CELEX: C1997/212/44
Language: en
Date: 1997-07-12 00:00:00
Title: Action brought on 29 May 1997 by the Portuguese Republic against the Commission of the European Communities (Case C-204/97)

12 . 7. 97                      EN                 Official Journal of the European Communities                                       No C 212/23
            terms or conditions not expressly mentioned                       Action brought on 27 May 1997 by the Commission of
            therein ?                                                         the European Communities against the Federal Republic
                                                                                                              of Germany
     ( b ) If so :                                                                                       ( Case C-203/97)
             (i)       Can such terms or conditions be formulated                                           ( 97/C 212/43 )
                       independently by the authorities of a Member
                       State ?
                                                                              An action against the Federal Republic of Germany was
                                                                              brought before the Court of Justice of the European
             ( ii ) May quantitative conditions — whether or
                                                                              Communities on 27 May 1997 by the Commission of the
                       not based on Decision No 128 ( ] ) — relating
                                                                              European Communities, represented by Klaus-Dieter
                       to the activities pursued in the different
                                                                              Borchardt, of its Legal Service, acting as Agent, with an
                       Member States, turnover and number of
                                                                              address for service in Luxembourg at the office of Carlos
                       employees be imposed with regard to the
                                                                              Gomez de la Cruz, of its Legal Service, Wagner Centre
                       words ' undertaking to which he is normally
                                                                              254, Kirchberg.
                       attached' in Article 14 ( 1 ) ( a ) of Regulation
                       ( EEC ) No 1408/71 ?
                                                                              The Commission claims that the Court should :
             ( iii ) In that context may the conditon be imposed
                       that the activities of the employer in the             — declare that, by failing to adopt within the prescribed
                       different Member States be exactly the same ?                  period the measures necessary to comply with
                                                                                      Commission       Directive     94/1 3/EC ( ! ), the  Federal
             ( iv ) If the conditions mentioned in ( ii ) and ( iii )                 Republic of Germany has failed to fulfil its obligations
                       cannot be imposed, what conditions may be                      under the EC Treaty and under that Directive, and
                       imposed ?
             ( v ) Must such conditions — where imposed — be                  — order the defendant to pay the costs .
                       communicated to the employer before the
                       commencement of the employment ?                       Pleas in law and main arguments adduced in support;
      (c ) If not:                                                            The pleas in law and main arguments are similar to those
                                                                              put forward in Case C-l 86/97 ( 2 ); the relevant time limit
              (i )     Do the implementing institutions have a                expired on 1 January 1995 .
                       discrection in interpreting the words
                       'undertaking to which he is normally
                                                                               (') OJ No L 92 , 9 . 4 . 1994, p. 27 .
                       attached' in Article 14 ( 1 ) ( a ) of Regulation       ( 2 ) See page 16 of this Official Journal .
                        ( EEC ) No 1408/71 , on the basis of the
                       judgments of the Court of Justice in Case
                        C-l 9/67 (Van der Vecht ) and Case C-35/70
                        ( Manpower )?
              ( ii ) If so, what is its extent ?
                                                                               Action brought on 29 May 1997 by the Portuguese
                                                                               Republic against the Commission of the European
2 . ( a ) Is a certificate issued by the competent institution                                                Communities
              of a Member State in accordance with Article 11
                                                                                                          ( Case C-204/97 )
              ( 1 ) ( a ) of Regulation ( EEC ) No 574/72 binding on
              the authorities of another Member State in all                                                 ( 97/C 212/44 )
              circumstances as regards the legal consequences it
              determines ?
                                                                               An action against the Commission of the European
                                                                                Communities was brought before the Court of Justice of
       ( b ) If not:                                                            the European Communities on 29 May 1997 by the
               (i)       In what circumstances is it not ?
                                                                                Portuguese Republic, represented by Luis Fernandes, Dr
                                                                                Angelo Sei^a Neves and Dr. Carlos Botelho Moniz, acting
               ( ii ) Can the evidential value of the certificate be­           as Agents, with an address for service in Luxembourg at
                         rebutted by the authorities of a Member State          the Portuguese Embassy, 33 Allee Scheffer.
                         without involving the institution which issued
                         the certificate ?                                      The applicant claims that the Court should:
               ( iii ) If not, in what must that involvement consist ?          — annul the Decision of the Commission of 6 November
                                                                                       1996 on State aid No 703/95 — France, published in
 (') Decision of the Administrative Commission on Social Security                      the Official Journal of the European Communities
     of Migrant Workers .                                                              No C 70 of 6 March 1997, p. 14;
                                                                                 — order the defendant to pay the costs in their entirety.
 ---pagebreak--- No C 212/24          EN                   Official Journal of the European Communities                                   12 . 7 . 97
Pleas in law and main arguments adduced in support:                      — Breach of the general criteria for the application of
                                                                             the derogations under Article 92 ( 3 ): by approving
— Infringement of essential procedural requirements                          measures of indeterminate duration whose detailed
    — Infringement of Articles 93 ( 2 ) and ( 3 ) of the EC                  rules and conditions for implementation are not
        Treaty: by undertaking long and complex                              set out in a transparent manner, the Commission
        negotiations with the French authorities — lasting                   breached the general criteria for the application of
        nearly 16 months from the date of notification —                     the derogations under Article 92 ( 3 ), in particular
        in the context of the preliminary stage provided                     the criterion that the aid should be transparent and
        for in Article 93 ( 3 ), the Commission undermined                   the criterion that aid for restructuring should be
        the system of procedural rules established by that                   temporary and progressively reduced.
        provision . The Commission brought forward into
        that preliminary stage — which does not provide
        the procedural guarantees for either the other
        Member States or third parties concerned which
        flow from the opening of the Article 93 ( 2 )
        procedure — the detailed examination of the
        notified measures which should be carried out in             Action brought on 30 May 1997 by the Kingdom of
        the framework of the aforementioned procedure .                  Sweden against the Council of the European Union
                                                                                            ( Case C-206/97
        Moreover, the Commission infringed the
        procedural rights of the AEVP — Associafao de                                         ( 97/C 212/45 )
        Empresas de Vinho de Porto, in its capacity as a
        third party submitting a complaint, inasmuch as it
        completely sidetracked the right of that body to             An action against the Council of the European Union was
        participate in the administrative procedure. Having          brought before the Court of Justice of the European
        conducted extensive negotiations with the French             Communities on 30 May 1997 by the Kingdom of
        authorities in the preliminary stage, the                    Sweden, represented by Lotty Nordling, Under-Secretary
        Commission was under an obligation to inform                 for Legal Affairs, with an address for service in
        AEVP of the essential elements of the notified
                                                                     Luxembourg at the Swedish Embassy, 2 rue H. Heine,
        measures and of the reservations made by the                 Luxembourg.
        Commission with regard to those measures, and to
        have asked AEVP to submit any observations it
        considered appropriate .                                     The applicant claims that the Court should:
    — Infringement of Article 190 of the EC Treaty: the
        contested measure does not set out adequately the            1 . pursuant to Article 173 , declare TAC Regulation (EC )
         factual or legal reasons which led to the adoption               No 390/97 H invalid to the extent that the Regulation
         of the Decision .
                                                                          concerns the allocation of cod in Zone Illb, c, d,
— Infringement of the Treaty or of any rule of law
    relating to its application                                           and
    — Infringement of Article 90 ( 1 ) of the EC Treaty, in
         conjunction with Article 95 thereof: the
         Commission could not have been unaware — since              2 . order the Council to pay Sweden's costs.
         the matter was expressly raised by the third party
         submitting a complaint — of the terms of the                Pleas in law and main arguments adduced in support:
         domestic tax legislation relating to both the
         products benefiting from the approved aid and the
         competing products . While that French legislation          Article 121 ( 1 ) of the Act concerning the conditions of
         is not formally discriminatory, it cannot be denied          accession of the Republic of Austria, the Republic of
         that its effect is, in substance, discriminatory.            Finland and the Kingdom of Sweden and the adjustments
         Thus, natural sweet wines ( 92% of which are                to the Treaties on which the European Union is founded,
         produced in France ) are taxed at a rate of FF 350,          in the wording laid down in Council Decision 95/1/EC,
         whereas the remaining liqueur wines ( 81% of                 Euratom, ECSC (2 ) is to be set aside :
         which are imported from other Member States ) are
         taxed at the rate of FF 1 400 per hectolitre of the
         final product ( that is to say, four times as much ).        As regards 1997, a catch of 112 452 tonnes of cod was
         By approving a system of aid of indeterminate                available to the Community for fish in Community waters
          duration, intended to respond to the interests of           in Zone Illb, c, d. In accordance with Article 121 ( 1 ) of
          the French liqueur wine producers excluded from             the Act of Accession, Sweden was to be allocated 39 999
         the more advantageous tax category, the                      tonnes ( 0,35037 x 50 000 tonnes + 0,4 x 62 452 tonnes -
          Commission simply established a system whereby              2 500 tonnes ) of that catch. Account was taken in this
          all French-produced liqueur wines benefit from the          regard of the fact that 2 500 tonnes of Sweden's quota
          greatest competitive advantages over similar                during 1997 was to be transferred to other Member States
          products originating in or coming from other                in accordance with the agreement concluded in connection
          Member States .                                             with the signing of the EEA Agreement. Instead, Sweden