CELEX: C1999/048/20
Language: en
Date: 1999-02-20 00:00:00
Title: Reference for a preliminary ruling by the Supreme Court, Dublin, by order of that court of 23 July 1998, in the case of H.M.I.L. Ltd (formerly Hibernia Meats International Ltd) against the Minister for Agriculture, Food and Forestry (Case C-436/98)

C 48/10               EN                Official Journal of the European Communities                                20.2.1999
    providing, in particular, that certain documents must          The Appellant claims that the Court should:
    be issued or certified in another Member State, the
    Italian Republic has failed to fulfil its obligations          Ð set aside the judgment of the Court of First Instance in
    under Directives 90/364/EEC and 90/365/EEC.                        so far as it annuls the Commission's decision of 6 April
                                                                       1995;
Ð The provisions on students' resources                            Ð order the applicant to bear Deutsche Post AG's costs.
                                                                   Deutsche Post AG continues to seek the form of order as
                                                                   that sought at first instance, i.e.
    The Commission considers that by requiring students,
    who are citizens of other Member States, and
    members of their family to guarantee to the Italian            Ð to dismiss the IECC's application;
    authorities that they have resources of a certain
    amount and, as regards the means to be used for that           Ð to order the IECC to pay the costs of the proceedings
    purpose, by not clearly leaving students a choice                  including Deutsche Post AG's costs.
    between making a declaration or such alternative
    means as are at least equivalent, and by not allowing          Pleas in law and main arguments adduced in support:
    the declaration to be used where the student is
    accompanied by members of his family, the Italian
    Republic has failed to fulfil its obligations under            The judgment of the Court of First Instance annulling the
    Directive 93/96/EEC.                                           Commission's decision of 6 April 1995 in so far as it
                                                                   concerns commercial physical ABA remail is based on an
                                                                   error of law. The Court of First Instance has infringed
(1) OJ L 180, 13.7.1990, p. 26.                                    Community law (Article 86 EC Treaty) by finding in
(2) OJ L 180, 13.7.1990, p. 28.                                    paragraph 105 of its judgment that interceptions of
(3) OJ L 317, 18.12.1993, p. 59.                                   commercial ABA remail constitute an abuse within the
                                                                   meaning of Article 86 of the Treaty.
                                                                   (1) OJ C 229, 2.9.1995, p. 22.
                                                                   (2) OJ C 351, 30.12.1995, p. 17.
Appeal brought on 30 November 1998 by Deutsche Post
AG against the judgment delivered on 16 September by
the Third Chamber, Extended Composition, of the Court              Reference for a preliminary ruling by the Supreme Court,
of First Instance of the European Communities in cases             Dublin, by order of that court of 23 July 1998, in the case
T-133/95 (1) and T-204/95 (2) between International                of H.M.I.L. Ltd (formerly Hibernia Meats International
Express Carriers Conference (IECC) and the Commission              Ltd) against the Minister for Agriculture, Food and
of the European Communities, supported by, in cases                                            Forestry
T-133/95 and T-204/95, the United Kingdom of Great
Britain and Northern Ireland, Deutsche Post AG and The                                    (Case C-436/98)
         Post Office and, in case T-133/95, La Poste                                       (1999/C 48/20)
                      (Case C-428/98 P)
                                                                   Reference has been made to the Court of Justice of the
                        (1999/C 48/19)
                                                                   European Communities by an order of the Supreme Court,
                                                                   Dublin, of 23 July 1998, which was received at the Court
                                                                   Registry on 3 December 1998, for a preliminary ruling in
                                                                   the case of H.M.I.L. Ltd (formerly Hibernia Meats
An appeal against the judgment delivered on 16 September           International Ltd) against the Minister for Agriculture,
1998 by the Third Chamber, Extended Composition, of                Food and Forestry, on the following questions:
the Court of First Instance of the European Communities
in cases T-133/95 and T-204/95 between International
Express Carriers Conference (IECC) and the Commission              1.    Is Commission Regulation (EEC) No 1964/82 (1) and
of the European Communities, supported by, in case                       in particular Article 1 thereof, to be construed as
T-133/95 and T-204/95, the United Kingdom of Great                       meaning that trimmings of less than 100 grams,
Britain and Northern Ireland, Deutsche Post AG and                       when rolled up inside a cut of plate and flank from
The Post Office and, in case T-133/95, La Poste, was                     fresh or chilled hind quarters of adult male cattle,
brought before the Court of Justice of the European                      which rolled up cut is then wrapped, do or do not
Communities on 30 November 1998 by Deutsche                              qualify for Special Export Refunds pursuant to the
Post AG, Heinrich-von-Stephan-Straûe 1, D-53175 Bonn,                    said Regulation?
represented by Dirk Schroeder, Rechtsanwalt, Cologne,
with an address for service in Luxembourg at the                   2.    Is Regulation (EEC) No 1964/82 and in particular
Chambers of Loesch and Wolter, 11, Rue Goethe.                           Article 1 thereof, to be construed as meaning that
 ---pagebreak--- 20.2.1999            EN                 Official Journal of the European Communities                                   C 48/11
     [trimmings/detached pieces of meat] of greater than                wrapped pieces of meat contrary to Regulation
     100 grams when rolled up inside a cut of plate or                  (EEC) No 1964/82, do Regulations (EEC) No 565/80
     flank from fresh or chilled hindquarter of adult male              and (EEC) No 3665/87 permit the competent
     cattle, which rolled up cut is then wrapped, do or do              authority to reject the contents of the entire box as
     not qualify for Special Export Refunds pursuant to                 not qualifying for special export refunds and to
     the said Regulation?                                               forfeit the security given for the advance payment
                                                                        made in respect of such box plus 20 %?
3.   Is Regulation (EEC) No 1964/82 and in particular
                                                                   6.1. Where upon an examination of one or more boxes
     Article 1 thereof, to be construed as meaning that
                                                                        of meat placed in store under Regulation (EEC)
     each piece or cut of plate and flank must be
                                                                        No 2675/88 for the purpose of obtaining private
     individually wrapped or that in addition, trimmings
                                                                        storage aid, it is discovered that the contents of such
     may be rolled up inside a piece or cut of plate and
                                                                        boxes include trimmings rolled within plate and
     flank and such rolled up piece or cut may then be
                                                                        flank or mid rib and if the inclusion of such
     wrapped?
                                                                        trimmings contrary to Article 4(4) of Regulation
                                                                        (EEC) No 2675/88, do Commission Regulation
                                                                        (EEC) No 2220/85 (5) and Regulation (EEC) No
4.   Is Commission Regulation (EEC) No 2675/88 (2) and                  2675/88 permit the Competent Authority to reject
     in particular Article 4(4) thereof, to be construed as             the contents of the entire box for the purposes of
     permitting or not permitting the storage of                        private storage aid and to forfeit the security for the
     trimmings of less than 100 grams resulting from the                advanced payment made in respect of such box plus
     cutting and de-boning for the purpose of obtaining                 20 %?
     private storage aid under contracts entered into
     pursuant to the said Regulation?
                                                                   6.2. Where upon an examination of one or more boxes
                                                                        of meat placed in store under Regulation (EEC)
                                                                        No 2675/88 for the purpose of obtaining private
5.1. Where upon examination of one or more boxes of                     storage aid, it is discovered that the contents of such
     meat placed under Customs Control for the purpose                  boxes include separate pieces of fat rolled within
     of obtaining Special Export Refunds pursuant to                    plate and flank or mid rib contrary to Article 4(4) of
     Regulation (EEC) No 1964/82, it is discovered that                 Regulation (EEC) No 2675/88 do Regulations (EEC)
     the contents of such boxes include trimmings rolled                No 2220/85 and (EEC) No 2675/88 permit the
     within plate and flank or mid rib and if the inclusion             competent authority to reject the contents of the
     of such trimmings is contrary to Regulation (EEC)                  entire box for the purposes of private storage aid
     No 1964/82, do Council Regulation (EEC)                            and to forfeit the security for the advance payment
     No      565/80 (3)   and     Commission      Regulation            made in respect of such box plus 20 %?
     3665/87 (4) permit the Competent Authority to reject
     the contents of the entire box as not qualifying for
     Special Export Refunds and to forfeit the security            7.   Where upon such an examination of boxes placed
     given for the advance payment made in respect of                   under customs control for the purpose of obtaining
     such box plus 20 %?                                                Special Export Refunds pursuant to Regulation
                                                                        (EEC) No 1964/82, it is discovered that a certain
                                                                        number of boxes contain ineligible material rolled up
                                                                        inside a cut of meat and there is evidence of a
5.2. Where upon examination of one or more boxes of
                                                                        deliberate persistent policy by the operator of rolling
     meat placed under customs control for the purpose
                                                                        up such ineligible material inside particular cuts of
     of obtaining special export refunds pursuant to
                                                                        meat in particular production plants, is the
     Regulation (EEC) No 1964/82, it is discovered that
                                                                        Competent Authority authorised pursuant to
     the contents of such boxes include separate pieces of
                                                                        Regulations (EEC) No 565/80, (EEC) No 3665/87
     fat rolled within plate or flank or mid rib contrary to
                                                                        and (EEC) No 1964/82 to extrapolate the results of
     Regulation (EEC) No 1964/82, do Regulations
                                                                        the sample across the production of such cuts in the
     (EEC) No 565/80 and (EEC) No 3665/87 permit the
                                                                        particular production units and to reject as eligible
     competent authority to reject the contents of the
                                                                        for Export Refunds, a quantity of meat based on
     entire box as not qualifying for special export
                                                                        such extrapolation and to forfeit the security for the
     refunds and to forfeit the security given for the
                                                                        advance payment made in respect of such quantity
     advance payment made in respect of such box plus
                                                                        plus 20 % or is the Competent Authority confined to
     20 %?
                                                                        extrapolating the results of the examination of boxes
                                                                        in one Export Refund Bond across the production of
                                                                        the relevant cuts within that Export Refund Bond as
5.3. Where upon examination of one or more boxes of                     the case may be?
     meat placed under customs control for the purpose
     of obtaining special export refunds pursuant to
     Regulation (EEC) No 1964/82, it is discovered that            8.   Where boxes placed in storage under Regulation
     the contents of such boxes include non individually                (EEC) No 2675/88 for the purpose of obtaining
 ---pagebreak--- C 48/12                EN                   Official Journal of the European Communities                                  20.2.1999
       private storage aid have been examined and a certain            Reference for a preliminary ruling by the Corte dei Conti
       number of such boxes have been found to contain                 Ð Division for the monitoring of undertakings Ð by
       ineligible material contrary to Regulation (EEC)                order of that court of 26 November 1998 in a case
       No 2675/88 and there is evidence of a deliberate and            concerning the applicability to RAI Ð Radiotelevisione
       persistent policy of including such ineligible material         Italiana SpA Ð of Community and national law relating
       rolled up inside particular cuts in particular                                  to the award of public contracts
       production plants, is the Competent Authority                                           (Case C-440/98)
       entitled pursuant to Regulations (EEC) No 2220/85
       and (EEC) No 2675/88 to extrapolate the results of                                       (1999/C 48/21)
       such examination across the production of such cuts
       in the particular production plants and to reject as            Reference has been made to the Court of Justice of the
       eligible for private storage aid a quantity of meat             European Communities by an order of the Corte dei Conti
       based on such extrapolation and to forfeit the                  (Italian Court of Auditors) Ð Division for the monitoring
       securities given in respect of the advance payments             of undertakings, which was received at the Court Registry
       made on such quantities plus 20 %, or is the                    on 3 December 1998, for a preliminary ruling in a case
       Competent Authority confined to extrapolating the               concerning the applicability to RAI Ð Radiotelevisione
       results of the examination of boxes in one APS                  Italiana SpA Ð of Community and national law relating
       contract across the production of the relevant cuts             to the award of public contracts, on the following
       within that APS contract as the case may be?                    questions:
                                                                       1.    Whether or not the RAI Ð Radiotelevisione Italiana
                                                                             S.p.a. Ð is required to observe the procedures for the
9.     Where there is evidence of a persistent and deliberate                award of contracts laid down in Council Directive
       policy by an operator to include in boxes of                          93/38/EEC (1), as amended and supplemented, in
       particular cuts of boneless meat in particular                        relation to the so-called excluded sectors, having
       production plants, material which may not be stored                   regard also to the fact that Annex 17(h) to the
       pursuant to Article 4(4) of Regulation (EEC)                          legislative decree which transposed that directive
       No 2675/88 and the APS contract entered into by                       (No 158 of 17 March 1995) excludes from the
       the operator with the Competent Authority and                         matters to which that directive applies persons
       examination revealed significant quantities of such                   engaged in radio-broadcasting and television
       ineligible material has been stored, does Commission                  services';
       Regulation (EEC) No 1091/80 (6) and in particular
       Article 5.2(c) thereof, authorise the Competent
                                                                       2.    Whether Ð if the first question is answered in the
       Authority to forfeit the amount of the contract
                                                                             negative Ð the RAI Ð Radiotelevisione Italiana
       securities referable to the production of the relevant
                                                                             S.p.a. Ð must be regarded as definitively excluded
       cuts of meat in such production plants.
                                                                             from the list of persons who are required to observe
                                                                             Community procedures for public contracts or
                                                                             whether, on the contrary, it is subject to the general
                                                                             rules laid down by Community Directives
                                                                             93/37/EEC (2) concerning the award of public works
(1) Commission Regulation (EEC) No 1964/82 of 20 July 1982                   contracts, 92/50/EEC (3) concerning the award of
    laying down the conditions for granting special export refunds           public service contracts and 93/36/EEC (4) concerning
    on certain cuts of boned meat of bovine animals (OJ L 212,               the award of public supply contracts, as amended
    21.7.1982, p. 48).                                                       and supplemented;
(2) Commission Regulation (EEC) No 2675/88 of 29 August 1988
    providing for the grant of private storage aid fixed at a
    standard rate in advance in respect of carcases, half-carcases,    3.    Whether or not, for the abovementioned purposes,
    hindquarters and forequarters from adult male bovine animals             the RAI Ð Radiotelevisione Italiana S.p.a. Ð falls
    (OJ L 239, 30.8.1988, p. 20).                                            within the Community concept of body governed by
(3) Council Regulation (EEC) No 565/80 of 4 March 1980 on the                public law' since, whilst it is true that, in order to
    advance payment of export refunds in respect of agricultural             meet needs in the general interest relating to the
    products (OJ L 62, 7.3.1980, p. 5).                                      performance of public service tasks, it certainly
(4) Commission Regulation (EEC) No 3665/87 of 27 November                    carries on an activity of an industrial or commercial
    1987 laying down common detailed rules for the application
                                                                             nature' which is open to the market, it must
    of the system of export refunds on agricultural products (OJ
    L 351, 14.12.1987, p. 1).                                                nevertheless be observed that the abovementioned
(5) Commission Regulation (EEC) No 2220/85 of 22 July 1985                   entity, as well as being characterised by the special
    laying down common detailed rules for the application of the             operational and organisational rules referred to in the
    system of securities for agricultural products (OJ L 205,                grounds of this order, enjoys a special system of State
    3.8.1985, p. 5).                                                         financing in the form of the subscription fee.
(6) Commission Regulation (EEC) No 1091/80 of 2 May 1980
    laying down detailed rules for granting private storage aid for
                                                                       (1 ) OJ L 199, 9.8.1993, p. 84.
    beef and veal (OJ L 114, 3.5.1980, p. 18).
                                                                       (2 ) OJ L 199, 9.8.1993, p. 54.
                                                                       (3 ) OJ L 209, 24.7.1992, p. 1.
                                                                       (4 ) OJ L 199, 9.8.1993, p. 1.