CELEX: C2000/149/22
Language: en
Date: 2000-05-27 00:00:00
Title: Case C-26/00: Action brought on 29 January 2000 by the Kingdom of the Netherlands against the Commission of the European Communities

27.5.2000               EN                  Official Journal of the European Communities                                        C 149/13
The applicant claims that the Court should:                            to the full authorisation procedure — entailing an inquiry by
                                                                       the Conseil Supérieur d’Hygiène Publique de France and in
                                                                       some cases by the Académie Nationale de Médecine — which
— Declare that the French Republic has failed to fulfil its            does not set any deadline for the handling of applications,
     obligations under Article 30 of the EC Treaty (now, after         which, in practice, is not completed within a reasonable
     amendment, Article 28 EC) in so far as:                           period. Lastly, the French legislation does not satisfy the
                                                                       requirement that any refusal to grant authorisation must entail
                                                                       certain procedural steps so as to ensure that the trader
     — French legislation fails to provide for the free move-          concerned can challenge that decision before the courts.
         ment of traditional foodstuffs and foodstuffs intended
         for special nutritional purposes, which are lawfully
         manufactured and/or marketed in other Member States
         but contain additives (such as vitamins, minerals and
         other ingredients) not provided for under the French
         legislation;
                                                                       Action brought on 29 January 2000 by the Kingdom of
     — in particular, French legislation fails to provide a            the Netherlands against the Commission of the European
         simplified procedure for having a substance entered on                                   Communities
         the national list of permitted additives, which is
         necessary if the above foodstuffs are to be marketed in
         France;                                                                                 (Case C-26/00)
                                                                                                (2000/C 149/22)
     — the French authorities have impeded the marketing of
         the above foodstuffs in France without establishing           An action against the Commission of the European Communi-
         that they would pose a danger to public health;               ties was brought before the Court of Justice of the European
                                                                       Communities on 29 January 2000 by the Kingdom of the
                                                                       Netherlands, represented by Marc Fierstra, Head of the Euro-
— Order the French Republic to pay the costs of the                    pean Law Section in the Ministry of Foreign Affairs, The
     proceedings.                                                      Hague, and Jantine van Bakel, Member of the Legal Service in
                                                                       that Ministry, acting as Agents.
                                                                       The applicant claims that the Court should:
Pleas in law and main arguments                                        1. Annul Commission Regulation (EC) No 2423/1999 (1) of
                                                                            15 November 1999 introducing safeguard measures in
                                                                            respect of sugar falling within CN code 1701 and mixtures
                                                                            of sugar and cocoa falling within CN codes 1806 10 30
Infringement of Article 28 EC: in the absence of any Com-                   and 1806 10 90 originating in the overseas countries and
munity measure harmonising the approach to additives in                     territories;
traditional foodstuffs, or in foodstuffs intended for special
nutritional purposes, which have not been the subject of a
                                                                       2. Order the Commission to pay the costs of the proceedings.
specific directive, it is for the Member States to define in their
national legislation the applicable rules, provided that these
comply with the EC Treaty, specifically with Articles 28 and
30 EC. On that point, the Commission maintains that, whereas           Pleas in law and main arguments
it is permissible for legislation pursuing a legitimate health
policy objective to set up a prior authorisation system, the           — Infringement of Article 109(1) of Council Decision
Member States have no right to require technical or chemical                91/482/EEC, as amended (‘the OCT Decision’), so far as
analyses or laboratory tests in cases where the same analyses               sugar is concerned (CN code 1701): the Commission has
and tests have already been carried out in another Member                   in this case failed to adduce the evidence necessary to
State and the results are already to hand or available upon                 establish that there are ‘serious difficulties’ and that safe-
request. The French legislation, however, makes no provision                guard measures must be taken. In particular, the quantities
for mutual recognition in this area, with a view to ensuring                of OCT sugar in question are extremely small in both
the free movement of products lawfully manufactured or                      absolute and relative terms. At no time has the Commission
marketed in another Member State and which meet standards                   been able to provide the slightest evidence whatsoever that
equivalent to those set in France for the protection of public              OCT sugar is being sold at below the intervention price.
health. Nor does the French legislation provide for a simplified            The Commission has also misused its powers inasmuch as
procedure for having a substance lawfully used in another                   the measures are clearly designed to protect European
Member State entered on the national list of permitted                      sugar producers against any potential competition from
additives. Thus, under the French rules, foodstuffs already                 imports from outside the Community that are not subject
manufactured or marketed in another Member State are subject                to quota.
 ---pagebreak--- C 149/14               EN                     Official Journal of the European Communities                                     27.5.2000
— Infringement of Article 109(1) of the OCT Decision, so far                  7 June1990 on the freedom of access to information on
     as mixtures of cocoa and sugar (CN codes 1806 10 30                      the environment (1), and in particular Article 3(1) and (4)
     and 1806 10 90) are concerned: here too, the amounts in                  thereof, for failing to ensure that, within a period of two
     question are very small; if one extrapolates from the                    months after the request, the authorities of the Land
     Eurostat figures, one arrives at the figure of 15 278 tonnes             Schleswig-Holstein either provided the information
     for the whole of 1999. The suggestion that these mixtures                requested or refused the request.
     are ‘[imported] ... at prices below those at which Com-
     munity producers can sell comparable products’ is not               (2) order the Federal Republic of Germany to pay the costs.
     supported by any evidence. The fact that the Commission
     also misused its powers with regard to the mixtures of
     cocoa and sugar is in particular also evident from the
     nature of the measure laid down in Article 2 of the                 Pleas in law and main arguments
     regulation. While it may be a relatively innocuous measure
     (provided that it is not employed by customs authorities            The Commission submits that the practice referred to in the
     for the purpose of carrying out obstructive checks), a              application does not comply with the requirements of Article
     customs surveillance mechanism such as that referred to             3 of Directive 90/313/EEC, because the word ‘respond’ in the
     in Article 2 has as its purpose to collect information in           first sentence of Article 3(4) must be interpreted as including,
     order to determine whether the imports in question may              on the one hand, the provision of the information requested
     disrupt the market. The Commission’s reasoning is based             or permission to inspect the information, and, on the other
     on false premises.                                                  hand, the refusal of a request. The time element is of crucial
                                                                         significance for the efficiency of the whole system under the
— Infringement of Article 253 EC: the reasons set out in                 directive. If an authority were merely required to give an
     recitals (1) through (5) are inadequate, internally inconsist-      interim answer within the two-month period, stating that
     ent and incomprehensible.                                           access to the information can be granted at a later date, the
                                                                         system would not be effective. The Commission maintains that
— Infringement of Article 109(2) of the OCT Decision and                 only its interpretation of Article 3(4) of the directive accords
     the principle of proportionality: should it none the less be        with the aim of the directive and the effectiveness of the
     necessary to fix a threshold price for imports of OCT               opportunities for the persons concerned to obtain legal
     sugar, it would have been much more logical to proceed              protection, which the directive seeks.
     on the basis of a minimum selling price than on that of a
     minimum cif import price.
                                                                         (1) OJ L 158, 23.6.1990, p. 56.
(1) OJ 1999 L 294, p. 11.
                                                                         Action brought on 10 February 2000 by the Kingdom of
Action brought on 1 February 2000 by the Commission                      Spain against the Commission of the European Communi-
of the European Communities against the Federal Repub-                                                   ties
                          lic of Germany
                                                                                                   (Case C-36/00)
                          (Case C-29/00)
                                                                                                  (2000/C 149/24)
                         (2000/C 149/23)
                                                                         An action against the Commission of the European Communi-
An action against the Federal Republic of Germany was                    ties was brought before the Court of Justice of the European
brought before the Court of Justice of the European Communi-             Communities on 10 February 2000 by the Kingdom of Spain,
ties on 1 February 2000 by the Commission of the European                represented by Mr Santiago Ortiz Vaamonde, acting as Agent,
Communities, represented by Götz zur Hausen, Legal Adviser,              with an address for service in Luxembourg at the Spanish
with an address for service at the office of Carlos Gómez de la         Embassy, 4-6 Boulevard E. Servais.
Cruz, a Member of the Legal Service of the European Com-
mission, Wagner Centre, Kirchberg.
                                                                         The applicant claims that the Court should:
The Commission claims that the Court should:                             1. Declare void the decision of the Commission of 26 October
                                                                              1999 declaring certain aid granted to publicly owned
(1) declare the Federal Republic of Germany in breach of                      Spanish shipyards incompatible with the common market
     its obligations under Council Directive 90/313/EEC of                    and ordering its recovery,