CELEX: C1997/271/09
Language: en
Date: 1997-09-06 00:00:00
Title: Action brought on 7 July 1997 by the Portuguese Republic against the Commission of the European Communities (Case C-246/97)

6 . 9 . 97                EN                 Official Journal of the European Communities                                    C 271 /7
     — the supervisory system as a whole exhibits                       Action brought on 7 July 1997 by the Portuguese
             deficiencies ( in contrast, isolated shortcomings          Republic against the Commission of the European
             which do not say anything about the operation of                                     Communities
             the system as a whole have to be treated                                           Case C-246/97 )
             differently, namely by refusing Community
             financing for a number of identified transactions in                                ( 97/C 271 /09
             respect of which the conditions for the grant of
             financing are not met),
                                                                        An action against the Commission of the European
     — the deficiencies must be sufficiently serious ( the              Communities was brought before the Court of Justice of
             seriousness of the deficiencies should be assessed         the European Communities on 7 July 1997 by the
             partly in the light of the complexity of the               Portuguese Republic, represented by Dr Joao Mota de
             Community provisions which the Member States               Campos, Dr Luis Ines Fernandes and Dr Maria Lufsa
             are having to implement and of the risk that               Duarte, acting as Agents, with an address for service in
             certain sums were wrongly incurred ), and                  Luxembourg at the Portuguese Embassy, 33 Allee Scheffer.
     — it may reasonably be considered that the
             deficiencies have resulted in wrongful expenditure         The applicant claims that the Court should :
             or even fraud ( and hence in a loss for the
             EAGGF); in addition, the flat-rate corrections
             should be commensurate with the risk so found .            — declare null and void the Commission's Decision
                                                                            requiring the Portuguese Government to suspend aid
                                                                            in the shape of a State guarantee granted to the
     In the applicant's view, the Commission was not                        undertaking       EPAC       —      Empresa    para     a
     entitled, on the basis of the verifications carried out by             Agroalimenta^ao e Cereais, SA,
     EAGGF officials, ( i ) to consider that the Belgian
     supervisory system as a whole exhibited deficiencies,
      ( ii ) to impose linear corrections and apply to the              — order the Commission to pay the costs .
     applicant the most severe correction factor of 10%
     and ( iii ) to apply the linear correction to all
     expenditure relating to the sectors concerned. In any              Pleas in law and main arguments adduced in support:
     event, the summary report does not contain sufficient
     reasons to justify such a correction .
                                                                        — lack of legal basis,
— Infringement of the principle of legal certainty, the
     principle patere legem quam ipsi fecisti and Article 190           — unlawful adoption of the interim measure by the
     of the EC Treaty:                                                      Commission .
     Assuming that there is justification for applying a flat­              — lack of legal basis : despite the fact that neither the
     rate correction in this case ( which is denied ), it might                 Treaty nor secondary legislation provides for the
     at least be expected that the Commission would                             adoption of interim measures in the context of
     comply with its own guidelines, in particular the rules                    proceedings under Article 93 of the EC Treaty, the
     set out in its document No IV/216/93 , when carrying                       power to adopt them was afforded to the
     out that correction .                                                      Commission by the case-law of the Court of First
                                                                                Instance . However, the Commission must not
                                                                                impose upon a Member State an inappropriate and
— Infringement of the principle of equal treatment and of                       fundamental measure whose nature and effect is
     the duty to state reasons:                                                 that of a definitive measure. When exercising its
                                                                                quasi-judicial power to take interim measures, the
                                                                                Commission cannot dispense — as it has done —
     Neither the contested decision nor the summary report                      with verifying whether there is a prima facie case,
     set out reasons justifying a flat-rate correction of 10%                   since to do so makes its decision manifestly
     in      the   beef and    veal  sector when    the  flat-rate              arbitrary. Moreover, the Commission took no
     correction applied in respect of that sector as regards                    account whatsoever of the damage which the
     the Netherlands, Germany and France is only 5% .                           interim measure imposed could entail for the
     Not only are no reasons given for that difference in                       Portuguese State, EPAC and its creditor banks.
     treatment, but also it is not based on objective criteria .                Finally, the Commission cannot extend the exercise
     The evidence submitted by the applicant in that                            of the extraordinary powers conferred by the
     respect to the Commission in the application for                           Court of First Instance to situations not provided
     conciliation was simply ignored by the Commission.                         for in that case-law by requiring that the grant of
                                                                                a State guarantee ( without transfer of State
                                                                                resources ), rather than non-existent payments, be
                                                                                suspended,
 ---pagebreak--- C 271 /8             1 EN 1               Official Journal of the European Communities                                    6 . 9 . 97
    — breach of the principle of proportionality: if, in             2.  Is it relevant that in Austria most nurseries are State­
         observance of the Commission's interim measure,                 run or State-aided ?
         Portugal were to take the step of suspending
         immediately the State's guarantee, the creditor
         banks could demand immediate payment by the
         State of EPAC 's credit — which would thus be
         rendered insolvent and consequently have to be
         wound up — or directly from the Portuguese State            Reference for a preliminary ruling from the
         on the basis of its contractual responsibility.             Handelsgericht Wien by order of that court of 24 March
                                                                     1997 in the case of Pfeiffer Großhandel GmbH v. Löwa
                                                                                          Warenhandel GmbH
         The measure which the Commission seeks to
         impose is, therefore, manifestly fundamental and                                   ( Case C-255/97)
         inappropriate and absolutely disproportionate to                                     ( 97/C 271/11 )
         any damage — which the Commission did not
         even attempt to identify — which might arise from
         the State's maintaining the guarantee until the final       Reference has been made to the Court of Justice of the
         decision,                                                   European Communities by an order of the Handelsgericht
                                                                     Wien ( Commercial Court, Vienna ) of 24 March 1997,
                                                                     which was received at the Court Registry on 14 July 1997,
    — failure of the Commission to provide figures for its           for a preliminary ruling in the case of Pfeiffer Großhandel
         accounting: the mere granting of the State                  GmbH v. Löwa Warenhandel GmbH on the following
         guarantee does not constitute aid since the                 question:
         guarantee cannot be described as aid inasmuch as
          EPAC is not due payment of amounts owed by                 Is Article 30 or Article 52 et seq. of the EC Treaty to be
         way of capital or interest from the State acting as         interpreted as precluding the application of national
         guarantor on behalf of a debtor undertaking, nor            provisions which require that in the case of trade marks or
         would it be sufficient that EPAC's claim against            designations of undertakings which are liable to be
          Silopor, for which the State is liable, were satisfied     confused the one with earlier priority is to be protected,
          for EPAC to be able to dispense entirely with the          and hence prohibit an undertaking from using, in three
          State's guarantee and completely recover its               provinces of Austria, a trade mark or designation under
          financial equilibrium .                                    which companies in the same group lawfully operate in
                                                                     other Member States ?
Reference for a preliminary ruling from the Landesgericht            Reference for a preliminary ruling by the Tribunal de
Linz by order of that court of 24 October 1996 in the case           Commerce, Brussels, by judgment of that court of 7 July
of Gabriele Gruber v. Silhouette International Schmied               1997 in the case of Procureur du Roi v. Déménagements-
                       GmbH & Co KG .                                Manutention       Transport SA, abbreviated       as     D.M.
                        ( Case C-249/97)                                                         Transport
                                                                                            ( Case C-256/97)
                           97/C 271 / 10
                                                                                              ( 97/C 271 /12 )
Reference has been made to the Court of Justice of the               Reference has been made to the Court of Justice of the
European Communities by an order of the Landesgericht                European Communities by judgment of the Tribunal de
Linz ( Labour and Social Court) of 24 October 1996,                  Commerce ( Commercial Court), Brussels of 7 July 1997,
which was received at the Court Registry on 8 July 1997,             received at the Court Registry on 15 July 1997, for a
for a preliminary ruling in the case of Gabriele Gruber v.           preliminary ruling in the case of Procureur du Roi against
Silhouette International Schmied GmbH & Co KG on the                 Déménagements-Manutention Transport SA, abbreviated
following questions :                                                as D.M. Transport, on the following questions:
                                                                     1 . Is Article 92 of the Treaty to be interpreted as
1 . Is it compatible with Article 119 of the EC Treaty                   meaning that measures in the form of payment
    that, owing to lack of child-care facilities,                        facilities granted by a public body such as the ONSS
    predominantly women have to terminate their                          enabling a commercial company to retain over a
    employment in order to look after their children and                 period of at least eight years a proportion of the sums
    these women, despite fulfilment of additional                        collected from staff and to use those sums in support
    conditions ( longer service ), receive no more than half             of its commercial activities, when that undertaking is
    of the compensation payable upon termination of                      unable to obtain funding under normal market
    employment for the actual length of their service                    conditions or to increase its capital, are to be
     ( Paragraph 23a ( 3 ) of the Angestelltengesetz ) whilst            considered State aid within the meaning of that
    men keep the full compensation period ?                               article ?