CELEX: C2002/169/38
Language: en
Date: 2002-07-13 00:00:00
Title: Case C-174/02: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 8 March 2002 in the appeal brought by Streekgewest Westelijk Noord-Brabant and Staatssecretaris van Financiën

13.7.2002             EN                      Official Journal of the European Communities                                       C 169/21
Action brought on 13 May 2002 by the Kingdom of Spain                    to gain access to an additional quota which it would be
  against the Commission of the European Communities                     impossible to finance in full (by means of an allocation free of
                                                                         charge), given the limited funds available. Finally, the aid
                                                                         granted does not, and cannot, affect either prices or the total
                                                                         quantities produced.
                        (Case C-173/02)
                        (2002/C 169/37)                                  (1) Council Regulation (EEC) No 3950/92 of 28 December 1992
                                                                             establishing an additional levy in the milk and milk products
                                                                             sector, amended by Council Regulation (EC) No 1256/1999 of
                                                                             17 May 1999 (OJ L 160 of 16.6.1999, p. 73).
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 13 May 2002 by the Kingdom of Spain
represented by S. Ortiz Vaamonde, Abogado del Estado, with
an address for service in Luxembourg at the Spanish Embassy,
4-6 Boulevard Emmanuel Servais.
                                                                         Reference for a preliminary ruling by the Hoge Raad der
                                                                         Nederlanden by judgment of that Court of 8 March 2002
                                                                         in the appeal brought by Streekgewest Westelijk Noord-
The applicant claims that the Court should:
                                                                                  Brabant and Staatssecretaris van Financiën
—     annul the Commission’s decision of 12 March 2002                                            (Case C-174/02)
      declaring the aid paid to producers of cows’ milk for the
      purchase of reference quantities incompatible with the
      common market and ordering it to be repaid; and                                             (2002/C 169/38)
—     order the Commission to pay the costs.
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by judgment of the Hoge Raad der
                                                                         Nederlanden (Supreme Court of the Netherlands) of 8 March
                                                                         2002, received at the Court Registry on 10 May 2002, for a
Pleas in law and main arguments                                          preliminary ruling in the appeal brought by Streekgewest
                                                                         Westelijk Noord-Brabant and Staatssecretaris van Financiën,
                                                                         on the following questions:
Infringement of Articles 87 EC and 88 EC in that the measure             1.    May only an individual who is affected by a distortion of
at issue is protected by the regulation on the common                          cross-border competition as a result of an aid measure
organisation of the market (COM) in milk and milk products.                    rely on the last sentence of Article 93(3) of the EC Treaty
The measures at issue cannot be challenged as contrary to the                  (now the last sentence of Article 88(3) EC)?
COM in a case in which the latter specifically provides for
mechanisms comparable to those adopted and which are
directed to the same end. The aid granted is not intended to             2.    Where an aid measure within the meaning of the last
cover operating costs but is granted in respect of a production                sentence of Article 93(3) of the EC Treaty (now the last
right, which is a capital asset of the agricultural holding itself.            sentence of Article 88(3) EC) consists of an exemption
The aid is consonant with the objectives laid down in the rules                from a tax (which is to be construed as also meaning a
establishing the additional levy, namely the restructuring of                  reduction in or relief on such tax) whose proceeds are
the milk sector, given that its aim is to improve production                   paid into the public coffers, and no provision in that
structures in the dairy sector, which is fundamental to the                    respect is made for suspending the exemption pending
regional economy of Asturias. The fact that it does not exactly                the notification procedure, must that tax be regarded as
coincide with the mechanism provided for in the COM does                       part of that aid measure, by virtue of the very fact that
not render it contrary to the scheme, since the degree of                      the levying of the tax on persons who do not enjoy an
intervention involved is less than that provided for and                       exemption is the means whereby a favourable effect is
authorised. Instead of allocating quotas free of charge as                     produced, so that as long as the implementation of that
provided for in the first indent of Article 8 of Regulation (EEC)              aid measure is not permitted under the abovementioned
No 3950/92 (1), the Asturian authorities are making more                       provision, the prohibition laid down therein is also
efficient use of public resources, enabling a group of farmers                 applicable to (the levying of) that tax?
 ---pagebreak--- C 169/22              EN                    Official Journal of the European Communities                                     13.7.2002
3.   In the event that the answer to the previous question is               has been any disturbance of trade between Member States
     in the negative: Where a connection as described in the                which can (partly) be attributed to the levy as the method
     final sentence of point 3.4.3 can be identified between                of financing the aid measure? If the answer to this
     the increase in a particular tax whose proceeds are paid               question depends on the closeness of the connection
     into the public coffers and a proposed aid measure within              between the levy and the aid measure, or on the time
     the meaning of the last sentence of Article 93(3) of the               when the revenue from the levy is actually used for the
     EC Treaty (now the last sentence of Article 88(3) EC),                 aid measure, or on other circumstances, what circum-
     must the introduction of that increase be regarded as a                stances are relevant in that regard?
     (start on the) putting into effect of that aid measure
     within the meaning of this provision? If the answer to
     this question turns on the intensity of that connection,          2.   If the prohibition on implementing the aid measure also
     what circumstances are of relevance in this respect?                   applies to the earmarked levy, can the person on whom
                                                                            the levy is imposed then, by relying on the direct effect of
4.   If the prohibition on implementation of the aid measure                Article 93(3), oppose in legal proceedings the full amount
     also relates to the tax, does a final decision by the                  levied on him or only that portion which corresponds to
     Commission declaring the aid measure compatible with                   the part of the revenue which is expected to be spent or
     the common market not mean that the unlawfulness of                    has actually been spent during the period in which the
     the tax is retroactively corrected?                                    implementation of the aid measure is or was prohibited
                                                                            under that provision?
5.   If the prohibition on implementation also relates to the
     tax, can persons on whom the tax is levied oppose such            3.   Do specific requirements arise from Community law with
     tax in law by relying on the direct effect of Article 93(3)            regard to the method of determining what portion of a
     of the EC Treaty in respect of the total amount of the tax             levy falls under the prohibition laid down in the last
     or only in respect of part thereof?                                    sentence of Article 93(3) of the EC Treaty in the case of a
                                                                            levy the revenue from which is earmarked for various
6.   In the latter case, do specific requirements stem from                 purposes for which there are also other sources of
     Community law as regards the manner in which it must                   financing in addition to the levy and which are not all
     be determined which part of the tax is covered by the                  covered by Article 93 of the EC Treaty, where no
     prohibition in the last sentence of Article 93(2) of the EC            apportionment formula is specified in the national pro-
     Treaty?                                                                vision instituting the levy? In such a case, must the
                                                                            portion of the levy which can be allocated to financing
                                                                            the aid measure falling under Article 93 of the EC Treaty
                                                                            be determined on an estimated basis according to the
                                                                            time when the levy was imposed or must it be based on
                                                                            subsequently available data relating to the total revenue
                                                                            from the levy and to the actual expenditure for each of
                                                                            the various purposes?
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 8 March 2002
in the case of F. J. Pape against Ministry of Agriculture,
             Nature Management and Fisheries
                        (Case C-175/02)
                        (2002/C 169/39)
                                                                       Appeal brought on 13 May 2002 by Laboratoire Monique
                                                                       Rémy against the order delivered on 26 March 2002 by
                                                                       the First Chamber of the Court of First Instance of
Reference has been made to the Court of Justice of the
                                                                       the European Communities in Case T-218/01 between
European Communities by judgment of the Hoge Raad der
                                                                       Laboratoire Monique Rémy and Commission of the Euro-
Nederlanden (Supreme Court of the Netherlands) of 8 March
                                                                                             pean Communities
2002, received at the Court Registry on 10 May 2002, for a
preliminary ruling in the case of F. J. Pape against Ministry of
Agriculture, Nature Management and Fisheries on the follow-                                  (Case C-176/02 P)
ing questions:
1.   For so long as the implementation of an aid measure is                                   (2002/C 169/40)
     not permitted under the last sentence of Article 93(3) of
     the EC Treaty (now the last sentence of Article 88(3) EC),
     does the prohibition laid down in that provision also
     apply to the introduction of a levy the revenue from
     which is earmarked under the relevant law in part for the         An appeal against the order delivered on 26 March 2002 by
     financing of that measure, regardless of whether there            the First Chamber of the Court of First Instance of the