CELEX: C2003/275/49
Language: en
Date: 2003-11-15 00:00:00
Title: Case C-388/03: Action brought on 5 September 2003 by the Kingdom of the Netherlands against the Commission of the European Communities

C 275/32               EN                        Official Journal of the European Union                                          15.11.2003
Furthermore, the substantive amendments made by the                      Reference for a preliminary ruling by the Bundesfinanzh-
Council following the Opinion of the Parliament give rise to a           of by order of that Court of 30 July 2003 in the case of
claim that the Parliament’s rights under the co-decision                 Hauptzollamt Hamburg-Jonas against Käserei Champig-
procedure under Article 251 EC were infringed.                                           non Hofmeister GmbH & Co. KG
Finally the Federal Government claims in the alternative that                                       (Case C-385/03)
the principle of proportionality has been infringed since the
total bans provided for in Articles 3 and 4 on advertising in
the press and/or printed publications as well as on the radio                                      (2003/C 275/48)
and the internet deliberately and specifically target local or
regional situations with no cross-border element almost
exclusively, with the result that the extensive prohibitions,
within the meaning of Article 14(1) EC on the improvement                Reference has been made to the Court of Justice of the
of the internal market, are not necessary and are therefore              European Communities by order of the Bundesfinanzhof
disproportionate. The infringement of the principle of pro-              (Federal Finance Court) of 30 July 2003, received at the Court
portionality is all the more serious because the prohibitions            Registry on 12 September 2003, for a preliminary ruling in
have a significant adverse effect on the basic right of freedom          the case of Hauptzollamt Hamburg-Jonas against Käserei
of thought and press freedom, owing to the excessively                   Champignon Hofmeister GmbH & Co. KG on the following
broad and unspecific definition of the terms ‘advertising’ in            question:
Article 2(b) and ‘the press and other printed publications’ in
Articles 1(a) and 3 of the Directive.
                                                                         Must the first and second subparagraphs of Article 11(1) of
(1) OJ L 152, p. 16.
                                                                         Regulation (EEC) No 3665/87 (1), as amended by Regulation
                                                                         (EC) No 2945/94 (2), be interpreted — also in the light of
                                                                         the principle of proportionality — as meaning that false
                                                                         information relating to individual items listed in the export
                                                                         declaration, which could result in the exporter receiving a
                                                                         higher export refund than that to which it is entitled, is by
                                                                         itself sufficient to give rise to a punitive reduction in the export
                                                                         refund in the amount set out in those provisions, even though
Reference for a preliminary ruling by the Supreme Court,                 the exporter expressly stated in connection with the separate
Ireland, by order of that court dated 2 April 2003, in the               application for payment which must be submitted under
          case of Ryanair Ltd against Aer Rianta cpt                     national law that it would not be applying for an export refund
                                                                         in respect of the relevant items in the export declaration?
                         (Case C-382/03)
                                                                         (1) OJ L 351 of 14.12.1987, p. 1.
                         (2003/C 275/47)                                 (2) OJ L 310 of 3.12.1994, p. 57.
Reference has been made to the Court of Justice of the
European Communities by an order of the Supreme Court,
Ireland, dated 2 April 2003, which was received at the Court
Registry on 10 September 2003, for a preliminary ruling in
the case of Ryanair Ltd and Aer Rianta cpt on the following
questions:                                                               Action brought on 5 September 2003 by the Kingdom of
                                                                         the Netherlands against the Commission of the European
A.    Is an airport check-in desk an ‘airport installation’ within                                   Communities
      the meaning of Article 16 (3) of the Directive (1)?
B.    If the answer to A is in the affirmative, is a rent charged                                   (Case C-388/03)
      for the exclusive right to occupy a particular check-in
      desk for a period of one year or greater a fee for access to                                 (2003/C 275/49)
      airport installations within the meaning of Article 16 (3)
      of the Directive?
(1) Council Directive 96/67/EC of 15 October 1996 on access to           An action against the Commission was brought before the
    the groundhandling market at Community airports OJ L 272,            Court of Justice of the European Communities on 5 September
    25.10.1996, p. 36-45.                                                2003 by the Kingdom of the Netherlands, represented by
                                                                         H.G. Sevenster, Head of the European Law Division of the
                                                                         Ministry of Foreign Affairs in The Hague.
 ---pagebreak--- 15.11.2003             EN                       Official Journal of the European Union                                             C 275/33
The applicant claims that the Court should:                             scheme constitutes State aid and must therefore be approved
                                                                        by the Commission is not substantiated by the explicit and
1.    Annul Commission Decision SG (2003) D/230248 of                   coherent statement of reasons required for such a conclusion.
      26 June 2003 concerning Aid measure No N 35/2003
      relating to tradeable NO x emission rights in so far as the
      Commission takes the view in that decision that the               (1) OJ L 213, 30.7.1998, p. 13.
      notified measure constitutes State aid for the purposes of
      Article 87(1) EC (1);
2.    Order the Commission to pay the costs.
Pleas in law and main arguments
                                                                        Appeal brought on 24 September 2003 by Archer Daniels
                                                                        Midland Company and Archer Daniels Midland Ingredi-
The applicant, namely the Kingdom of the Netherlands,                   ents Limited against the judgment delivered on 9 July
notified the Commission under Article 88(3) EC of the ‘NOx              2003 by the Fourth Chamber of the Court of First
emission rights trading scheme’. It requested a decision by the         Instance of the European Communities in case T-224/
Commission that that scheme ‘does not constitute aid’ within            00 (1) between Archer Daniels Midland Company and
the meaning of Article 4(2) of Regulation No 659/99/EC (OJ              Archer Daniels Midland Ingredients Limited and the
1999 L 83, p. 1). By the scheme, the Netherlands Government                      Commission of the European Communities
has complied with its obligations to transpose Directive 2001/
81/EC of the European Parliament and of the Council of
23 October 2001 on national emission ceilings for certain                                       (Case C-397/03 P)
atmospheric pollutants (OJ 2001 L 309, p. 22) in so far as
reductions in emissions by large industrial plants are con-
cerned. With respect to the Netherlands, that directive lays                                     (2003/C 275/50)
down a national NO x emission ceiling of 260 kilotonnes,
which is to be achieved by 2010. By the contested decision of
24 June 2003, the Commission concluded that the measure
constitutes State aid and declared that it had no objection to
the notified measure. The Commission takes the view that the            An appeal against the judgment delivered on 9 July 2003 by
measure is a valuable contribution to Community environmen-             the Fourth Chamber of the Court of First Instance of the
tal policy.                                                             European Communities in case T-224/00 between Archer
                                                                        Daniels Midland Company and Archer Daniels Midland
                                                                        Ingredients Limited and the Commission of the European
Although the Netherlands Government welcomes the fact that              Communities, was brought before the Court of Justice of the
the European Commission has not objected to the measure,                European Communities on 24 September 2003 by Archer
notified by it on a precautionary basis, it seeks, by this action,      Daniels Midland Company, established in Decatur, Illinois
annulment of the Decision in so far as the Commission                   (United States of America) and Archer Daniels Midland
concludes therein that the notified measure constitutes State           Ingredients Limited, established in Erith (United Kingdom),
aid. The Netherlands Government takes the view that it does             represented by C.O. Lenz, L. Martin Alegi, E.W. Batchelor and
not in any way constitute aid.                                          M. Garcia, lawyers, with an address for service in Luxembourg.
In support of its action, the Netherlands Government submits            The Appellants claim that the Court should:
that there has been an infringement of Article 87 EC. The
Netherlands scheme makes no use of State resources within
the meaning of Article 87(1) EC. The measures relating to               (i)   set aside the judgment in so far as it dismisses the
emission rights are financed entirely by private funds. Any                   application brought by ADM in respect of the Decision (2);
profit made by undertakings on the sale of credits does not
arise from the allocation of rights by the State but from the           (ii) annul Article 2 of the Decision in so far as it pertains to
undertakings’ own earnings made as a result of above-                         ADM;
standard performance. The undertakings are not placed at any
advantage. There is therefore no question of aid distorting
competition or affecting trade.                                         (iii) in the alternative to (ii), modify Article 2 of the Decision
                                                                              to reduce further or cancel the fine imposed on ADM;
The applicant further claims that there has been an infringe-           (iv) in the alternative to (ii) and (iii), refer the case back to the
ment of the principle that reasons must be stated. The                        CFI for judgment in accordance with the judgment of the
Commission’s conclusion that the NOx emission rights trading                  ECJ as to the law;