CELEX: C1999/352/35
Language: en
Date: 1999-12-04 00:00:00
Title: Case C-342/99: Reference for a preliminary ruling by the Landesgericht Korneuburg by order of 1 September 1999 in the case of NEW YORKER S.H.K Jeans GmbH v SIMPEX-1000ST

4.12.1999            EN                    Official Journal of the European Communities                                      C 352/23
Reference for a preliminary ruling by the Landesgericht               3. Order the Commission to pay default interest in respect of
Korneuburg by order of 1 September 1999 in the case of                    the full amount blocked by the contested decision with
   NEW YORKER S.H.K Jeans GmbH v SIMPEX-1000ST                            effect from 16 August 1999, or earlier in the case of an
                                                                          admissible application, until the date on which the judg-
                                                                          ment of the Court is complied with;
                       (Case C-342/99)
                       (1999/C 352/35)                                4. Order the Commission to pay the costs of the proceedings.
Reference has been made to the Court of Justice of the
European Communities by order of 1 September 1999 from
the Landesgericht Korneuburg (Regional Court, Korneuburg)
(Republic of Austria), which was received at the Court Registry
on 14 September 1999, for a preliminary ruling in the case of         Pleas in law and main arguments
NEW YORKER S.H.K. Jeans GmbH v SIMPEX-1000ST on the
following question:
                                                                      — Lack of competence: the contested decision was not
On a proper construction of Article 1 thereof, is Council                 adopted by the Commission in compliance with the
Regulation (EC) No 3295/94 of 22 December 1994 laying                     principle of collective responsibility. Nor is it clear that
down measures to prohibit the release for free circulation,               the contested decision was adopted on behalf of the
export, re-export or entry for a suspensive procedure of                  Commission. No decision on the basis of which the head
counterfeit and pirated goods (Official Journal of the European           of division in question was empowered to take such a
Communities No L 341 of 30.12.1994) also applicable to                    decision was ever published and the Netherlands Govern-
situations in which goods of the type specified therein are, in           ment is not otherwise aware of any decision whereby the
the course of transit between two States not belonging to                 head of division in question was authorised to decide to
the European Community, temporarily detained by customs                   suspend payment of the first advance. The person who
authorities in a Member State on the basis of that regulation,            signed the contested decision was therefore not authorised
at the request of a holder of rights who claims that his rights           to take that decision.
have been infringed and whose undertaking has its registered
office in a Member State of the European Community?
                                                                          Even were the Commission to establish that F.H. was
                                                                          authorised and if it could be assumed that the contested
                                                                          decision was based on this authorisation, the contested
                                                                          decision goes beyond the limits which the case-law imposes
                                                                          on authorisation. The contested decision cannot be regard-
                                                                          ed as being a managerial and administrative measure which
                                                                          it is necessary should be adopted in order to ensure the
                                                                          proper functioning of both the Commission and its services
                                                                          at administrative level.
Action brought on 16 September 1999 by the Kingdom of
the Netherlands against the Commission of the European
                        Communities
                                                                      — Breach of Council Regulation (EEC) No 4253/88 of
                       (Case C-343/99)                                    19 December 1988 laying down provisions for
                                                                          implementing Regulation (EEC) No 2052/88 as regards
                                                                          coordination of the activities of the different Structural
                       (1999/C 352/36)                                    Funds between themselves and with the operations of the
                                                                          European Investment Bank and the other existing financial
                                                                          instruments (1):
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 16 September 1999 by the Kingdom of the
Netherlands, represented by Marc Fierstra and Jantine van                 — Breach of Article 21 of Regulation No 4253/88: when
Bakel, Assistant Legal Advisers in the Ministry of Foreign                     taking a decision on the amount to be paid as an
Affairs, The Hague, acting as Agents.                                          advance, the Commission has only those powers which
                                                                               relate to the assessment of whether the application is
                                                                               admissible. In particular, a power to order suspension
The applicant claims that the Court should:                                    such as that in the contested decision cannot be derived
                                                                               from Article 24 of Regulation No 4253/88. The auth-
                                                                               orisation provided for under Article 24 of Regulation
1. Declare that the application is admissible;                                 No 4253/88 relates to specific operations and does not
                                                                               provide for the possibility of suspending payment of
2. Annul the Commission decision notified to the Nether-                       the first advance in respect of all operations or
     lands Government by letter of 16 July 1999;                               measures to be implemented in a Member State.