CELEX: C1999/299/21
Language: en
Date: 1999-10-16 00:00:00
Title: Case C-314/99: Action brought on 23 August 1999 by the Kingdom of the Netherlands against the Commission of the European Communities

C 299/18               EN                     Official Journal of the European Communities                                    16.10.1999
Reference for a preliminary ruling by the High Court,                    Action brought on 23 August 1999 by the Kingdom of
Dublin, by order of that court of 30 July 1999, in the case              the Netherlands against the Commission of the European
of Gerard Mulligan, Tim O’Sullivan, Tom Power and Hugh                                             Communities
Duncan against the Minister for Agriculture and Food,
               Ireland and the Attorney General
                                                                                                  (Case C-314/99)
                                                                                                  (1999/C 299/21)
                         (Case C-313/99)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 23 August 1999 by the Kingdom of the
                         (1999/C 299/20)                                 Netherlands, represented by Marc Fierstra, Head of the Euro-
                                                                         pean Law Department, and Nynke Wijmenga, a member of
                                                                         the Legal Service of the European Law Department of the
                                                                         Ministry of Foreign Affairs, The Hague.
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court, Dublin,
                                                                         The applicant claims that the Court should:
of 30 July 1999, which was received at the Court Registry on
18 August 1999, for a preliminary ruling in the case of Gerard
Mulligan, Tim O’Sullivan, Tom Power and Hugh Duncan                      (1) annul Commission Directive 1999/51/EC (1) of 26 May
against the Minister for Agriculture and Food, Ireland and the                1999 adapting to technical progress for the fifth time
Attorney General, on the following questions:                                 Annex I to Council Directive 76/769/EEC (2) on the
                                                                              approximation of the laws, regulations, and administrative
                                                                              provisions of the Member States relating to restrictions on
                                                                              the marketing and use of certain dangerous substances and
1. Is Article 7(1) of Council Regulation No 3950/92 (1) to be                 preparations (tin, PCP and cadmium), in so far as point 3
     interpreted as meaning that a Member State may provide                   in the Annex to Directive 1999/51/EC relates to cadmium;
     that a part of the reference quantity available on a holding
     shall not in the case of sale or lease be transferred with the      (2) order the Commission to pay the costs.
     holding to producers taking it over but shall instead be
     added to the national reserve by means of a ‘claw back’ or
     ‘siphoning off’ or some similar deduction mechanism?                Pleas in law and main arguments
                                                                         1. Misuse of powers.
2. If the answer to 1 above is in the affirmative is the
     procedure chosen by the Member State to make such                        — Point 3 in the Annex to Directive 1999/51/EC does
     provision subject only to principles of national law or is                   not concern an amendment within the meaning of
     the said procedure subject to the fundamental principles                     Article 2a of Directive 76/769/EEC; instead, it concerns
     of Community Law including a principle of legal certainty?                   a specific scheme relating to the use of cadmium in
                                                                                  Austria and Sweden in respect of the application of
                                                                                  Annex I to Directive 76/769/EEC. The contested
                                                                                  addition does not result from any scientific and/or
3. If the answer to 1 above is in the affirmative and the                         technical developments, particularly in the field of
     national procedure is subject to Community Law is a                          substitutes for cadmium.
     national procedure whereby the Member State by Statutory
     Instrument empowers the Competent Authority to make a                    — Point 3 in the Annex to Directive 1999/51/EC provides
     determination of the cases of transfers referred to in                       for a derogation from the application of Directive
     Article 7(1) of Council Regulation No 3950/92 where any                      76/769/EEC and, in particular, of Directive
     part of the Milk Quota is not to be transferred with the                     91/338/EEC (3). The contested derogation concerns a
     holding but added to the national reserve and provides                       provision which is designed to achieve the fundamental
     that such determination be made by administrative notice                     aims of the policy of the Community. Like the
     to be published in a national newspaper contrary to the                      1995 Accession Treaty, which laid down special
     principle of legal certainty in Community Law?                               arrangements with regard to the application of Direc-
                                                                                  tive 91/338/EEC to Austria and Sweden until 1 January
                                                                                  1999, it provides for an exception to the acquis
                                                                                  communautaire. This involves a policy decision which
                                                                                  requires a strategy assessment to be carried out.
(1) of 28 December 1992, establishing an additional levy in the milk              The implementation of Directive 76/769/EEC is not
    and milk products sector (OJ L 405, 31.12.1992, p. 1).                        involved. That means that it is the European Parliament
                                                                                  and the Council that have the competence to adopt,
                                                                                  on a proposal from the Commission, a special position
                                                                                  with regard to Austria and Sweden in respect of the
                                                                                  period commencing on 1 January 1999, in accordance
                                                                                  with Article 95 EC in conjunction with Article 251
                                                                                  EC. Consequently, the Commission has exceeded its
                                                                                  powers.
 ---pagebreak--- 16.10.1999             EN                   Official Journal of the European Communities                                       C 299/19
2. Infringement of Directive 76/769/EEC and, in particular,            The applicant claims that the Court should:
     of Directive 91/338/EEC: in that it provides, in relation to
     Austria and Sweden, for the power to prohibit the use of
     cadmium otherwise than as provided for in Annex I to              1. Declare that, by failing to adopt within the specified
     Directive 91/338/EEC, Directive 1999/51/EC is based on                 period the measures necessary to comply with Directive
     an incorrect interpretation of Directive 76/769/EEC, as                96/43/EC (1) the Federal Republic of Germany has failed to
     adapted by Directive 91/388/EEC. Directive 76/769/EEC is               fulfil its obligations under the EC Treaty and that directive;
     exclusively concerned with the uses to which cadmium
     may be put as expressly provided for in Annex I thereto.          2. Order the defendant to pay the costs of the proceedings.
     National restrictions on the uses to which cadmium may
     be put which are not provided for in Annex I to Directive
     76/769/EEC are permitted in so far as those restrictions
     are compatible with the EC Treaty, in particular Articles 28      Pleas in law and main arguments
     to 30 thereof.
3. Breach of the principle of legal certainty: Directive               In view of the binding nature of the provisions in Article 249
     1999/51/EC, taken as a whole refers only to the rules             EC, third paragraph, and Article 10 EC, first paragraph,
     applying in Austria and Sweden. Since the Austrian and            Member States are required to implement in their national law
     Swedish rules provide for restrictions on uses of cadmium         a directive addressed to them in such a way that it becomes
     which are not covered by Directive 76/769/EEC, there is a         fully effective when the period set for its implementation
     lack of clarity as to the scope of application of Directive       expires. That period, laid down in Article 4(1) and (2) of the
     76/769/EEC.                                                       Directive, expired on 1 July 1996/1 July 1997, without all
                                                                       the Federal Länder having hitherto adopted the necessary
4. Breach of the requirement to provide a statement of                 provisions.
     reasons: first of all, no reasons are given for the Com-
     mission’s view that the special position of Austria and
     Sweden with regard to the use of cadmium involves an
                                                                       (1) OJ 1996 L 162 of 1.7.1996, p. 1.
     adaptation to technical progress within the meaning of
     Article 2a of Directive 76/769/EEC. Nor are any reasons
     given as to which uses of cadmium are covered by the
     contested derogation. Moreover, no reasons are given as
     to why point 3 in the Annex to Directive 1999/51/EC
     purports to be based on technical progress and the
     existence of less dangerous substitutes. In addition, there
     should have been a statement of the reasons for which the
     Commission has expressly permitted Austria and Sweden,
     but not other Member States such as the Netherlands, to
     apply more rigorous restrictions.                                 Action brought on 26 August 1999 by the Commission
                                                                       of the European Communities against the French Republic
(1) OJ 1999 L 142, p. 22.
(2) OJ 1976 L 262, p. 201.                                                                        (Case C-319/99)
(3) OJ 1991 L 186, p. 59.
                                                                                                  (1999/C 299/23)
                                                                       An action against the French Republic was brought before the
                                                                       Court of Justice of the European Communities on 26 August
                                                                       1999 by the Commission of the European Communities,
                                                                       represented by Michel Nolin, of its Legal Service, acting as
Action brought on 24 August 1999 by the Commission                     Agent, with an address for service in Luxembourg at the office
of the European Communities against the Federal Repub-                 of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
                          lic of Germany
                                                                       The applicant claims that the Court should:
                         (Case C-316/99)
                                                                       (1) declare that, by failing to communicate within the pre-
                         (1999/C 299/22)                                    scribed time-limit the laws, regulations and administrative
                                                                            measures necessary in order to comply with Council
                                                                            Directive 95/47/EC of 24 October 1995 on the use of
An action against the Federal Republic of Germany was                       standards for the transmission of television signals (1),
brought before the Court of Justice of the European Communi-                alternatively by failing to adopt the measures necessary in
ties on 24 August 1999 by the Commission of the European                    order to comply therewith, the French Republic has failed
Communities, represented by Klaus-Dieter Borchardt, of its                  to fulfil its obligations under that directive;
Legal Service, acting as Agent, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, also of
its Legal Service, Wagner Centre C 254, Kirchberg.                     (2) order the French Republic to pay the costs.