CELEX: C1999/299/20
Language: en
Date: 1999-10-16 00:00:00
Title: Case C-313/99: Reference for a preliminary ruling by the High Court, Dublin, by order of that court of 30 July 1999, in the case of Gerard Mulligan, Tim O'Sullivan, Tom Power and Hugh Duncan against the Minister for Agriculture and Food, Ireland and the Attorney General

C 299/18               EN                     Official Journal of the European Communities                                    16.10.1999
Reference for a preliminary ruling by the High Court,                    Action brought on 23 August 1999 by the Kingdom of
Dublin, by order of that court of 30 July 1999, in the case              the Netherlands against the Commission of the European
of Gerard Mulligan, Tim O’Sullivan, Tom Power and Hugh                                             Communities
Duncan against the Minister for Agriculture and Food,
               Ireland and the Attorney General
                                                                                                  (Case C-314/99)
                                                                                                  (1999/C 299/21)
                         (Case C-313/99)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 23 August 1999 by the Kingdom of the
                         (1999/C 299/20)                                 Netherlands, represented by Marc Fierstra, Head of the Euro-
                                                                         pean Law Department, and Nynke Wijmenga, a member of
                                                                         the Legal Service of the European Law Department of the
                                                                         Ministry of Foreign Affairs, The Hague.
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court, Dublin,
                                                                         The applicant claims that the Court should:
of 30 July 1999, which was received at the Court Registry on
18 August 1999, for a preliminary ruling in the case of Gerard
Mulligan, Tim O’Sullivan, Tom Power and Hugh Duncan                      (1) annul Commission Directive 1999/51/EC (1) of 26 May
against the Minister for Agriculture and Food, Ireland and the                1999 adapting to technical progress for the fifth time
Attorney General, on the following questions:                                 Annex I to Council Directive 76/769/EEC (2) on the
                                                                              approximation of the laws, regulations, and administrative
                                                                              provisions of the Member States relating to restrictions on
                                                                              the marketing and use of certain dangerous substances and
1. Is Article 7(1) of Council Regulation No 3950/92 (1) to be                 preparations (tin, PCP and cadmium), in so far as point 3
     interpreted as meaning that a Member State may provide                   in the Annex to Directive 1999/51/EC relates to cadmium;
     that a part of the reference quantity available on a holding
     shall not in the case of sale or lease be transferred with the      (2) order the Commission to pay the costs.
     holding to producers taking it over but shall instead be
     added to the national reserve by means of a ‘claw back’ or
     ‘siphoning off’ or some similar deduction mechanism?                Pleas in law and main arguments
                                                                         1. Misuse of powers.
2. If the answer to 1 above is in the affirmative is the
     procedure chosen by the Member State to make such                        — Point 3 in the Annex to Directive 1999/51/EC does
     provision subject only to principles of national law or is                   not concern an amendment within the meaning of
     the said procedure subject to the fundamental principles                     Article 2a of Directive 76/769/EEC; instead, it concerns
     of Community Law including a principle of legal certainty?                   a specific scheme relating to the use of cadmium in
                                                                                  Austria and Sweden in respect of the application of
                                                                                  Annex I to Directive 76/769/EEC. The contested
                                                                                  addition does not result from any scientific and/or
3. If the answer to 1 above is in the affirmative and the                         technical developments, particularly in the field of
     national procedure is subject to Community Law is a                          substitutes for cadmium.
     national procedure whereby the Member State by Statutory
     Instrument empowers the Competent Authority to make a                    — Point 3 in the Annex to Directive 1999/51/EC provides
     determination of the cases of transfers referred to in                       for a derogation from the application of Directive
     Article 7(1) of Council Regulation No 3950/92 where any                      76/769/EEC and, in particular, of Directive
     part of the Milk Quota is not to be transferred with the                     91/338/EEC (3). The contested derogation concerns a
     holding but added to the national reserve and provides                       provision which is designed to achieve the fundamental
     that such determination be made by administrative notice                     aims of the policy of the Community. Like the
     to be published in a national newspaper contrary to the                      1995 Accession Treaty, which laid down special
     principle of legal certainty in Community Law?                               arrangements with regard to the application of Direc-
                                                                                  tive 91/338/EEC to Austria and Sweden until 1 January
                                                                                  1999, it provides for an exception to the acquis
                                                                                  communautaire. This involves a policy decision which
                                                                                  requires a strategy assessment to be carried out.
(1) of 28 December 1992, establishing an additional levy in the milk              The implementation of Directive 76/769/EEC is not
    and milk products sector (OJ L 405, 31.12.1992, p. 1).                        involved. That means that it is the European Parliament
                                                                                  and the Council that have the competence to adopt,
                                                                                  on a proposal from the Commission, a special position
                                                                                  with regard to Austria and Sweden in respect of the
                                                                                  period commencing on 1 January 1999, in accordance
                                                                                  with Article 95 EC in conjunction with Article 251
                                                                                  EC. Consequently, the Commission has exceeded its
                                                                                  powers.