CELEX: C1998/299/22
Language: en
Date: 1998-09-26 00:00:00
Title: Action brought on 21 July 1998 by the Kingdom of the Netherlands against Commission of the European Communities (Case C-278/98)

C 299/12                EN                 Official Journal of the European Communities                                   26.9.98
      placement of employees as not being contrary to                 payment of tolls by the user constitutes a supply of
      criminal law, with the result that the relevant                 services which must be subjected to value added tax. The
      penalising provisions of national law must be                   fact that that activity is carried out by public bodies does
      disapplied.                                                     not mean that it does not fall within the scope of VAT,
                                                                      since it constitutes an economic activity for the purposes
                                                                      of Article 2 of the sixth VAT Directive and is carried out
(b) Whether Articles 86 and 90 are to be interpreted as               by taxable persons within the meaning of Article 4 of that
      meaning that a system like that deriving from the               Directive, notwithstanding the fact that those persons are
      legislative amendments made by Law No 96 of                     public bodies.
      24 June 1997 and Legislative Decree No 469 of
      23 December 1997 constitutes an abuse of a
      dominant position.
                                                                      As regards the question of own resources, the Commission
                                                                      considers that, where the Sixth VAT Directive is infringed
( ) Case C-55/96 Job Centre [1997] ECR I-7119.
 1
                                                                      and consequently the base for the calculation of own
                                                                      resources is reduced, it must claim the amount of own
                                                                      resources which is owed by reason of that infringement.
                                                                      Otherwise the remaining Member States suffer financial
                                                                      loss and the principle of equality is infringed.
Action brought on 16 July 1998 by the Commission of the               (1) OJ L 145, 13.6.1977, p. 1.
    European Communities against the Hellenic Republic                (2) OJ L 155, 7.6.1989, p. 1.
                                                                      (3) OJ L 155, 7.6.1989, p. 9.
                          (Case C-260/98)
                           (98/C 299/21)
An action against the Hellenic Republic was brought
before the Court of Justice of the European Communities
on 16 July 1998 by the Commission of the European
Communities, represented by Dimitrios Goulousis, Legal                Action brought on 21 July 1998 by the Kingdom of the
Adviser, and HeÂleÁne Michard, of its Legal Service, with an               Netherlands against Commission of the European
address for service in Luxembourg at the office of Carlos                                       Communities
Gómez de la Cruz, of its Legal Service, Wagner Centre,                                       (Case C-278/98)
Kirchberg.
                                                                                               (98/C 299/22)
The Commission claims that the Court should:
                                                                      An action against the Commission of the European
1. declare that, by failing, contrary to Articles 2 and 4 of          Communities was brought before the Court of Justice of
     the sixth Council Directive 77/388/EEC (1), to subject           the European Communities on 21 July 1998 by the
     to value added tax road tolls, which constitute                  Kingdom of the Netherlands, represented by Marc Fierstra
     consideration paid by the users in return for the                and Nynke Wijmenga, Assistant Legal Advisers at the
     supply to them of a service consisting of the making             Ministry of Foreign Affairs, the Hague.
     available of motorways and other road infrastructure,
     and, in addition, by avoiding in that way payment of
     own resources and of the interest due (Council
     Regulations (EEC, Euratom) No 1552/89 (2) and (EEC,              The applicant claims that the Court should:
     Euratom) No 1553/89 (3)), the Hellenic Republic has
     failed to fulfil its obligations under the EC Treaty;
                                                                      1. annul Commission Decision 98/358/EC (1) of 6 May
2. order the Hellenic Republic to make available to the                   1998 on the clearance of accounts presented by the
     Commission the own resources which have not been                     Member States in respect of the expenditure for 1994
     paid since 1987, together with interest for late                     of the Guarantee Section of the European Agricultural
     payment;                                                             Guidance and Guarantee Fund (notified under
                                                                          document number C(1998) 1124) (1), in so far as a
                                                                          sum of NLG 16 378 716,63 concerning expenditure
3. order the Hellenic Republic to pay the costs.                          on advance payments of export refunds is excluded
                                                                          from Community financing (reference C(98) 1124
                                                                          final);
Pleas in law and main arguments adduced in support:
According to the Commission, the grant of the right to use            2. order the Commission to pay the costs of the
a motorway or other road facility in return for the                       proceedings.
 ---pagebreak--- 26.9.98               EN                 Official Journal of the European Communities                                          C 299/13
Pleas in law and main arguments adduced in support:                 Ð Infringement of the principle of equal treatment:
                                                                         by departing in the contested decision from the
Ð Infringement of Article 5(2)(c) of Council Regulation
                                                                         Commission's guidelines (3) without stating the reasons
    (EEC) No 729/70 of 21 April 1970 on the financing of
                                                                         for such a departure, the Commission infringed the
    the common agricultural policy (2):
                                                                         principle of equal treatment even though these
                                                                         guidelines are not, as such, binding,
    The verifications for the 1992 and 1993 financial
    years cannot lead to the corrections of the expenditure         Ð Infringement of the requirement to state reasons.
    in the 1994 financial year. As regards the verifications
    in 1994, the Commission cannot, on the basis of the
                                                                    (1) OJ L 163, 6.6.1998, p. 28.
    small number of checks carried out by the                       (2) Official Journal, English Special Edition 1970 (I), p. 218.
    Commission and the small number of irregularities               (3) Communication to the EAGGF Committee, VI/216/93, of
    thereby found, take the view that the Netherlands                   3 June 1993, Calculation of the financial consequence when
    control scheme as a whole displays material defects                 preparing decisions on the clearance of accounts in the context
    which justify a flat-rate reduction of 10 % for the                 of the EAGGF Guarantee' section.
    cereals sector and 5 % for the beef and veal sector,
Ð Infringement of Article 5(2)(c) of Regulation (EEC)
    No 729/70, the principle of good faith cooperation
    and the principle of audi alteram partem:
                                                                    Appeal brought on 23 July 1998 by Cascades SA against
                                                                    the judgment delivered on 14 May 1998 by the Third
                                                                    Chamber (Extended Composition) of the Court of First
    The Commission did not carry out a dialogue in good
                                                                    Instance of the European Communities in Case T-308/94
    faith with the Netherlands' authorities concerning the
                                                                    between Cascades SA and the Commission of the
    procedure leading up to the clearance of the accounts
                                                                                         European Communities
    for 1994. In its report of 13 February 1997 the
    mediation body states that the Commission objected                                      (Case C-279/98 P)
    to every adjustment to its position. The Commission's                                      (98/C 299/23)
    refusal seriously to have regard to the arguments
    which were submitted by the Netherlands' authorities
    in support of their position is also clear from the
                                                                    An appeal against the judgment delivered on 14 May
    official notification of 28 June 1996. The Commission
                                                                    1998 by the Third Chamber of the Court of First Instance
    confines itself to repeating the arguments which it had
                                                                    of the European Communities in Case T-308/94 between
    previously submitted. It refers briefly to the
                                                                    Cascades SA and the Commission of the European
    improvements which have taken place in the
                                                                    Communities was brought before the Court of Justice of
    Netherlands but does not in any way deal with the
                                                                    the European Communities on 23 July 1998 by Cascades
    arguments on which the Netherlands' authorities have
                                                                    SA, represented by Jean-Yves Art, of the Brussels Bar, with
    requested the Commission to submit a view. The
                                                                    an address for service in Luxembourg at the Chambers of
    Commission does not allege that the arguments are
                                                                    Arendt & Medernach, 8Ð10 rue Mathias Hardt.
    incorrect or irrelevant, let alone give reasons for such
    a view, but merely ignores those arguments,
                                                                    The appellant claims that the Court should:
Ð Errors in the summary report:
                                                                    Ð set aside the judgment delivered by the Court of First
                                                                         Instance on 14 May 1998 in Case T-308/94 Cascades
                                                                         SA v. Commission (1),
    the Netherlands control system was in accordance
    with the Community rules then in force; there is no
    reason to apply Commission Regulation (EC) No 2221/             Ð grant the form of order sought before the Court of
    95 by anticipation,                                                  First Instance of the European Communities by
                                                                         Cascades SA (2),
Ð Infringement of the principle of legal certainty:
                                                                    Ð order the Commission to pay the whole of the costs,
                                                                         both of the proceedings before the Court of First
    contrary to the express undertaking that financial                   Instance and of those before the Court of Justice,
    consequences would follow from defects in national
    control systems only from 1 July 1994, the                      in the alternative:
    Commission made considerable flat-rate corrections
    over the 1994 financial year. Furthermore, when
    making the flat-rate corrections, the Commission                Ð if the Court takes the view that the state of the
    failed to take mitigating circumstances into account,                proceedings does not allow final judgment to be given,