CELEX: C1995/137/13
Language: en
Date: 1995-06-03 00:00:00
Title: Action brought on 2 March 1995 by the Federal Republic of Germany against the Commission of the European Communities (Case C-54/95)

3 . 6 . 95              EN                    Official Journal of the European Communities                                  No C 137/7
3 . the Kingdom of Spain is ordered to pay the costs.                    5 . Export refund of                         DM 518 181,00,
                                                                             which the German authorities are said to be obliged to
( ) OJ No C 188 , 9 . 7 . 1994 .                                             recover because the exports of beef in the years 1986/87
( 2 ) OJ No L 330 , 29 . 11 . 1990 , p . 44 .                                 on which it was based went not to South Africa but in
                                                                              fact to Zimbabwe .
                                                                         6 . Special premium for beef producers of
                                                                                                                    DM 3 118 563,54 .
Action brought on 2 March 1995 by the Federal Republic of
Germany against the Commission of the European                           On point 1
                             Communities
                                                                         The reason given by the Commission for imposing the
                          ( Case C-54/95 )                               penalty, namely that the German customs authorities
                            ( 95/C 137/13 )                              delayed in transposing the judgment of the Court of Justice
                                                                         of 22 June 1993 in Case C-54/91 ( 2 ), is not justified : the new
An action against the Commission of the European                         administrative procedure, not objected to by the
Communities was brought before the Court of Justice of the               Commission, has in fact been applied since 19 November
 European Communities on 2 March 1995 by the Federal                     1993 .
 Republic of Germany, represented by Ernst Roder,
 Ministerialrat, and Gereon Thiele, of the Federal Ministry of           Moreover, there is no legal basis for a penalty. The
 Economic Affairs, 53107 Bonn, Germany .                                 Commission does not have the authority independently to
                                                                         fix such penalty payments or lump sums — which is what
The applicant claims that the Court should :                             the 'penalty' at issue here purports to be — without
                                                                         complying with a single one of the conditions of
 1.    annul Commission Decision 94/ 871 /EC of 21 December              Article 171 ( 2 ) of the EC Treaty .
       1994 (') on the clearance of the accounts presented by
       the Member States in respect of the expenditure for               On point 2
       1991 of the European Agricultural Guidance and
       Guarantee Fund ( EAGGF ) Guarantee Section,                       The entitlement to an export refund is conditional on the
       document SG ( 94 ) D/ 19706 of 29 December 1994                   existence of an export. It is established that cattle left the
       ( COM ( 94 ) 3308 final ), in so far as it refuses to             territory of the Community and were released into free
       recognize the sum of DM 116 633 582,10 ;                          circulation in Poland . Whether those exports might perhaps
                                                                         not have been effected if only the refund rate for cattle for
 2 . order the defendant to pay the costs .                              slaughter had been applicable, is of no relevance for the
                                                                         definition of an export for the purpose of the rules on
 Pleas in law and main arguments adduced in support:                     refunds . Since the cattle exported corresponded to the
                                                                         definition of breeding animals — under German law, in the
 The application contests the charging of the following                   absence of Community rules, in accordance with
 amounts :
                                                                          Article 6 ( 1 ) of Directive 77/504/EEC — the Federal
                                                                          Republic of Germany was obliged to pay the export refund
  1 . Penalty of                                DM 1 013 451,17           for animals for breeding.
       equivalent to 10% of a sum charged to the Federal
       Republic of 5 % of the production refunds for the use of           The Commission is wrong to criticise the German
       starch and sugar on the ground of breaches of provisions           Government on the ground that the German customs
       of Regulations ( EEC ) No 2169/86 and ( EEC )                      authorities did not react quickly enough to indications of
       No 1729/78 respectively.                                           possible abuses . The German authorities had long since
                                                                          taken measures when the Commission adopted Community
  2 . Export refunds of                        DM 54 275 090,69
                                                                          rules in March ( Regulation ( EEC ) No 811/92 ) and August
       relating to exports of livestock to Poland as breeding             1992 ( Regulation ( EEC ) No 2342/92 ).
       animals of the bovine species .
  3 . Part of claims to reimbursement against the firm Imex               On point 3
       on the ground of export benefits obtained by deception,
        penalty for failure to comply with the time limit                 The German investigating authorities did not infringe any
        prescribed for stating a position, amounting to                   legal obligation which could give rise to a financial charge,
                                              DM 56 692 508,70 .          and in particular not their obligation under Article 5 of the
                                                                          EC Treaty in conjunction with Article 8 of Regulation ( EEC )
  4 . Export refund of                             DM 997 814,00          No 729/70 to recover sums wrongly paid . The Commission
        allowed to the firm Siidfleisch for exports of beef, in           has no power to instruct a Member State as to which of
        respect of which evidence of arrival in the United Arab           several possible investigative measures it must carry out.
        Emirates — which turned out to be false — was
        originally produced , and after an extension of the time          The fault of an auxiliary customs officer in their
        limit had been granted by the German authorities,                 employment must indeed be imputed to the German
        evidence of the arrival of the shipment in Lebanon was            customs authorities, but charging is recognized only to the
        produced .                                                        extent of the contravention found by the German criminal
 ---pagebreak--- No C 137/8              EN                 Official Journal of the European Communities                                        3 . 6 . 95
court; the Commission cannot disregard that criminal                  Reference for a preliminary ruling from the Sozialgericht
court's findings of fact.                                             Niirnberg by order of that court of 16 January 1995 in the
                                                                      case    of   Francisco       Bastos     Moriana    and     Others
There is no legal basis for imposing a penalty. The German                    v. Bundesanstalt fur Arbeit, Kindergeldstelle
 Government gave the Commission the notifications                                             ( Case C-59/95 )
prescribed by Articles 3 and 5 ( 2 ) of Regulation ( EEC )                                      ( 95/C 137/14 )
No 595/91 ; that Regulation contains no further obligation
to make the notifications by a specified date at the latest.
                                                                      Reference has been made to the Court of Justice of the
                                                                      European Communities by an order of the Sozialgericht
On point 4
                                                                      Niirnberg ( Social Court, Nuremberg ) of 16 January 1995 ,
                                                                      which was received at the Court Registry on 7 March 1995 ,
The Commission's complaint that the German authorities                for a preliminary ruling in the case of Francisco Bastos
did not apply Article 47 ( 4 ) of Regulation ( EEC )                  Moriana and Others v. Bundesanstalt fur Arbeit,
No 3665/87 correctly is unfounded . The Hauptzollamt                  Kindergeldstelle, on the following questions :
 ( Principal Customs Office ) had to presume in the
circumstances that the Siidfleisch firm had done everything
within its power to produce the Lebanon arrival certificate           1 . Must Article 77 ( 2 ) ( b ) in conjunction with Article 79 ( 1 )
in time; if they had suggested that Siidfleisch intended to               of Regulation ( EEC ) No 1408/71 (*) be interpreted as
cause delay, that might have entailed the illegality of the               meaning that family allowances for dependent children
decision, which had to be taken in accordance with respect                of pensioners who have acquired entitlement to a
for the rule of law ( in particular the principle of equal                pension in a Member State not only on the basis of the
treatment in Article 3 of the German Basic Law).                          legislation of that Member State but also on the basis of
                                                                          the coordinating provisions of European social law are
                                                                          to be paid by the Member State in which the pensioners
In the exercise of its discretion with respect to the extension           do not reside as a benefit supplement equal to the
of a time limit, the Principal Customs Office was not able to             difference between the amount of the benefits provided
allege that Siidfleisch had produced the — objectively                    for in that Member State and the benefits paid or
falsified — information on the arrival at the destination with
                                                                          provided for by the State of residence ?
fraudulent intent or gross negligence; that view was
confirmed by the Staatsanwaltschaft ( Public Attorney's
Office ) and the customs investigators . Where — as in the            2 . Must Article 78 (2 ) ( b ) in conjunction with Article 79 ( 1 )
present case — EC law leaves a discretion to the Member                   of Regulation ( EEC ) No 1408/71 be interpreted as
States , it is not open to the Commission to make the exercise            meaning that family allowances for orphans of a
of that discretion subject to its own views .                             deceased worker or self-employed person who was
                                                                          subject to the legislation of several Member States, if
                                                                          entitlement to an orphan's pension in a Member State
On point 5                                                                whose law applied does not exist solely on the basis of
                                                                          the legislation of that Member State or on the basis of
The German authorities did not infringe any legal obligation              the coordinating provisions of European social law, are
which could give rise to a financial charge, and in particular            to be paid by the Member State in which the orphans do
not their obligation under Article 5 of the EC Treaty in                  not reside as a benefit supplement equal to the difference
conjunction with Article 8 of Regulation ( EEC ) No 729/70                between the amount of the benefits provided for in that
to recover sums wrongly paid . On the basis of the findings               Member State and the benefits paid or provided for by
                                                                          the State of residence ?
made by the German authorities, it is to be presumed that
the goods in question reached the South African market first
and were traded there; that corresponding certificates of             3 . If the replies to questions 1 and 2 are in the affirmative
fitness for consumption were subsequently issued in                       and there is entitlement to family allowances, must the
Zimbabwe is irrelevant, in so far as those certificates give no           amount of the benefit supplement be reduced according
indication as to the route actually taken by the goods and                to the ratio between the periods of insurance in the
may later have abusively been allocated to consignments of                Member State and the periods of insurance of the same
meat other than those for which they were issued .                        kind in the State of residence (or another Member
                                                                          State )?
On point 6
                                                                     4 . Is entitlement to benefit supplement precluded by the
                                                                          fact that a pension benefit granted under a social
The applicant refers to the pending Case C-41 /94 ( 3 ) for               insurance agreement has not been converted in
reasons .
                                                                          accordance with Article 94 ( 5 ) of Regulation ( EEC )
                                                                          No 1408/71 ?
(M OJ No L 352 , 31 . 12 . 1994 , p . 82 .
( 2 ) OJ No C 189 , 13 . 7 . 1993 , p. 7 .
( ? ) OJ No C 90, 26 . 3 . 1994 , p . 6 .                             (M OJ No L 149 , 5 . 7. 1971 , p . 2 .