CELEX: C2000/079/17
Language: en
Date: 2000-03-18 00:00:00
Title: Case C-500/99 P: Appeal brought on 22 December 1999 by Conserve Italia Soc. Coop. arl, established at St Lazzaro di Savena, against the judgment delivered on 12 October 1999 by the Third Chamber of the Court of First Instance of the European Communities in Case T-216/96 between Conserve Italia Soc. Coop. arl and Commission of the European Communities

18.3.2000              EN                   Official Journal of the European Communities                                         C 79/9
     obligations under the fourth paragraph of Article 249 EC          Appeal brought on 22 December 1999 by Conserve Italia
     and Articles 2 and 3 of the aforementioned decisions; and         Soc. Coop. arl, established at St Lazzaro di Savena, against
                                                                       the judgment delivered on 12 October 1999 by the Third
— Order the Kingdom of Spain to pay the costs.                         Chamber of the Court of First Instance of the European
                                                                       Communities in Case T-216/96 between Conserve Italia
                                                                       Soc. Coop. arl and Commission of the European Com-
Pleas in law and main arguments                                                                     munities
Pursuant to Article 249 EC, the 1989 and 1998 decisions are                                    (Case C-500/99 P)
binding in every respect upon the Member State to which they
were addressed, in this case the Kingdom of Spain, by virtue
                                                                                                 (2000/C 79/17)
of their having been notified on 5 March 1990 and 29 October
1998 respectively.
                                                                       An appeal against the judgment delivered on 12 October 1999
On 28 December 1998 the Kingdom of Spain brought an                    by the Third Chamber of the Court of First Instance of the
action for annulment under Article 173 of the EC Treaty                European Communities in Case T-216/96 between Conserve
(230 EC). That action brought before the Court against the             Italia Soc. Coop. arl and Commission of the European
1998 decision under Case Number C-480/98 has no suspen-                Communities was brought before the Court of Justice of the
sory effect (Article 242 EC).                                          European Communities on 22 December 1999 by Conserve
                                                                       Italia Soc. Coop. arl, formerly known as Massalombarda
                                                                       Colombani SpA, represented by Marina Averani and Andrea
The Commission considers that the Kingdom of Spain has                 Pisaneschi, of the Siena Bar, Paolo De Caterini, of the Rome
failed to fulfil its obligations under the fourth paragraph of         Bar, and Stefano Zunarelli, of the Bologna Bar, with an address
Article 249 EC and under Articles 2 and 3 of the 1989 and              for service in Luxembourg at the Chambers of Charles Turk,
1998 decisions, by failing to adopt all the measures necessary         13B Avenue Guillaume, Luxembourg.
to recover the aid. Moreover, even supposing that the measures
adopted to date by the Kingdom of Spain were to be deemed
sufficient to comply with Article 2 of the 1989 and 1998               The appellant claims that the Court should:
decisions, such measures were not adopted within the
two-month period following notification, so that the Kingdom
                                                                       — set aside or vary the contested judgment;
of Spain has nonetheless failed to fulfil its obligation under
Article 3 of each decision.
                                                                       — accordingly, annul Commission Decision C (96) 2760;
In order to comply with the 1989 decision, the Governments
of the Basque Country, Cantabria and Andalusia should have             — order the respondent to pay the costs.
sought the repayment of the aid by the actual beneficiaries,
namely Indosa, Cunosa, Gursa and Migsa, either directly or
through the intermediary companies Ficodesa, Gemacasa and
Damna, through which the aid had been channelled. However,             Pleas and main arguments
up to the initiation of these proceedings, the aforementioned
regional governments have at best done no more than ask for            1. According to the Court of First Instance, the irregularities
the return of the aid from the intermediary companies, which                relating to the project stem from the fact that it should be
have no assets of their own, so that the requests for repayment             regarded as having started when the contracts for machin-
have met with no success.                                                   ery were concluded — albeit subject to conditions —
                                                                            rather than when payment is made, invoices issued or even
                                                                            when they are actually performed.
So far as concerns the 1998 decision, the TSS and the Hacienda
Foral de Vizcaya account, together with the remaining public
creditors of Indosa, for 82.65 % of the amount of admitted                  That conclusion has no support in law but appears to be
debts and have therefore a large majority in the Indosa’s                   in conflict with the applicable legislation.
Committee of Inspection. However, the TSS has not adopted
any of the measures open to it, such as requesting the courts          2. In the appellant’s view, the Court of First Instance was
to call a creditors’ meeting or dismiss the receivers. In any               wrong to hold that the first subparagraph of Article 15(2)
event, the fact that it was not possible to reach an agreement              Regulation 4253/88 did not apply to the instant case,
among the creditors as a result of not being able to find a                 since all the expenditure was incurred during the six
buyer interested in acquiring the assets does not make it                   months preceding the beginning of the action.
‘absolutely impossible’ to comply with the 1998 decision,
since it would still be possible to wind up Indosa.
                                                                       3. The infringements complained of constituted only 28 % of
                                                                            the amount of the investment. In such circumstances, the
(1) OJ 1991 L 5, p. 18.                                                     legislation should possibly have provided for the reduction
                                                                            of the contribution rather than its withdrawal. The appel-
                                                                            lant is of the view that the legislation in force does not
                                                                            allow for the contribution to be withdrawn totally.
 ---pagebreak--- C 79/10                EN                  Official Journal of the European Communities                                     18.3.2000
4. The contested judgment is also vitiated by a breach of             Action brought on 22 December 1999 by the Commission
    Community law by the Court of First Instance inasmuch             of the European Communities against the French Republic
    as it misapplied the principle of proportionality, misasses-
    sed the Commission’s power of discretionary power and
                                                                                               (Case C-502/99)
    broke with precedent.
                                                                                                (2000/C 79/19)
                                                                      An action against the French Republic was brought before the
                                                                      Court of Justice on 22 December 1999 by the Commission of
                                                                      the European Communities, represented by Christopher Van
                                                                      der Hauwaert, of its Legal Service, acting as Agent, with an
                                                                      address for service in Luxembourg at the office of Carlos
                                                                      Gómez de la Cruz, of its Legal Service, Wagner Centre,
Action brought on 22 December 1999 by the Commission                  Kirchberg.
of the European Communities against the French Republic
                                                                      The Commission of the European Communities claims that
                                                                      the Court should:
                         (Case C-501/99)
                                                                      — declare that, by failing to adopt within the prescribed
                                                                           time-limit the laws, regulations and administrative pro-
                          (2000/C 79/18)                                   visions necessary to comply with Council Directive
                                                                           97/61/EC of 20 October 1997 amending the Annex to
                                                                           Directive 91/492/EEC laying down the health conditions
An action against the French Republic was brought before the
                                                                           for the production and placing on the market of live
Court of Justice on 22 December 1999 by the Commission of
                                                                           bivalve molluscs (1), the French Republic has failed to
the European Communities, represented by Christopher Van
                                                                           comply with its obligations under the Treaty;
der Hauwaert, of its Legal Service, acting as Agent, with an
address for service in Luxembourg at the office of Carlos
Gómez de la Cruz, of its Legal Service, Wagner Centre,               — order the French Republic to pay the costs.
Kirchberg.
                                                                      Pleas in law and main arguments
The applicant claims that the Court should:
                                                                      The pleas in law and main arguments are analogous to those
— declare that, by failing to adopt within the prescribed             in Case C-495/99 (2); the period prescribed by Article 2 of
    time-limit the laws, regulations and administrative pro-          Directive 97/61/EC expired on 1 July 1998.
    visions necessary to comply with Council Directive
    95/69/EC laying down the conditions and arrangements
    for approving and registering certain establishments and          (1) OJ L 295 of 29.10.1997, p. 35.
    intermediaries operating in the animal feed sector and            (2) OJ C 63, 4.3.2000, p. 16.
    amending Directives 70/524/EEC, 74/63/EEC, 79/373/EEC
    and 82/471/EEC’(1), the French Republic has failed to
    comply with its obligations under the Treaty;
— order the French Republic to pay the costs.
                                                                      Action brought on 22 December 1999 by the Commission
Pleas in law and main arguments                                       of the European Communities against the Kingdom of
                                                                                                    Belgium
The pleas in law and main arguments are analogous to those                                     (Case C-503/99)
in Case C-495/99 (2); the period prescribed by Article 21 of
Directive 95/69/EC expired on 1 April 1998.
                                                                                                (2000/C 79/20)
(1) OJ L 332 of 30.12.1995, p. 15.                                    An action against the Kingdom of Belgium was brought before
(2) OJ C 63, 4.3.2000, p. 16.                                         the Court of Justice on 22 December 1999 by the Commission
                                                                      of the European Communities, represented by Maria Patakia,
                                                                      of its Legal Service, acting as Agent, with an address for service
                                                                      in Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                      Wagner Centre, Kirchberg.