CELEX: C1998/209/32
Language: en
Date: 1998-07-04 00:00:00
Title: Action brought on 9 April 1998 by the Kingdom of Sweden against the Council of the European Union (Case C-100/98)

4.7.98                EN                 Official Journal of the European Communities                                      C 209/17
The applicant claims that the Court should:                         Communities on 9 April 1998 by the Kingdom of Sweden,
                                                                    represented by Lotty Nordling, Rättschef, with an address
                                                                    for service in Luxembourg at the Swedish Embassy, 2 Rue
Ð annul Commission Decision SG(98) D/1124 of                        H. Heine, Luxembourg.
     9 February 1998 in its entirety on the grounds of
     breach of the EC Treaty and breach of essential
                                                                    The applicant claims that the Court should:
     procedural requirements and misuse of powers by the
     Commission,
                                                                    Ð pursuant to Article 173, declare invalid the 1998 TAC
                                                                         Regulation (EC No 45/98) (1), in so far as the
Ð order the Commission of the European Communities                       regulation provides for the allocation of cod in
     to pay the costs.                                                   zone IIIbcd, and
                                                                    Ð order the council to pay the Kingdom of Sweden's
Pleas in law and main arguments adduced in support:                      costs.
Breach of the EC Treaty, breach of essential procedural             Pleas in law and main arguments adduced in support:
requirements and misuse of powers: The aid which is the
subject of the proceedings is to be regarded as existing aid,       Article 121(1) of the Act concerning the conditions of
since the Commission failed to express its opinion on the           accession of the Republic of Austria, the Republic of
proposed aid within a reasonable time. The opening of a             Finland and the Kingdom of Sweden and the adjustments
formal examination procedure therefore conflicts with the           to the Treaties on which the European Union is founded,
Treaty, since the legally incorrect classification as a newly       as worded according to Council Decision 95/1/EC,
notified aid is thereby effected and the application of the         Euratom, ECSC (2), should be annulled:
prohibition of implementation under Article 93(3)
expressly stated. The applicant considers that by the letter
of 19 March 1997 at the latest it transmitted in full to the        For the year 1998 a quantity of 86 547 tonnes of
Commission all the information which the Commission                 Community cod is available for fishing in Community
required to be able to express an opinion on the                    waters in zone IIIb, c, d. According to the conditions laid
compatibility of the measure with the Treaty; none of the           down in Article 121(1) of the Act of Accession, Sweden
later questions' of the Commission were in any way                 should have been allocated 29 921 tonnes (0.35037 
material for the decision, but evidently served only to             50 000 + 0.4  36 947  400  1 976) of that amount.
delay a decision.                                                   This is taking into account the fact that the transfer of
                                                                    400 tonnes to Poland under the agreement between the
                                                                    Community and Poland has been deducted from Sweden's
The Commission asserts that it is entitled to oppose the            quota and that in 1998 1 976 tonnes of Sweden's quota is
implementation of the measures after proper notification            to be transferred to other Member States in accordance
by the Member State under the Lorenz procedure'. That              with the agreement made in connection with the signing
opposition is evidently intended to have the consequence            of the EEA Agreement. Instead, Sweden has been allocated
that thereafter (ex tunc or ex nunc?) there is no existing          under Regulation (EC) No 45/98 29 246 tonnes, which is
aid. That follows from the final paragraph of the                   675 tonnes less than results from the Act of Accession.
Background' section of the contested decision and from
the last sentence of Point 2.1 and the last sentence of             (1) Council Regulation (EC) No 45/98 of 19 December 1997
Point 5.1 of the Commission's Guidelines'. In the                      fixing, for certain fish stocks and groups of fish stocks, the
applicant's opinion, there is no such right of opposition;              total allowable catches for 1998 and certain conditions under
moreover, even supposing that it did exist as stated in the             which they may be fished (OJ L 12, 19.1.1998, p. 1).
                                                                    (2) OJ L 1, 1.1.1995, p. 1.
Commission's Guidelines', it was exercised too late, and
is therefore of no effect.
                                                                    Reference for a preliminary ruling from the Bundes-
                                                                    gerichtshof by order of that court of 5 March 1998 in the
Action brought on 9 April 1998 by the Kingdom of                    case of Union Deutsche Lebensmittelwerke GmbH v.
     Sweden against the Council of the European Union                   Schutzverband gegen Unwesen in der Wirtschaft e.V.
                       (Case C-100/98)                                                       (Case C-101/98)
                                                                                               (98/C 209/33)
                        (98/C 209/32)
                                                                    Reference has been made to the Court of Justice of the
An action against the Council of the European Union was             European Communities by an order of the 1st Civil
brought before the Court of Justice of the European                 Chamber of the Bundesgerichtshof (Federal Court of