Case C-80/04 P: Appeal brought on 18 February 2004 by DLD Trading Company against the judgment delivered on 17 December 2003 by the First Chamber of the Court of First Instance of the European Communities in Case T-146/01 between DLD Trading Company and the Council of the European Union, supported by the Republic of Austria, the Commission of the European Communities and the Republic of Finland
Date: 2004-04-17
Institutions: Court of Justice
Subjects: Austria, Council of the European Union, European Commission, Finland, appeal, customs regulations, exemption from customs duties, import, transport user

17.4.2004

EN

Official Journal of the European Union

C 94/25

2. Can the declarant still invoke the guarantees contained in
Article 222 of the Community Customs Code if Articles
204(1) and 215(3) thereof are applicable in the case where
the declarant is faced with non-discharge of the T1 docu-
ments issued by him as a result of prior fraudulent with-
from transit of non-Community goods (in casu,
drawal
textile goods), in which the declarant was uninvolved, or, in
other words,
is Article 222 of the Community Customs
Code, which, inter alia, refers to the general rule of Article
203 of that Code – for the application of which Article 204
that Code is a more specific provision – linked for
of
purposes of application with Articles 204(1) and 215(3) of
the Community Customs Code?

(1) OJ L 302 of 19.10.1992, p. 1

Action brought on 17 February 2004 by the Commission
of the European Communities against the Kingdom of the
Netherlands

Case C-76/04

(2004/C 94/53)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
17 February 2004 by the Commission of
the European
Communities, represented by E. Traversa and W. Wils, acting
as Agent.

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2001/17/EC (1) of the European Parliament and of the
Council of 19 March 2001 on the reorganisation and
winding-up of insurance undertakings or, in any event, by
failing to notify the Commission of those provisions, the
Kingdom of the Netherlands has failed to fulfil its obliga-
tions under that directive;

— order the Kingdom of the Netherlands to pay the costs.

1. declare that the Republic of Austria has failed to fulfil its
obligations under Article 2(4) of Directive 96/61/EC of 24
September 1996 concerning integrated pollution prevention
and control, (1) under Article 9(3)
thereof, under
Annex IV, and under Article 1 in conjunction with Sections
1.1 and 6.6 of Annex I, in that:

to (5)

(a) the definition of ‘existing installation’ under Article 2(4)
has not been fully transposed into federal law (Gewer-
beordnung 1994 (Industrial Code 1994),

(b) the requirements

relating to permit conditions laid
have not been fully
down in Article 9(4)
implemented in federal
legislation (Gewerbeordnung
1994) and those laid down in Article 9(3) to (5) have
not been fully implemented in the legislation of the
(NÖ Elektrizitätswesengesetz
Land Niederösterreich
2001 (Lower Austria Electricity Act 2001),

(c) Annex IV has not been fully implemented in federal
legislation (Gewerbeordnung 1994) and in the legisla-
tion of the Land Niederösterreich (NÖ Elektrizitätswe-
sengesetz 2001),

(d) the Directive has not been implemented in federal legis-
lation and the legislation of the Land Salzburg, nor fully
implemented in the legislation of the Land Burgenland
as
(Burgenländisches Elektrizitätswesengesetz 1999),
regards
referred to in
Section 1.1 of Annex I,

the combustion installations

(e) the Directive has not been implemented, as regards the
installations for intensive rearing referred to in Section
6.6 of Annex I,
in the legislation of the Länder of
Burgenland, Salzburg and Tirol;

2. order the Republic of Austria to pay the costs.

Pleas in law and main arguments:

Although the time-limit for implementation of the Directive
expired on 30 October 1999, the Republic of Austria has still
not implemented at all, or has implemented only inadequately,
certain of its provisions (Art 2(4), Article 9(3) to (5), Annex IV
and Article 1 in conjunction with Sections 1.1 and 6.6 of
Annex I).

Pleas in law and main arguments:

(1) OJ 1996 L 257, p. 26.

The period prescribed for implementation of
expired on 20 April 2003.

the Directive

(1) OJ 2001 L 110, p. 28.

Action brought on 18 February 2004 by the Commission
of the European Communities against the Republic of
Austria

(Case C-78/04)

(2004/C 94/54)

Justice of

An action against the Republic of Austria was brought before
the European Communities on 18
the Court of
February 2004 by the Commission of the European Commu-
nities, represented by Prof. Dr. U. Wölker and M. Konstanti-
nidis, with an address for service in Luxembourg.

The Commission of the European Communities claims that the
Court should:

Appeal brought on 18 February 2004 by DLD Trading
Company against the judgment delivered on 17 December
2003 by the First Chamber of the Court of First Instance
of the European Communities in Case T-146/01 between
DLD Trading Company and the Council of the European
Union, supported by the Republic of Austria, the Commis-
sion of the European Communities and the Republic of
Finland

(Case C-80/04 P)

(2004/C 94/55)

An appeal against the judgment delivered on 17 December
2003 by the First Chamber of the Court of First Instance of the
European Communities
in Case T-146/01 between DLD
Trading Company and the Council of the European Union,
supported by the Republic of Austria, the Commission of the
European Communities and the Republic of Finland, was

C 94/26

EN

Official Journal of the European Union

17.4.2004

brought before the Court of Justice of the European Commu-
nities on 18 February 2004 by DLD Trading Company, repre-
sented by Dr J. Hintermayr, Dr F. Haunschmidt, Dr G. Minich-
mayr, Dr P. Burgstaller and G.J. Tusek, Marienstr. 4, A-4020
Linz.

Justice of

An action against the Portuguese Republic was brought before
the Court of
the European Communities on 20
February 2004 by the Commission of the European Commu-
nities, represented by A.M. Alves Vieira, acting as Agent, with
an address for service in Luxembourg.

The appellant claims that the Court should:

The applicant claims that the Court should:

1. allow the appeal and

— vary the judgment of the Court of First Instance of 17
December 2003 in Case T-146/01 (1) so as to order the
Council of the European Union to pay compensation of
EUR 726 728,34; or

— vary the judgment of the Court of First Instance of 17
the claim for
December 2003 so as to hold that
compensation is well founded and refer the case back to
the Court of First Instance so that it may determine the
amount of compensation to be paid; or

— annul the judgment of the Court of First Instance of 17
December 2003 and refer the case back to the Court of
First Instance;

2. order the defendant to pay the costs of the appeal.

Pleas in law and main arguments:

In support of its appeal, the appellant alleges infringement of
Community law by the Court of First Instance as regards the
following points:

— Erroneous assessment of the causal link between the retro-
activity of Regulation No 2744/98 and the damage suffered
by the appellant. The damage alleged in the present
proceedings was not suffered from 1 January 1998 but,
rather, arose from the entry into force of Regulation
No 2744/98 on 14 December 1998 with effect from 1
January 1998. The damage was caused not by the allow-
ance fixed by the Republic of Austria at ECU 75 but by the
conduct of the Council of the EU. The event giving rise to
the entry into force of Regulation
the damage was
No 2744/98 on 14 December 1998. There is therefore a
direct causal
link between the adoption of Regulation
No 2744/98 by the Council of the EU on 14 December
1998 and the loss of the appellant's claim for an allowance
against the Republic of Austria.

— Failure to take account of

that

the fact

the limitations
placed on the Community system of reliefs from customs
duties (Regulation No 918/83, as amended) by Regulations
No 3316/94 and No 2744/98 are intended to protect the
economy in regions bordering on Austria (‘border undertak-
ings’). However, despite that intended purpose, the geogra-
phical scope of the reduction in the customs allowance
introduced by the abovementioned regulations is unlimited.
The limitations on the customs allowance under Regula-
tions No 3316/94 and 2744/98 are therefore unnecessary,
excessive and disproportionate and thus unlawful.

(1) Not yet published in the European Court Reports.

— declare that, by permitting IFADAP to introduce, and by
allowing to remain in force, a procedure for granting finan-
cial assistance from Community Structural Funds, which
includes substantive requirements involving the payment of
levies which are neither voluntary nor optional and which
do not constitute remuneration for services rendered but
rather serve to finance missions for which the Portuguese
State is, of necessity, responsible by virtue of,
inter alia,
Community law, the Portuguese Government has failed to
fulfil its obligations under Regulation (EEC) No 4253/88 (1)
and Article 10 EC;

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Portuguese authorities impose an obligation on persons
benefiting from the European Agricultural Guidance and Guar-
antee Fund (EAGGF), Guidance Section, to pay the expenses
relating to public-service duties for which the Member States
are responsible in the case of ‘indirect’ management of financial
instruments, namely management which entails the Member
State concerned selecting projects, paying eligible expenditure
and declaring it to the Commission.

However, Article 21(5) of Regulation (EEC) No 4253/88, as
amended, clearly imposes on the Member State concerned an
obligation to ensure that the beneficiaries receive the advances
and payments and to refrain from making any deduction or
retention from payment made to beneficiaries. The terms
‘retention’ and ‘deduction’ must be interpreted broadly in the
light of their effect, which is the decisive factor.

The links and the relationship of subordinacy between the draft
private-law contract for a supply of services signed by the bene-
ficiaries and IFADAP (Instituto do Financiamento e Apoio ao
Desenvolvimento da Agricultura e Pescas) and the form
annexed to the ‘contract for the grant of aid’, pursuant to
which the beneficiary authorises sums to be debited from its
account and paid to IFADAP in respect of the service provided
by the latter in the context of the aid contract, leave little room
for doubt that the beneficiary has no freedom of choice, parti-
cularly if account is taken of the fact that the beneficiary
knows that IFADAP is the body which oversees the investment
project and is responsible for checking that it is properly imple-
mented.

(1) Council Regulation (EEC) No 4253/88 of 19 December
1988, laying down provisions for implementing Regulation
(EEC) No 2052/88 as regards coordination of the activities
of the different Structural Funds between themselves and
with the operations of the European Investment Bank and
the other existing financial
instruments (OJ 1988 L 374,
p.1).

Action brought on 20 February 2004 by the Commission
the Portuguese
of

the European Communities against

Republic

(Case C-84/04)

(2004/C 94/56)

Reference for a preliminary ruling by the Raad van State
by order of that Court of 18 February 2004 in the case of
Mediakabel B.V. against Commissariaat voor de Media

(Case C-89/04)

(2004/C 94/57)