CELEX: C2004/059/25
Language: en
Date: 2004-03-06 00:00:00
Title: Case C-3/04: Reference for a preliminary ruling by the Rechtbank Utrecht, Sector kanton, Locatie Utrecht, by order of that Court of 10 December 2003 in the case of POSEIDON CHARTERING B.V. against 1. V.O.F. Marianne Zeeschip, 2. ALBERT MOOĲ, 3. SJOERDTJE SĲSWERDA, 4. GERRIT DANIEL SCHRAM

6.3.2004                  EN                        Official Journal of the European Union                                         C 59/15
Pleas in law and main arguments                                             Reference for a preliminary ruling by the Rechtbank
                                                                            Utrecht, Sector kanton, Locatie Utrecht, by order of that
                                                                            Court of 10 December 2003 in the case of POSEIDON
                                                                            CHARTERING B.V. against 1. V.O.F. Marianne Zeeschip,
The present appeal is based on the following two grounds of                 2. ALBERT MOOIJ, 3. SJOERDTJE SIJSWERDA, 4. GER-
law:                                                                                            RIT DANIEL SCHRAM
(i)   Manifest error in that the judgment of the Court of First                                      (Case C-3/04)
      Instance states that the Appellant’s principal objection
      relates to the validity of the Commission’s finding that
      the Compensatory levy is compatible with the common                                           (2004/C 59/25)
      market organisation for cotton and therefore the original
      Application of the Appellant is inadmissible — should
      this finding be upheld it would inevitably result in an
      infringement of the rights to access to justice of the
      Appellant.                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by order of the Rechtbank Utrecht,
                                                                            Sector kanton, Locatie Utrecht, of 10 December 2003, received
      This is because the Appellant did not have any other                  at the Court Registry on 5 January 2004, for a preliminary
      option but to challenge the deficient finding of the                  ruling in the case of POSEIDON CHARTERING B.V. against 1.
      operative part of Article 1 of the contested Decision,                V.O.F. Marianne Zeeschip, 2. ALBERT MOOIJ, 3. SJOERDTJE
      which implicitly refers to the last paragraph of Section IV           SIJSWERDA, 4. GERRIT DANIEL SCHRAM on the following
      of the contested Decision which states that the Com-                  questions:
      pensatory levy of Article 30(1) of Law 2040/92 is
      ‘consonant with the market organisation’. The contested
                                                                            1.   Is a self-employed intermediary, who has arranged (not
      Decision is deficient in that the Commission failed to
                                                                                 several but) one contract (a charter for a ship) which is
      fulfil its duty to analyse the activities of the Greek Cotton
                                                                                 renewed every year and pursuant to which, in respect of
      Board financed by the compensatory levy of Article 30(1)
                                                                                 the renewal of the charter, the annual freight negotiations
      of Law 2040/92 under the EC State aid rules; and
                                                                                 (except, during the period from 1994 to 2000, in 1999)
                                                                                 are conducted between the owner of the ship and a third
                                                                                 party and the outcome of those negotiations is recorded
(ii) The judgment of the Court of First Instance is erroneous                    by the intermediary in an addendum, to be regarded as a
      in law and contrary to the case-law of the Court of Justice                commercial agent within the meaning of Council Direc-
      of the European Communities.                                               tive 86/653/EEC (1) of 18 December 1986 on the coordi-
                                                                                 nation of the laws of the Member States relating to self-
                                                                                 employed commercial agents?
      The Appellant submits that the judgment of the Court of
      First Instance is contrary to the case-law of the Court of            2.   Does it make any difference to the answer to Question 1
      Justice of the European Communities in that the judgment                   that the intermediary works for two principals because
      states that (i) ‘it is obvious’ that the Compensatory levy of              the intermediary already knew the third party between
      Article 30(1) of Law 2040/92 neither constitutes State                     1987 and 1994 and transacted business in respect of the
      aid nor contains a State aid component — the reason                        abovementioned charter for the same ship? If an agency
      being that in the Court of First Instance’s opinion the                    contract must be held to exist, does it make any
      Compensatory levy of Article 30(1) of Law 2040/92 is                       difference to the answer to Question 1 that an indemnity
      ‘merely one of two State aid financing methods granted                     (commission) of 2,5 % of the charter has been paid over
      by the Greek Cotton Board’; and (ii) that it is erroneous                  many years and/or that Article 7(1) of the Directive
      to equate the Compensatory levy of Article 30(1) of Law                    refers to ‘commercial transactions concluded’ and to the
      2040/92 ‘with State aid’. This is because the Compensa-                    existence of an entitlement to (the) commission ‘where
      tory levy of Article 30(1) of Law 2040/92 constitutes                      the transaction is concluded with a third party whom he
      State aid within the meaning of the Enirisorse and Van                     has previously acquired as a customer for transactions of
      Calster case-law.                                                          the same kind’?
                                                                            3.   Does is make any difference to the answer to Question 1
                                                                                 that Article 17 of the Directive refers to ‘customers’
(1) OJ C 259, 09.09.2000, p. 24.                                                 instead of customer?
(2) OJ 2000, L 63, p. 27.
                                                                            (1) OJ L 382 of 31.12.1986, p. 17.