Source: EURLEX
Language: en
Format: md

C 169/22 EN Official Journal of the European Communities 13.7.2002

3. In the event that the answer to the previous question is has been any disturbance of trade between Member States
in the negative: Where a connection as described in the which can (partly) be attributed to the levy as the method
final sentence of point 3.4.3 can be identified between of financing the aid measure? If the answer to this
the increase in a particular tax whose proceeds are paid question depends on the closeness of the connection
into the public coffers and a proposed aid measure within between the levy and the aid measure, or on the time
the meaning of the last sentence of Article 93(3) of the when the revenue from the levy is actually used for the
EC Treaty (now the last sentence of Article 88(3) EC), aid measure, or on other circumstances, what circummust the introduction of that increase be regarded as a stances are relevant in that regard?
(start on the) putting into effect of that aid measure
within the meaning of this provision? If the answer to
this question turns on the intensity of that connection, 2. If the prohibition on implementing the aid measure also
what circumstances are of relevance in this respect? applies to the earmarked levy, can the person on whom
the levy is imposed then, by relying on the direct effect of
4. If the prohibition on implementation of the aid measure Article 93(3), oppose in legal proceedings the full amount
levied on him or only that portion which corresponds to
also relates to the tax, does a final decision by the
the part of the revenue which is expected to be spent or
Commission declaring the aid measure compatible with
the common market not mean that the unlawfulness of has actually been spent during the period in which the
implementation of the aid measure is or was prohibited
the tax is retroactively corrected?
under that provision?

5. If the prohibition on implementation also relates to the
tax, can persons on whom the tax is levied oppose such 3. Do specific requirements arise from Community law with
tax in law by relying on the direct effect of Article 93(3)
regard to the method of determining what portion of a
of the EC Treaty in respect of the total amount of the tax
levy falls under the prohibition laid down in the last
or only in respect of part thereof? sentence of Article 93(3) of the EC Treaty in the case of a
levy the revenue from which is earmarked for various
6. In the latter case, do specific requirements stem from purposes for which there are also other sources of
Community law as regards the manner in which it must financing in addition to the levy and which are not all
be determined which part of the tax is covered by the covered by Article 93 of the EC Treaty, where no
prohibition in the last sentence of Article 93(2) of the EC apportionment formula is specified in the national proTreaty? vision instituting the levy? In such a case, must the
portion of the levy which can be allocated to financing
the aid measure falling under Article 93 of the EC Treaty
be determined on an estimated basis according to the
time when the levy was imposed or must it be based on
subsequently available data relating to the total revenue
from the levy and to the actual expenditure for each of
the various purposes?
**Reference for a preliminary ruling by the Hoge Raad der**
**Nederlanden by judgment of that Court of 8 March 2002**
**in the case of F. J. Pape against Ministry of Agriculture,**

**Nature Management and Fisheries**

**(Case C-175/02)**

(2002/C 169/39)

**Appeal brought on 13 May 2002 by Laboratoire Monique**
**Rémy against the order delivered on 26 March 2002 by**
**the First Chamber of the Court of First Instance of**
Reference has been made to the Court of Justice of the
**the European Communities in Case T-218/01 between**
European Communities by judgment of the Hoge Raad der
**Laboratoire Monique Rémy and Commission of the Euro-**
Nederlanden (Supreme Court of the Netherlands) of 8 March
**pean Communities**
2002, received at the Court Registry on 10 May 2002, for a
preliminary ruling in the case of F. J. Pape against Ministry of
Agriculture, Nature Management and Fisheries on the follow**(Case C-176/02 P)**
ing questions:

1. For so long as the implementation of an aid measure is (2002/C 169/40)
not permitted under the last sentence of Article 93(3) of
the EC Treaty (now the last sentence of Article 88(3) EC),
does the prohibition laid down in that provision also
apply to the introduction of a levy the revenue from
which is earmarked under the relevant law in part for the An appeal against the order delivered on 26 March 2002 by
financing of that measure, regardless of whether there the First Chamber of the Court of First Instance of the

13.7.2002 EN Official Journal of the European Communities C 169/23

European Communities in Case T-218/01 between Laboratoire ties (Fourth Chamber, Extended Composition) in Joined Cases
Monique Rémy and Commission of the European Communi- T-227/99 and T-134/00 Kvaerner Warnow Werft GmbH v
ties was brought before the Court of Justice of the European Commission of the European Communities was brought
Communities on 13 May 2002 by Laboratoire Monique Rémy, before the Court of Justice of the European Communities on
represented by J.F. Pupel, avocat, with an address for service in 15 May 2002 by the Commission of the European CommuniLuxembourg. ties, represented by Professor Klaus-Dieter Borchardt of its
legal service and Viktor Kreuschitz, legal adviser to the
European Commission, with an address for service in LuxemThe appellant claims that the Court should: bourg at the office of Luis Escobar Guerrero, of its legal service,
Wagner Centre C 254, Kirchberg, Luxembourg.

— reverse the order of the Court of First Instance of
21 March 2002;

—
suspend operation of the order in respect of Laboratoire
The appellant claims that the Court should:
Monique Rémy;

—
order the Commission to pay the costs incurred at first
instance and in the appeal. (1) set aside the judgment of the Court of First Instance of
28 February 2002 in Joined Cases T-227/99 and T-134/
00 Kvaerner Warnow Werft GmbH v Commission of the
European Communities( [1] );
_Pleas and main arguments_

—
Failure to respect the right to a fair hearing: although (2) refer the case back to the Court of First Instance for
Article 230 EC prescribes a period of two months for judgment.
bringing an appeal, the applicant was able to make use of
only a few days of that period because it had not been
informed that it could appeal, as provided for by the
internal rules of the Commission, as amended after
November 2001.

— Unforeseeable circumstances and _force majeure_ : in the days
_Pleas in law and main arguments_
following the events of 11 September 2001, postal and
transport services put in place altogether exceptional
security measures which gave rise to unforeseen and

—
indefinite delays. In the instant case, transmittal of the Incomplete appraisal of the legal background to the
appeal documents was delayed by 6 days longer than the authorising decisions: when the meaning and purpose of
usual delivery period. the capacity restriction is also regarded as a set-off in
conjunction with the specific terms of the undertaking
given by the Federal Government, it becomes apparent
that, in order not to undermine the aim of the set-off for
distortions of competition resulting from the grant of
State aid, the capacity restriction had to refer not only to
limits on technical capacity but also to restrictions on
actual production levels.

**Appeal brought on 15 May 2002 by the Commission of**
**the European Communities against the judgment deliver-**

—
**ed on 28 February 2002 by the Court of First Instance of** Incorrect interpretation of the authorising decisions: the
**the European Communities (Fourth Chamber, Extended** authorising decisions were based on a concept of ‘capacity
**Composition) in Joined Cases T-227/99 and T-134/00** restriction’ which covered both technical restrictions
**Kvaerner Warnow Werft GmbH v Commission of the** relating to the production plants and limits on actual
**European Communities** production levels.

**(Case C-181/02 P)**

(2002/C 169/41) ( [1] ) Not yet published in the European Court Reports.

An appeal against the judgment delivered on 28 February
2002 by the Court of First Instance of the European Communi