CELEX: C1996/269/27
Language: en
Date: 1996-09-14 00:00:00
Title: Action brought on 10 July 1996 by Ireland against the Commission of the European Communities (Case C-238/96)

No C 269/ 12             EN                    Official Journal of the European Communities                                      14 . 9 . 96
Communities on 9 July 1996 by the Commission of the                       competent authorities of a Member State are to have the
European Communities, represented by Gotz zur Hausen ,                    same force in other Member States as findings of the
Legal Adviser to the Commission of the European                           competent authorities of each of those Member States ?
Communities, with an address for service in Luxembourg at
the office of Carlos Gomez de la Cruz, of the Legal Service of            (>) OJ No L 38 , 9 . 2 . 1977 , p . 1 .
the Commission, Wagner Centre C 254 , Kirchberg .                         ( 2 ) OJ No L 38 , 9 . 2 . 1977 , p . 20 .
The applicant claims that the Court should :
— declare that, by failing within the prescribed period to
       adopt the measures necessary in order to comply with
       Council Directive 91 / 157/EEC of 18 March 1991 on
       batteries and accumulators containing certain                      Action brought on 10 July 1996 by Ireland against the
       dangerous substances (') and Commission Directive                             Commission of the European Communities
       93/86/EEC ( 2 ) of 4 October 1993 adapting the                                                 Case C-238/96 )
       aforementioned Council Directive to technical progress,                                         96/C 269/27 )
       the Federal Republic of Germany has failed to fulfil its
       obligations under the EC Treaty,
                                                                          An action against the Commission of the European
— order the Federal Republic of Germany to pay the                        Communities was brought before the Court of Justice of the
       costs .                                                            European Communities on 10 July 1996 by Ireland,
                                                                          represented by Michael A. Buckley, Chief State Solicitor, of
Pleas in law and main arguments adduced in support:                       Dublin Castle, Dublin 2 , acting as Agent of Ireland, assisted
                                                                          by Mary Finlay, Senior Counsel and David Barniville,
                                                                          Barrister-at-Law, with an address for service of documents
The mandatory nature of the provisions of the third
paragraph of Article 189 and the first paragraph of Article 5             in Luxembourg at the Embassy of Ireland , 28 route d'Arlon,
of the EC Treaty is such as to oblige Member States to whom               Luxembourg.
directives are addressed to adopt the measures necessary for
the implementation of such directives within the time limits              The applicant claims that the Court should :
prescribed therein . The time limits in question expired on
 18 September 1992 and 31 December 1993 respectively but                  — declare, pursuant to Article 173 of the Treaty
the Federal Republic of Germany has not to date adopted                         establishing the European Community, that
the necessary transposition measures .                                          Commission Decision 96/31 1 /EC of 10 April 1996 on
                                                                                the clearance of accounts presented by Member States in
(') OJ No L 78 , 26 . 3 . 1991 , p . 38 .                                       respect of expenditure for 1 992 of the Guarantee Section
 ( 2 ) OJ No L 264 , 23 . 10 . 1993 , p . 51 .                                  of the European Agricultural Guidance and Guarantee
                                                                                Fund and in respect of certain expenditure for 1 993 ( 1 ) is
                                                                                void in so far as it purports to disallow a sum of £ Irl
                                                                                26 222 656,62 ( being 10 % of the expenditure declared
                                                                                by Ireland for public storage of beef for 1990 ) from the
                                                                                expenditure declared by Ireland for public storage of
Reference for a preliminary ruling from the Cour d'Appel,                       beef for 1992,
Mons, by judgment of that court of 28 June 1 996 in the case
 of Ministre des Finances du Royaume de Belgique v.                        — declare, pursuant to Article 173 of the Treaty
                      E. Amelynck and Others                                    establishing the European Community, that
                           ( Case C-237/96 )                                     Commission Decision 96/31 1 /EC of 10 April 1996 on
                                                                                the clearance of accounts presented by Member States in
                             ( 96/C 269/26 )
                                                                                 respect of expenditure for 1992 of the Guarantee Section
                                                                                 of the European Agricultural Guidance and Guarantee
 Reference has been made to the Court of Justice of the                          Fund and in respect of certain expenditure for 1993 is
 European Communities by a judgment of the Cour d'Appel                         void in so far as it purports to disallow a sum of £ Irl
  ( Court of Appeal ), Mons, of 28 June 1996 , which was                         24 020 455,64 ( being 5 % of the expenditure declared
  received at the Court Registry on 9 July 1996 , for a                          by Ireland for public storage of beef for 1991 ) from the
 preliminary ruling in the case of Ministre des Finances du                      expenditure declared by Ireland for public storage of
  Royaume de Belgique v. E. Amelynck and Others on the                           beef for 1992 ,
  following question :
                                                                           — declare, pursuant to Article 173 of the Treaty
  Are Regulations ( EEC ) No 222/77 (') and ( EEC )                              establishing the European Community, that
  No 223/77 ( 2 ), which lay down the rule that evidence of the                  Commission Decision 96/31 1 /EC of 10 April 1996 on
  Community nature of goods is, without exception , to be                        the clearance of accounts presented by Member States in
  furnished solely by transit document T2 or T2 L, consistent                    respect of expenditure for 1 992 of the Guarantee Section
  with Articles 9 and 10 of the EC Treaty and are they                           of the European Agricultural Guidance and Guarantee
  compatible with Articles 37 ( 2 ) and 39 ( 2 ) of Regulation                   Fund and in respect of certain expenditure for 1993 is
  ( EEC ) No 222/77, which provide that the findings of the                      void in so far as it purports to disallow the sum of £ Irl
 ---pagebreak--- 14 . 9 . 96            EN                    Official Journal of the European Communities                                      No C 269/ 13
     9 613 206,00 from expenditure declared by Ireland for                     Article 8 of Regulation ( EEC ) No 729/70 in each of the
     public storage of beef for 1991 being 2% of such                          said years constitutes an infringement of the Treaty
     expenditure,                                                              and/or an infringement of rule of law relating to the
                                                                               application of the Treaty;
— declare , pursuant to Article 173 of the Treaty
     establishing the European Community, that                          4 . in so far as the amount of the corrections determined by
     Commission Decision 96/31 1 /EC of 10 April 1996 on                       the Commission for the years 1990 and 1991 exceed the
     the clearance of accounts presented by Member States in                   amount of the probable losses to the EAGGF in each of
     respect of expenditure for 1992 of the Guarantee Section                  the said years as a consequence of irregularities
     of the European Agricultural Guidance and Guarantee                       attributable to the alleged failure by the Irish authorities
     Fund and in respect of certain expenditure for 1993 is                    to fulfil their obligations under Article 8 of Regulation
     void in so far as it purports to disallow a sum of £ Irl                  ( EEC ) No 729/70 , they constitute a penalty and as such
     8 862 144,00 from the expenditure declared by Ireland                     infringe the Treaty and/or rules of law relating to the
     for the public storage of beef for 1992 being 2 % of such                 application of the Treaty;
     expenditure ,
                                                                        5 . the failure by the Commission to adhere to the published
— make such further or other order as may be necessary                         guidelines on the calculation of financial consequences
     and appropriate for the purpose of the relief which                       when preparing the decision regarding the clearance of
     Ireland seeks in these proceedings,                                       accounts of the EAGGF Guarantee ( DOC.VI/2 16/93 of
                                                                               3 June 1993 — the Belle Group Report ) constitutes an
                                                                               infringement of an essential procedural requirement
— order the Commission of the European Communities to
                                                                               and/or an infringement of the Treaty and/or of a rule of
     pay the costs of these proceedings .                                      law in relation to the application of the Treaty .
Pleas in law and main arguments adduced in support:                     Breach of Regulation ( EEC ) No 859/89 ( 3 )
Breach of Article 8 of Regulation ( EEC ) No 729/70 ( 2 )               Ireland submits that in 1991 and 1992 there was no
                                                                        Community rule within the meaning of Article 3 of
Ireland submits that the Decision is invalid in so far as it            Regulation ( EEC ) No 729/70 of which Ireland was in breach
disallows £ Irl 26 222 656,62 ( being 10% of the                        in accepting separate tenders from companies within the
expenditure declared and already cleared for Ireland in                 same group of companies and, accordingly , the Commission
respect of the year 1990 ) and £ Irl 24 020 455,64 ( being 5 %          Decision refusing to charge 2 % of public storage costs in
of the expenditure declared and already cleared for Ireland             Ireland in 1991 and 1992 is invalid .
for the year 1991 ) from the expenditure declared by Ireland
for 1992 on one or more of the following grounds :                      If the Court determines that any such Community rule
                                                                        existed in 1991 and 1992 then the Commission is precluded
1 . the failure by the Commission to state any or any valid             by the principles of legal certainty, legitimate expectation
      reasons for the quantum of the financial corrections              and proportionality and by the criteria in the Belle Group
      determined following its conclusion that during the               Report from refusing to charge the said 2 % of the public
      years 1990 and 1991 the Irish authorities did not fulfil          storage costs in Ireland to the EAGGF and accordingly the
                                                                        Decision is invalid .
      their obligations under Article 8 of Regulation ( FTC )
      No 729/70 constitutes a lack of essential procedural
      requirements and/or an infringement of the Treaty                  (>) OJ No L 117, 14 . 5 . 1996 , p . 19 .
      and/or a rule of law relating to the application of the            ( 2 ) Council Regulation ( EEC ) No 729/70 of 21 April 1970 on the
      Treaty;                                                                  financing of the common agricultural policy ( OJ No L 94 , 28 . 4 .
                                                                               1970 , p. 13 ).
                                                                         (') Commission Regulation ( EEC ) No 859/89 of 29 March 1989
2 . the failure by the Commission to state any or any valid                    laying down detailed rules for the application of intervention
      reasons for its conclusion that very large amounts had                   measures in the beef and veal sector ( OJ No L 91 , 4 . 4 . 1989 ,
      been wrongly charged to EAGGF in each of the years                       p. 5 ).
      1990 and 1991 by reason of the alleged failure of the
      Irish authorities to fulfil their obligations under Article 8
      of Regulation ( EEC ) No 729/70 in each of the said years
      constitutes an infringement of an essential procedural
      requirement and/or an infringement of the Treaty
      and/or a rule of law relating to the application of the
      Treaty;                                                            Action brought on 10 July 1996 by the United Kingdom
                                                                             against the Commission of the European Communities
 3 . the failure by the Commission to make any or any                                              ( Case C-239/96 )
      proper assessment of the probable loss to EAGFF, the                                           ( 96/C 269/28 )
      risk to which Community funds were put by reason of
      irregularities which may have occurred in each of the
      years 1990 and 1991 by reasons of the alleged failure of            An action against the Commission of the European
      the Irish authorities to fulfil their obligations under             Communities was brought before the Court of Justice of the