CELEX: C2002/261/11
Language: en
Date: 2002-10-26 00:00:00
Title: Case C-312/02: Action brought on 5 September 2002 by the Kingdom of Sweden against the Commission of the European Communities

C 261/6                 EN                      Official Journal of the European Communities                                   26.10.2002
heat treatment or had been packaged in airtight containers.                Reference for a preliminary ruling by the Commissione
The Commission claims that the peaches and pears intended                  Tributaria di Primo Grado di Trento, Sezione No 6 by
for the production of fruit salad had not undergone adequate               order of that Court of 6 June 2002 in the cases pending
heat treatment (pasteurisation or sterilisation) and had been              between Petrolvilla & Bortolotti Spa (previously S.C.D.
stored in open containers, irrespective of the fact that those             Srl), Energy Service Srl, Panarotta 2002 Srl, Tumedei Spa,
products had been stored for only a few days before being                  NTB Spa (previously Nuova Tessilbrenta Spa), Hotel
included in fruit salads. The infringement of the regulations              Bellavista di Litterini Valter e Nadia Snc, Cattoni Hotel
was in respect of the classification of those products as                  Plaza di Cartoni Giancarlo and C Snc, Villa Luti Srl,
‘intermediate products for the production of fruit salad’. Such            Pavarini Components Srl, Tecnopal Srl, Funivie Madonna
a product was not approved for aid until 1997-1998. The                    di Campiglio Spa against Agenzia delle Entrate (previously
Commission’s position is not valid. Payment of the aid to the                   Direzione delle Entrate) per la Provincia di Trento
processing industries was effected pursuant to Regulation (EC)
No 504/97, which defines peaches in syrup and/or in natural                                         (Case C-306/02)
fruit juice as whole peaches or pieces of peaches, without peel,
having undergone a heat treatment, packed in hermetically
sealed containers with a covering liquid of sugar syrup or                                          (2002/C 261/10)
natural fruit juice. The regulation does not specify the type of
container, require that heat treatment should be applied, nor
lay down the intended use. The Italian Government claims that
                                                                           Reference has been made to the Court of Justice of the
the financial correction applied to 100 % of the products
                                                                           European Communities by order of the Commissione Tributa-
subsequently intended for the production of fruit salad con-               ria di Primo Grado di Trento, Sezione No 6 (Tax Court of First
tained in 200 kilogram containers is unlawful and should be
                                                                           Instance, Trento, Sixth Chamber) of 6 June 2002, received at
annulled.
                                                                           the Court Registry on 27 August 2002, for a preliminary
                                                                           ruling in the cases pending between Petrolvilla & Bortolotti
                                                                           Spa (previously S.C.D. Srl), Energy Service Srl, Panarotta 2002
                                                                           Srl, Tumedei Spa, NTB Spa (previously Nuova Tessilbrenta
                                                                           Spa), Hotel Bellavista di Litterini Valter e Nadia Snc, Cattoni
                                                                           Hotel Plaza di Cartoni Giancarlo and C Snc, Villa Luti Srl,
                                                                           Pavarini Components Srl, Tecnopal Srl, Funivie Madonna
Inadequate checks on stocks                                                di Campiglio Spa against Agenzia delle Entrate (previously
                                                                           Direzione delle Entrate) per la Provincia di Trento on the
                                                                           following question:
The Commission may claim that checks were inadequate only                  ‘Does the annual assessment to tax at the rate of 0.75 % per
if it should be found that the objectives laid down in the                 annum of a company’s net assets pursuant to Decree-Law
regulation relating to the determination of the methods for                No 324 of 30 September 1992 in so far as it relates solely to
applying the production aid scheme for such processed                      that part of the net assets consisting exclusively of the
products containing fruit and vegetables had not been attained.            company’s capital as disclosed annually in the balance sheet,
In the present case, no evidence to that effect has even                   constitute a tax having equivalent economic effect to capital
been proffered. It follows that the complaint is general,                  duty already levied at the maximum rate of 1 %, thus rendering
unsubstantiated and, therefore, unlawful. Moreover, it should              it incompatible with Community law and, in particular,
be observed that the EAGGF has never given any indication as               Council Directive 69/335/EEC of 17 July 1969 ( 1)?’
to what method to apply for inspecting stocks, nor is such a
method mentioned in the regulations governing the sector. It
                                                                           (1 ) OJ L 249, 3.10.1969, p. 25.
follows that the Commission cannot claim that a prescribed
accounting and verification method was infringed. Accord-
ingly, the financial correction of 10 % by way of a penalty for
the alleged inadequate implementation of checks is unlawful.
                                                                           Action brought on 5 September 2002 by the Kingdom
( 1) OJ 2002 L 170, p. 77. Commission Decision excluding from              of Sweden against the Commission of the European
     Community financing certain expenditure incurred by the Member                                  Communities
     States under the Guarantee Section of the European Agricultural
     Guidance and Guarantee Fund (EAGGF).
                                                                                                    (Case C-312/02)
( 2) OJ L 144, 8.6.1991, p. 31.
( 3) OJ 1997 L 78, p. 14.
                                                                                                    (2002/C 261/11)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of Justice of the European
 ---pagebreak--- 26.10.2002             EN                     Official Journal of the European Communities                                         C 261/7
Communities on 24 July 2002 by the Kingdom of Sweden,                    of an application for aid. The cards were sent to all the farmers
represented by A. Kruse and K. Renman, acting as Agents, with            concerned and the card fees were then invoiced separately.
an address for service in Luxembourg.                                    Applications were considered and aid granted whether the
                                                                         card fee had been paid or not. Moreover farmers were also
                                                                         able to use the cards for other purposes than aid applications.
Sweden claims that the Court should:
—     first, on the basis of Article 230 EC, declare Commission          (Claim in the alternative)
      Decision 2002/524/EC ( 1) void in so far as it excludes
      from       Community        financing    expenditure       of
      SEK 18 555 850 incurred in Sweden;
                                                                         The government considers that the card fees paid for forage
—     in the alternative, reduce the amount to be excluded from          areas cannot be taken as a basis for the calculation of the
      Community financing to SEK 11 817 748;                             amount excluded from Community financing. The govern-
                                                                         ment also takes the view that card fees for areas in respect of
                                                                         which both area aid or livestock aid and environmental or
—     in the further alternative, reduce the amount to be                regional aid is applied for cannot be included in the calculation
      excluded from Community financing to SEK 12 436 091;               of the amount excluded from Comunity financing. There was
                                                                         no provision requiring card fees to be calculated primarily
                                                                         from outside the area covered by an application for area aid.
—     order the Commission to pay Sweden’s costs.                        The Commission’s position therefore has no basis in the
                                                                         Swedish legislation on the calculation of the fees and gives rise
                                                                         to unreasonable consequences. The Commission’s reasoning
                                                                         would, moreover, imply that anyone who applied for environ-
                                                                         ment aid would be liable to pay the card fee but would evade
                                                                         such liability by applying at the same time for area aid in
                                                                         respect of the same area.
Pleas in law and main arguments
(First claim)                                                            (Claim in the further alternative)
The communication referred to in the first subparagraph of
Article 8(1) of Commission Regulation (EC) No 1663/95 (2) of             In the event that the Court considers that forage areas can be
7 July 1995 laying down detailed rules for the application of            taken as a basis for the calculation of the amount excluded
Council Regulation (EEC) No 729/70 regarding the procedure               from Community financing, the government takes the view
for the clearance of the accounts of the EAGGF Guarantee                 that card fees for areas in respect of which both area aid or
Section and received by Sweden on 24 October 2000 con-                   livestock aid and environmental or regional aid is applied for
tained no assessment of the expenditure the Commission                   cannot be included in that calculation.
proposed to exclude from Community financing.
The collection of card fees cannot be regarded as an adminis-            (1 ) of 26 June 2002 excluding from Community financing certain
                                                                              expenditure incurred by the Member States under the Guarantee
trative fee for the handling of applications for aid and thus did
                                                                              Section of the European Agricultural Guidance and Guarantee
not entail any breach of Article 15 of Council Regulation (EEC)
                                                                              Fund (EAGGF) OJ 2002 L 170, 29.6.2002, p. 77.
No 1765/92 (3) of 30 June 1992 establishing a support system             (2 ) OJ 1995 L 158, 8.7.1995, p. 6.
for producers of certain arable crops or of Article 30a of               (3 ) OJ 1992 L 181, 1.7.1992, p. 12.
Regulation (EEC) No 805/68 ( 4) of the Council of 27 June                (4 ) OJ, English Special Edition 1968 (I), p. 187.
1968 on the common organisation of the market in beef and
veal. The amount due to Swedish farmers under Community
legislation was paid out in full to the recipients of aid. The fact
that the Swedish card fee was not levied as consideration for
the receipt of a card is of key importance. Payment of the card
fee was not a pre-condition for the examination and approval