Case C-500/03: Action brought on 26 November 2003 by the Commission of the European Communities against the Portuguese Republic
Date: 2004-01-24
Institutions: Court of Justice
Subjects: European Commission, European standard, Portugal, action for failure to fulfil an obligation, pleasure craft, technical standard

24.1.2004

EN

Official Journal of the European Union

C 21/25

1.

2.

Is it permissible to resort to other language versions of
the Sixth Council Directive 77/388/EEC (1) to elucidate
the meaning of the word ‘charitable’ in Article 13A.1 (g)
and (h), or must the word have the same meaning as in
domestic law?

If article 13A(1)(g) and (h) are to be interpreted as
applying to an organisation that is recognised as having
a social character, are they to be interpreted as applying
to a profitmaking entity such as the Kingscrest Residential
Care Homes partnership?

3. Are article 13A.1 (g) and (h) of the Directive to be
interpreted as meaning that they confer on Member States
a discretion to recognise for the purposes of those
provisions an organisation which is registered under the
Care Standards Act 2000 (or the Registered Homes Act
1984 or the Children Act 1989) but which is not a body
governed by public law and does not have the status of a
charity under the domestic law of the Member State
concerned?

(1) Of 17 May 1977 on the harmonization of the laws of the Member
States relating to turnover taxes — Common system of value
added tax: uniform basis of assessment (OJ L 145 of 13.6.77,
p. 1).

Appeal brought on 26 November 2003 (fax: 25 November
2003) by Peter Biegi Nahrungsmittel GmbH and Com-
monfood Handelsgesellschaft für Agrar-Produkte mbH
against the judgment delivered on 17 September 2003 by
the Fourth Chamber of the Court of First Instance of the
European Communities in Joined Cases T-309/01 and
T-239/02 between Peter Biegi Nahrungsmittel GmbH and
Commonfood Handelsgesellschaft
für Agrar-Produkte
mbH, and the Commission of the European Communities

(Case C-499/03 P)

(2004/C 21/46)

An appeal against the judgment delivered on 17 September
2003 by the Fourth Chamber of the Court of First Instance of
the European Communities in Joined Cases T-309/01 and
T-239/02 between Peter Biegi Nahrungsmittel GmbH and
Commonfood Handelsgesellschaft für Agrar-Produkte mbH,
and the Commission of the European Communities was
brought before the Court of Justice of the European Communi-
ties on 26 November 2003 (fax: 25 November 2003) by Peter
Biegi Nahrungsmittel GmbH and Commonfood Handelsge-
sellschaft für Agrar-Produkte mbH, represented by Dr Klaus
Landry and Dr Lothar Harings of Sozietät Graf von Westphalen
Bappert & Modest, Große Bleichen 21, D-20354, Hamburg.

The appellant claims that the Court should:

— set aside the contested judgment of the Court of First

Instance of 17 September 2003 (1) and

— 1.

in Case T-309/01,

annul the Commission Decision of 14 August 2001
(REC 4/00)
in so far as it requires subsequent
accounting for import duties in the amount of
DEM 218 605,65, and order the Commission to pay
the costs of the proceedings;

2.

in Case T-239/02,

annul the Commission Decision of 5 March 2002
(REC 4/01)
in so far as it requires subsequent
accounting for import duties in the amount of
DEM 222 116,06, and order the Commission to pay
the costs of the proceedings.

Pleas in law and main arguments

The appellants contest the judgment of the Court of First
Instance on the following grounds:

— Breach of Article 220(2)(b) of Council Regulation (EEC)
No 2913/92 (2). The Court of First Instance incorrectly
based its ruling on a finding that the error made by the
competent customs authority was detectable by the
appellants. In the contested judgment, the Court of First
Instance exaggerated the duty of care to be expected of
the economic operators concerned. In addition, it failed
to appreciate the complexity of the applicable rules.

— Flawed procedure in so far as the Court of First Instance
incorrectly declined to hear the witnesses named by the
appellants. Instead, it based its judgment on assumptions
detrimental to the appellants.

(1) Not yet published in the ECR.
(2) OJ L 302, p. 1.

Action brought on 26 November 2003 by the Com-
mission of the European Communities against the Portu-
guese Republic

(Case C-500/03)

(2004/C 21/47)

the Portuguese Republic was brought
An action against
before the Court of Justice of the European Communities on
26 November 2003 by the Commission of the European
Communities, represented by António Caeiros, acting as
Agent, with an address for service in Luxembourg.

C 21/26

EN

Official Journal of the European Union

24.1.2004

The applicant claims that the Court should:

The Commission claims that the Court should:

— Declare that, by approving Order No 783/98 without
notifying it at the draft stage, the Portuguese Republic has
failed to fulfil its obligations under Article 8 of Directive
98/34/EC (1) of the European Parliament and of the
Council of 22 June 1998 laying down a procedure for
the provision of information in the field of technical
standards and regulations, in the version in force at the
material time;

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Article 2 of the Regulamento da Navegação em Albufeiras
(Waterway Navigation Regulations)
(Order No 783/98 of
19 September 1998) contains technical regulations within the
meaning of Community law. It is a regulatory measure adopted
by the Government of the Portuguese Republic which is de jure
mandatory and which lays down the technical characteristics
(dimensions and power) which pleasure craft must observe in
order to be used in Portugal for pleasure navigation in public
waterways in Portugal, the only exception being the waterways
in the Douro River. The article thus manifestly applies to
Portugal or, at least, to a major part of it. Accordingly, the
Portuguese Republic ought, pursuant to Article 8(1) of Direc-
tive 98/34/EC, to have forwarded to the Commission the draft
legislative measure which was adopted by the Portuguese
Government as Order No 783/98.

(1) OJ L 204 of 21.7.1998, p. 37.

1. Declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2001/12/EC (1) of the European Parliament and
of the Council of 26 February 2001 amending Council
Directive 91/440/EEC (2) on the development of
the
Community’s railways, Directive 2001/13/EC (3) of the
European Parliament and of the Council of 26 February
2001 amending Council Directive 95/18/EC (4) on the
licensing of railway undertakings and Directive 2001/14/
EC (5) of the European Parliament and of the Council
of 26 February 2001 on the allocation of railway
infrastructure capacity and the levying of charges for the
use of railway infrastructure and safety certification and,
in any event, by not having communicated them to the
Commission, the Kingdom of Sweden has failed to fulfil
its obligations thereunder; and

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

Pleas in law and main arguments

The time-limit for transposition of the directives expired on
15 March 2003.

(1) OJ 2001 L 75, p. 1.
(2) Of 29 July 1991 (OJ 1991 L 237, p. 1).
(3) OJ 2001 L 75, p. 26.
(4) Of 19 June 1995 (OJ 1995 L 143, p. 70).
(5) OJ 2001 L 75, p. 29.

Action brought on 26 November 2003 by the Com-
the
mission of

the European Communities against

Kingdom of Sweden

Action brought on 27 November 2003 by the Com-
the
mission of

the European Communities against

Kingdom of Spain

(Case C-501/03)

(2004/C 21/48)

(Case C-503/03)

(2004/C 21/49)

the Kingdom of Sweden was brought
An action against
before the Court of Justice of the European Communities on
26 November 2003 by the Commission of the European
Communities, represented by W. Wils and K. Simonsson,
acting as Agents, with an address for service in Luxembourg.

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 27 No-
vember 2003 by the Commission of the European Communi-
ties, represented by Carmel O’Reilly and Luis Escobar Guerrero,
acting as Agents, with an address for service in Luxembourg.