Case C-388/03: Action brought on 5 September 2003 by the Kingdom of the Netherlands against the Commission of the European Communities
Date: 2003-11-15
Institutions: Court of Justice
Subjects: European Commission, Netherlands, State aid, action for annulment (EU), atmospheric pollutant, industrial enterprise, tradeable emission permit

C 275/32

EN

Official Journal of the European Union

15.11.2003

Furthermore,
the substantive amendments made by the
Council following the Opinion of the Parliament give rise to a
the Parliament’s rights under the co-decision
claim that
procedure under Article 251 EC were infringed.

Reference for a preliminary ruling by the Bundesfinanzh-
of by order of that Court of 30 July 2003 in the case of
Hauptzollamt Hamburg-Jonas against Käserei Champig-
non Hofmeister GmbH & Co. KG

Finally the Federal Government claims in the alternative that
the principle of proportionality has been infringed since the
total bans provided for in Articles 3 and 4 on advertising in
the press and/or printed publications as well as on the radio
and the internet deliberately and specifically target local or
regional situations with no cross-border element almost
exclusively, with the result that the extensive prohibitions,
within the meaning of Article 14(1) EC on the improvement
of the internal market, are not necessary and are therefore
disproportionate. The infringement of the principle of pro-
portionality is all the more serious because the prohibitions
have a significant adverse effect on the basic right of freedom
of thought and press freedom, owing to the excessively
broad and unspecific definition of the terms ‘advertising’ in
Article 2(b) and ‘the press and other printed publications’ in
Articles 1(a) and 3 of the Directive.

(1) OJ L 152, p. 16.

Reference for a preliminary ruling by the Supreme Court,
Ireland, by order of that court dated 2 April 2003, in the
case of Ryanair Ltd against Aer Rianta cpt

(Case C-385/03)

(2003/C 275/48)

Reference has been made to the Court of
Justice of the
European Communities by order of the Bundesfinanzhof
(Federal Finance Court) of 30 July 2003, received at the Court
Registry on 12 September 2003, for a preliminary ruling in
the case of Hauptzollamt Hamburg-Jonas against Käserei
Champignon Hofmeister GmbH & Co. KG on the following
question:

Must the first and second subparagraphs of Article 11(1) of
Regulation (EEC) No 3665/87 (1), as amended by Regulation
(EC) No 2945/94 (2), be interpreted — also in the light of
the principle of proportionality — as meaning that false
information relating to individual items listed in the export
declaration, which could result in the exporter receiving a
higher export refund than that to which it is entitled, is by
itself sufficient to give rise to a punitive reduction in the export
refund in the amount set out in those provisions, even though
the exporter expressly stated in connection with the separate
application for payment which must be submitted under
national law that it would not be applying for an export refund
in respect of the relevant items in the export declaration?

(Case C-382/03)

(2003/C 275/47)

(1) OJ L 351 of 14.12.1987, p. 1.
(2) OJ L 310 of 3.12.1994, p. 57.

Reference has been made to the Court of Justice of the
European Communities by an order of the Supreme Court,
Ireland, dated 2 April 2003, which was received at the Court
Registry on 10 September 2003, for a preliminary ruling in
the case of Ryanair Ltd and Aer Rianta cpt on the following
questions:

A.

B.

Is an airport check-in desk an ‘airport installation’ within
the meaning of Article 16 (3) of the Directive (1)?

If the answer to A is in the affirmative, is a rent charged
for the exclusive right to occupy a particular check-in
desk for a period of one year or greater a fee for access to
airport installations within the meaning of Article 16 (3)
of the Directive?

(1) Council Directive 96/67/EC of 15 October 1996 on access to
the groundhandling market at Community airports OJ L 272,
25.10.1996, p. 36-45.

Action brought on 5 September 2003 by the Kingdom of
the Netherlands against the Commission of the European
Communities

(Case C-388/03)

(2003/C 275/49)

An action against the Commission was brought before the
Court of Justice of the European Communities on 5 September
2003 by the Kingdom of the Netherlands, represented by
H.G. Sevenster, Head of the European Law Division of the
Ministry of Foreign Affairs in The Hague.

15.11.2003

EN

Official Journal of the European Union

C 275/33

The applicant claims that the Court should:

1. Annul Commission Decision SG (2003) D/230248 of
26 June 2003 concerning Aid measure No N 35/2003
relating to tradeable NOx emission rights in so far as the
Commission takes the view in that decision that the
notified measure constitutes State aid for the purposes of
Article 87(1) EC (1);

2. Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, namely the Kingdom of the Netherlands,
notified the Commission under Article 88(3) EC of the ‘NOx
emission rights trading scheme’. It requested a decision by the
Commission that that scheme ‘does not constitute aid’ within
the meaning of Article 4(2) of Regulation No 659/99/EC (OJ
1999 L 83, p. 1). By the scheme, the Netherlands Government
has complied with its obligations to transpose Directive 2001/
81/EC of the European Parliament and of the Council of
23 October 2001 on national emission ceilings for certain
atmospheric pollutants (OJ 2001 L 309, p. 22) in so far as
reductions in emissions by large industrial plants are con-
cerned. With respect to the Netherlands, that directive lays
down a national NOx emission ceiling of 260 kilotonnes,
which is to be achieved by 2010. By the contested decision of
24 June 2003, the Commission concluded that the measure
constitutes State aid and declared that it had no objection to
the notified measure. The Commission takes the view that the
measure is a valuable contribution to Community environmen-
tal policy.

Although the Netherlands Government welcomes the fact that
the European Commission has not objected to the measure,
notified by it on a precautionary basis, it seeks, by this action,
annulment of the Decision in so far as the Commission
concludes therein that the notified measure constitutes State
aid. The Netherlands Government takes the view that it does
not in any way constitute aid.

scheme constitutes State aid and must therefore be approved
by the Commission is not substantiated by the explicit and
coherent statement of reasons required for such a conclusion.

(1) OJ L 213, 30.7.1998, p. 13.

Appeal brought on 24 September 2003 by Archer Daniels
Midland Company and Archer Daniels Midland Ingredi-
ents Limited against the judgment delivered on 9 July
2003 by the Fourth Chamber of the Court of First
Instance of the European Communities in case T-224/
00 (1) between Archer Daniels Midland Company and
Archer Daniels Midland Ingredients Limited and the
Commission of the European Communities

(Case C-397/03 P)

(2003/C 275/50)

An appeal against the judgment delivered on 9 July 2003 by
the Fourth Chamber of the Court of First Instance of the
European Communities in case T-224/00 between Archer
Daniels Midland Company and Archer Daniels Midland
Ingredients Limited and the Commission of the European
Communities, was brought before the Court of Justice of the
European Communities on 24 September 2003 by Archer
Daniels Midland Company, established in Decatur, Illinois
(United States of America) and Archer Daniels Midland
Ingredients Limited, established in Erith (United Kingdom),
represented by C.O. Lenz, L. Martin Alegi, E.W. Batchelor and
M. Garcia, lawyers, with an address for service in Luxembourg.

In support of its action, the Netherlands Government submits
that there has been an infringement of Article 87 EC. The
Netherlands scheme makes no use of State resources within
the meaning of Article 87(1) EC. The measures relating to
emission rights are financed entirely by private funds. Any
profit made by undertakings on the sale of credits does not
arise from the allocation of rights by the State but from the
undertakings’ own earnings made as a result of above-
standard performance. The undertakings are not placed at any
advantage. There is therefore no question of aid distorting
competition or affecting trade.

The Appellants claim that the Court should:

(i)

set aside the judgment in so far as it dismisses the
application brought by ADM in respect of the Decision (2);

(ii)

annul Article 2 of the Decision in so far as it pertains to
ADM;

(iii)

in the alternative to (ii), modify Article 2 of the Decision
to reduce further or cancel the fine imposed on ADM;

The applicant further claims that there has been an infringe-
ment of the principle that reasons must be stated. The
Commission’s conclusion that the NOx emission rights trading

(iv)

in the alternative to (ii) and (iii), refer the case back to the
CFI for judgment in accordance with the judgment of the
ECJ as to the law;