CELEX: C1997/295/23
Language: en
Date: 1997-09-27 00:00:00
Title: Appeal brought on 19 July 1997 by the cooperative society 'Verenigde Bloemenveilingen Aalsmeer' (VBA) BA against the judgment delivered on 14 May 1997 by the Court of First Instance of the European Communities in Joined Cases T-70/92 and T-71/92 between, on the one hand, Florimex BV and Vereniging van Groothandelaren in Bloemkwekerijprodukten and, on the other hand, the Commission of the European Communities, supported by the cooperative society 'Verenigde Bloemenveilingen Aalsmeer' (VBA) BA (Case C-265/97 P)

27 . 9 . 97                EN                    Official Journal of the European Communities                                  C 295/ 15
        entitled to retain export refunds, applicable to the                    produkten against the decision of 2 July 1992 ( SG(92 )
        exports in question or any portion thereof?                             D/8782 ) inadmissibile and in any event dismiss them,
                                                                                and
(') Commission Regulation ( EEC ) No 3665/87 of 27 November
       1987 laying down common detailed rules for the application
      of the system of export refunds on agricultural products ( OJ         — order Florimex BV and Vereniging van Grooth­
      L 351 , 14 . 12 . 1987, p. 1 ).                                           andelaren in Bloemkwekerijprodukten jointly and
( 2 ) Commission Decision 96/239/EC of 27 March 1996 on                         severally to pay the costs of both sets of proceedings
      emergency measures to protect against bovine spongiform                   in accordance with Article 69 ( 2 ) of the Rules of
      encephalopathy ( OJ L 78 , 28 . 3 . 1996, p. 17).                         Procedure .
(') Council Regulation ( EEC ) No 565/80 of 4 March 1980 on the
      advance payment of export refunds in respect of agricultural
      products ( OJ L 62 , 7. 3 . 1980, p. 5 ).                             Pleas in law and main arguments adduced in support:
C ) Commission Regulation ( EC ) No 773 /96 of 26 April 1996
      laying down special measures derogating from Regulations
      ( EEC ) No 3665/87, ( EEC ) No 3719/88 and ( EEC ) No 1964/
                                                                            — The Court of First Instance wrongly applied very
      82 in the beef and veal sector ( OJ L 104 , 27 . 4 . 1996 , p. 19 ).
                                                                                stringent requirements as to the statement of the
                                                                                reasons on which the decision of 2 July 1992, in
                                                                                which the Commission rejected the complaints of
                                                                                Florimex and Others, was based and, when assessing
                                                                                whether those requirements were satisfied, undertook
                                                                                a detailed examination of the complainants'
Appeal brought on 19 July 1997 by the cooperative                               arguments . The Court thereby demonstrated an
society 'Verenigde Bloemenveilingen Aalsmeer' (VBA) BA                          incorrect legal view of Article 190 of the EC Treaty,
against the judgment delivered on 14 May 1997 by the                            applied an incorrect standard of assessment and
Court of First Instance of the European Communities in                          wrongly acted in the Commission 's stead .
Joined Cases T-70/92 and T-71/92 between, on the one
hand, Florimex BV and Vereniging van Groothandelaren                        — In paragraphs 137 and 138 the Court of First Instance
in Bloemkwekerijprodukten and, on the other hand, the
                                                                                erred in law by holding that it was not called upon to
Commission of the European Communities, supported by
                                                                                adjudicate on the arguments put forward by the VBA
the cooperative society 'Verenigde Bloemenveilingen                             concerning the non-application of Article 85 ( 1 ) of the
                          Aalsmeer' (VBA ) BA
                                                                                Treaty or the possible application of the second
                           ( Case C-265 /97 P )                                 sentence of Article 2 ( 1 ) of Regulation No 26 , but
                               ( 97/C 295/23
                                                                                only on the legality of the conclusion reached by the
                                                                                Commission in the contested decision of 2 July 1992
                                                                                that the user fee falls within the first sentence of
                                                                                Article 2 ( 1 ) of Regulation No 26 : the Commission,
An appeal against the judgment delivered on 14 May                              and the Court of Justice in its case-law, at that time
 1997 by the Court of First Instance of the European                            still considered the second sentence of Article 2 ( 1 ) of
 Communities in Joined Cases T-70/92 and T-71 /92
                                                                                Regulation No 26 as an application ( particularization )
 between, on the one hand, Florimex BV and Vereniging                           of the first sentence and specifically of the second
 van Groothandelaren in Bloemkwekerijprodukten and, on
                                                                                exception therein ( justification on the basis of a
 the other hand, the Commission of the European                                 national market organization was irrelevant ). It is thus
 Communities, supported by the cooperative society
                                                                                self-evident that the assessment framework taken by
 'Verenigde Bloemenveilingen Aalsmeer' (VBA ) BA, was                           the Commission is the first sentence of Article 2 ( 1 ) of
 brought before the Court of Justice of the European                            Regulation No 26 . That does not imply that the
 Communities on 19 July 1997 by the cooperative society                         Commission did not also take into consideration the
 'Verenigde Bloemenveilingen Aalsmeer' ( VBA ) BA,
                                                                                conditions for — as later happened — the third
 represented by G. van der Wal , with an address for service                    exception , or that the second sentence of Article 2 ( 1 )
 in Luxembourg at the Chambers of Aloyse May, 31                                of Regulation No 26 can be disregarded .
 Grand-Rue .
 The appellant claims that the Court should :                                   It cannot be the case that an agricultural cooperative
                                                                                 such as the VBA, which accepts members in ( the
                                                                                 border areas of) other Member States, cannot rely on
 — declare the VBA's appeal against the judgment of the                          the second sentence of Article 2 ( 1 ) of Regulation
        Court of First Instance of the European Communities                      No 26 .
        of 14 May 1997 in Joined Cases T-70/92 and T-71 /92
        admissible,
                                                                            — The Court of First Instance wrongly refused or in any
                                                                                 event,   without   stating its reasons,   neglected to
 — set aside the judgment of the Court of First Instance                         consider to what extent the action should be dismissed
         of the European Communities of 14 May 1997 in                           on the basis of — in short — the ' rule of reason '. The
        Joined Cases T-70/92 and T-71 /92 and, ruling afresh,                    Court should have examined whether the judgment in
         declare the actions brought by Florimex BV and                          Case C-250/90 (') is relevant in this case and leads to
         Vereniging van Groothandelaren in Bloemkwekerij­                        a different decision .
 ---pagebreak--- C 295/ 16                EN                  Official Journal of the European Communities                                  27 . 9 . 97
— The Court of First Instance errs in law, and in any                   Action brought on 22 July 1997 by the Commission of the
       event fails to give sufficient reasons, in its finding in         European Communities against the Kingdom of Belgium
       paragraphs 146 to 153 that the decision of 2 July
                                                                                                 ( Case C-268/97 )
       1992, containing the Commission's rejection of the
       complaints of Florimex and Others, is based on an                                           ( 97/C 295/24 )
       interpretation and application of the first sentence of
       Article 2 ( 1 ) of Regulation No 26 having a wider
       scope than was the case with earlier decisions .
                                                                        An action against the Kingdom of Belgium was brought
                                                                        before the Court of Justice on 22 July 1997 by the
                                                                        Commission of the European Communities, represented
— In paragraphs 155 to 169, the Court of First Instance                 by Hendrik van Lier, Legal Adviser, and Lena Strom, a
       comes wrongly and, moreover, incomprehensibly to                 member of its Legal Service, acting as Agents, with an
       the conclusion that the contested decision, as clarified         address for service in Luxembourg at the office of Carlos
       in the course of the proceedings, with regard to the             Gomez de la Cruz, Wagner Centre, Kirchberg.
       VBA's survival is not sufficient to demonstrate that the
       user fee is necessary for attainment of the objectives
       set out in Article 39 of the Treaty within the meaning
       of the first sentence of Article 2 ( 1 ) of Regulation           The Commission of the European Communities claims
                                                                        that the Court should :
       No 26 , and used the wrong legal standard for the
       application of that provision or at least erred in law in
       its application of the first sentence of Article 2 ( 1 ) of
       Regulation No 26 . The Court exceeded its powers by              — declare that, by not adopting within the prescribed
       supplementing the facts with suppositions which were,                period all the measures necessary to comply with
       moreover, incorrect .                                                Articles 14 and 22 of Council Directive 86/609/EEC
                                                                            on the approximation of laws, regulations and
                                                                            administrative provisions of the Member States
                                                                            relating to the protection of animals used for
— In paragraphs 170 to 183 , the Court of First Instance                    experimental and other scientific purposes ('), the
       introduces and applies the wrong legal standard, or at               Kingdom of Belgium has failed to fulfil its obligations
       least formulates a standard for which no legal support               under that directive and the Treaty,
       can be found, by posing the condition that a fee
       charged in the interest of the VBA's survival cannot be
       accepted unless it is levied on a proportionate basis, as
       consideration for a service or other advantage whose             — order the Kingdom of Belgium to pay the costs .
       value is such as to justify the amount charged, or at
        least the Court's considerations in that regard are
        incomprehensible .                                              Pleas in law and main arguments adduced in support:
— In paragraphs 184 to 186 , the Court of First Instance                — In respect of Article 14 of the Directive, the
        wrongly and, moreover, incomprehensibly, considers                  requirement regarding appropriate training is only
        that the Commission based its rejection of Florimex 's              satisfied, under Belgian law, as regards a ' maitre
        complaints ( also ) on the consideration that the user fee          d'experience' ( master of experiments ), whereas the
        has an effect analogous to that of a minimum auction                said article refers to all 'persons who carry out
        price , and consequently finds, on the basis of those               experiments or take part in them'.
        considerations, that the Commission's statement of
        reasons was insufficient .
                                                                        — In respect of Article 22 of the Directive, it is not
                                                                             sufficient to refer, as Belgium has done , to the rules
                                                                            transposing the directives for the harmonization of
— In paragraphs 191 to 195 , the Court of First Instance                     standards and protocols in respect of the testing of
        wrongly, or at least incomprehensibly and without                    proprietary medicinal products and medicaments . The
        stating sufficient reasons, proceeds on the basis that a             aim of Directive 86/609/EEC is the protection of
        charge levied by the VBA on holders of trade                         animals and the avoidance of duplicate testing:
        agreements and a charge levied on direct supplies must               Article 22 refers in general to all experiments 'for the
        be equal unless there is a difference between the two                purpose of satisfying national or Community health
        types of supply.                                                     and safety legislation ' and therefore not solely to the
                                                                             testing of medicaments for human and veterinary use .
 f 1 ) Gottrup-Klim v. Dansk Landbrugs Grovvareselskab [ 1994 ]
       ECR 1-5641 , paragraphs 34 and 35 .                               O OJ L 358 , 18 . 12 . 1986 , p . 1 .