CELEX: C2001/227/12
Language: en
Date: 2001-08-11 00:00:00
Title: Case C-197/01: Action brought on 9 May 2001 by the Kingdom of the Netherlands against the Commission of the European Communities

C 227/8                  EN                    Official Journal of the European Communities                                       11.8.2001
Pleas in law and main arguments                                                       appeared on the list of 31 March 1989, to whom a
                                                                                      settlement proposal was put forward pursuant to
                                                                                      Regulation No 2187/93 (2);
—     Infringement of Article 288 EC, violation of the principle
      of the protection of legitimate expectations, non-com-                    —     in the course of settlement negotiations conducted
      pliance with the obligation to provide a statement of                           after 1993 with SLOM producers not initially
      reasons and misinterpretation of the requirement of                             covered by the terms of Regulation No 2187/93
      causality, inasmuch as the Court of First Instance held                         but in respect of whom liability was subsequently
      that the damage suffered by Mr van den Berg after 13 May                        admitted, the Commission did not invoke prescrip-
      1986 was not attributable to the Community: the Court                           tion where the names of the SLOM producers
      of First Instance misconstrued the scope of the principle                       concerned appeared on the list in question, regard-
      of the protection of legitimate expectations, and applied                       less of whether or not the producers concerned had
      it in a manifestly incorrect way vis-à-vis Mr van den Berg.                     in the interim brought proceedings before the Court
      The fact is that, having in 1985-1986 deliberately taken                        of First Instance under Article 215 of the EC Treaty;
      the requisite steps to relocate his holding whilst retaining
      — had he had a ‘normal’ quota — the quota in question,                    —     in its rejoinder in Case T-179/96 Antonissen, the
      Mr van den Berg had a legitimate expectation that he                            Commission withdrew the plea of prescription
      would not be treated differently from a comparable                              initially put forward by it, after being confronted
      ‘normal’ producer merely because he was a SLOM                                  with the letter of 31 March 1989.
      producer. Furthermore, at the time when hechanged his
      holding, Mr van den Berg was entitled to expect that he             —     Violation of the principle of equality, the principle of
      would not thereafter, in 1989, be treated, on a retroactive               legal certainty, the principle of the protection of legitimate
      basis, differently from ‘normal’ producers.                               expectations and the obligation to provide a statement of
                                                                                reasons, inasmuch as the Gourt of First Instance ruled
                                                                                that Mr van den Berg’s claim was wholly time-barred: the
      Moreover, the Court of First Instance seriously miscon-                   Court of First Instance overlooked (i) the discrepancy
      strued the real scope of the judgment in Herbrink. If, by                 between the wording of the communication of 5 August
      way of derogation from the principle of attachment to                     1992 and that of Article 43 of the Statute and (ii) the
      the land, which forms part of the milk quota system, a                    manner in which the Commission had in practice
      departing tenant is to be permitted to take his quota with                interpreted and applied that communication in relation
      him to his new holding, a SLOM tenant should also be                      to those SLOM producers to whom the letter of 31 March
      allowed, in the same way, to take his milk quota with                     1989 had been addressed.
      him to a new holding.
—     Violation of the principle of equality, the principle of            (1) OJ 1997 C 199, p. 37.
      legal certainty, the principle of the protection of legitimate      (2) OJ 1993 L 196, p. 6.
      expectations and the obligation to provide a statement of
      reasons, inasmuch as the Court of First Instance, when
      ruling on the question of prescription, disregarded essen-
      tial facts, or at any rate set out those facts in a manifestly
      erroneous manner in its judgment, and omitted to find
      that the Commission had waived the possibility of relying
      on a plea of prescription as against certain SLOM
      producers, including Mr van den Berg: the SLOM pro-
      ducers made it quite clear that the institutions could not          Action brought on 9 May 2001 by the Kingdom of the
      plead prescription, since the institutions must have been           Netherlands against the Commission of the European
      well aware of the fact that the case of Mulder II was                                          Communities
      meant to be a test case in relation to SLOM producers as
      a whole. There can be no doubt whatever that the
      communication of 5 August 1992 was deliberately                                               (Case C-197/01)
      framed in terms wider than those of Article 43 of the
      Statute; it is quite clear from the wording of that                                           (2001/C 227/12)
      communication that the Community waived its right to
      plead prescription in respect of periods prior to 5 August
      1992 as against any milk producer who had applied to                An action against the Commission of the European Communi-
      the institutions prior to that date, regardless of when that        ties was brought before the Court of Justice of the European
      happened.                                                           Communities on 9 May 2001 by the Kingdom of the
                                                                          Netherlands, represented by H.G. van Sevenster and C.A.H.M.
                                                                          ten Dam, as Agents.
      The Court of First Instance failed to mention certain
      established facts in the contested judgment, in particular          The applicant claims that the Court should:
      the fact that:
                                                                          1.    Annul Regulation No 396/2001 (1) of 27 February 2001
      —      prescription was not taken into consideration with                 providing for the continued application of safeguard
             regard to any of the SLOM producers whose names                    measures for imports from overseas countries and terri-
 ---pagebreak--- 11.8.2001              EN                   Official Journal of the European Communities                                        C 227/9
      tories of sugar sector products with EC/OCT cumulation           Reference for a preliminary ruling by the Supremo
      of origin for the period 1 March to 30 June 2001;                Tribunal Administrativo, 2a Secçao, by judgment of that
                                                                       court of 4 April 2001 in the case of Fazenda Pública
2.    Order the Commission to pay the costs.                                             against Antero & CC.a, Lda
Pleas in law and main arguments
The Netherlands refers to the application made in Case                                         (Case C-203/01)
C-452/00 (2).
(1) OJ L 58 of 28.02.2001, p. 13.
(2) OJ C 45 of 10.02.2001, p. 12.                                                              (2001/C 227/14)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by judgment of the Supremo Tribunal
                                                                       Administrativo, 2a Secçao (Second Chamber of the Supreme
                                                                       Administrative Court), of 4 April 2001, which was received at
                                                                       the Court Registry on 17 May 2001, for a preliminary ruling
Reference for a preliminary ruling by the Tribunale
                                                                       in the case of Fazenda Pública against Antero & CC.a, Lda on
Amministrativo Regionale, Lazio, by order of 24 January
                                                                       the following questions:
2001 in the case of Consorzio Industrie Fiammiferi (CIF)
    v Autorità Garante della Concorrenza e del Mercato
                         (Case C-198/01)                               1.   What is the meaning and scope of the expression
                                                                            ‘prise en compte’ used in the second subparagraph of
                                                                            Article 2(1) of Council Regulation (EEC) No 1697/79 (1)
                         (2001/C 227/13)                                    of 24 July 1979?
Reference has been made to the Court of Justice of the
European Communities by order of 24 January 2001 by the
First Chamber of the Tribunale Amministrativo Regionale                2.   Was the official act by which the amount of the import
(Regional Administrative Court), Lazio, which was received at               duties or export duties to be collected by the competent
the Court Registry on 11 March 2001, for a preliminary ruling               authorities is duly determined referred to in Article 1(2)(c)
in the case of Consorzio Industrie Fiammiferi (CIF) v Autorità              of that regulation ‘registo de liquidaçao’ (entry in the
Garante della Concorrenza e del Mercato on the following                    accounts) or was it ‘liquidaçao’ (assessment), calculation
questions:                                                                  or computation of those duties by the customs auth-
                                                                            orities?
(1) Where an agreement between undertakings adversely
      affects Community trade, and where that agreement is
      required or facilitated by national legislation which
      legitimises or reinforces those effects, specifically with       3.   On 19 April 1988, was ‘registo de liquidaçao’ (entry in
      regard to the determination of prices or market-sharing               the accounts) a procedural requirement essential for
      arrangements, does Article 81 [EC] require or permit the              the validity of the assessment or was it a procedural
      official anti-trust Authority to disapply that measure                requirement rendering it enforceable or payable?
      and to penalise the anti-competitive conduct of the
      undertakings or, in any event, to prohibit it for the future,
      and if so, with what legal consequences?                         4.   On 19 April 1988, did assessment (calculation or compu-
                                                                            tation) of import duties duly notified to the debtor for
(2) For the purposes of applying Article 81(1) [EC], is
                                                                            post-clearance recovery, even where there is no entry in
      it possible to regard national legislation under which
                                                                            the accounts, render the customs debt due and payable?
      competence to fix the selling prices of a product is
      delegated to a ministry and power to allocate production
      between undertakings is entrusted to a consortium to
      which the relevant producers are obliged to belong, as           5.   Did the appeal against the order for payment of the
      leaving room for competition which is open to hindrance,              customs authorities which had refused to grant the
      restriction or distortion by the autonomous conduct of                application for remission of post-clearance recovery of
      those undertakings?                                                   duty and which was before the Portuguese courts from
                                                                            1988 until 15 November 1995 have the effect of
                                                                            suspending the period of three years for post-clearance
                                                                            recovery?