CELEX: C1997/370/03
Language: en
Date: 1997-12-06 00:00:00
Title: Reference for a preliminary ruling by the Verwaltungsgerichtshof, Vienna, by order of that court of 24 September 1997 in the case of Wilfried Ernst Joachim Monsees against the Unabhängiger Verwaltungssenat für Kärnten, Additional Party: Bundesminister für Wissenschaft und Verkehr (Case C-350/97)

C 370/2                EN                 Official Journal of the European Communities                                        6 . 12 . 97
Contentions and main arguments adduced in support:                       undertaking without conducting a tendering
                                                                         procedure . It also uses it in order to correct what it
                                                                         regards as inadequacies in the Community legislation,
The    contested     decision  is based  on   erroneous    and           as the Conciliation Body recognizes with regard to
subjective considerations . The Kingdom of Spain believes                dried feedingstuffs .
that it has put forward sufficient information and
arguments to show that the contested decision infringed at
least the following principles of Community law :                        Those corrections, which are in fact in the nature of
                                                                         penalties, are not based on any legislative provision.
— The principle of the right to a hearing : this principle is
    infringed by all the corrections at issue in the
    application .                                                        The Conciliation Body regards the correction of 10%
                                                                          in respect of production aid as fair, but in so doing
                                                                         relies on the same argument as the Commission : the
    Formally, that principle was observed in that the                     lack of computer records. It is not permissible to
    Member State was given an opportunity to state its                   withhold the refund of aid paid out in advance merely
    views on the matters raised by the Commission staff.                  because certain computer records have not been
    But in practice no notice was ever taken of the                       finalized : there must be a duly established and serious
    explanations given. That is immediately clear from the                lack   of checks        which    has  caused   harm    to   the
    documents sent to the Commission by the Spanish                       Community budget.
    authorities, setting out facts and arguments
    comprehensively, and the replies to them, which do no
    more than stress the same points, without                        — In the alternative, the applicant alleges breach of the
    contradicting or refuting the arguments put forward.                  principle of proportionality: if the submissions of the
    Such conduct is tantamount to denying the right of                    Spanish authorities had been properly considered, the
    defence and involves breach of the right to a hearing:               corrections would have been much lower than those
    the explanations put forward by Spain in its defence                  actually imposed. The applicant considers that it put
    have been repeatedly ignored .                                        forward adequate data and arguments to demonstrate
                                                                          to the Court that there is no lack of controls in Spain,
                                                                          at least not to the extent alleged by the Commission.
— Lack of any evidence of the faults imputed to the
    Member State : this basic requirement was also
    infringed in all cases, particularly in relation to              (') OJ L 245 , 9 . 9 . 1997, p . 20 .
    consumption aid . The Commission based its
    corrections either on appearances or suspicions or else
    on data refuted or corrected by the Spanish
    authorities .
— The principle of sound administration : infringed in all
    cases through failure to take account of or sufficiently         Reference for a preliminary ruling by the
    assess the explanations repeatedly given by the Spanish          Verwaltungsgerichtshof, Vienna, by order of that court of
    authorities — particularly as regards the overall                24 September 1997 in the case of Wilfried Ernst Joachim
    correction of 2 % for consumption aid . That                     Monsees against the Unabhangiger Verwaltungssenat fiir
    correction was applied on the basis of visits and                Karnten,        Additional         Party:    Bundesminister       fiir
                                                                                           Wissenschaft und Verkehr
     inspections in years prior to 1993 , and in relation to
     alleged faults on the part of an undertaking which did                                     ( Case C-3 50/97)
     not receive aid in that year.
                                                                                                  ( 97/C 370/03 )
— The principle nulla poena sine lege: this principle was
     infringed in particular in relation to aid for oil
     production and aid for the production of dried                  Reference has been made to the Court of Justice of the
     feedingstuffs .                                                 European          Communities           by     order    of        the
                                                                     Verwaltungsgerichtshof ( Administrative Court ), Vienna of
                                                                     24 September 1997, received at the Court Registry on
     A financial correction may only be imposed if it is             13 October 1997, for a preliminary ruling in the case of
     found that controls are not being carried out in                Wilfried Ernst Joachim Monsees against the Unabhangiger
     accordance with the Community provisions and only               Verwaltungssenat fiir Karnten ( Independent Administrative
     if the inadequacies detected are serious and give               Board for Carinthia ), Additional Party : Bundesminister fiir
     reasonable grounds for concluding that the                      Wissenschaft und Verkehr ( Federal Minister for Science
     Community budget has been seriously affected . The              and Transport ), on the following question:
     Commission        uses   the  instrument    of   financial
     correction in order to penalize a Member State for not
     keeping a computer record up to date or for awarding            are Articles 30 to 36 of the EC Treaty (provisions on the
     a contract regarding records of oil production to an            freedom of movement of goods ) and the other provisions
 ---pagebreak--- 6 . 12 . 97              EN                  Official Journal of the European Communities                                       C 370/3
of applicable Community law to be interpreted as                        Reference for a preliminary ruling by the Finanzgericht
preventing a Member State from restricting the transport                Miinchen by order of that court of 17 September 1997 in
of animals for slaughter in that animals may be                         the case of Molkereigenossenschaft Wiedergeltingen eG v.
transported for slaughter only as far as the nearest suitable                                   Hauptzollamt Lindau
abattoir in that State, and may be transported for                                                (Case C-356/97)
slaughter in any event only if the provisions of law
regarding motor vehicles and traffic regulation are                                                 ( 97/C 370/05 )
observed and a total journey time of six hours and a
distance of 130 kilometres are not exceeded, whereby, in                Reference has been made to the Court of Justice of the
calculating the distance, account is taken of only half of              European Communities by order of the Finanzgericht
the kilometres actually travelled on a motorway ?                       Miinchen ( Finance Court, Munich ) of 17 September 1997,
                                                                        received at the Court Registry on 16 October 1997, for a
                                                                        preliminary ruling in the case of Molkereigenossenschaft
                                                                        Wiedergeltingen eG v. Hauptzollamt ( Principal Customs
                                                                        Office ) Lindau on the following question :
                                                                        is the second subparagraph of Article 3 ( 2 ) of Commission
Reference for a preliminary ruling from the Oberster                    Regulation ( EEC) No 536/93 of 9 March 1993 ( OJ L 57,
Gerichtshof, Austria, by order of that court of 28 August               10 . 3 . 1993 , p. 12 ), relating to the imposition of penalties
1997 in the case of Landesgrundverkehrsreferent der                     on dairies ( purchasers of milk ), valid ?
Tiroler Landesregierung v. ( 1 ) Beck Liegenschaftsverwal­
tungsgesellschaft mbH and (2 ) Bergdorf Wohnbau
Gesellschaft mbH in liquidation, Dr Karl Hacker
                               intervening
                          ( Case C-355 /97 )                            Action brought on 21 October 1997 by the Commission
                                                                                 of the European Communities against Ireland
                            ( 97/C 370/04 )
                                                                                                  ( Case C-357/97 )
                                                                                                    ( 97/C 370/06 )
Reference has been made to the Court of Justice of the
European Communities by an order of the Oberster                        An action against Ireland was brought before the Court of
Gerichtshof ( Supreme Court ), Austria , of 28 August 1997,             Justice of the European Communities on 21 October 1997
which was received at the Court Registry on 15 October                  by the Commission of the European Communities,
1997, for a preliminary ruling in the case of Landesgrund­              represented by Mr Pieter Jan Kuijper, legal adviser, acting
verkehrsreferent der Tiroler Landesregierung v. ( 1 ) Beck              as agent, with an address for service in Luxembourg at the
Liegenschaftsverwaltungsgesellschaft mbH and ( 2 ) Bergdorf             office of Mr Carlos Gomez de la Cruz, a member of its
Wohnbau Gesellschaft mbH in liquidation, Dr Karl                        Legal Service , Centre Wagner, Luxembourg.
Hacker intervening, on the following question:
                                                                        The applicant claims that the Court should :
is Article 70 of the Act concerning the conditions of                   a ) find that Ireland has failed to fulfil its obligations
accession of the Republic of Austria, the Republic of                        under the EC Treaty by failing to adopt the laws,
Finland and the Kingdom of Sweden and the adjustments                        regulations or administrative provisions necessary to
to the Treaties on which the European Union is                               comply with Council Directive 92/29 (') of 31 March
founded ('), which provides that notwithstanding the                         1992 concerning the minimum safety and health
obligations under the treaties on which the European                         requirements for improved medical treatment on
Union is founded the Republic of Austria may maintain its                    board vessels and/or by failing to inform the
existing legislation regarding secondary residences for five                 Commission thereof; and
years from the date of accession (1 January 1995 ),
to be interpreted as meaning that the transitional                      b ) condemn Ireland to bear the costs of the procedure .
provisions in Paragraph 40 ( 2 ) and ( 5 ) of the Tiroler
Grundverkehrsgesetz 1996 ( Landesgesetzblatt fur Tirol                  Pleas in law and main arguments adduced in support:
No 61 /1996 ), which entered into force on 1 October
1996 , fall within the definition of existing legislation,              Article 189 of the EC Treaty, under which a directive shall
or are those provisions to be regarded as new                           be binding, as to the result to be achieved, upon each
legislation if, as a result of decisions of the Austrian                Member State, carries by implication an obligation on the
Verfassungsgerichtshof, the provisions of previous Tirol                Member States to observe the period for compliance laid
laws on the sale of land were not applicable in the                     down in the directive . That period expired on
present case ?                                                          31 December 1994 without Ireland having enacted the
                                                                        provisions necessary to comply with the directive referred
                                                                        to in the conclusions of the Commission .
(') OJ C 241 , 29 . 8 . 1994 , p . 1 .
                                                                        (') OJ L 113 , 30 . 4 . 1992 , p . 19 .