CELEX: C2000/122/13
Language: en
Date: 2000-04-29 00:00:00
Title: Case C-11/00: Action brought on 14 January 2000 by Commission of the European Communities against European Central Bank

C 122/8                EN                   Official Journal of the European Communities                                     29.4.2000
         The Commission failed to address the question, as it          on the control of administrative bodies amount to restrictions
         should have done under Article 95(6), whether the             on the establishment of companies, in particular in the case of
         Danish rules notified are a means of arbitrary discrimi-      branch offices, agencies or subsidiaries of companies estab-
         nation or a disguised restriction on trade between            lished in other Member States where such restrictions do not
         Member States, or whether they constitute an obstacle         exist. In the case of companies or firms managed by nationals
         to the functioning of the internal market.                    of non-Member countries, the restrictions would force them
                                                                       to change the composition of their administrative bodies
     — Defective statement of reasons.                                 should they wish to register a ship and establish themselves
                                                                       in France. Consequently, the requirements laid down in
                                                                       Article 3(2)(a), (b) and (c) infringe Article 48 in that they
                                                                       impose on the holders of capital and on the administrative
                                                                       organs of companies or firms nationality requirements which
                                                                       are not stipulated in Article 48. Those requirements thus cause
                                                                       companies or firms to be treated differently from natural
                                                                       persons as regards freedom of establishment when registering
                                                                       a ship. Although the provisions apply without discrimination
Action brought on 6 January 2000 by the Commission of                  to both French and foreign EEC companies or firms, they
 the European Communities against the French Republic                  nevertheless infringe Article 43 and Article 48, as do
                                                                       Article 3(3) and (4) and Article 3-1(1) and (2) in so far as they
                           (Case C-4/00)                               refer to Article 3(2). Failure by a Member State to fulfil its
                                                                       obligations — Articles 43 and 48 of the EC Treaty —
                                                                       conditions under which commercial vessels may sail under the
                         (2000/C 122/12)                               French flag — nationality requirements for holders of company
                                                                       capital and directors.
An action against the French Republic was brought before the
Court of Justice of the European Communities on 6 January
2000 by the Commission of the European Communities,
represented by Frank Benyon, Legal Adviser, and Bernard
Mongin, of its Legal Service, acting as Agents, with an address
for service in Luxembourg at the office of Carlos Gómez de la
Cruz, also of its Legal Service, Wagner Centre, Kirchberg.
                                                                       Action brought on 14 January 2000 by Commission of
The Commission of the European Communities claims that                 the European Communities against European Central
the Court should:                                                                                     Bank
1. Declare that, by keeping in force Article 3 and Article 3-1                                   (Case C-11/00)
     of Law No 67-5 defining the status of ships and other
     sea-going vessels, and Article 219 of the Customs Code, as                                 (2000/C 122/13)
     amended by Law No 96-151 of 26 February 1996 on
     transport, the French Republic has failed to fulfil its
     obligations under Article 43 and Article 48 of the EC             An action against European Central Bank was brought before
     Treaty;                                                           the Court of Justice of the European Communities on 14 Janua-
                                                                       ry 2000 by Commission of the European Communities,
2. Order the French Republic to pay the costs.                         represented by Christiaan Timmermans, Assistant Director
                                                                       General of the Legal Service, Hans Peter Hartvig and Ulrich
                                                                       Wölker, Legal Advisers, acting as Agents, with an address for
                                                                       service in Luxembourg at the office of Carlos Gómez de la
Pleas in law and main arguments                                        Cruz, of its Legal Service, Wagner Centre, Kirchberg.
Under the third subparagraph, letters (a), (b) and (c), of             The applicant claims that the Court should:
Article 3(2) of Law No 67-5, shipowners who adopt the
form of a company or firm must satisfy certain nationality             — annul the decision of the governors of the European
requirements in regard to both the members of its administrat-             Central Bank of 7 October 1999 on fraud prevention (1);
ive and managerial bodies (paragraph 2(a), (b) and (c)) and the
holders of its capital (paragraph 2(c)). However, the Member           — order the European Central Bank to pay the costs.
States are required to treat any company or firm satisfying the
criteria set out in Article 48 of the Treaty in the same way as
they treat natural persons who are nationals of other Member
States, even where the majority of the members of the board            Pleas in law and main arguments
are not nationals of a Member State of the Community, or
where the company or firm is set up by persons from                    Infringement of Regulation (EC) No 1073/1999 of the Euro-
non-Member countries, or is funded by capital from                     pean Parliament and of the Council of 25 May 1999 concern-
non-Member countries, or is a subsidiary of a parent company           ing investigations conducted by the European Anti-Fraud
established in a non-Member country. The French restrictions           Office (OLAF):
 ---pagebreak--- 29.4.2000              EN                    Official Journal of the European Communities                                     C 122/9
Regulation (EC) No 1073/1999 is applicable to the ECB. The              19 January 2000 by Commission of the European Communi-
European Central Bank (ECB) was established by the EC Treaty            ties, represented by Christiaan Timmermans, Assistant Director
and, subject always to its special statute, constitutes a body of       General of the Legal Service, Hans Peter Hartvig and Ulrich
the Community. The independence claimed by the ECB is                   Wölker, Legal Advisers, acting as Agents, with an address for
merely functional and restricted to the accomplishment of its           service in Luxembourg at the office of Carlos Gómez de la
particular tasks under the Treaty and the Statute of the                Cruz, of its Legal Service, Wagner Centre, Kirchberg.
European System of Central Banks (ESCB). The protection of
the Community’s financial interests may have a wider scope
than the protection of the Community budget, since it extends           The applicant claims that the Court should:
to ‘budgets managed’ by the Communities, such as the
European Development Fund (EDF), and to the budgets of the
decentralised Community organisations which are separate                — annul the decision of the Management Committee of
from the general budget of the Communities and of which                      the European Investment Bank on cooperation with the
some are moreover increased by own revenue. Accordingly,                     European Anti-Fraud Office (OLAF) (1);
the fact that the ECB has its own budget and its own financial
resources does not preclude the application to the ECB of the
measures adopted under Article 280(4) of the EC Treaty, such            — order the European Investment Bank to pay the costs.
as Regulation (EC) No 1073/1999. Even if the distinction
between, on the one hand, the budget of the European
Communities and, on the other, the budget of the ECB and its
own resources were relevant, the ECB would still not fall
outside the scope of the aforementioned regulation, since it            Pleas in law and main arguments
also manages budgetary resources of the Communities. In
point of fact, it levies the Community tax on the salaries and
wages of its directors and staff, and it manages borrowing and          This action has been brought under Article 237(b) EC and, in
lending transactions undertaken by the Communities pursuant             the alternative, under Article 230 EC, and claims in substance
to medium term financial support.                                       that Regulation (EC) No 1073/1999 of the European Parlia-
                                                                        ment and of the Council and Council Regulation (Euratom)
                                                                        No 1074/1999 concerning investigations conducted by the
The contested decision infringes Article 4 of Regulation (EC)
                                                                        European Anti-Fraud Office (OLAF) have been infringed.
No 1073/1999 inasmuch as:
— Article 2 thereof renders entirely nugatory the OLAF’s
     ability to conduct internal inquiries within the ECB               Regulations (EC) No 1073/1999 and (Euratom) No 1074/
                                                                        1999 are applicable to the European Investment Bank (EIB).
                                                                        The EIB was established by the EC Treaty and, subject always
— while it makes no provision for the implementation of the             to its special statute, constitutes a body of the Community.
     obligations under Article 4(6) of the regulation, it imposes       The independence claimed by the EIB is merely functional and
     in particular a duty on the officials of the bank to report        restricted to the accomplishment of its particular tasks under
     any fraud to the Directorate for Internal Audit and to the         the Treaty and its Statute. To date, the EIB has not been able
     antifraud committee set up by the decision but not a duty          to show in what way legislation adopted by the Council in the
     to do so to the OLAF.                                              field of anti-fraud measures would be likely to prevent or
                                                                        obstruct in concreto the EIB in carrying out its task. The
                                                                        protection of the Community’s financial interests may have a
(1) ECB/1999/5, OJ L 291 of 13.11.1999, p. 36.                          wider scope than the protection of the Community budget,
                                                                        since it extends to ‘budgets managed’ by the Communities,
                                                                        such as the European Development Fund (EDF), and to the
                                                                        budgets of the decentralised Community organisations which
                                                                        are separate from the general budget of the Communities,
                                                                        some of which are moreover increased by own revenue.
                                                                        Accordingly, the fact that the EIB has its own budget and its
                                                                        own financial resources does not preclude the application to
                                                                        the EIB of the measures adopted under Article 280(4) of the
Action brought on 19 January 2000 by Commission of                      EC Treaty, such as Regulation (EC) No 1073/1999. Even if the
the European Communities against European Investment                    scope of Article 280(4) were limited to just the financial
                              Bank                                      interests linked to the Community budget, it cannot be denied
                                                                        that Regulation No 1073/1999 must also apply to the EIB
                                                                        inasmuch as it also manages Community budgetary resources.
                          (Case C-15/00)                                In point of fact, it levies the Community tax on the salaries
                                                                        and wages of members of its bodies and of its staff and it
                         (2000/C 122/14)                                also manages Community budgetary resources under specific
                                                                        mandates; another example is the EIB’s management, on behalf
                                                                        of the Community, of risk capital and of interest subsidy
An action against European Investment Bank was brought                  or rebate financed from the resources of the European
before the Court of Justice of the European Communities on              Development Fund (EDF).