CELEX: C1996/354/30
Language: en
Date: 1996-11-23 00:00:00
Title: Action brought on 24 September 1996 by the Commission of the European Communities against the Kingdom of the Netherlands (Case C-310/96)

23 . 11 . 96              EN                   Official Journal of the European Communities                                     No C 354/ 15
Misapplication of Article 92 ( 1 ) of the EC Treaty: the                  2 . If so , are the provisions applicable in the same way:
Commission misapplied Article 92 ( 1 ) of the EC Treaty in
finding that the guarantee provided by Niedersachsen was                        ( a ) if the decision in question is the first calculation of
incompatible with the common market. The findings in the                              the insured person's rights under the regulations by
decision with regard to Article 92 ( 1 ) are unlawful in both                         that institution ?
form and substance . The substantive illegality is sufficiently
demonstrated by the application by the Commission of the
fisheries guidelines published in Official Journal of the                       ( b ) if a first decision made before 1 June 1996 did not
European Communities No C 152 of 17 June 1992 , in                                    correctly calculate the rights under the regulations
connection with the investigation of the facts under                                  and has to be cancelled and replaced after 1 June
                                                                                      1992 by a rectification decision, the latter thus
Article 92 ( 1 ) of the Treaty, as well as by the absence of a
detailed examination of the individual circumstances when                             being the first to calculate the rights under the
                                                                                      regulations correctly ?
determining whether the requirements of fact were met. In
particular, the Commission failed entirely to take into
account the provision of valuable securities when                               ( c ) if a first decision made before 1 June 1992 and
determining the aid element, and to consider alternative                              otherwise correct has to be annulled and replaced
financing, omissions which led to false assumptions . The                             after 1 June 1992 because another institution
argument concerning distortion of competition is not                                  concerned has made a rectification decision ?
supported by any factual finding whatsoever and is,
moreover, contradictory. The decision does not comply                     3 . If the first two questions are answered in the affirmative,
with Article 190 of the EC Treaty and is therefore unlawful                     may the recalculation of the benefit on 1 June 1992 have
as to form as well .
                                                                                the consequence of reducing the benefit due, compared
                                                                                with the amount due on 31 May 1992 on the basis of the
Misapplication of Article 92 ( 3 ) ( e ) of the EC Treaty: the                  provisions applicable until that date, given that
guarantee for Jadekost satisfies the conditions laid down in                    Regulation ( EEC ) No 1248/92 did not amend or
Article 92 ( 3 ) ( e ) in order for it to be regarded as compatible             supplement the provisions of Articles 118 to 119a of
with the common market . The Commission 's verification of                      Regulation ( EEC ) No 574/72 ( 4 ) to make them
the presence of the conditions for application of this                          applicable on 1 June 1992 ?
exception was defective in both form and substance .
                                                                          (') OJ, English Special Edition 1971 ( II ), p. 416 .
                                                                          ( 2 ) OJ No L 136 , 19 . 5 . 1992 , p . 7 .
                                                                          (-') OJ No L 230, 22 . 8 . 1983 , p . 6 .
                                                                          (4 ) OJ, English Special Edition 1972 ( I ), p. 159 .
Reference for a preliminary ruling from the Tribunal du
Travail de Bruxelles by judgment of that court of
5 September 1996 in the case of Salvatore Baldone v. Institut
           National d 'Assurance Maladie-Invalidite
                            Case C-307/96                                 Action brought on 24 September 1996 by the Commission
                                                                          of the European Communities against the Kingdom of the
                             ( 96/C 354/29 )                                                              Netherlands
                                                                                                      ( Case C-310/96 )
 Reference has been made to the Court of Justice of the                                                 ( 96/C 354/30 )
 European Communities by a judgment of the Tribunal du
 Travail de Bruxelles [Brussels Labour Court] of 5 September
 1996 , which was received at the Court Registry on                       An action against the Kingdom of the Netherlands was
 23 September 1996 , for a preliminary ruling in the case of               brought before the Court of Justice of the European
 Salvatore    Baldone        v.   Institut   National    d'Assurance       Communities on 24 September 1996 by the Commission of
 Maladie-Invalidite on the following questions:                           the European Communities, represented by B. J. Drijber, of
                                                                           the Legal Service , acting as Agent, with an address for
                                                                           service at the office of C. Gomez de la Cruz, of the Legal
 1 . Are paragraphs 1 to 3 of Article 95a of Regulation                    Service , Wagner Centre , Kirchberg.
     ( EEC ) No 1408/71 ( ! ), inserted by Regulation ( EEC)
     No 1248/72 ( 2 ), to be interpreted as meaning that if an
                                                                           The Commission claims that the Court should :
     institution of a Member State after 31 May 1992
     calculates the rights of an invalid under the regulations,
     it must apply, for the period ending on 3 1 May 1992 , the            — declare that the Kingdom of the Netherlands has failed
     provisions of Regulation ( EEC ) No 1408/71 ( in                            to fulfil its obligations under Article 2 of Council
     particular Article 46 ) in the codified version of                          Directive 77/388/EEC of 17 May 1977 by maintaining
     Regulation ( EEC ) No 2001 /83 ( 3 ), and, from 1 June                      after 1 January 1990 a special provision by virtue of
      1992 , the provisions of Regulation ( EEC ) No 1408/71                     which certain supplies of waste and recuperable material
     as amended by Regulation ( EEC ) No 1248/92 ?                               are not required to be subject to value added tax;
 ---pagebreak--- No C 354/ 16           EN                  Official Journal of the European Communities                                  23 . 11 . 96
— order the Kingdom of the Netherlands to pay the                     The Commission of the European Communities claims that
    costs .                                                           the Court should :
                                                                      — declare that, by failing to adopt the laws, regulations and
Pleas in law and main arguments adduced in support:                       administrative measures necessary in order to comply
                                                                          with Council Directive 93/38/EEC of 14 June 1993
— Under Article 1 of Council Directive 89/465/EEC, the                    coordinating the procurement procedures of entities
    Member States are no longer permitted as from                         operating in the water, energy, transport and
     1 January 1990 to exempt supplies of recuperable                     telecommunications sectors ('), the French Republic has
    material and fresh industrial waste pursuant to                       failed to fulfil its obligations under that Directive, in
    Article 28 ( 3 ) and point 20 of Annex F of the original              particular Article 45 thereof,
    version of the sixth Directive ( 77/388/EEC ). As a result
    of Article 2 of Directive 77/388/EEC, such supplies are           — declare, in the alternative, that, by failing forthwith to
    now subject to value added tax .                                      inform the Commission of such measures , the French
                                                                          Republic has in any event failed to fulfil its obligations
— Merely making a request pursuant to Article 27 of                       under the said Directive ;
    Directive     77/388/EEC      cannot     detract  from    the
    Commission's power to bring proceedings under                     — order the French Republic to pay the costs .
    Article 169 of the EC Treaty for failure to fulfil
    obligations .                                                     Pleas in law and main arguments adduced in support:
    Moreover, the Commission denies that the procedure in             The mandatory nature of the provisions of the third
    question (') has not been concluded . The short                   paragraph of Article 189 of the EC Treaty is such as to
    time-limits prescribed by Article 27 ( 3 ) and ( 4 ) are          oblige Member States to whom directives are addressed to
    justified by requirements relating to legal certainty.            adopt the measures necessary for the implementation of
    Undertakings and Member States should be made                     such directives within the time-limit prescribed therein . The
    certain as quickly as possible about any national                 time-limit laid down in Article 45 of Directive 93/38/EEC
    measure constituting a derogation from the common                 expired on 1 July 1994 but the French Republic has not
    system of value added tax . The Netherlands                       adopted the necessary measures .
    Government itself has not taken any steps to eliminate
    the present unlawful state of affairs . In particular, it has     (') OJ No L 199 , 9 . 8 . 1993 , p . 84 .
    failed to place the matter on the Council 's agenda . Since
    the Council has not adopted a positive decision after the
    expiry of a reasonable time, the procedure initiated by
    the Netherlands Government under Article 27 must be
    regarded as closed . That Government's position that the
    procedure initiated in 1990 is still pending in mid-1995
                                                                      Action brought on 24 September 1996 by the Commission
    is also unconvincing given that the solution 'put
                                                                      of the European Communities against the French
    forward ' in 1990 was to be valid for only three years
                                                                                                     Republic
    according to the wording of the request.
                                                                                               ( Case C-312/96 )
(') Letter of 24 August 1990 from the Commission to the other                                    ( 96/C 354/32 )
    Member States and the communication to the Council of
    22 October 1990 [ SEC(90 ) 2031 final ].                          An action against the French Republic was brought before
                                                                      the Court of Justice of the European Communities on
                                                                      24 September 1996 by the Commission of the European
                                                                      Communities, represented by Hendrik van Lier, Legal
                                                                      Adviser, acting as Agent, with an address for service in
                                                                      Luxembourg at the office of Carlos Gomez de la Cruz,
                                                                      Wagner Centre, Kirchberg.
Action brought on 24 September 1996 by the Commission
of the European Communities against the French                        The Commission of the European Communities claims that
                             Republic                                 the Court should :
                        ( Case C-311 /96 )
                          ( 96/C 354/31 )                             — declare that, by failing to adopt the laws, regulations and
                                                                          administrative measures necessary in order to comply
                                                                          with Council Directive 93/36/EEC of 14 June 1993
An action against the French Republic was brought before                  coordinating procedures for the award of public supply
the Court of Justice of the European Communities on                       contracts ( ^ the French Republic has failed to fulfil its
24 September 1996 by the Commission of the European                       obligations under that Directive, in particular Article 34
Communities, represented by Hendrik van Lier, Legal                       thereof;
Adviser, acting as Agent, with an address for service in
Luxembourg at the office of Carlos Gomez de la Cruz,                  — declare, in the alternative, that, by failing forthwith to
Wagner Centre, Kirchberg.                                                 inform the Commission of such measures, the French