CELEX: C1999/333/37
Language: en
Date: 1999-11-20 00:00:00
Title: Case C-333/99: Action brought on 9 September 1999 by the Commission of the European Communities against the French Republic

20.11.1999            EN                   Official Journal of the European Communities                                       C 333/17
Reference for a preliminary ruling by the Landesgericht                  — by failing to determine the appropriate detailed rules
Korneuburg by order of 20 August 1999 in the case of                          for the utilization of the quotas allocated to them for
FILA Sport S.p.A. v New Times International Transport                         the fishing years 1988 and 1990,
                        Service Co. Ltd
                                                                         — by failing to ensure compliance with the Community
                       (Case C-327/99)
                                                                              rules on the conservation of species through sufficient
                                                                              monitoring of fishing activities, appropriate inspection
                       (1999/C 333/36)                                        of the fishing fleet and of catches landed and recordal
                                                                              of catches for both the 1988 and 1990 fishing years,
Reference has been made to the Court of Justice of the
European Communities by order of 20 August 1999 from
                                                                         — by not provisionally prohibiting fishing by vessels
the Landesgericht Korneuburg (Regional Court, Korneuburg)
                                                                              flying the French flag or registered in France when the
(Republic of Austria), which was received at the Court Registry
                                                                              catches taken had been deemed to have exhausted the
on 31 August 1999, for a preliminary ruling in the case of
                                                                              corresponding quota and by prohibiting fishing on a
FILA Sport S.p.A. v New Times International Transport Service
                                                                              contingent basis even though the quota had been
Co. Ltd on the following question:
                                                                              exceeded by far, in both the 1988 and 1990 fishing
                                                                              years,
On a proper construction of Article 1 thereof, is Council
Regulation (EC) No 3295/94 of 22 December 1994 laying
down measures to prohibit the release for free circulation,              — by failing to take criminal or administrative proceed-
export, re-export or entry for a suspensive procedure of                      ings against any skipper or other persons responsible
counterfeit and pirated goods (Official Journal of the European               for fishing after the prohibition thereof, as regards the
Communities No L 341 of 30.12.1994) also applicable to                        1988 and 1990 fishing years,
situations in which goods of the type specified therein are, in
the course of transit between two States not belonging to
the European Community, temporarily detained by customs               2. Order the French Republic to pay the costs.
authorities in a Member State on the basis of that regulation,
at the request of a holder of rights who claims that his rights
have been infringed and whose undertaking has its registered
office in a Member State of the European Community?
                                                                      Contentions and principal arguments adduced in support
                                                                      — Infringement of Article 5(2) of Regulation No 170/83 in
                                                                         conjunction with Article 1(1) of Regulation No 2241/87
                                                                         (lack of control measures): the French authorities explain
                                                                         that with effect from 1988 they established new procedures
                                                                         for statistical processing. They themselves recognise that
Action brought on 9 September 1999 by the Commission                     those procedures have not yielded all the expected results.
of the European Communities against the French Republic                  The order issued — belatedly — by the French Minister for
                                                                         Fisheries on 24 August 1998 cannot in any event be
                       (Case C-333/99)                                   regarded as an adequate measure.
                       (1999/C 333/37)                                — Infringement of Article 11(2) of Regulation No 2241/87
                                                                         (belated order to cease fishing): every Member State, must,
An action against the French Republic was brought before the             under Article 11(2), on the basis of the information
Court of Justice on 9 September 1999 by the Commission of                available as to catches taken, determine the date on which
the European Communities, represented by Thomas Van Rijn,                it is envisaged that the quota will be exhausted and in due
Legal Adviser, and Bernard Mongin, of its Legal Service, acting          time adopt the appropriate measures to enable fishing to
as Agents, with an address for service in Luxembourg at the              be prohibited as from that date. However, during the 1998
office of Carlos Gómez de la Cruz, also of its Legal Service,           fishing year the prohibition measure was adopted on each
Wagner Centre, Kirchberg.                                                occasion after the quota had been exhausted. As regards
                                                                         the 1990 fishing year, in none of the six cases of
                                                                         overfishing established had any measure been adopted
The Commission of the European Communities claims that                   to stop fishing. The explanations given by the French
the Court of Justice should:                                             Government (inadequacy of statistical facilities, difficulty
                                                                         of managing small quotas exploited by a diffuse fleet) are
1. Declare that the French Republic has failed to fulfil                 unacceptable.
    its obligations under (i) Article 5(2) of Regulation (EEC)
    No 170/83(1) of 25 January 1983 in conjunction with
    Article 1(1) of Regulation (EEC) No 2241/87, (ii) Art-            — Infringement of Article 1(1) of Regulation No 2241/87
    icle 11(2) of Regulation (EEC) No 2241/87 (2) and (iii) Art-         (no criminal or administrative penalties imposed): the
    icle 5(2) of Regulation (EEC) 170/83 of 25 January 1983              appropriate monitoring or inspections would have inter
    in conjunction with Article 1(2) of Regulation (EEC)                 alia enabled the French authorities to adopt prohibiting
    No 2241/87:                                                          measures at the time prescribed by the Community
 ---pagebreak--- C 333/18                EN                       Official Journal of the European Communities                                     20.11.1999
     legislation and to prosecute any offenders, both for 1988              The applicant claims that the Court should:
     and 1990. The authorities did not institute any proceedings
     against those who continued to fish after the prohibition
     was imposed, even though that measure was particularly                 (a) annul the following decisions adopted on 1 July 1999 by
     belated.                                                                   the Commission of the European Communities:
(1) OJ L 24 of 27.1.1983, p. 1.                                                 — Decision 1999/503/EC (notified under document
(2) OJ L 207 of 29.7.1987, p. 1.                                                     number C(1999) 1771) (1), inasmuch as it establishes a
                                                                                     population ceiling of 7 402 000 inhabitants for Italy
                                                                                     under Objective 2 of the Structural Funds for the
                                                                                     period 2000 to 2006;
                                                                                — Decision 1999/504/EC (notified under document
                                                                                     number C(1999) 1772) (2), inasmuch as it fixes at
Reference for a preliminary ruling by the Commissione                                2 145 million euro (at 1999 prices) the indicative
Tributaria di Primo Grado di Trento, Sezione No 6 by                                 allocation for Italy of the commitment appropriations
order of that court of 13 May 1999 in the case of Tumedei                            for Objective 2 of the Structural Funds for the pe-
SpA against Centro di Servizio delle Imposte Dirette e                               riod 2000 to 2006;
                        Indirette di Trento
                          (Case C-336/99)                                   (b) order the defendant to pay the costs.
                          (1999/C 333/38)
                                                                            Pleas in law and main arguments
Reference has been made to the Court of Justice of the
European Communities by order of the Commissione Tribu-
taria di Primo Grado di Trento, Sezione No 6 (Tax Court of                  1. Decision 1999/503/EC does not indicate the method used
First Instance, Trento, Sixth Chamber) of 13 May 1999,                          by the Commission to determine the population ceiling. It
received at the Court Registry on 10 September 1999, for a                      is not possible, therefore, to ascertain the logical/legal
preliminary ruling in the case of Tumedei SpA v Centro di                       process which prompted the Commission to determine, in
Servizio delle Imposte Dirette e Indirette di Trento on the                     relation to Italy, the population ceiling of
following question:                                                             7 402 000 inhabitants, or to check that, when determining
                                                                                the population ceilings, the Commission took into account
Is it compatible with Community law, and in particular with                     the matters laid down in Article 4(2)(a), (b) and (c) of
Directive 69/335/EEC (1), to tax over a period of years at the                  Council Regulation No 1260/99 (3).
rate of 0,75% per annum pursuant to Decree-Law
No 394/1992 of 30 September 1992 that part of the net assets                    The alleged total failure to provide reasons renders
consisting solely of a company’s capital disclosed annually by                  Decision 1999/503 null and void, at least as regards the
the balance sheet which has already borne the initial tax on                    contested part thereof, which concerns the determination
contributions of 1%?                                                            of the population ceiling for Italy.
(1) OJ, English Special Edition 1969 (II), p. 412.
                                                                            2. In the alternative, it must be concluded that the criterion
                                                                                which the Commission claims to have adopted in order to
                                                                                determine, in relation to Italy, the population ceiling of
                                                                                7 402 000 inhabitants is unlawful, in that it is ultra vires
                                                                                and based on misuse of powers, erroneous assumptions
                                                                                and distortion of the facts.
Action brought on 17 September 1999 by the Italian
Republic against the Commission of the European Com-                        3. As a result of the unlawful determination in
                              munities                                          Decision 1999/503 of the population ceiling for Italy,
                                                                                Decision 1999/504/EC is also unlawful in so far as the
                                                                                latter decision fixes the indicative allocation for Italy in the
                          (Case C-344/99)                                       sum of 2 145 million euro.
                          (1999/C 333/39)
An action against the Commission of the European Communi-                   (1) OJ L 194 of 27.7.1999, p. 58.
ties was brought before the Court of Justice of the European                (2) OJ L 194 of 27.7.1999, p. 60.
Communities on 17 September 1999 by the Italian Republic,                   (3) OJ L 161 of 26.6.1999, p. 1.
represented by Umberto Leanza, acting as Agent, assisted by
Ivo M. Braguglia, Avvocato dello Stato, with an address
for service in Luxembourg at the Italian Embassy, 5 Rue
Marie-Adélaïde.