Case C-317/04: Action brought on 27 July 2004 by the European Parliament against the Council of the European Union
Date: 2004-09-11
Institutions: Court of Justice
Subjects: Council of the European Union, EU competence, European Parliament, United States, agreement (EU), appeal to the Court (EU), data processing, disclosure of information, personal data, protection of privacy

11.9.2004

EN

Official Journal of the European Union

C 228/31

Action brought on 23 July 2004 by the Commission of the
European Communities against the Kingdom of the Neth-
erlands.

(Case C-312/04)

(2004/C 228/64)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
23 July 2004 by the Commission of the European Commu-
nities, represented by Günter Wilms and Alexander Weimar,
acting as Agents.

The applicant claims that the Court should:

ment, provided for specific deadlines within which the Member
States had to adopt the necessary measures. The Commission
disagrees with the observations of the Netherlands authorities
to the effect that the deadlines referred to are merely laid down
in administrative provisions and not in legislative enactments
and that it is in law not correct to embark on collection before
the supplementary claim procedure has been completed.

As the inspection carried out by the Commission has shown,
the Netherlands embarked on collection on average one year
after expiry of the (final) deadline of 15 months and, in doing
so, was therefore too late in making own resources available to
the Commission; on that account, the Netherlands are liable to
interest on the arrears.

1. Declare that, by

(1) OJ L 155 of 7.6.1989, p. 1.

(a) not consistently deploying the necessary activity in
order to effect the timely determination of the rights of
the Communities to their own resources during the
period up to and including 1 January 1992 in a number
of cases of suspected irregularities in relation to trans-
ports covered by TIR carnets,

(b) determining too late the rights of the Communities to
their own resources and thus making those resources
available to the Commission too late, during the period
from 1 January 1992 to the end of 1994 in a number
of cases of suspected irregularities in relation to trans-
ports covered by TIR carnets, and

(c) refusing to pay the attendant interest on arrears,

the Kingdom of the Netherlands has failed to fulfil its obliga-
tions under Council Regulation (EEC, Euratom) No
1552/89 (1) of 29 May 1989 implementing Decision
88/376/EEC, Euratom, on the system of the Communities'
own resourses,

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

Pleas and main arguments

As a result of an inspection in 1997 in the Netherlands, the
Commission found there to have been a delay in establishing
own resources from customs duties. That delay related to
uncleared TIR carnets registered in the period from 1991 to
1993 and in respect of which the requests for payment were
sent out too late by the Netherlands authorities.

it cannot be concluded that

Notwithstanding the fact that prior to 1992 there was no
specific provision indicating the period of time after normal
completion of the transaction within which the office of depar-
ture was required to act,
the
Member States are not bound to act prior to establishment of
the infringement and, in an appropriate case, prior to determin-
ation of the place where the infringement took place. The
Netherlands authorities did not act with the care required in
order to secure the financial interests of the Community. In the
cases here referred to the requests for payment were issued
after periods of
time varying between 2 years and 4 1/2
months and 2 years and 10 months after registration of the
carnets.
In the Commission's view, such lengthy periods of
time cannot be regarded as consistent with targeted activity.

From 1 January 1992 the applicable Community provisions in
the matter, in conjunction with Article 11 of the TIR agree-

Reference for a preliminary ruling by the Tribunal
Superior de Justicia de la Comunidad Valenciana by order
of that court of 12 July 2004 in the case of R.M. Torres
Aucejo against Fondo de Garantía Salarial

(Case C-314/04)

(2004/C 228/65)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunal Superior de Justicia
de la Comunidad Valenciana (Spain) (Chamber for Social and
Labour Matters of the High Court of Justice of the Community
of Valencia) of 12 July 2004 received at the Court Registry on
26 July 2004, for a preliminary ruling in the case of R.M.
Torres Aucejo against the Fondo de Garantía Salarial.

The Tribunal Superior de Justicia de la Comunidad Valenciana
asks the Court of Justice to rule on questions identical to those
in Case C-520/03 (1).

(1) OJ C 59 of 6.3.2004.

Action brought on 27 July 2004 by the European Parlia-
ment against the Council of the European Union

(Case C-317/04)

(2004/C 228/66)

An action against the Council of the European Union was
brought before the Court of Justice of the European Commu-
nities on 27 July 2004 by the European Parliament, represented
by R. Passos and N. Lorenz, acting as Agents, with an address
for service in Luxembourg.

C 228/32

EN

Official Journal of the European Union

11.9.2004

The European Parliament claims that the Court should:

Action brought on 27 July 2004 by the European Parlia-
ment against the Commission of the European Commu-
nities

— annul Council Decision 2004/496/EC of 17 May 2004 (1);

— order the defendant to pay all of the costs.

(Case C-318/04)

(2004/C 228/67)

Pleas in law and main arguments

The European Parliament puts forward five pleas in support of
its action.

An action against the Commission of the European Commu-
nities was brought before the Court of Justice of the European
Communities on 27 July 2004 by the European Parliament,
represented by H. Duintjer Tebbens and A. Caiola, acting as
Agents, with an address for service in Luxembourg.

The first two pleas challenge the legal basis of the contested
decision. First, the Parliament submits that recourse to Article
95 EC is not justified, having regard in particular to the Court's
recent case-law on the interpretation of that provision; indeed,
Article 95 cannot be the basis for Community power to
conclude the agreement, since it relates to the processing of
data excluded from the scope of Directive 95/46 on the protec-
tion of personal data. Secondly, the agreement entails amend-
ment of that directive adopted under the procedure referred to
in Article 251 EC, and could therefore be concluded only after
the assent of the Parliament had been obtained.

The European Parliament claims that the Court should:

— annul under Article 230 EC Commission Decision

2004/535/EC of 14 May 2004 (1);

— order the Commission of the European Communities to

pay all of the costs.

In its third plea, the Parliament takes the view that the agree-
ment infringes fundamental rights,
in particular the right to
protection of personal data with regard to essential aspects of
that right, and that it also constitutes an unjustifiable interfer-
ence with private life, which is incompatible with Article 8 of
the European Convention for the Protection of Human Rights
and Fundamental Freedoms.

Pleas in law and main arguments

The European Parliament puts forward four pleas in support of
its action, namely, misuse of powers by the Commission,
breach of the fundamental principles of Directive 95/46/EC,
breach of fundamental rights and breach of the principle of
proportionality.

The fourth plea concerns infringement of
the principle of
proportionality, in particular on account of the fact that the
agreement provides for the transfer of an excessive amount of
passenger data and those data are stored by the American
authorities for too long.

Finally, the Parliament also pleads the lack of a sufficient state-
ment of reasons for a measure having such specific characteris-
tics, and infringement of the principle of cooperation in good
faith provided for in Article 10 EC, having regard to the very
the
unusual
contested decision, which took place during the procedure
before the Court of Justice for request for opinion 1/04 on the
aspects which clearly posed questions of a legal nature.

surrounding the

circumstances

adoption of

(1) Council Decision 2004/496/EC of 17 May 2004 on the conclusion
of an Agreement between the European Community and the United
States of America on the processing and transfer of PNR data by Air
Carriers to the United States Department of Homeland Security,
Bureau of Customs and Border Protection (OJ L 183 of 20.5.2004,
p. 83)

In respect of misuse of powers, the Parliament argues that the
Commission's decision was
adopted ultra vires, without
complying with the provisions laid down in the basic directive
95/46/EC on the protection of personal data and in breach of,
inter alia, the first indent of Article 3(2) of Directive 95/46 on
the exclusion of activities which fall outside the scope of Com-
munity law.

The European Parliament stresses in addition the following
aspects: the CBP (United States Bureau of Customs and Border
Protection) is not a third country within the meaning of Article
25 of Directive 95/46, the decision on adequacy authorises
transfers to other US governmental authorities as well as to
third countries, the decision entails infringement of Article 13
of Directive 95/46 on exemptions from and restrictions on the
principles on the processing of personal data (exemptions and
restrictions reserved to the Member States), and on the basis of
the decision, the CBP has direct access to PNR (Passenger Name
Record) data, not provided for by the directive. In the light of
the interdependence between the decision on adequacy and the
agreement between the European Community and the United
States, the decision must be considered a measure which is not
appropriate for the objective pursued, namely to provide for
transfers of PNR data.