Case C-443/08: Action brought on 7 October 2008 — Commission of the European Communities v French Republic
Date: 2008-10-07
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, fine, organic chemical, solvent

10.1.2009

EN

Official Journal of the European Union

C 6/11

The Commission bases the present action essentially on two
grounds, namely, first, the late entry of the own resources (in
the accounting ledger) and, second, the refusal to pay default
interest in respect of that late entry. According to the Commis-
sion, at the latest as of 18 August 1998 (the date by which the
documents and files forming part of the mutual assistance sheet
of 26 June 1998 had been sent out
languages), all
Member States were in a position to identify debtors and the
amount of the claim and therefore ought, from then onwards,
to have taken the necessary steps to collect the relevant entitle-
ments and to establish, and pay, the own resources connected
with it. Taking into consideration an appropriate time-limit of
the
the introduction of
three months
Commission took the position that all Member States which
failed to act are liable for the entitlements that were time-barred
from 18 November 1998 onwards.

such measures,

in all

for

the

own resources,

As regards the Commission's first plea in law, namely the late entry of
the
relevant provisions of Regulation
No 1552/89 (or, as the case may be, Regulation No 1150/2000)
and the case-law of the Court of Justice show that the Member
States are under an obligation to establish the own resources of
the Communities and that this obligation exists irrespective of
whether or not the entitlements have actually been entered in
the accounts, or, as the case may be, whether or not it was
possible to collect the entitlements from the debtor. In principle,
the incurrence of a customs debt gives the Communities a right
to the customary own resources connected to that customs
debt, and does so even where the entitlement was not entered
in the accounting ledgers or was not collected from the debtor
in an individual case. The moment at which the own resources
ought to be established is determined by the moment at which
the national customs authorities are in a position to calculate
the entitlement arising from a customs debt and to identify the
debtor.

The question as to which position is to be adopted by the
customs authorities of a Member State into which goods have
been imported accompanied by declarations of origin which,
following a revision, are revoked on the ground of invalidity
cannot be answered on the basis of the laws of the relevant
third country. Given that Protocol No 4 to the EC-Hungary
Association Agreement likewise does not contain provisions to
that effect, other sources of Community law have to be exam-
ined to determine what Member States have to do once they
have been informed of the results of a revision which raised
doubts as to the origin of the goods. Article 78(3) of Regulation
the
No 2913/92 provides that
Member States are to take the measures necessary to regularise
the situation, taking account of the new information available to
them. In the same way, the regulation requires Member States,
following the incurrence of a customs debt, to rapidly imple-
ment the procedure for collecting the debt, both during the first
phase of the procedure, which consists of entering the entitle-
ment in the accounts, and the phase during which the entitle-
ment is collected from the debtor.

the customs authorities of

Pursuant to Article 244 of Regulation No 2913/92, the lodging
of an appeal against a decision taken by the customs authorities
of Member States is not to cause implementation of that deci-
in exceptional circumstances.
sion to be suspended, except
Under normal circumstances, suspension of implementation is
to be subject to the existence or lodging of a security. Therefore,
in cases in which the incurrence of a customs debt results from

the revocation of the declarations of origin at the end of a revi-
sion, the fact that legal action has been brought cannot, in the
Commission's view, preclude the customs authorities of
the
importing Member State from (subsequently) collecting the enti-
tlements. Given that the goods were already brought into the
Community and that the court proceedings may take several
the collection of
years, such suspension could render
the
customs debt
the legal action were
if
dismissed.

far more difficult

Finally, as regards the Commission's second plea in law, namely the
refusal to pay default interest, Article 11 of Regulation No 1552/89
(or, as the case may be, Regulation No 1150/2000) and the
case-law of the Court of Justice show that, even where own
resources fail to be established, Member States are required to
pay default interest. In the present case, the contested amount of
own resources ought to have been entered in the accounts at
the latest two months after 18 November 1998, on the first
working day following the 19th of that month (in other words,
on 20 January 1999). Given that the German authorities only
made the entry on 31 October 2005, the Federal Republic of
Germany delayed the entry and is under an obligation to pay
default interest for the period of delay.

(1) OJ 1989 L 155, p. 1.
(2) OJ 2000 L 130, p. 1.

Action brought on 7 October 2008 — Commission of the
European Communities v French Republic

(Case C-443/08)

(2009/C 6/18)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Alcover San Pedro and J.-B. Laignelot, Agents)

Defendant: French Republic

Form of order sought

The applicant claims that the Court should:

— declare that, by failing to adopt all the laws and regulations
necessary to correctly transpose Article 2(3), Article 2(4)
and Article 4(4) of Council Directive 1999/13/EC of
11 March 1999 on the limitation of emissions of volatile
organic compounds due to the use of organic solvents in
certain activities and installations (1) as regards the definition
of the concepts of ‘small installation’ and ‘substantial change’
and the obligations applying to existing installations, the
French Republic has failed to fulfil its obligations under that
directive;

C 6/12

EN

Official Journal of the European Union

10.1.2009

— order French Republic to pay the costs.

Questions referred

Pleas in law and main arguments

The applicant submits that the concepts of ‘small installation’
and ‘substantial change’, as defined in Articles 2(3) and 2(4) of
Directive 1999/13/EC, are necessary in order
to ensure a
harmonised and efficient application of that directive in so far
as they specify the obligations applying to certain categories of
industrial
installations referred to by that directive. There are
many omissions in that regard in the transposition of the direc-
tive into French law because the defendant did not include any
definition of the concept ‘small installation’, while its definition
of the concept ‘substantial change’ does not take into account
the thresholds for the increase of emissions of volatile organic
compounds, above which the change in an installation must be
considered to be substantial.

The applicant also criticises the lack of precision and clarity in
the transposition of Article 4(4) of the Directive concerning the
obligations applying to substantial changes in existing installa-
tions. The rules relating to new installations being stricter than
those applicable to old installations, clearer rules should in fact
be drawn up also in the cases where an existing installation
undergoes significant changes in order to ensure the directive,
the purpose of which is to guarantee a high level of protection
of the environment, remains effective.

(1) OJ 1999 L 85, p. 1.

1. Should Article

of

42(4)

Council

Regulation

(EC)
No 1782/2003 of 29 September 2003 (1) be interpreted as
permitting a Member State to establish a reference amount
of EUR 0 and not to allocate entitlements to payments from
the national reserve to a farmer who finds himself
in a
special situation as described in Article 21 of Commission
Regulation (EC) No 795/2004 of 21 April 2004 (2)?

2. If the answer to that question is in the affirmative, does
Community law preclude the application of a provision such
as Article 17(1)(b) of the Regeling GLB-inkomenssteun 2006
(2006 Netherlands Regulations on CAP income support),
under which any increase in the amount of additional
payments arising as a result of an investment in production
capacity or a purchase of land is subject to a deduction of
EUR 500 before a reference amount is established as the
basis for the allocation of entitlements to payments from the
national reserve?

schemes

(1) Regulation establishing common rules for direct support schemes
the common agricultural policy and establishing certain
under
(EEC)
support
(EC)
No 2019/93,
No 1454/2001,
(EC)
No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC)
No 2529/2001 (OJ 2003 L 270, p. 1).

farmers and amending Regulations
(EC) No 1453/2001,
(EC) No 1251/1999,

(EC) No 1452/2001,
(EC) 1868/94,

for

(2) Regulation laying down detailed rules for the implementation of the
single payment scheme provided for in Council Regulation (EC)
No 1782/2003 establishing common rules
support
schemes under the common agricultural policy and establishing
certain support schemes for farmers (OJ 2004 L 141, p. 1).

for direct

Reference for a preliminary ruling from the College van
lodged on
Beroep voor het bedrijfsleven (Netherlands),
13 October 2008 — G. Elbertsen v Minister van Landbouw,
Natuur en Voedselkwaliteit

Reference for a preliminary ruling from the Oberlandes-
lodged on 16 October
(Germany)
gericht Düsseldorf
für
2008 — Helmut Müller GmbH v Bundesanstalt

Immobilienaufgaben

(Case C-449/08)

(2009/C 6/19)

Language of the case: Dutch

(Case C-451/08)

(2009/C 6/20)

Language of the case: German

Referring court

Referring court

College van Beroep voor het bedrijfsleven

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Parties to the main proceedings

Claimant: G. Elbertsen

Applicant: Helmut Müller GmbH

Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit

Defendant: Bundesanstalt für Immobilienaufgaben