CELEX: C1998/327/09
Language: en
Date: 1998-10-24 00:00:00
Title: Action brought on 23 July 1998 by the Italian Republic against the Commission of the European Communities (Case C-295/98)

24.10.98              EN                  Official Journal of the European Communities                                    C 327/5
concerning the obligations inherent in the concept of a              pending before that court between Ermanno Agostini and
public service in transport by rail, road and inland                 Emanuele Agostini and Ligue Francophone de Judo et
waterway (OJ, English Special Edition 1969 (I), p. 276),             Disciplines AssocieÂes ASBL and Ligue Belge de Judo ASBL
as amended by Council Regulation (EEC) No 1893/91 of                 on the interpretation of Articles 6, 48 and 59 of the EC
20 June 1991 (OJ L 169, 29.6.1991, p. 1), in particular              Treaty, of Regulation (EEC) No 1612/68 of the Council of
Article 1(3) in conjunction with Article 4 thereof Ð the             15 October 1968 on freedom of movement for workers
Court (Sixth Chamber), composed of: H. Ragnemalm,                    within the Community (OJ, English Special Edition
President of the Chamber, R. Schintgen, G. F. Mancini,               1968 (II), p. 475), and of Council Directive 73/148/EEC
P. J. G. Kapteyn (Rapporteur) and G. Hirsch, Judges;                 of 21 May 1973 on the abolition of restrictions on
P. LeÂger, Advocate General; H. von Holstein, Deputy                 movement and residence within the Community for
Registrar, for the Registrar, has given a judgment on                nationals of Member States with regard to establishment
17 September 1998, in which it has ruled:                            and the provision of services (OJ L 172, 19.6.1973, p. 14)
                                                                     Ð the Court, composed of: G. C. Rodríguez Iglesias,
                                                                     President, C. Gulmann, H. Ragnemalm, M. Wathelet and
Regulation (EEC) No 1191/69 of the Council of 26 June                R. Schintgen, Presidents of Chambers, G. F. Mancini
1969 on action by Member States concerning the                       (Rapporteur), J. C. Moitinho de Almeida, P. J. G.
obligations inherent in the concept of a public service in           Kapteyn, J. L. Murray, D. A. O. Edward, J.-P. Puissochet,
transport by rail, road and inland waterway, as amended              G. Hirsch, P. Jann, L. Sevón and K. M. Ioannou, Judges,
by Council Regulation (EEC) No 1893/91 of 20 June                    G. Cosmas, Advocate General, R. Grass, Registrar, made
1991, in particular Article 1(3) and Article 4 thereof, must         an order on 8 July 1998, the operative part is as follows:
be construed as not obliging the Member States to grant
an application by a transport undertaking for partial
termination of its public service obligation, even if that
undertaking shows that maintaining the obligation                    The reference for a preliminary ruling made by the
involves economic disadvantages for it. However, the only            Tribunal de PremieÁre Instance, Namur, by order of that
ground for refusing such an application is the need to               court of 5 January 1998, is inadmissible.
ensure adequate transport services. That concept is to be
assessed, in accordance with Article 3 of Regulation
                                                                     (1) OJ C 72, 7.3.1998.
(EEC) No 1191/69, by reference to the public interest, the
possibility of having recourse to other forms of transport
and the ability of such forms to meet the transport needs
under consideration, and the transport rates and
conditions which can be quoted to users. Where there
are several ways of ensuring, while satisfying similar
conditions, the provision of adequate transport services,
the competent authorities are to select the way least costly         Action brought on 23 July 1998 by the Italian Republic
to the community.                                                       against the Commission of the European Communities
                                                                                            (Case C-295/98)
(1) OJ C 74, 8.3.1997.
                                                                                             (98/C 327/09)
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of Justice of
                  ORDER OF THE COURT                                 the European Communities on 23 July 1998 by the Italian
                        of 8 July 1998                               Republic, represented by Professor Umberto Leanza,
                                                                     acting as Agent, assisted by Danilo Del Gaizo, Avvocato
in Case C-9/98: Ermanno Agostini and Emanuele Agostini               dello Stato, with an address for service in Luxembourg at
v Ligue Francophone de Judo et Disciplines AssocieÂes                the Italian Embassy, 5 Rue Marie-Adelaïde.
           ASBL and Ligue Belge de Judo ASBL (1)
    (Reference for a preliminary ruling Ð Inadmissibility)
                                                                     The applicant claims that the Court should:
                        (98/C 327/08)
                (Language of the case: French)                       Ð Annul Commission Decision 98/358/EC of 6 May
                                                                         1998 (1) in so far as, in clearing the accounts presented
                                                                         by the Italian Republic in respect of expenditure for
  (Provisional translation; the definitive translation will be           1994, it declares that, for the reasons set out therein,
          published in the European Court Reports)                       the amounts referred to are not chargeable to the
                                                                         EAGGF;
In Case C-9/98: reference to the Court under Article 177
of the EC Treaty from the Tribunal de PremieÁre Instance,
Namur, for a preliminary ruling in the proceedings                   Ð Order the Commission to pay the costs.
 ---pagebreak--- C 327/6               EN                   Official Journal of the European Communities                                 24.10.98
Pleas in law and main arguments adduced in support:                   C. Cereals, rice, seeds and sugar
                                                                         (1) Identifiable loss of durum wheat Ð natural
A. Export refunds Ð inquiry on prefinancing for beef                         disaster
                                                                             The Commission adopted the adjustment in
    The Italian Government submits that, given the                           question pending a specific decision and the
    following factors, the fixed-rate adjustment ought to                    report on the disaster and the loss sustained' to be
    have been based on the minimum rate (2 % instead                         transmitted to the EAGGF.
    of 5 %):
                                                                             The Italian Government considers the adjustment
    (i) as the Conciliation Body recognised, there is no                     to be unlawful for infringement of both
         firm evidence of serious risk for the EAGGF, in                     substantive law and essential procedural
         view of the fact that comparatively few checks                      requirements. Pursuant to Articles 5(5), second
         were carried out or irregularities found;                           sentence, and 8 of Council Regulation (EEC)
                                                                             No 3492/90 (4), in conjunction with Article 2(3)(b)
                                                                             of Commission Regulation (EEC) No 3597/90 (5),
                                                                             the Commission should have adopted a specific
    (ii) the cooking of the beef prior to the customs
                                                                             decision in accordance with the procedure
         inspection does not in itself suggest substantive
                                                                             provided for in Article 13 of Council Regulation
         irregularities in so far as it was monitored by a
                                                                             (EEC) No 729/70 in order also to establish the
         State body, namely the Istituto Nazionale per le
                                                                             value of the quantities concerned.
         Conserve Alimentari (INCA), on which that
         responsibility was conferred by Ministerial Decree
         of 5 July 1989.
                                                                         (2) Quantity of durum wheat found to be missing
                                                                             at the time of the sale and transfer of cereals
                                                                             stored by an ente assuntore' (private intervention
B. Export refunds Ð inspections ex post facto under                          storage agency)
    Council Regulation (EEC) No 4045/89 (2)
                                                                             The AIMA was unable to establish and quantify
                                                                             the missing quantities of durum wheat until
    The Italian Government considers the 2 % fixed-rate                      December 1994, so it is only from that date that
    adjustment applied by the Commission to be unlawful                      the EAGGF may lawfully deduct 80 948.394
    because it was calculated on the basis of the full                       tonnes of durum wheat from the Community
    amount of the expenditure incurred. That method of                       stocks. As that new month for deduction [i.e.
    calculation is contrary to Article 8(2) of Council                       December 1994] falls within the following
    Regulation No 729/70 (3) Ð on which the Commission                       financial year, none of the negative adjustments
    based its exercise of the power to make adjustments                      required of the Italian authorities may be applied
    Ð which provides that the financial consequences                         to the financial year 1994.
    arising from irregularities or negligence are to be
    borne by the Community, with the exception of the
    consequences       of    irregularities    or    negligence
    attributable to administrative authorities or other                      The Commission's decision to deduct the missing
    bodies of the Member States.                                             quantities from the February 1994 stocks is based
                                                                             on mere supposition, whereas the finding of a
                                                                             shortfall at the time of clearing the warehouses is
                                                                             indisputable fact.
    Clearly, therefore, the Commission should have
    calculated the adjustment solely in respect of the
    amount subject to review, because the infringements                  (3) Disposal of stocks without losses
    allegedly committed by the Italian State related only to
    that amount.
                                                                             As regards the financial year 1994, on the other
                                                                             hand, the failure to notify further losses stems
                                                                             from the fact that these fall wholly within
    For the same reasons, the method of calculation used                     the tolerance threshold provided for by the
    is contrary to the principle of proportionality.                         Community legislation in force (2 %).
 ---pagebreak--- 24.10.98             EN                  Official Journal of the European Communities                                    C 327/7
         Accordingly, it is quite unlawful and unjustified          E. Wine Ð compulsory distillation
         for the EAGGF to deduct from the Community
         stocks the quantity of 4 963.651 tonnes of durum
         wheat which is based on the estimated quantity'              The Italian Government contests the new financial
         of the product in the various warehouses on the               adjustment as a matter of principle, on the ground
         date when the CCIA undertook the verification.                that there is no legal basis for regarding the Member
                                                                       States as directly responsible for the result of
                                                                       distillation, which is compulsory solely in respect of
         Commission Regulation (EEC) No 618/90 (6),                    the products covered.
         which is the basis for such verifications, provides
         that the entire quantity of durum wheat
         considered to be missing may be deducted from                 It also contests the rules for allocating the compulsory
         the Community stocks only in cases where the                  quantities between the Member States and the table
         tolerance set for the volumetric estimate (5 %                indicating the wine percentages which each producer
         more or less) is exceeded.                                    must send for compulsory distillation.
                                                                       The Italian Government also maintains that the
    (4) Durum wheat as food aid for Algeria
                                                                       EAGGF has not suffered any damage on account
                                                                       of the failure to comply with the obligations entailed
                                                                       by compulsory distillation because the volume of
         There is nothing in the documents before the                  undistilled wine is so low and because the EAGGF did
         AIMA and the EAGGF to suggest that quantities                 not assign any funds in respect of that quantity, either
         of durum wheat have been set aside to be sent as              for distillation or purchase of the alcohol, or for its
         food aid to Algeria. Accordingly, the quantities of           storage.
         the product at issue are not of Community origin
         (intervention) but of national origin and cannot
         therefore be subject to financial adjustment.              F. Meat and fish
                                                                       (1) Stock accounting adjustments for bone-in beef in
D. Wine Ð permanent abandonment of wine-growing                              the statement of annual expenditure
    areas
                                                                       (2) Inaccurate declaration of expenses for the second
                                                                             half of October 1994 (bone-in beef)
    The analysis undertaken by the Commission discloses,
    in particular, that certain areas in respect of which a
    premium was granted were either over-estimated                     The deductions in this regard for 1994 spring from a
    or under-estimated. The Community bodies have                      stock accounting verification made on 30 September
    indicated that the discrepancy in the amounts paid Ð               1993, in which the Commission detected losses of
    calculated by comparing the area for which a premium               1 204 tonnes of product.
    was granted with the area eligible for a premium Ð
    was 5 %. Subsequently, the Commission indicated that
    that percentage had to be extended to cover all the                The proposed reduction for 1993, referred to above,
    premiums paid in Italy in the 1992/93 wine year in                 was designed to recoup the value of the product
    view of the fact that the alleged infringements were so            regarded as lost.
    numerous and similar that they could be regarded as
    representative of the true state of affairs in Italy.
                                                                       AIMA's summary of the accounts from 1991 to 1995,
                                                                       indicating the alleged losses in volume, shows that
                                                                       those losses, albeit not precisely attributed to the
    The Italian Government considers the adjustment to                 reference years, collectively cover the presumed loss of
    be unlawful in respect of:                                         1 204 tonnes, and fall well short of the losses for
                                                                       which the Community legislation makes allowance.
    Ð    the representativity of the sample;
                                                                    G. Disjunction 1992 Ð illegal plantings of vines in
                                                                       Apulia
    Ð    the method       of   calculating    the   percentage
         discrepancy;                                                  The adjustment following two consecutive clearances
                                                                       of the accounts in question for the 1992 and 1993
                                                                       financial years is justified on the basis of a comparison
    Ð    the way in which the result was extended to                   of the 1989 and the 1992 figures for the winegrowing
         cover the whole territory.                                    areas.
 ---pagebreak--- C 327/8                EN                    Official Journal of the European Communities                                        24.10.98
    According to the Commission, that comparison does                   preliminary ruling in the case of Schutzverband gegen
    not explain the replanting of 2 446 hectares of vines.              Unwesen in der Wirtschaft e.V. v Warsteiner Brauerei
                                                                        Haus Cramer GmbH & Co. KG on the following
                                                                        question:
    The Italian authorities' failure to shed any light on
    that point led the Commission to conclude that the                  Does Council Regulation (EEC) No 2081/92 of 14 July
    area must be considered to have been unlawfully                    1992 on the protection of geographical indications and
    planted, giving rise without any financial aim to                   designations of origin for agricultural products and
    expenditure for the grubbing-up of that same surface                foodstuffs (1) preclude application of a national provision
    area' and it set the adjustment at LIT 31 861 816 140,              which prohibits the misleading use of a simple
    multiplying the number of hectares considered to be                 geographical designation of origin, that is, an indication in
    illegally planted by the value of the average cessation             the case of which there is no link between the
    premium paid for Apulia between 1989 and 1992                       characteristics of the product and its geographical origin?
    pursuant to Council Regulation (EEC) No 1442/88 (7).
                                                                        (1) OJ L 208, 24.7.1992, p. 1.
    The Italian Government maintains that the adjustment
    is unlawful because Council Regulation (EEC) No 822/
    87 (8) on the common organisation of the market in
    wine is silent on the question of financial penalties
                                                                        Reference for a preliminary ruling from the Oberlandes-
    applicable to individual cases and merely provides, in
                                                                        gericht Köln, by order of that court of 4 August 1998 in
    respect of vines planted or re-planted without
                                                                        proceedings concerning an administrative fine imposed on
    authorisation, for compulsory distillation of the yield
                                                                                                  Arnold Claasen
    to be used in the preparation of alcohol with an actual
    alcoholic strength by volume of at least 80 %                                                (Case C-313/98)
    (Articles 6(3) and 7(4)).                                                                     (98/C 327/11)
                                                                        Reference has been made to the Court of Justice of the
    In any case, the subtraction of the adjustment amount               European Communities by order of the Oberlandesgericht
    from the sum paid for grubbing-up with a premium                    Köln (Higher Regional Court, Cologne) of 4 August 1998,
    pursuant to Regulation (EEC) No 1442/88 seems                       received at the Court Registry on 13 August 1998, for a
    unwarranted, since those amounts were paid for the                  preliminary ruling in the proceedings concerning an
    grubbing-up of existing vines.                                      administrative fine imposed on Arnold Claasen, on the
                                                                        following question (1):
(1) OJ L 163, 6.6.1998, p. 28.
(2) OJ L 388, 30.12.1989, p. 18.                                        Does the amount of the charge payable under Article 8(1)
(3) OJ, English Special Edition 1970(I), p. 218.                        of the Agreement depend solely on the number of
(4) OJ L 337, 4.12.1990, p. 3.                                          axles fitted to the motor vehicle or articulated vehicle
(5) OJ L 350, 14.12.1990, p. 43.                                        combination in question, regardless of whether an axle is
(6) OJ L 67, 15.3.1990, p. 21.
                                                                        used or raised during the journey, or are tandem axles/
(7) OJ L 132, 28.5.1988, p. 3.
(8) OJ L 84, 27.3.1987, p. 1.                                           raisable axles to be left out of account in calculating the
                                                                        charge?
                                                                        (1) Concerning the interpretation of Article 8(1) of the Agreement
                                                                            of 9 February 1994 on the levying of charges for the use of
                                                                            certain roads by heavy commercial vehicles (Bundesgesetzblatt
                                                                            [Federal Gazette], Part II, p. 1768).
Reference for a preliminary ruling from the Bundes-
gerichtshof by order of that court of 2 July 1998 in the
case of Schutzverband gegen Unwesen in der Wirtschaft
e.V. v Warsteiner Brauerei Haus Cramer GmbH & Co.
                                KG                                      Reference for a preliminary ruling from the Nederlandse
                                                                        Raad van State by judgment of that court of 10 August
                        (Case C-312/98)                                 1998 in the case of Snellers Auto's B.V. against Algemeen
                                                                                      Directeur van de Dienst Wegverkeer
                          (98/C 327/10)
                                                                                                 (Case C-314/98)
                                                                                                  (98/C 327/12)
Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesgerichts-                 Reference has been made to the Court of Justice of the
hof (Federal Court of Justice) of 2 July 1998, which was                European Communities by judgment of the Netherlandse
received at the Court Registry on 12 August 1998, for a                 Raad van State (Netherlands Council of State) of