CELEX: C2000/355/14
Language: en
Date: 2000-12-09 00:00:00
Title: Case C-347/00: Reference for a preliminary ruling by the Juzgado de lo Social n° 3, Orense, by order of that court of 17 July 2000 in the case of Ángel Barreira Pérez against Instituto Nacional de la Seguridad Social and Tesorería General de la Seguridad Social

C 355/8               EN                    Official Journal of the European Communities                                          9.12.2000
     Kingdom of Belgium in connection with aid relating to             —     Breach of Article 2 EC and of article 10 EC: the
     the sale at reduced price of butter and the grant of aid                Commission has rendered devoid of purpose the pro-
     for concentrated butter and cream intended for the                      cedure before the conciliation body by taking part therein
     manufacture of pastry products, ice-cream and other food                on a strictly formal basis, that is to say without meeting
     products (2);                                                           the representatives of Belgium and without giving the
                                                                             real reasons for the contested decisions.
3.   Order the Commission of the European Communities to               —     Breach of the principle of the protection of legitimate
     pay the costs.                                                          expectations: the, Commission relies essentially on the
                                                                             one of the grounds of the decision delivered on 13 July
                                                                             1997 by the Court of First Instance of the European
                                                                             Communities in a case 5 in which Regulation No 570/88
Contentions and principal arguments adduced in support                       was not even at issue.
—    Lack of any legal basis for the contested decisions:              (1) OJ L 1999 L 61, p. 37.
     Article 1(2) of Commission Regulation (EEC)                       (2) Decision 2000/448/EC and 2000/449/EC: OJ 2000 L 180, pp. 46
     No 570/88 (3) lays down the conditions for aid for the                and 49.
     use of butter for the manufacture of pastry products or           (3) Commission Regulation (EEC) No 570/88 of 16 February 1988
     ice-cream: the butter must, in the Member State of                    on the sale of butter at reduced prices and the granting of aid for
     manufacture, comply with the definition and classifi-                 butter and concentrated butter for use in the manufacture of
                                                                           pastry products, ice-cream and other foodstuffs (OJ L 55,
     cation appearing in Article 1(3)(b) of Regulation (EEC)               1.3.1988, p. 31).
     No 985/68 of the Council (4), that is to say it must be           (4) Regulation (EEC) No 985/68 of the Council of 15 July 1968
     graded ‘beurre de marque de contrôle’ in the case of                  laying down general rules for intervention on the market in butter
     Belgian butter. The Commission is wrong to contend that               and cream (OJ, English Special Edition, 68(I) p. 56).
     the conditions laid down by Article 1(3)(a) of Regulation
     No 985/68 (manufacture of butter from inter alia sour or
     sweet cream) were nevertheless applicable because they
     gave a general definition of butter and the two conditions
     were applied cumulatively under earlier rules. As a result
     of the classification ‘beurre de laiterie: qualité extra’
     adopted on 28 February 1994 by the Belgian authorities,
     the technologically adapted butter (‘BITA’) of the com-
     pany Corman, which until then benefited from the aid
     provided for in Article 9 of Regulation (EEC) No 570/88,          Reference for a preliminary ruling by the Juzgado de lo
     started to benefit from Community aid under Article 1 of          Social no 3, Orense, by order of that court of 17 July 2000
     Regulation No 570/88, without any change having taken             in the case of Ángel Barreira Pérez against Instituto
     place in the applicable Community rules or any change             Nacional de la Seguridad Social and Tesorerı́a General de
     having been made to the product in question.                                              la Seguridad Social
                                                                                                 (Case C-347/00)
     The conditions for the application of Articles 2 and 3
     of Regulation No 729/70, namely the existence of
     irregularities or negligence, are certainly not fulfilled in                                (2000/C 355/14)
     this case because the interpretation given to the rules by
     Belgium, even if it were to be considered incorrect —
     which is not the case — is attributable above all to breach       Reference has been made to the Court of Justice of the
     of the principle of legal certainty as a result of action         European Communities by order of the Juzgado de lo Social
     taken by the Commission itself.                                   (Social Court) no 3, Orense, Spain, of 17 July 2000, received at
                                                                       the Court Registry on 20 September 2000, for a preliminary
                                                                       ruling in the case of Ángel Barreira Pérez against Instituto
     By virtue of the principle of subsidiarity and the settled        Nacional de la Seguridad Social (National Social Security
     case law of the Court of Justice concerning the residual          Institute) and Tesorerı́a General de la Seguridad Social (General
     powers of the Member States where Community harmon-               Social Security Fund) on the following questions:
     isation is not complete and all-embracing, Belgium remai-
     ned competent to define what it might grade as ‘beurre            1.    Must Article 1(r) and (s) [of Council Regulation No
     de marque de contrôle’.                                                 1408/71] be interpreted as meaning that periods of
                                                                             notional, equivalent contribution, which may be taken
                                                                             into account under the legislation of a Member State for
—    Breach of the principle of proportionality: the aid received            the purpose of determining the number of years of
     by Corman is of the same amount, whether on the basis                   contribution by reference to which the amount of old-
     of the allegedly unlawful Article 1 or on the basis of                  age pension is determined under domestic legislation, are
     Article 9a of Regulation No 570/88, this being accepted                 also to be considered from a legal viewpoint as ‘periods
     by the Commission of the European Communities.                          of insurance’?
 ---pagebreak--- 9.12.2000                EN                   Official Journal of the European Communities                                        C 355/9
2.    If the answer to the first question is in the affirmative, is      Infringement of Article 190                        of  the    EC
      the proper construction of Article 46(2)(b) [of that               Treaty (now Article 253 EC)
      regulation] that ‘the duration of the periods of insurance
      or of residence completed before the materialisation of            Regulation No 1364/00 provides no reason for fixing the
      the risk under the legislation which [the competent                derived intervention price for another five Member States but
      institution of a Member State] administers’ also includes          not for Italy. Neither does Regulation No 1363/00 provide
      those periods of notional contribution corresponding to            any reason for fixing the intervention price. This prevents the
      periods prior to materialisation of the risk which, under          Italian Government from exercising its rights of the defence
      the legislation of the Member State concerned, are to be           and also hinders judicial review of the contested measures.
      taken into account as periods of contribution for the
      purpose of determining the amount of old-age pension?
                                                                         Breach of the principle of equality
                                                                         Article 1 of Regulation No 1364/00 fails to fix the derived
                                                                         intervention price for white sugar in respect of Italy while
                                                                         confirming it for five other Member States.
                                                                         Even though the Italian Government does not know why the
                                                                         Council has refused to fix a derived intervention price for Italy
                                                                         while confirming it for the other Member States, it nevertheless
                                                                         denounces a breach of the principle of equality and complains
Action brought on 22 September 2000 by Council of the                    that it has been treated differently.
         European Union against the Italian Republic
                                                                         (1) OJ L 156, p. 3.
                                                                         (2) L 156, p. 1.
                          (Case C-352/00)
                          (2000/C 355/15)
An action against the Council of the European Union was                  Reference for a preliminary ruling by the Tribunale
brought before the Court of Justice of the European Communi-             Amministrativo Regionale per la Toscana by order of that
ties on 22 September 2000 by the Italian Republic, represented           court of 18 January 2000 in the case of Antonio Testa
by Umberto Leanza, assisted by Danilo del Gaizo, acting as               and Lido Lazzeri against Commissione Nazionale per le
Agents, with an address for service in Luxembourg at the                 Società e la Borsa (CONSOB) with the intervention ad
Italian Embassy, 5 Rue Marie-Adélaïde.                                                adjuvandum of Banca Fideuram SpA
The applicant claims that the Court should:                                                       (Case C-356/00)
                                                                                                  (2000/C 355/16)
—     annul Article 1 of Council Regulation No 1364/00 (1) in
      so far as it fails to fix the derived intervention price for       Reference has been made to the Court of Justice of the
      white sugar in respect of all the Italian areas for the            European Communities by order of the Tribunale Amministra-
      2000/2001 marketing year; in so far as necessary, also             tivo Regionale per la Toscana (Regional Administrative Court,
      annul Article 1(2) of Council Regulation No 1363/00 (2)            Tuscany) of 18 January 2000, received at the Court Registry
      in so far as it fixes the intervention price for Italy;            on 25 September 2000, for a preliminary ruling in the case of
                                                                         Antonio Testa and Lido Lazzeri against Commissione Naziona-
—     order the Council of the European Union to pay the costs.          le per le Società e la Borsa (CONSOB) with the intervention
                                                                         ad adjuvandum of Banca Fideuram SpA on the following
                                                                         questions:
Pleas in law and main arguments                                          1.    Must Point 3 of Section A of the Annex to Council
                                                                               Directive 93/22/EEC (1) of 10 May 1993 (on investment
                                                                               services in the securities field), which contains the defi-
                                                                               nition ‘[m]anaging portfolios of investments in accord-
Infringement of Article 3(4) and (5) of Basic                                  ance with mandates given by investors on a discriminat-
Regulation No 2038/99                                                          ory, client-by-client basis’ be interpreted as meaning that
                                                                               that Community provision is infringed by a national
                                                                               provision which departs from it and which, in this case,
The Council infringed Article 3(4) and (5) of the basic                        does not require that the management of portfolios of
regulation by fixing intervention prices (including the derived                investments should be on ‘a discriminatory, client-by-
intervention prices) in June or July 2000 when it should have                  client basis’ and ‘in accordance with mandates given by
fixed them earlier in August 1999.                                             investors’?