CELEX: C2000/122/11
Language: en
Date: 2000-04-29 00:00:00
Title: Case C-3/00: Action brought on 6 January 2000 by the Government of the Kingdom of Denmark against the Commission of the European Communities

C 122/6                 EN                     Official Journal of the European Communities                                      29.4.2000
Reference for a preliminary ruling by the Sozialgericht                   Action brought on 6 January 2000 by the Government of
Nürnberg by order of that court of 22 November 1999 in                    the Kingdom of Denmark against the Commission of the
the case of (1) Alfredo Martinez Dominguez, (2) Joaquin                                        European Communities
Benitez Urbano, (3) Agapito Mateos Cruz, (4) Carmen
Dolores Calvo Fernandez against Bundesanstalt für
                                                                                                      (Case C-3/00)
                     Arbeit, Kindergeldkasse
                                                                                                    (2000/C 122/11)
                          (Case C-471/99)
                                                                          An action against the Commission of the European Communi-
                          (2000/C 122/10)                                 ties was brought before the Court of Justice of the European
                                                                          Communities on 6 January 2000 by the Government of
                                                                          the Kingdom of Denmark, represented by Jørgen Molde,
Reference has been made to the Court of Justice of the                    Kontorchef in the Danish Ministry of Foreign Affairs, acting as
European Communities by order of the Sozialgericht Nürnberg               Agent, with an address for service in Luxembourg at the Royal
(Social Court, Nuremberg) of 22 November 1999, received at                Danish Embassy, 4 Boulevard Royal. The applicant claims that
the Court Registry on 9 December 1999, for a preliminary                  the Court should:
ruling in the case of (1) Alfredo Martinez Dominguez, (2)
Joaquin Benitez Urbano, (3) Agapito Mateos Cruz, (4) Carmen               — Annul the Commission’s decision of 26 October 1999
Dolores Calvo Fernandez against Bundesanstalt für Arbeit,                      on the national provisions notified by the Kingdom of
Kindergeldkasse, on the following questions:                                   Denmark concerning the use of sulphites, nitrites and
                                                                               nitrates in foodstuffs;
1. Is Article 77(2)(b) in conjunction with Article 79(1) of               — Order the Commission to pay the costs of the proceedings.
     Regulation (EEC) No 1408/71 (1) to be interpreted as
     meaning that family allowances for the dependent children
     of pensioners who acquired entitlement to a pension in a
     Member State not solely under the legislation of the                 Pleas in law and main arguments
     Member State but under the coordinating provisions of
     European social law, must be paid as a full benefit where            — Essential formal defects
     the pension entitlement from the state of non-residence
     subsists in respect of periods or only as from a period in                — failure to provide Denmark with an opportunity to
     respect of which there is no (or no longer any) entitlement                   state its case before the contested decision was adopted
     to family benefit provided for under the legislation of the
     state of residence owing either to the fact that an age limit                 The principle of audi alteram partem was infringed
     or an income limit has been exceeded or it was not applied                    inasmuch as the Danish Government was not given an
     for?                                                                          opportunity to set out its views on the content or
                                                                                   implications of the Commission’s decision prior to its
                                                                                   adoption.
2. Is Article 78(2)(b) in conjunction with Article 79(1) of
     Regulation (EEC) No 1408/71 to be interpreted as meaning
     that family allowances for orphans of a deceased employee                 — failure to provide Denmark with an opportunity to
     or self-employed person, to whom the legislation of several                   state its views on the opinions received from other
     Member States applied, must be paid as a full benefit,                        countries
     where there is no entitlement to an orphan’s pension in a
     Member State whose legislation applied, either solely                         These opinions must be assumed to have had an
     under the legislation of the Member State or under                            influence on the Commission’s decision and the Com-
     the coordinating legislation of European social law, and                      mission ought to have given Denmark an opportunity
     entitlement to the orphan’s pension from the state of                         to comment on those opinions, which are to some
     non-residence subsists in respect of periods or only as                       extent based on a misunderstanding of the Danish
     from a period in respect of which there is no (or no longer                   rules.
     any) entitlement to family benefit provided for under the
     legislation of the state of residence owing either to the fact       — Legal defects
     that an age limit or an income limit was exceeded or it was
     not applied for?                                                          — The Commission’s decision is based on an error of law:
                                                                                   In determining rules, it is not possible to draw a
                                                                                   distinction between the assessment of a given substance
(1) English Special Edition 1971 (II), p. 416.                                     in regard to health and the assessment of the techno-
                                                                                   logical need governing its use. The use of any given
                                                                                   additive involves a potential risk to human health, and
                                                                                   its use can therefore be authorised only in so far as
                                                                                   there is a technological need for it. Technological need
                                                                                   is thus a relevant criterion in assessing matters relating
 ---pagebreak--- 29.4.2000             EN                     Official Journal of the European Communities                                        C 122/7
       to human health in Article 30 of the Treaty and                         proportionality: the discretion conferred on the Com-
       consequently also in Article 95(4) of the Treaty. The                   mission by Article 95 EC also imposes on it a special
       Commission errs in law when it states that technologi-                  obligation to base its decision on a scientifically correct
       cal need has no connection with the objective of                        and fully reasoned basis. That has not been done in
       protecting public health, as mentioned in Article 30 of                 this case. In its decision, the Commission confined
       the Treaty. The Danish Government does not agree                        itself to setting out entirely undocumented allegations
       that, once the EU’s law-making institutions have                        concerning technological needs. In contrast to the
       assessed the relevant matters and adopted a legal                       directive’s maximum levels for the use of nitrites and
       measure, the Member States are no longer entitled                       nitrates in foodstuffs, the Danish rules are fully in
       to question that assessment, since the objective of                     accordance with the recommendations made by the
       Article 95(4) and (6) is precisely to give the Member                   Scientific Committee on Food (the Committee’s
       States an opportunity, should they find it necessary,                   opinions from 1990 and 1995). This fact establishes a
       to maintain national provisions on the basis of an                      clear presumption that the Danish rules accord with
       assessment other than that made by the EU institutions.                 the principle of proportionality.
                                                                           — So far as sulphites are concerned, the Commission’s
                                                                               decision is based on an error of law, as well as on a
   — So far as nitrites and nitrates are concerned, the
                                                                               misapplication of the principle of proportionality.
       Commission’s decision is based on misapplication of
       the principle of proportionality
                                                                               The designation, by the Danish rules, of the products
                                                                               in which sulphites are permitted is neither arbitrary
                                                                               nor inconsistent, as the Commission suggests. The
       It is clear from the contested decision that the Com-                   choice of products is not arbitrary, since what is
       mission takes the view that the Danish measures go                      involved is the maintenance of the applicable Danish
       further than is necessary to protect human health, and                  rules in accordance with Article 95(4) of the Treaty.
       that technological need has no connection with the                      The rules in force are based on a careful examination
       objective of protecting public health, as mentioned in                  of, first, how low the quantities of sulphites may be in
       Article 30 of the Treaty. The Commission thus appears                   order to satisfy the technological need in various
       to believe that the Danish measures constitute an                       products and, second, the products for which alterna-
       unnecessary (over)protection of public health. In this                  tive conservation methods may be found.
       regard the Commission’s decision is based on misappli-
       cation of the principle of proportionality. There is in
       this case no scientific uncertainty with regard to the
       fact that carcinogenic nitrosamines are created when                    Further, the Danish rules are proportionate inasmuch
       nitrites and nitrates are added to meat products. The                   as they are in full accord with the recommendations
       EU’s Scientific Committee on Food has concluded that                    made by the Scientific Committee on Food (the
       it is not possible to set a lower limit below which no                  Committee’s opinion of 25 February 1994).
       risk of contracting cancer exists if nitrosamines are
       ingested, and thus it must a fortiori be possible for
       Member States to adopt measures for the protection of               — The Commission erroneously includes the issue of
       human health, in accordance with the precautionary                      special conditions in Denmark in the grounds of its
       principle. The principle of proportionality must be                     decision
       construed as not precluding national measures which,
       in order to protect human health, lay down maximum
       values for the use of nitrites and nitrates in foodstuffs
       which correspond to the strictly necessary technologi-                  The issue of whether special conditions exist in a
       cal need to achieve the requisite preservative effect in                Member State such as to justify application of
       the meat products in question and to dispel any danger                  Article 95(4) is not mentioned in the matters set out in
       to health from microbiological contamination. The                       that provision. Article 95(4) mentions only ‘major
       Danish rules have been laid down in accordance with                     needs referred to in Article 30, or relating to the
       these requirements of proportionality, and the Danish                   protection of the environment or the working environ-
       maximum values allow products to be marketed in                         ment’.
       respect of which the addition of nitrites and nitrates
       satisfies a real technological need.
                                                                           — The Commission’s decision is based on a series of
                                                                               factually incorrect and/or incomplete assumptions.
       In the alternative, it is submitted that the Commission,
       in its decision, manifestly exceeded the limits of                  — Defective statement of views, infringement of
       its discretion in its application of the principle of                   Article 95(6) of the Treaty
 ---pagebreak--- C 122/8                EN                   Official Journal of the European Communities                                     29.4.2000
         The Commission failed to address the question, as it          on the control of administrative bodies amount to restrictions
         should have done under Article 95(6), whether the             on the establishment of companies, in particular in the case of
         Danish rules notified are a means of arbitrary discrimi-      branch offices, agencies or subsidiaries of companies estab-
         nation or a disguised restriction on trade between            lished in other Member States where such restrictions do not
         Member States, or whether they constitute an obstacle         exist. In the case of companies or firms managed by nationals
         to the functioning of the internal market.                    of non-Member countries, the restrictions would force them
                                                                       to change the composition of their administrative bodies
     — Defective statement of reasons.                                 should they wish to register a ship and establish themselves
                                                                       in France. Consequently, the requirements laid down in
                                                                       Article 3(2)(a), (b) and (c) infringe Article 48 in that they
                                                                       impose on the holders of capital and on the administrative
                                                                       organs of companies or firms nationality requirements which
                                                                       are not stipulated in Article 48. Those requirements thus cause
                                                                       companies or firms to be treated differently from natural
                                                                       persons as regards freedom of establishment when registering
                                                                       a ship. Although the provisions apply without discrimination
Action brought on 6 January 2000 by the Commission of                  to both French and foreign EEC companies or firms, they
 the European Communities against the French Republic                  nevertheless infringe Article 43 and Article 48, as do
                                                                       Article 3(3) and (4) and Article 3-1(1) and (2) in so far as they
                           (Case C-4/00)                               refer to Article 3(2). Failure by a Member State to fulfil its
                                                                       obligations — Articles 43 and 48 of the EC Treaty —
                                                                       conditions under which commercial vessels may sail under the
                         (2000/C 122/12)                               French flag — nationality requirements for holders of company
                                                                       capital and directors.
An action against the French Republic was brought before the
Court of Justice of the European Communities on 6 January
2000 by the Commission of the European Communities,
represented by Frank Benyon, Legal Adviser, and Bernard
Mongin, of its Legal Service, acting as Agents, with an address
for service in Luxembourg at the office of Carlos Gómez de la
Cruz, also of its Legal Service, Wagner Centre, Kirchberg.
                                                                       Action brought on 14 January 2000 by Commission of
The Commission of the European Communities claims that                 the European Communities against European Central
the Court should:                                                                                     Bank
1. Declare that, by keeping in force Article 3 and Article 3-1                                   (Case C-11/00)
     of Law No 67-5 defining the status of ships and other
     sea-going vessels, and Article 219 of the Customs Code, as                                 (2000/C 122/13)
     amended by Law No 96-151 of 26 February 1996 on
     transport, the French Republic has failed to fulfil its
     obligations under Article 43 and Article 48 of the EC             An action against European Central Bank was brought before
     Treaty;                                                           the Court of Justice of the European Communities on 14 Janua-
                                                                       ry 2000 by Commission of the European Communities,
2. Order the French Republic to pay the costs.                         represented by Christiaan Timmermans, Assistant Director
                                                                       General of the Legal Service, Hans Peter Hartvig and Ulrich
                                                                       Wölker, Legal Advisers, acting as Agents, with an address for
                                                                       service in Luxembourg at the office of Carlos Gómez de la
Pleas in law and main arguments                                        Cruz, of its Legal Service, Wagner Centre, Kirchberg.
Under the third subparagraph, letters (a), (b) and (c), of             The applicant claims that the Court should:
Article 3(2) of Law No 67-5, shipowners who adopt the
form of a company or firm must satisfy certain nationality             — annul the decision of the governors of the European
requirements in regard to both the members of its administrat-             Central Bank of 7 October 1999 on fraud prevention (1);
ive and managerial bodies (paragraph 2(a), (b) and (c)) and the
holders of its capital (paragraph 2(c)). However, the Member           — order the European Central Bank to pay the costs.
States are required to treat any company or firm satisfying the
criteria set out in Article 48 of the Treaty in the same way as
they treat natural persons who are nationals of other Member
States, even where the majority of the members of the board            Pleas in law and main arguments
are not nationals of a Member State of the Community, or
where the company or firm is set up by persons from                    Infringement of Regulation (EC) No 1073/1999 of the Euro-
non-Member countries, or is funded by capital from                     pean Parliament and of the Council of 25 May 1999 concern-
non-Member countries, or is a subsidiary of a parent company           ing investigations conducted by the European Anti-Fraud
established in a non-Member country. The French restrictions           Office (OLAF):