CELEX: C1999/352/36
Language: en
Date: 1999-12-04 00:00:00
Title: Case C-343/99: Action brought on 16 September 1999 by the Kingdom of the Netherlands against the Commission of the European Communities

4.12.1999            EN                    Official Journal of the European Communities                                      C 352/23
Reference for a preliminary ruling by the Landesgericht               3. Order the Commission to pay default interest in respect of
Korneuburg by order of 1 September 1999 in the case of                    the full amount blocked by the contested decision with
   NEW YORKER S.H.K Jeans GmbH v SIMPEX-1000ST                            effect from 16 August 1999, or earlier in the case of an
                                                                          admissible application, until the date on which the judg-
                                                                          ment of the Court is complied with;
                       (Case C-342/99)
                       (1999/C 352/35)                                4. Order the Commission to pay the costs of the proceedings.
Reference has been made to the Court of Justice of the
European Communities by order of 1 September 1999 from
the Landesgericht Korneuburg (Regional Court, Korneuburg)
(Republic of Austria), which was received at the Court Registry
on 14 September 1999, for a preliminary ruling in the case of         Pleas in law and main arguments
NEW YORKER S.H.K. Jeans GmbH v SIMPEX-1000ST on the
following question:
                                                                      — Lack of competence: the contested decision was not
On a proper construction of Article 1 thereof, is Council                 adopted by the Commission in compliance with the
Regulation (EC) No 3295/94 of 22 December 1994 laying                     principle of collective responsibility. Nor is it clear that
down measures to prohibit the release for free circulation,               the contested decision was adopted on behalf of the
export, re-export or entry for a suspensive procedure of                  Commission. No decision on the basis of which the head
counterfeit and pirated goods (Official Journal of the European           of division in question was empowered to take such a
Communities No L 341 of 30.12.1994) also applicable to                    decision was ever published and the Netherlands Govern-
situations in which goods of the type specified therein are, in           ment is not otherwise aware of any decision whereby the
the course of transit between two States not belonging to                 head of division in question was authorised to decide to
the European Community, temporarily detained by customs                   suspend payment of the first advance. The person who
authorities in a Member State on the basis of that regulation,            signed the contested decision was therefore not authorised
at the request of a holder of rights who claims that his rights           to take that decision.
have been infringed and whose undertaking has its registered
office in a Member State of the European Community?
                                                                          Even were the Commission to establish that F.H. was
                                                                          authorised and if it could be assumed that the contested
                                                                          decision was based on this authorisation, the contested
                                                                          decision goes beyond the limits which the case-law imposes
                                                                          on authorisation. The contested decision cannot be regard-
                                                                          ed as being a managerial and administrative measure which
                                                                          it is necessary should be adopted in order to ensure the
                                                                          proper functioning of both the Commission and its services
                                                                          at administrative level.
Action brought on 16 September 1999 by the Kingdom of
the Netherlands against the Commission of the European
                        Communities
                                                                      — Breach of Council Regulation (EEC) No 4253/88 of
                       (Case C-343/99)                                    19 December 1988 laying down provisions for
                                                                          implementing Regulation (EEC) No 2052/88 as regards
                                                                          coordination of the activities of the different Structural
                       (1999/C 352/36)                                    Funds between themselves and with the operations of the
                                                                          European Investment Bank and the other existing financial
                                                                          instruments (1):
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 16 September 1999 by the Kingdom of the
Netherlands, represented by Marc Fierstra and Jantine van                 — Breach of Article 21 of Regulation No 4253/88: when
Bakel, Assistant Legal Advisers in the Ministry of Foreign                     taking a decision on the amount to be paid as an
Affairs, The Hague, acting as Agents.                                          advance, the Commission has only those powers which
                                                                               relate to the assessment of whether the application is
                                                                               admissible. In particular, a power to order suspension
The applicant claims that the Court should:                                    such as that in the contested decision cannot be derived
                                                                               from Article 24 of Regulation No 4253/88. The auth-
                                                                               orisation provided for under Article 24 of Regulation
1. Declare that the application is admissible;                                 No 4253/88 relates to specific operations and does not
                                                                               provide for the possibility of suspending payment of
2. Annul the Commission decision notified to the Nether-                       the first advance in respect of all operations or
     lands Government by letter of 16 July 1999;                               measures to be implemented in a Member State.
 ---pagebreak--- C 352/24               EN                   Official Journal of the European Communities                                      4.12.1999
    — Breach of Article 24 of Regulation No 4253/88: failure           European Communities in Case T-158/95 brought by Eridania
        to comply with the procedural requirements governing           Zuccherifici Nazionali SpA and Others against Council of the
        application of this authorisation. The contested               European Union, supported by the Commission, was brought
        decision was not preceded by an examination, let alone         before the Court of Justice of the European Communities on
        a suitable examination, of the measures in respect of          22 September 1999 by Eridania Zuccherifici Nazionali SpA,
        which payment of the first advance was sought. While           established in Genoa, ISI — Industria Saccarifera Italiana
        the contested decision does refer to the Control Report        Agroindustriale SpA, established in Padua, Sadam Zuccherifici,
        on the regions of Rijnmond and Gelderland drawn up             a division of SECI — Società Esercizi Commerciali Industriali
        by DG V/G/3, that Control Report does not have any             SpA, established in Bologna, Sadam Castiglionese SpA, estab-
        connection with the operations in respect of which             lished in Bologna, Sadam Abruzzo SpA, established in Bologna,
        payment of the advance is being sought. In the first           Zuccherificio del Molise SpA, established in Termoli and SFIR
        place, the report concerns operations in the past,             — Società Fondiaria Industriale Romagnolo SpA, established
        and, second, it relates to fewer regions than do the           in Cesena, incorporating, following a merger, Ponteco Zuccheri
        operations in respect of which the first advance was           SpA, also established in Cesena, all represented by Bernard
        sought by letter of 16 March 1999. In addition, the            O’Connor, Solicitor of the High Court of Ireland, and Ivano
        Control Report relates to operations designed to               Vigliotti, of the Genoa Bar, with an address for service in
        achieve objective 3, whereas the contested decision            Luxembourg at the Chambers of Arsène Kronshagen, 22 Rue
        relates not only to operations designed to achieve             Marie Adélaide, L-2128 Luxembourg.
        objective 3 but also to operations undertaken to attain
        objectives 1, 2 and 5b, as well as the Community
        Employment initiative.                                         The appellant claims that the Court should:
— Infringement of the principle of proportionality: the con-           (1) annul the decision of the Court of First Instance declaring
    tested decision goes beyond what is necessary for the                  inadmissible the applicants’ application for annulment
    protection of the Community’s financial interests. The                 of Regulation No 1534/95 (1) and Article 4 thereof in
    burdens which the contested decision imposes on pro-                   particular, for annulment of Regulation No 1101/95 (2) (in
    moters who were not the subject of the inspections and in              so far as, in Article 1(13) thereof, it replaces Article 46 of
    respect of whom the Control Report finds that closer                   Regulation No 1785/81 (3), and thereby prevents the Italian
    investigation is necessary in order to be able to determine            State from granting adjustment aid to Italian sugar pro-
    whether the practices criticised do in fact concern them               ducers for the costs of storage in Italy arising from high
    are out of all reasonable proportion.                                  interest rates), and for a declaration that Regulation
                                                                           No 1785/81, and Article 8 thereof in particular, is
— Infringement of the principle of adversarial proceedings.                unlawful;
— Breach of Article 253 EC (inadequate statement of reasons).          (2) annul the decision of the Court of First Instance ordering
                                                                           the applicants to bear the costs incurred by the Council;
(1) OJ 1988 L 374, p. 1.
                                                                       (3) refer the case back to the Court of First Instance for
                                                                           judgment in the application made in Case T-158/95
                                                                           for annulment of Regulation No 1534/95 and Article 4
                                                                           thereof in particular, for annulment of Regulation
                                                                           No 1101/95 (in so far as, in Article 1(13) thereof, it
                                                                           replaces Article 46 of Regulation No 1785/81, and thereby
                                                                           prevents the Italian State from granting adjustment aid to
                                                                           Italian sugar producers for the costs of storage in Italy
                                                                           arising from high interest rates), and for a declaration that
Appeal brought on 22 September 1999 by Eridania Zuc-                       Regulation No 1785/81, and Article 8 thereof in particular,
cherifici Nazionali SpA, ISI — Industria Saccarifera Itali-                is unlawful;
ana Agroindustriale SpA, Sadam Zuccherifici, a division
of SECI — Società Esercizi Commerciali Industriali SpA,                (4) if the Court of Justice considers that it can give final
Sadam Castiglionese SpA, Sadam Abruzzo SpA, Zuccheri-                      judgment on the merits of Case T-158/95 pursuant to
ficio del Molise SpA and SFIR — Società Fondiaria                          Article 54 of the EC Statute of the Court of Justice, allow
Industriale Romagnolo SpA against the judgment deliver-                    the specific written and oral pleadings on those matters;
ed on 8 July 1999 by the First Chamber of the Court of
First Instance of the European Communities in Case
T-158/95 brought by Eridania Zuccherifici Nazionali SpA                (5) order the Council to bear the costs of the case.
    and Others against Council of the European Union
                        (Case C-351/99 P)                              Pleas in law and principal arguments
                         (1999/C 352/37)                               The appellants contest the judgment:
An appeal against the judgment delivered on 8 July 1999 by             — insofar as it is held that the application for annulment of
the First Chamber of the Court of First Instance of the                    Article 1(13) of Regulation No 1101/95 is inadmissible;