CELEX: C2001/303/20
Language: en
Date: 2001-10-27 00:00:00
Title: Case C-330/01 P: Appeal brought on 4 September 2001 by Hortiplant SAT against the judgment delivered on 14 June 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-143/99 between Hortiplant SAT and Commission of the European Communities

C 303/12              EN                     Official Journal of the European Communities                                         27.10.2001
    (g)   licence extracts were subsequently applied for, and           7.    In the circumstances referred to in paragraphs 33 to 35
          granted, on the basis that only 2,9 tonnes had earlier              above, is a penalty under Article 3 of Regulation 2670/81
          been authorized for export;                                         properly levied?
    (h) each subsequent licence extract was duly attributed             (1) Commission Regulation (EEC) No 2670/81 of 14 September
          and endorsed and all sugar tonnages so noted were                 1981 laying down detailed implementing rules in respect of sugar
          in fact exported;                                                 production in excess of the quota (OJ L 262, 16.9.1981, p. 14).
                                                                        (2) Commission Regulation (EEC) No 3719/88 of 16 November
                                                                            1988 laying down common detailed rules for the application of
                                                                            the system of import and export licences and advance fixing
    (i)   in the result, 2 897,1 tonnes of sugar were exported              certificates for agricultural products (OJ L 331, 2.12.1988, p. 1).
          in excess of the volume authorized in the original
          licence.
4.  Does Article 24 of the Regulation 3719/88 (2) enable the
    competent authority to withdraw the extract or the
    licence or certificate as well as any extracts previously
    issued and require the competent authority to issue
    without delay a corrected licence or extract or any                 Appeal brought on 4 September 2001 by Hortiplant SAT
    attribution thereto in circumstances where:                         against the judgment delivered on 14 June 2001 by the
                                                                        Fourth Chamber of the Court of First Instance of the
                                                                        European Communities in Case T-143/99 between Horti-
                                                                        plant SAT and Commission of the European Communities
    (a)   there is no obvious or manifest error on the face of
          the licence or extract itself and where there has been
          no error on the part of the issuing agency; and/or                                       (Case C-330/01 P)
                                                                                                    (2001/C 303/20)
    (b) the amendment is sought to be made after the expiry
          of the validity of the relevant extract or head licence?
                                                                        An appeal against the judgment delivered on 14 June 2001 by
                                                                        the Fourth Chamber of the Court of First Instance of the
    (c)   does it make a difference if the trader intended to           European Communities in Case T-143/99 between Hortiplant
          apply for a licence extract (from a licence already           SAT and the Commission of the European Communities
          issued) in respect of a quantity greater than that for        was brought before the Court of Justice of the European
          which he called off;                                          Communities on 4 September 2001 by Hortiplant SAT,
                                                                        represented by C. Fernández Vicién and I. Moreno-Tapia Rivas,
                                                                        abogadas, with an address for service at 60 Avenue de
                                                                        Cortenbergh, 1000 Brussels.
5.  If the answers to the above questions are negative, do the
    provisions of Article 24 of Commission Regulation
    3719/88 infringe the Community law principles of
    proportionality and/or equality in that the absence of any          The appellant claims that the Court should:
    power to amend the head licence, licence extract or
    attributes thereto may, in the circumstances referred to
    above, lead to the imposition of a fine under Article 3 of          1.    declare the present case admissible and founded;
    Commission Regulation 2670/81?
                                                                        2.    set aside the judgment of the Court of First Instance of
                                                                              14 June 2001 and give a final decision on the dispute;
6.  (a)   Does the national court and/or the national auth-
          ority have a discretion to vary (downwards) the               3.    in the alternative, send the case back to the Court of First
          amount of the penalty to be imposed under Article 3                 Instance for judgment in accordance with the decision of
          of Commission Regulation 2670/81?                                   the Court of Justice on points of law;
                                                                        4.    in any event, order the Commission of the European
    (b) If so, are there any factors in this case which the                   Communities to pay all the costs arising from these
          Court regards as relevant to the exercise of that                   proceedings, including those incurred as a result of
          discretion?                                                         proceedings before the Court of First Instance.
 ---pagebreak--- 27.10.2001            EN                     Official Journal of the European Communities                                           C 303/13
Pleas in law and main arguments                                                1995, which, in its view, is not in compliance with the
                                                                               applicable legislation inasmuch as it became possible to
                                                                               make payments to recipients who in 1996 would have
Infringement of Article 24 of Regulation No 4253/88, in                        not been entitled to such additional payments. The
particular of the procedure laid down therein so far as concerns               Kingdom of Spain does not share that view. The need to
the request that the Member State concerned submit its                         supplement payments before 15 October 1996 prompted
comments within a specified period of time prior to the                        the Kingdom of Spain to make use of the derogation
adoption of by the Commission of a decision to reduce,                         provided for by Article 5 of Regulation No 1357/96, to
suspend or cancel assistance. When applying that provision,                    which end, appropriate objective criteria were laid down
the Court of First Instance not only failed to be faithful to its              in the aforementioned Ministerial Order. Thus, when
letter and spirit, which is based on the close cooperation                     granting the additional assistance provided for in Regu-
between Commission and Member State in the management                          lation No 1357/96, the Kingdom of Spain resorted to
and assessment of assistance granted, it also completely                       the derogation provided for in Article 5, so that the
ignored Community case-law which has considered para-                          requirements set down in Articles 1 and 2 did not apply.
mount the views of Member States in similar circumstances.                     In particular, that exonerated it from the obligation of
                                                                               carrying out the adjustments provided for in Article 1(3).
                                                                               That means that, contrary to the arguments of the
                                                                               Commission, there are no grounds for recovery of
                                                                               amounts paid to beneficiaries in 1996, given that Article 5
                                                                               provides that application of that article precludes that of
                                                                               Articles 1 to 4.
                                                                        —      Failure of the Commission to observe the time limits
Action brought on 6 September 2001 by Kingdom of                               regarding notification prescribed by the applicable Com-
Spain against Commission of the European Communities                           munity provisions: The expenditure which is the subject
                                                                               of the financial adjustment contested in the present action
                        (Case C-331/01)                                        was incurred by the Kingdom of Spain prior to the
                                                                               24 months provided for by Article 7(4) of Council
                                                                               Regulation 1258/99 (5) which preceded the communi-
                        (2001/C 303/21)                                        cation in writing by the Commission to the Member State
                                                                               concerned of the results of such inquiries.
An action against the Commission of the European Communi-
                                                                        (1) OJ 2001 L 200, p. 28.
ties was brought before the Court of Justice of the European
                                                                        (2) at issue is an adjustment amounting to ESP 185 046 088 referring
Communities on 6 September 2001 by the Kingdom of Spain,                    to additional payments to beef producers as a result of the bovine
represented by Mónica López-Monı́s Gallego, Abogado del                   spongiform encephalopathy (BSE) crisis.
Estado, acting as Agent, with an address for service in                 (3) Council Regulation (EC) No 1357/96 of 8 July 1996 providing
Luxembourg.                                                                 for additional payments to be made in 1996 with the premiums
                                                                            referred to in Regulation (EEC) No 805/68 on the common
                                                                            organization of the market in beef and veal and amending that
The applicant claims that the Court should:                                 Regulation. OJ L 175, 13.7.1996, p. 9.
                                                                        (4) BOE (Boletin del Estado) 228 of 20 September 1996 of the
                                                                            Ministerio de Agricultura, Pesca y Alimentación.
—     annul the decision of the Commission of 11 July 2001 (1)          (5) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the
      excluding from Community financing certain expenditure                financing of the common agricultural policy (OJ 1999 L 160,
      incurred by the Member States under the Guarantee                     p. 103).
      Section of the European Agricultural Guidance and
      Guarantee Fund (EAGGF) so far as concerns the financial
      adjustments imposed on the Kingdom of Spain and
      challenged in the present application (2);
—     order the defendant institution to pay the costs.
                                                                        Action brought on 7 September 2001 by the Commission
                                                                        of the European Communities against the Council of the
                                                                                                  European Union
Pleas in law and main arguments
                                                                                                   (Case C-338/01)
—     Compliance with applicable Community legislation on                                          (2001/C 303/22)
      the granting of additional assistance: In the Commissions
      view, additional BSE payments in the Kingdom of Spain
      in 1996 under Council Regulation No 1357/96 (3), made             An action against the Council of the European Union was
      in accordance with the Ministerial Order of 19 September          brought before the Court of Justice of the European Communi-
      1996 (4), were based on the applications submitted in             ties on 7 September 2001 by the Commission of the European