CELEX: C2002/003/09
Language: en
Date: 2002-01-05 00:00:00
Title: Judgment of the Court (Second Chamber) of 8 November 2001 in Case C-228/99 (reference for a preliminary ruling from the Tribunale civile e penale di Cagliari): Silos e Mangimi Martini SpA v Ministero delle Finanze (Agriculture — Common organisation of the markets — Export refunds — Withdrawal — Interpretation and validity of Regulations (EC) Nos 1521/95 and 1576/95 — Failure to state reasons)

C 3/6                    EN                       Official Journal of the European Communities                                           5.1.2002
                 JUDGMENT OF THE COURT                                                        JUDGMENT OF THE COURT
                           (Fifth Chamber)                                                            (Second Chamber)
                        of 8 November 2001                                                           of 8 November 2001
in Case C-143/99 (reference for a preliminary ruling from                    in Case C-228/99 (reference for a preliminary ruling from
the Verfassungsgerichtshof): Adria-Wien Pipeline GmbH,                       the Tribunale civile e penale di Cagliari): Silos e Mangimi
and Wietersdorfer & Peggauer Zementwerke GmbH v                                         Martini SpA v Ministero delle Finanze (1)
             Finanzlandesdirektion für Kärnten (1)
                                                                             (Agriculture — Common organisation of the markets —
(Tax on energy — Rebate granted only to undertakings                         Export refunds — Withdrawal — Interpretation and validity
               manufacturing goods — State aid)                              of Regulations (EC) Nos 1521/95 and 1576/95 — Failure
                                                                                                        to state reasons)
                            (2002/C 3/08)
                                                                                                         (2002/C 3/09)
                   (Language of the case: German)
                                                                                                  (Language of the case: Italian)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                           (Provisional translation; the definitive translation will be published
                                                                                                 in the European Court Reports)
In Case C-143/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Verfassungsge-                   In Case C-228/99: reference to the Court under Article 234
richtshof (Constitutional Court) (Austria) for a preliminary                 EC from the Tribunale civile e penale di Cagliari (Italy) for a
ruling in the proceedings pending before that court between                  preliminary ruling in the proceedings pending before that
Adria-Wien Pipeline GmbH and Wietersdorfer & Peggauer                        court between Silos e Mangimi Martini SpA and Ministero delle
Zementwerke GmbH and Finanzlandesdirektion für Kärnten                       Finanze — on the interpretation and validity of Commission
— on the interpretation of Article 92 of the EC Treaty (now,                 Regulations (EC) Nos 1521/95 of 29 June 1995 and 1576/95
after amendment, Article 87 EC) — the Court, composed of:                    of 30 June 1995 fixing the export refunds on cereal-based
P. Jann, President of the Chamber, A. La Pergola, L. Sevón,                 compound feedingstuffs (OJ 1995 L 147, p. 65, and OJ 1995
M. Wathelet (Rapporteur), and C.W.A. Timmermans, Judges;                     L 150, p. 64) — the Court, composed of: N. Colneric, President
J. Mischo, Advocate General; H.A. Rühl, Principal Adminis-                   of the Chamber, R. Schintgen (Rapporteur) and V. Skouris,
trator, for the Registrar, has given a judgment on 8 November                Judges; L.A. Geelhoed, Advocate General; L. Hewlett, Adminis-
2001, in which it has ruled:                                                 trator, for the Registrar, has given a judgment on 8 November
                                                                             2001, in which it has ruled:
1.    National measures which provide for a rebate of energy taxes
      on natural gas and electricity do not constitute State aid within      1.    Commission Regulation (EC) No 1521/95 of 29 June
      the meaning of Article 92 of the EC Treaty (now, after                       1995 fixing the export refunds on cereal-based compound
      amendment, Article 87 EC) where they apply to all undertakings               feedingstuffs applied to the exports for which the competent
      in national territory, regardless of their activity.                         customs service accepted, on the date of its publication, export
                                                                                   declarations stating that an export refund was going to be
                                                                                   claimed and for which advance fixing of the export refund had
2.    National measures which provide for a rebate of energy taxes                 not been requested.
      on natural gas and electricity only in the case of undertakings
      whose activity is shown to consist primarily in the manufacture
      of goods must be regarded as State aid within the meaning of           2.    Commission Regulation (EC) No 1576/95 of 30 June
      Article 92 of the Treaty.                                                    1995 fixing the export refunds on cereal-based compound
                                                                                   feedingstuffs did not revoke Regulation No 1521/95 and
                                                                                   therefore had no effect on the applicability of the latter
                                                                                   regulation on 30 June 1995.
(1) OJ C 188 of 3.7.1999.
                                                                             3.    Commission Regulation No 1521/95 does not satisfy the
                                                                                   requirement to state reasons laid down in Article 190 of the
                                                                                   EC Treaty (now Article 253 EC) and is therefore invalid.
 ---pagebreak--- 5.1.2002               EN                     Official Journal of the European Communities                                                 C 3/7
4.    As a result of the invalidity of Commission Regulation             M. Wathelet and V. Skouris (Presidents of Chambers),
      No 1521/95, the export refunds for cereal-based feedingstuffs,     D.A.O. Edward, J.P. Puissochet, P. Jann, L. Sevón, R. Schintgen
      for which the application was made in export declarations          and F. Macken, Judges; S. Alber, Advocate General; H. von
      accepted by the competent customs service on 30 June 1995          Holstein, Deputy Registrar, has given a judgment on 27 Sep-
      and for which advance fixing had not been requested, are to be     tember 2001, the operative part of which is as follows:
      calculated in accordance with Commission Regulation (EC)
      No 1415/95 of 22 June 1995 fixing the export refunds on
      cereal-based compound feedingstuffs.                               1.   Article 45(1) of the Europe Agreement establishing an associ-
                                                                              ation between the European Communities and their Member
                                                                              States, of the one part, and the Republic of Bulgaria, of the
                                                                              other part, concluded and approved on behalf of the Community
(1) OJ C 246 of 28.8.1999.                                                    by Decision 94/908/ECSC, EC, Euratom of the Council and
                                                                              the Commission of 19 December 1994, is to be construed as
                                                                              establishing, within the scope of application of that Agreement,
                                                                              a precise and unconditional principle which is sufficiently
                                                                              operational to be applied by a national court and which is
                                                                              therefore capable of governing the legal position of individuals.
                                                                              The direct effect which that provision must therefore be
                                                                              recognised as having means that Bulgarian nationals relying
                                                                              on it have the right to invoke it before the courts of the host
                                                                              Member State, notwithstanding the fact that the authorities of
                                                                              that State remain competent to apply to those nationals their
                 JUDGMENT OF THE COURT                                        own national laws and regulations regarding entry, stay and
                                                                              establishment, in accordance with Article 59(1) of that
                                                                              Agreement.
                     of 27 September 2001
                                                                         2.   The right of establishment, as defined by Article 45(1) of the
in Case C-235/99 (reference for a preliminary ruling from                     above Association Agreement, means that rights of entry and
the High Court of Justice of England and Wales, Queen’s                       residence, as corollaries of the right of establishment, are
Bench Division (Divisional Court)): The Queen v Sec-                          conferred on Bulgarian nationals wishing to pursue activities of
retary of State for the Home Department, ex parte:                            an industrial or commercial character, activities of craftsmen, or
                 Eleonora Ivanova Kondova (1)                                 activities of the professions in a Member State. However, it
                                                                              follows from Article 59(1) of that Agreement that those rights
                                                                              of entry and residence are not absolute privileges, inasmuch as
(External relations — Association Agreement between the                       their exercise may, in some circumstances, be limited by the
Communities and Bulgaria — Freedom of establishment —                         rules of the host Member State governing the entry, stay and
Leave to enter fraudulently obtained — Obligation on a                        establishment of Bulgarian nationals.
Member State to pay compensation for damage caused to an
individual invoking a right of establishment which is directly
                                                                         3.   Articles 45(1) and 59(1) of the above Association Agreement,
          effective under the Association Agreement)
                                                                              read together, do not in principle preclude a system of prior
                                                                              control which makes the issue by the competent immigration
                          (2002/C 3/10)                                       authorities of leave to enter and remain subject to the condition
                                                                              that the applicant must show that he genuinely intends to take
                                                                              up an activity as a self-employed person without at the same
                   (Language of the case: English)                            time entering into employment or having recourse to public
                                                                              funds, and that he possesses, from the outset, sufficient financial
                                                                              resources and has reasonable chances of success. Substantive
                                                                              requirements such as those set out in paragraphs 217 and 219
                                                                              of the United Kingdom Immigration Rules (House of Commons
                                                                              Paper 395) have as their very purpose to enable the competent
In Case C-235/99: reference to the Court under Article 234                    authorities to carry out such checks and are appropriate for
EC from the High Court of Justice of England and Wales,
                                                                              achieving such a purpose.
Queen’s Bench Division (Divisional Court), for a preliminary
ruling in the proceedings pending before that court between
The Queen and Secretary of State for the Home Department,                4.   Article 59(1) of the above Association Agreement must be
ex parte: Eleanora Ivanova Kondova — on the interpretation                    construed as meaning that the competent authorities of the host
of Articles 45 and 59 of the Europe Agreement establishing                    Member State may reject an application made pursuant to
an association between the European Communities and their                     Article 45(1) of that Agreement on the sole ground that, when
Member States, of the one part, and the Republic of Bulgaria,                 that application was submitted, the Bulgarian national was
of the other part, concluded and approved on behalf of the                    residing illegally within the territory of that State because of
Community by Decision 94/908/ECSC, EC, Euratom of the                         false representations made to those authorities or non-disclosure
Council and the Commission of 19 December 1994 (OJ 1994                       of material facts for the purpose of obtaining initial leave to
L 358, p. 1) — the Court, composed of: G.C. Rodrı́guez                        enter that Member State on a different basis. Consequently,
Iglesias, President, C. Gulmann, A. La Pergola (Rapporteur),                  those authorities may require that national to submit, in due