CELEX: C1996/269/23
Language: en
Date: 1996-09-14 00:00:00
Title: Action brought on 9 July 1996 by the Government of the Kingdom of Denmark against the Commission of the European Communities (Case C-233/96)

No C 269/ 10           EN                  Official Journal of the European Communities                                         14 . 9 . 96
— in the alternative , consider those corrections to be                   some improvements in the public storage system run by
     disproportionate in amount,                                          ONIC ( National Cereals Trades Board ) and led the
                                                                          Commission unexpectedly to propose a financial
                                                                          correction, as from the financial year 1992 , whereas
— order the defendant to pay the costs .
                                                                          initially it had contemplated the possibility of financial
                                                                          corrections only for the financial year 1993 , before
Pleas in law and main arguments adduced in support:                       ruling out any correction with regard to the results of the
                                                                          mission monitoring intervention stocks in 1993 .
( As regards expenditure in the beef and veal sector )
                                                                      — ( In the alternative ) Disregard of the principle of
                                                                          proportionality : the 2 % financial correction was
— Breach of Council Regulation ( EEC ) No 729/70 of                       wrongly applied to budget item 10-13 which finances
     21 April 1970 on the financing of the common                         losses on stock sold . There cannot be losses for EAGGF
     agricultural policy ( 2 ): in accordance with the                    on stock sold as a result of storage ; losses are attributable
     arrangements under Regulation ( EEC ) No 859/89 ( 3 ) ,              solely to variations in market prices and are in no way
     applicable in 1992 , the Commission applied certain                  attributable to the inadequate supervision and
     conditions laid down as from the second tendering                    management of ONIC, as alleged by the EAGGF .
     procedure in September 1993 by Regulation ( EEC )
     No 2456/93 ( 4 ). Within the framework of Regulation
     ( EEC ) No 859/89 , the French authorities satisfied             (') OJ No L 117, 14 . 5 . 1996 , p . 19 .
     themselves that each undertaking was legally                     (2) Official Journal, English Special Edition 1970 ( 1 ), p. 218 .
     independent when considering their buying-in tenders .           (') OJ No L 91 , 4 . 4 . 1989 , p. 5 .
     The fact that a natural person performs management               (4) OJ No L 225 , 4 . 9 . 1993 , p . 4 .
     duties in a company and executes legal instruments on its
     behalf does not preclude him in law from managing
     other legal persons in the form of companies and
     carrying out on their behalf acts of management and
     decision-taking by virtue of the powers conferred on
     him, without the companies being connected thereby
     with each other .
— ( In the alternative ) Breach of the principle of
     subsidiarity : a correction affecting 2 % of EAGGF total         Action brought on 9 July 1996 by the Government of the
     expenditure in connection with public meat storage is            Kingdom of Denmark against the Commission of the
     disproportionate in relation to the absence of any risk of                            European Communities
     loss to the Community Fund arising from the tendering                                     ( Case C-233 /96 )
     procedure .
                                                                                                 ( 96/C 269/23 )
 ( As regards expenditure in the cereals sector )
                                                                      An action against the Commission of the European
                                                                      Communities was brought before the Court of Justice of the
 — Breach of Regulation ( EEC ) No 729/70 : the French
      authorities followed the Community procedure for                 European Communities on 9 July 1996 by the Government
      accepting cereal offered for intervention . Some remarks        of the Kingdom of Denmark, represented by Peter Biering,
                                                                      Kontorchef, with an address for service in Luxembourg at
      made by the Commission concerning the unsatisfactory
                                                                      the Danish Embassy , 4 boulevard Royal .
      nature of the management system relate to requirements
      which are not laid down in the rules in force ( for
      example, entering of stocks in real time in the computer
      system of the intervention agency's head office, putting        The applicant claims that the Court should :
      up signs systematically on storage premises ). Some
      observations made by the Commission following its
      1993 monitoring mission are connected with the                  — declare Commission Decision 96/311 /EC of 10 April
      situation at the end of 1992/93 marketing year which                 1996 on the clearance of the accounts presented by the
      was notable for an exceptionally large increase in the               Member States in respect of the expenditure for 1992 of
      quantities put into intervention . In some cases , goods             the Guarantee Section of the European Agricultural
      were put into store in non-specialized storage premises .            Guidance and Guarantee Fund and in respect of certain
      The French authorities dispute, however, the EAGGF's                 expenditure for 1 993 ( 1 ) void in so far as it provides that
      inference that it was impossible to check the                        the following expenditure incurred by Denmark cannot
      quantities .                                                         be financed by the EAGGF Guarantee Section :
 — Disregard of the principle of legal certainty : the                     — Dkr 26 867 909 for the intervention purchase of
      clearance procedure was initiated in the context of                      beef and veal during the 1991 and 1992 financial
      mutual cooperation reflected in the introduction of                      years ,
 ---pagebreak--- 14 . 9 . 96              EN                   Official Journal of the European Communities                                 No C 269/ 11
— order the Commission to pay the costs of the                           References for a preliminary ruling from the
      proceedings .                                                      Landesarbeitsgericht Hamburg by orders of that court of
                                                                         6 February 1996 in the cases of Agnes Vick v. Deutsche
                                                                           Telekom AG and Ute Conze v. Deutsche Telekom AG
Pleas in law and main arguments adduced in support:
                                                                                       ( Cases C-234/96 and C-235/96 )
                                                                                                    ( 96/C 269/24 )
— Breach of the EC Treaty or of legal rules for its
      implementation : Article 9 ( 2 ), final clause , of Regulation
      ( EEC ) No 859/89 ( 2 ) provides that a tenderer in an             Reference has been made to the Court of Justice of
      invitation to tender concerning the sale of beef or veal           the European Communities by orders of the
      into intervention during the 1991 and 1992 financial               Landesarbeitsgericht Hamburg ( Higher Labour Court,
      years could submit only one tender per category in                 Hamburg ) of 6 February 1996 , which were received at the
      response to each invitation to tender. There is, in the            Court Registry on 9 July 1996 , for preliminary rulings in the
      Danish Government's view, no basis for assuming that               cases of Agnes Vick v. Deutsche Telekom AG and Ute Conze
      the definition of 'a tenderer' in Regulation ( EEC )               v. Deutsche Telekom AG on the following questions :
      No 859/89 must be restricted to cover exclusively
      independent legal persons that are not interconnected .            1 . Do Article 119 of the EC Treaty, the Barber Protocol
      The amendments made to Regulation ( EEC ) No 859/89                    No 2 and the relevant case-law of the Court of Justice of
      by Regulation ( EEC ) No 1282/90 ( 3 ) and Regulation                  the European Communities as primary Community law
      ( EEC ) No 2271 /90 (4 ) demonstrate that the purpose of               have priority over the constitutional law ( Article 3 of
      the provision was at all times to limit the number of                  the Grundgesetz ( Basic Law )) and ordinary law
      tenders per tenderer rather than to limit the number of                ( Paragraph 2 ( 1 ) of the Beschaftigungsforderungsgesetz
      tenderers . It follows neither from the recitals in the                ( Employment Promotion Law ) and the general principle
      preamble nor from the discussions within the                           of equal treatment in labour law ) in force in Germany,
      Management Committee that tenderers should be                          with the consequence that where the factual
      independent of each other . That requirement first arises              requirements are fulfilled for a claim under Article 119
      in the second subparagraph of Article 11 ( 3 ) of                      of the EC Treaty on the ground of indirect sex
      Regulation ( EEC ) No 2456/93 ( 5 ). This means that the               discrimination in connection with an occupational
      Danish authorities were not empowered in 1991 and                      old-age pension scheme because of unfavourable
       1 992 to reject tenders from independent legal persons on             treatment of part-time workers, benefits on the basis of
      the ground that they were not independent of another                   constitutional or ordinary rules of national law can also
      tenderer. It is therefore contrary to Community law for                be claimed only under the same restrictive conditions as
      the Commission to argue that the Danish authorities                    apply to a coincident Community law claim under
      were under such an obligation and for it, on the basis of              Article 1 1 9 of the EC Treaty, so that, in divergence from
      that contention, to refuse to allow EAGGF financing of                 the legal assessment otherwise applicable under national
      notified expenditure resulting from a tender effected in               law, even on the basis of grounds of claim under
      accordance with Community law in force .                               national law benefits are owed only for periods of
                                                                             employment after 17 May 1990, subject to the
      In any event, the EAGGF has not incurred a loss in the                 exception for employees who have initiated legal
      present case , and the Commission's straight reduction of              proceedings or introduced an equivalent claim before
      2 % in the expenditure which Denmark notified for                      that date ?
      EAGGF financing therefore amounts to a breach of the
      Treaty or of legal rules for its implementation .                  2 . Does that also apply where , under the concurrent
                                                                             national law basis , there is a claim to equal treatment
— Absence of reasons .                                                       simply because there is objectively unjustified
                                                                             unfavourable treatment because of working part time ,
                                                                             without it being relevant whether there is also indirect
(') OJ No L 117, 14 . 5 . 1996 , p . 19 .                                    sex discrimination on the basis of a numerically
( 2 ) Commission Regulation ( EEC ) No 859/89 of 29 March 1989               proportionally greater unfavourable treatment of
      laying down detailed rules for the application of intervention         women workers ?
      measures in the beef and veal sector ( OJ No L 91 , 4 . 4 . 1989 ,
      p. 5 ).
(') Commission Regulation ( EEC ) No 1282/90 of 15 May 1990
      amending Regulation ( EEC ) No 859/89 ( OJ No L 126 , 16 . 5 .
      1990 , p. 31 ).
(4 ) Commission Regulation ( EEC ) No 2271 /90 of 1 August 1990
      amending Regulation ( EEC ) No 859/ 89 ( OJ No L 204 , 2 . 8 .
      1990 , p. 45 ).
                                                                         Action brought on 9 July 1996 by the Commission of the
(5 ) Commission Regulation ( EEC ) No 2456/93 of 1 September             European Communities against the Federal Republic of
      1993 laying down detailed rules for the application of Council                                    Germany
      Regulation ( EEC ) No 805/68 as regards the general and special                             ( Case C-236/96 )
      intervention measures for beef ( OJ No L 225 , 4 . 9 . 1993 ,
      P - 4 ).                                                                                       ( 96/C 269/25 )
                                                                         An action against the Federal Republic of Germany was
                                                                          brought before the Court of Justice of the European