Case C-183/03: Action brought on 28 April 2003 by the Federal Republic of Germany against the Commission of the European Communities
Date: 2003-06-21
Institutions: Court of Justice
Subjects: EAGGF Guarantee Section, European Commission, Germany, action for annulment (EU), aid to agriculture, area of holding, crop production

C 146/34

EN

Official Journal of the European Union

21.6.2003

The PIC Convention establishes the principle that import and
export of a chemical covered by it can only take place with the
prior informed consent of the importing Party. The PIC
Convention establishes a procedure as a means to formally
obtain and disseminate the decisions of importing Parties and
to ensure compliance with these decisions by the exporting
Parties, called the ‘PIC procedure’.

The Commission considers that the PIC Regulation falls within
the scope of the Community’s common commercial policy.
The Regulation should therefore, as proposed by the Com-
mission, have been adopted as a Council Regulation based on
Article 133 EC and not as a European Parliament and Council
Regulation based on Article 175(1) EC, which concerns
measures adopted in the field of the Community’s environmen-
tal policy. The Commission maintains that the choice by the
European Parliament and the Council of the legal basis for the
adoption of the PIC Regulation is erroneous and the act in
question is therefore illegal and should be annulled.

( 1) OJ L 63, 6.3.2003, p. 1.

Action brought on 28 April 2003 by the Federal Republic
of Germany against the Commission of the European
Communities

(Case C-183/03)

(2003/C 146/56)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 28 April 2003 by the Federal Republic of
Germany, represented by Wolf-Dieter Plessing, Ministerialrat,
Moritz Lumma, Regierungsdirektor, and Annette Tiemann,
Regierungsrätin z. A., Federal Ministry of Finance, Graurhein-
dorfer Straße 108, D-53117 Bonn.

The applicant claims that the Court should:

— annul Commission Decision 2003/102/EC of 14 February
2003 — C(2003) 500 final — excluding from Com-
munity financing certain expenditure incurred by the
Member States under the Guarantee Section of
the
European Agricultural Guidance and Guarantee Fund
(EAGGF) in so far as an amount of EUR 26 446 500,00
is excluded from Community financing and imputed to
the Federal Republic of Germany and

— order the defendant to pay the costs.

Pleas in law and main arguments

The action is directed against the contested decision in so far
as it excludes from Community financing expenditure of
EUR 26 446 505,00 incurred by the Federal Republic of
Germany in respect of the arable crops sector in Brandenburg
for crop years 1999 and 2000 and imputes it to the Federal
Republic of Germany. That amount represents a flat-rate
correction of 5 % of the expenditure notified for the Land of
Brandenburg for crop years 1999 and 2000 in the arable crops
sector.

In the opinion of
the Federal Republic of Germany, the
decision was adopted in breach of procedural rules and general
principles of Community law. The Commission’s inspection
findings and conclusions, which formed the basis of the
decision, were incorrect in a number of material
factual
respects and, moreover, were based on a misinterpretation of
law. A flat-rate imputation of 5 % is therefore completely
illegal. That follows from the following seven pleas in law:

— Procedural errors. The complaints subsequently made by

the Commission:

— ‘no reliable or current data on the parcels in the
Allgemeines Liegenschaftsbuch (General Register of
Real Property) (ALB)’ (Under Paragraph 12 of the
Gesetz über die Landesvermessung und das Liegen-
schaftskataster
in Brandenburg (Law on Topo-
graphic Survey and the Land Register in Branden-
burg — VermLiegG), the ALB constitutes, together
with the real property map and real property data,
the cadastre of the Land of Brandenburg. It is held
on computer),

— ‘double applications not detectable’,

— ‘there is hardly any or no connection between the
parcels entered in the land register and those in
agricultural use’ and

— ‘it was not always possible to check and measure the
specified agricultural parcels on the basis of, for
example, maps or aerial photographs, since the
holdings do not enclose with their applications
any maps or sketches of the specified agricultural
parcels’,

were not communicated to the German authorities in due
time. Breach of the procedure for the clearance of the
accounts (Article 7(4) of Regulation (EC) No 1258/
1999 (1) and Article 8(1) of Regulation (EC) No 1663/
95 (2) and breaches of the principles of the right to a fair
hearing and proper administration are therefore alleged.

— Reliability of the land identification system. In its second
plea in law, the Federal Government defends itself against
the doubts expressed by the Commission concerning the
reliability of the identification system.

21.6.2003

EN

Official Journal of the European Union

C 146/35

— Reliability of

in particular
the on-the-spot checks,
adequate measurement of agricultural land. In its third
plea in law, Germany rebuts the Commission’s complaint
that Brandenburg did not adequately measure land in the
course of on-the-spot checks, which constitutes a breach
of Article 6(5) of Regulation (EEC) No 3887/92 (3). That
complaint is based, it submits, on factually and legally
incorrect premisses.

— Adequate expansion of the sample coverage of on-the-
spot checks. In its fourth plea in law, Germany deals with
the complaint
that Brandenburg did not adequately
expand the required sample coverage of the on-the-spot
checks within the holdings visited.

— The representative yields for non-food crops on set-aside
land were assessed at a sufficiently high level. In its fifth
plea in law, Germany demonstrates that the Commission’s
complaint — that the representative yields of renewable
raw materials were assessed at too low a level — is
unjustified.

— Lack of precision concerning the financial years to which
expenditure is imputed. In its sixth plea in law, the level
of expenditure imputed by the decision is contested. The
Commission’s decision is in part imprecise and is invalid
in so far as its operative part and the statements in the
Annex concerning an amount of EUR 12 927 107 are
inconsiystent. In the 1999 and 2000 financial years, the
Land of Brandenburg incurred expenditure for crop years
1999 and 2000 of EUR 270 387 968. Applying the flat
rate of 5 % imposed by the Commission, which is
being contested, that results in an imputed amount of
EUR
of
EUR 262 446 505 was
imputed. Consequently an
amount of EUR 12 927 107 was wrongly imputed.

13 519 398. However,

amount

an

— Incorrect risk assessment. Finally, in its seventh plea in
law, it is argued that the declared flat-rate imputation of
risk of 5 % is defective simply because no systematic
administrative or checking errors were the subject of
complaint in Brandenburg in the relevant period. More-
over, the calculation of the alleged loss to the EAGGF was
made using inappropriate methods and arrived at in
breach of Article 10 EC.

( 1) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the
financing of the common agricultural policy (OJ 1999 L 160,
p. 103).

( 2) Commission Regulation (EC) No 1663/95 of 7 July 1995 laying
down detailed rules for the application of Council Regulation
(EEC) No 729/70 regarding the procedure for the clearance of the
accounts of the EAGGF Guarantee Section (OJ 1995 L 158, p. 6).
( 3) Commission Regulation (EEC) No 3887/92 of 23 December
1992 laying down detailed rules for applying the integrated
administration and control system for certain Community aid
schemes (OJ 1992 L 391, p. 36).

Reference for a preliminary ruling by the Tribunale di
Tolmezzo by order of that Court of 16 April 2003 in the
case of Azienda Agricola Schnabl Rosa against A.G.E.A.
and COSPALAT F.V.G.

(Case C-185/03)

(2003/C 146/57)

Reference has been made to the Court of
Justice of the
European Communities by order of the Tribunale di Tolmezzo
(Tolmezzo District Court) of 16 April 2003, received at the
Court Registry on 5 May 2003, for a preliminary ruling in the
case of Azienda Agricola Schnabl Rosa against A.G.E.A. and
COSPALAT F.V.G. on the following question:

Must Article 1 of Regulation (EEC) No 856/84 (1) of 31 March
1984 and Articles 1 to 4 of Regulation No 3950/92 (2) of
28 December 1992 be interpreted as meaning that the
additional levy on milk and milk products is in the nature of
an administrative penalty with the result that producers are
liable to pay it only where quantities allocated have been
exceeded by them intentionally or as a result of negligence?

(1) OJ L 90 of 1.4.1984, p. 10.
(2) OJ L 405 of 31.12.1992, p. 1.

Removal from the register of Case C-302/01 (1)

(2003/C 146/58)

By order of 6 February 2003 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-302/01: Commission of the
European Communities v Hellenic Republic.

(1) OJ C 259 of 15.9.2001.

Removal from the register of Case C-86/02 (1)

(2003/C 146/59)

By order of 7 March 2003 the President of the Court of Justice
from
of the European Communities ordered the removal
the register of Case C-86/02: Commission of the European
Communities v Federal Republic of Germany.

(1) OJ C 131 of 1.6.2002.