, employment aid

C 112/14

EN

Official Journal of the European Union

10.5.2003

Action brought on 7 March 2003 by the Commission of
the European Communities against the Kingdom of Spain

(Case C-108/03)

(2003/C 112/23)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 7 March
2003 by the Commission of the European Communities,
represented by Carmel O’Reilly, Legal Adviser, and Luis
Escobar Guerrero, of its Legal Service, with an address for
service in Luxembourg.

The applicant claims that the Court should :

— Declare that the Kingdom of Spain has failed to fulfil its
obligations under Articles 39, 43 and 49 of the EC Treaty
and Article 4 of Council Directive 68/360/EEC (1) of
15 October 1968 on the abolition of restrictions on
movement and residence within the Community for
workers of Member States and their families and Article 4
of Council Directive 73/148/EEC (2) of 21 May 1973 on
the abolition of restrictions on movement and residence
within the Community for nationals of Member States
with regard to establishment and the provision of services
inasmuch as non-Spanish Community nationals in the
Kingdom of Spain are treated, as regards the degree of
fault and scale of fines for infringement of provisions
relating to residence permits, disproportionately differ-
ently from Spanish nationals who commit the compar-
able infringement of the obligation to obtain or renew
national identity documents;

— Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

are liable to a maximum fine of PTE 50 000 whereas Spanish
nationals who fail to apply in time for their identity documents
are liable to a fine of PTE 50 for every month of delay. The
Commission gives an outline of some of the complaints which
gave rise to the reasoned opinion and to the present application
which, in its view, clearly show the difference in the scale of
fines and their disproportionate nature.

(1) OJ English Special Edition 1968 (II), p 485.
(2) OJ 1973 L 172, p. 14.

Action brought on 10 March 2003 by the Kingdom
of Belgium against the Commission of the European
Communities

(Case C-110/03)

(2003/C 112/24)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 10 March 2003 by the Kingdom of Belgium,
represented by A. Snoecx, acting as Agent, assisted by D. Wael-
broeck and D. Brinckman, lawyers.

The applicant claims that the Court should:

— declare the application admissible and well founded;

Failure to fulfil requirements relating to residence permits —
failure to submit the requisite documents, failure to apply for
or renew permits — may be the subject of fines provided that
the amount of the fine is not disproportionate to the degree of
seriousness of the infringement. The Commission acknowl-
edges that the situation of non-Spanish nationals, as regards
residence permits, and that of Spanish nationals, as regards
identity documents, are not identical. However, that has not
precluded,
in the Commission’s view, the Court of Justice
considering those two situations in order to arrive at the
concept of comparability of fines (see the judgment in Case
C-24/97 Commission v Germany [1998] ECR I-2133). The
Commission regrets that, for delaying up to three months
before applying for a residence permit, non-Spanish nationals

— annul Commission Regulation (EC) No 2204/2002 of
12 December 2002 on the application of Articles 87 and
88 of the EC Treaty to State aid for employment (1);

— so far as necessary, by virtue of Article 241 of the EC
Treaty, declare inapplicable Council Regulation (EC) No
994/98 of 7 May 1998 on the application of Articles 92
and 93 of the Treaty establishing the European Com-
munity to certain categories of horizontal State aid (2) as
the legal basis for the regulation at issue;

— order the Commission to pay the costs.

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.