Case C-314/04: 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
Date: 2004-09-11
Institutions: Court of Justice
Subjects: employer, financial solvency, interpretation of the law, severance pay, unfair dismissal

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.