CELEX: C2001/331/21
Language: en
Date: 2001-11-24 00:00:00
Title: Case C-368/01: Action brought on 25 September 2001 by the Kingdom of the Netherlands against the Commission of the European Communities

24.11.2001             EN                     Official Journal of the European Communities                                        C 331/13
The Commission claims that the Court should:                             Communities on 25 September 2001 by the Kingdom of the
                                                                         Netherlands, represented by H.G. Sevenster and S. Terstal,
—     declare that, by failing to adopt and to notify to the             acting as Agents.
      Commission, within the time limit laid down, the laws,
      regulations and administrative provisions necessary to
      comply fully with Directive 1999/5/EC (1) of the European          The applicant claims that the Court should:
      Parliament and of the Council of 9 March 1999 on radio
      equipment and telecommunications terminal equipment
      and the mutual recognition of their conformity, the                1.    Annul Commission Decision SG (2001) D/289751 of
      Hellenic Republic has failed to fulfil its obligations under             11 July 2001 relating to Aid Measure No C 56/2001 on
      the EC Treaty,                                                           the granting of State aid in the area of maritime transport
                                                                               to the activities of Netherlands tug boats in internal waters
—     order the Hellenic Republic to pay the costs.                            and seaports within the EU (by which the Commission
                                                                               informs the Netherlands of its decision to initiate the
                                                                               procedure set out in Article 88(2) EC);
Pleas in law and main arguments                                          2.    Order the Commission to pay the costs.
In accordance with the third paragraph of Article 249 of the
Treaty establishing the European Community, directives are
binding, as to the result to be achieved, upon each Member               Pleas in law and main arguments
State to which they are addressed.
                                                                         —     Decision contrary to Article 88 EC and Regulation (EC)
Under the first paragraph of Article 10 of the Treaty, Member                  No 659/1999: the Commission does not have the power
States are to take all appropriate measures, whether general or                to classify, as a new aid measure, a measure that has
particular, to ensure fulfilment of the obligations arising out                already been approved. If the Commission, in the exercise
of the Treaty or resulting from action taken by the institutions               of its duties relating to the continuous monitoring of
of the Community.                                                              existing aid measures, were able, whether of its own
                                                                               motion or by reason of a complaint, to classify such an
                                                                               aid measure immediately and with retroactive effect as a
It is not disputed by the Hellenic Republic that it must adopt                 new aid measure, that would be contrary to the system
measures to comply with the abovementioned Directive.                          laid down in Article 88 EC and Regulation (EC)
                                                                               No 659/1999.
The Commission records that until now the Hellenic Republic                    The Commission has in no way decided that the appli-
has not adopted the appropriate measures for the full incorpor-                cation of ‘tax incentives’ and ‘taxation according to
ation of the Directive at issue into Greek law.                                tonnage’ to the activities of tug boats in ports and internal
                                                                               waters within the European Union is not covered by its
                                                                               decision approving the aid measure, with the result that
(1) OJ L 91, 7.4.1999, p. 10.                                                  the Commission cannot now decide to consider such
                                                                               application as constituting a new aid measure. The
                                                                               Commission’s reasoning that there is now a case of new
                                                                               aid, on the ground that the Netherlands Government
                                                                               formally agreed to the Commission proposal to adopt
                                                                               appropriate measures, within the period specified for that
                                                                               purpose, which expired on 5 January 1999, in order to
                                                                               bring the existing aid measures into line with the
                                                                               Guidelines, which might suggest that the Netherlands aid
Action brought on 25 September 2001 by the Kingdom of                          measures, as approved, had been brought into line with
the Netherlands against the Commission of the European                         the Guidelines and were compatible with them, is without
                           Communities                                         basis in Article 88 EC or Regulation (EC) No 659/1999.
                         (Case C-368/01)                                       The Commission’s reasoning in this regard is also entirely
                                                                               illogical. Assuming that the Netherlands Government had
                                                                               intended to notify the Commission that the Netherlands
                         (2001/C 331/21)                                       aid measures in question had been brought into line with
                                                                               the Guidelines and were thus in accordance with the
                                                                               conditions laid down therein, that must naturally also
                                                                               have been done on the basis of the Netherlands Govern-
An action against the Commission of the European Communi-                      ment’s knowledge of the interpretation of the Guidelines
ties was brought before the Court of Justice of the European                   at that time.
 ---pagebreak--- C 331/14              EN                     Official Journal of the European Communities                                      24.11.2001
     In so far as the Commission has sought to suggest that             Pleas in law and main arguments
     the Netherlands Government had failed to make clear at
     an earlier stage that the activities of tug boats were also
     intended to be covered by the two measures, which might            Under Article 249 of the EC Treaty, according to which a
     have constituted a reason enabling the Commission to               directive is to be binding, as to the result to be achieved, upon
     classify that application of the existing measures as ‘new         each Member State to which it is addressed, Member States are
     aid’, the Netherlands Government strenuously denies that           required to observe the time limits laid down in directives for
     assertion;                                                         their transposition. Those time limits expired on 30 Avril
                                                                        2000 and 30 June 2000 respectively without the Italian
—    Decision contrary to the principle of the protection of            Republic having brought into force the necessary provisions
     legitimate expectations and the principle of legal certainty;      in order to comply with the Directive referred to in the
                                                                        Commission’s application.
—    Decision contrary to the principle that reasons must
     always be given.                                                   (1) OJ 1999 L 91, p. 29.
                                                                        (2) OJ 1999 L 139, p. 29.
Action brought on 25 September 2001 by the Com-                         Action brought on 27 September 2001 by the Com-
mission of the European Communities against the Italian                 mission of the European Communities against the United
                            Republic                                                                   Kingdom
                        (Case C-370/01)                                                           (Case C-373/01)
                                                                                                  (2001/C 331/23)
                        (2001/C 331/22)
                                                                        An action against the United Kingdom was brought before the
An action against the Italian Republic was brought before the           Court of Justice of the European Communities on 27 Septem-
Court of Justice of the European Communities on 25 Septem-              ber 2001 by the Commission of the European Communities,
ber 2001 by the Commission of the European Communities,                 represented by Richard Wainwright, acting as agent, with an
represented by Antonio Aresu, acting as Agent.                          address for service in Luxembourg.
                                                                        The Applicant requests that the Court should:
The applicant claims that the Court should:
                                                                        —     declare that by failing to adopt and publish before
—    Declare that, by failing to adopt and bring into force                   1 January 2000 the provisions necessary to comply with
     within the prescribed period the laws, regulations and                   Commission Directive 98/101/EC of 22 December 1998
     administrative provisions necessary to comply with:                      adapting to technical progress Commission Directive
                                                                              91/157/EEC on batteries and accumulators containing
     (a)    Commission Directive 1999/21/EC (1) of 25 March                   certain dangerous substances (1), or in any event by failing
            1999 on dietary foods for special medical purposes;               to inform the Commission thereof, the United Kingdom
            and                                                               has failed to fulfil its obligations under that Directive, and
     (b) Commission Directive 1999/50/EC (2) of 25 May                  —     order the United Kingdom to pay the costs.
            1999 amending Directive 91/321/EEC on infant
            formulae and follow-on formulae;
                                                                        Pleas in law and main arguments
     or in any event by failing to communicate them to the
     Commission, the Italian Republic has failed to fulfil its
     obligations under those directives;
                                                                        Article 249 EC under which a directive shall be binding as to
                                                                        the result to be achieved, upon each Member State, carries by
—    Order the Italian Republic to pay the costs.                       implication an obligation on the Member States to observe the