CELEX: C1995/299/22
Language: en
Date: 1995-11-11 00:00:00
Title: Action brought on 27 September 1995 by the Kingdom of the Netherlands against the Commission of the European Communities (Case C-308/95)

11 . 11 . 95         fENl                   Official Journal of the European Communities                                   No C 299/ 13
Travail ( Higher Labour Court ), Mons, of 21 September                 provisions necessary to comply with the directives referred
1995 , which was received at the Court Registry on                     to in the conclusions of the Commission .
26 September 1995 , for a preliminary ruling in the case of
Universite Catholique de Louvain ( Catholic University of              (') Council Directive 92/40/EEC of 19 May 1992 introducing
Louvain ) v. Francine Plapied and Danielle Gallez on the                     Community measures for the control of avian influenza ( OJ No
following questions :                                                        L 167, 22 . 6 . 1992 , p. 1 ).
                                                                       ( 2 ) Council Directive 91 /495/EEC of 27 November              1990
'Do supplementary family allowances which are calculated                     concerning public health and animal health problems affecting
                                                                             the production and placing on the market of rabbit meat and
on a flat-rate basis according to the number of children                     farmed game meat ( OJ No L 268 , 24 . 9 . 1991 , p. 41 ).
concerned and which an individual employer pays to his
employees , either under the terms of a collective labour
agreement or on a voluntary, unilateral basis, constitute pay
within the meaning of Article 119 of the EC Treaty ?
In the event that the first question is answered in the                Action brought on 27 September 1995 by the Kingdom of
affirmative, if an employer infringes the rule of equal                the Netherlands against the Commission of the European
treatment for men and women contained in that provision ,                                             Communities
are the employees affected entitled under Community law                                            ( Case C-308/95 )
to claim payment of arrears of supplementary family
allowances as from 8 April 1976 , in order to ensure that the                                        ( 95/C 299/22 )
period in respect of which they may bring an action is the
same as that for a comparable right of action under Belgian            An action against the Commission of the European
law ?'                                                                 Communities was brought before the Court of Justice of the
                                                                       European Communities on 27 September 1995 by the
                                                                       Kingdom of the Netherlands, represented by J. S. van der
                                                                       Oosterkamp and M. A. Fierstra, acting as Agents, with an
                                                                       address for service in Luxembourg at the Netherlands
                                                                       Embassy, 5 Rue C. M. Spoo .
Action brought on 26 September 1995 by the Commission
of the European Communities against the United                         The Kingdom of the Netherlands claims that the Court
                             Kingdom                                   should :
                        ( Case C-306/95 )
                          ( 95/C 299/21 )
                                                                       — annul the decision of the Commission of 28 July 1995
                                                                             concerning the settlement of accounts in respect of
                                                                             projects co-financed prior to 1989 by the European
An action against the United Kingdom was brought before                       Regional Development Fund,
the Court of Justice of the European Communities on
26 September 1995 by the Commission of the European                    — order the defendant to pay the costs.
Communities, represented by Mr Peter Oliver, member of
the Legal Service , acting as agent, with an address for service       Pleas in law and main arguments adduced in support:
in Luxembourg at the office of Mr Carlos Gomez de la Cruz,
Centre Wagner, Kirchberg.                                              — Infringement of the Treaty or of certain rules for its
                                                                              implementation and/or infringement of essential
The Applicant claims that the Court should :                                  procedural requirements, concerning in particular the
                                                                              provision of a statement of reasons for the decision
1 . declare that by failing to bring into force the measures                  ( Article 190 of the EC Treaty ), and/or breach of general
     necessary to comply with Council Directives                              principles of Community law: the letter of 28 July 1995
     92/40/EEC (') and 91 /495/EEC ( 2 ) in Northern Ireland,                 from the Commissioner responsible for regional policy
     or in the alternative by failing to inform the Commission                constitutes the final act in the decision-making process,
     forthwith thereof, the United Kingdom has failed to                      by which the Commission reached a definitive decision
     fulfil its obligations under those Directives and in                     concerning the settlement of accounts in respect of
     particular Article 22 thereof and under the Treaty                       the Netherlands infrastructure projects decided on
     establishing the European Community;                                     by the Commission before 1 January 1989 under the
                                                                              European Regional Development Fund ( ERDF ). The
2 . order the United Kingdom to pay the costs .                               Commission 's view that the timelimit of 31 March 1995
                                                                              constitutes a final deadline is based on an incorrect, or at
Pleas in law and main arguments adduced in support:                           least incomprehensible, interpretation of Article 12 of
                                                                              Council Regulation ( EEC ) No 2083/93 of 20 July 1993
Article 189 of the EC Treaty, under which a directive shall                   amending Regulation ( EEC ) No 4254/88 laying down
be binding, as to the result to be achieved, upon each                        provisions for implementing Regulation ( EEC ) No
Member State, carries by implication an obligation on the                     2052/88 as regards the European Regional Development
Member States to observe the period for compliance laid                       Fund ( hereinafter 'the 1993 ERDF Regulation'). The
down in the directive . That period expired on 1 January                      way in which the Commission has applied Article 12 of
 1993 without the United Kingdom having enacted the                           the 1993 ERDF Regulation in the contested decision,
 ---pagebreak--- No C 299/ 14           EN                  Official Journal of the European Communities                                    11 . 11 . 95
   without referring to requests for final payment                    ( Administrative Court for Customs and Excise ) of
   submitted after 31 March 1995 , is contrary to general             21 September 1995 , which was received at the Court
   principles of Community law, in particular :                       Registry on 29 September 1995 , for a preliminary ruling in
                                                                      the case of Road Air BV v. Inspector of Customs and Excise ,
   — the principle of the duty to act in good faith/principle         Hoofddorp , on the following question :
       of ( regional ) partnership ( Article 5 of the EC Treaty ):
       the Commission has failed to arrive at a definitive
                                                                      Is Part Four of the EEC Treaty , in particular Articles 1 32 (1 ),
       settlement of accounts in respect of the projects by            133 ( 1 ) and 134 , to be interpreted — regardless of any
       cooperating in good faith and engaging in effective            distinction between goods originating in the OCT and
       consultations with the Netherlands Government ,                goods originating in third countries , and thus by way of
       and has thus unlawfully omitted to take into                   derogation from Council Decisions 86/283/EEC (') and
       consideration requests for final payment submitted             91 / 1 10/EEC ( 2 ) — as meaning that no customs duties were
       as a precautionary measure . In so acting, the                 payable on 25 June 1991 on goods which , immediately
       Commission is contravening the objectives of the               before being imported into the Community, were in free
       ERDF ,                                                         circulation in an OCT country ?
   — the principle of the protection of legitimate
                                                                      (') OJ No L 175 , 1986 , p . 1 .
       expectations : in view of the fact that Article 1 2 of the     (-) OJ No L 58 , 1991 , p . 27 .
        1993 ERDF Regulation in any event infringes
       acquired rights to subsidies by providing that they
       are to cease definitively on 30 September 1995 , and
       in view also of the action taken by the Commission
       in the past, the Netherlands Government was
       justifiably entitled to expect that applications for
       payment submitted after 3 1 March 1 995 but in good                               ORDER OF THE COURT
       time before 30 September 1995 would be taken into                                   of 29 September 1995
       consideration in the final settlement of accounts ,
                                                                      in Case C-2/94 SA : Empresa Nacional de Urânio SA ( ENU )
                                                                             v . Commission of the European Communities ( l )
   — the principle of proportionality : taking all the
       circumstances into account, the Commission could               (Request for authorization to seize assets of the Community
       not reasonably have reached the contested decision                                         in Portugal)
       providing that assistance for projects already                                           ( 95 /C 299/24 )
       completed , amounting to Fl 15 606 552 , was no
       longer to be payable .
                                                                                    (Language of the case: Portuguese)
— In so far as the Commission 's interpretation of the
   aforementioned provision is correct, and the timelimit of          (Provisional translation; the definitive translation will be
   31 March 1995 which it lays down is justified , the                           published in the European Court Reports)
   Commission has unlawfully failed ( contrary , at least , to
   Article 12 of the 1993 ERDF Regulation and the                     In Case C-2/94 SA : Empresa Nacional de Uranio SA ( ENU ),
   abovementioned principles of Community law ) to treat              a company incorporated under Portuguese law, whose
   the letter of 21 March 1995 from the Ministry of                   registered office is in Urgeiri<;a , Nelas , represented by
   Economic Affairs as a request for final payment .                  Professor Joao Mota de Campos , of the Lisbon Bar, Rua
   Moreover, the Commission adopted the contested                     Antonio Enes, 16-5 " E, 1000 Lisbon v. Commission of the
   decision without first consulting the Committee of the             European Communities ( Agents : Antonio Caeiro and
   Fund . In addition, having regard to the foregoing, the            Jurgen Grunwald ) — application for authorization to seize
   Commission has failed, contrary to Article 1 90 of the FX          assets of the Community in Portugal — the Court,
   Treaty, to provide any or any adequate statement of                composed of G. C. Rodriguez Iglesias , President, F. A.
   reasons for the contested decision .                               Schockweiler, P. J. G. Kapteyn , C. Gulmann and P. Jann
                                                                       ( Presidents of Chambers ), G. F. Mancini , C. N. Kakouris ,
                                                                      J. C. Moitinho de Almeida , J. L. Murray, D. A. O. Edward
                                                                       ( Rapporteur ), J. -P. Puissochet, G. Hirsch and
                                                                       H. Ragnemalm, Judges ; A. La Pergola ; Advocate-General ;
                                                                       R. Grass, Registrar , made an order on 29 September 1 995 of
Reference for a preliminary ruling from the Tariefcommissie           which the operative part is as follows :
by order of that court of 21 September 1995 in the case
of Road Air BV v. Inspector of Customs and Excise,                      1 . there is no need to give a decision ;
                            Hoofddorp
                        ( Case C-3 10/95 )                             2 . the parties are to bear their own costs .
                          ( 95 /C 299/23 )
                                                                       (M O J No C 392 , 31 . 12 . 1994 .
Reference has been made to the Court of Justice of the
European Communities by order of the Tariefcommissie