CELEX: C2003/031/07
Language: en
Date: 2003-02-08 00:00:00
Title: Case C-392/02: Action brought on 8 November 2002 by the Commission of the European Communities against the Kingdom of Denmark

C 31/4                  EN                           Official Journal of the European Union                                          8.2.2003
court between The Queen and Secretary of State for Health, ex                      has failed to fulfil its obligations under Community law
parte: British American Tobacco (Investments) Ltd and                              and in particular infringed Article 10 EC and Articles 2
Imperial Tobacco Ltd, supported by Japan Tobacco Inc. and JT                       and 8 of Council Decision 94/728/EC, Euratom of
International SA, on the validity and interpretation of Directive                  31 October 1994 on the system of the European
2001/37/EC of the European Parliament and of the Council of                        Communities own resources ( 1);
5 June 2001 on the approximation of the laws, regulations
and administrative provisions of the Member States concerning
the manufacture, presentation and sale of tobacco products
                                                                             —     order the Kingdom of Denmark to pay the costs of the
(OJ 2001 L 194, p. 26), the Court, composed of: G.C. Rodrí-
                                                                                   present proceedings.
guez Iglesias, President, J.-P. Puissochet, M. Wathelet,
R. Schintgen and C.W.A. Timmermans (Presidents of Cham-
bers), D.A.O. Edward, A. La Pergola (Rapporteur), P. Jann,
V. Skouris, F. Macken, N. Colneric, S. von Bahr and J.N. Cunha
Rodrigues, Judges; L.A. Geelhoed, Advocate General; L. Hew-
lett, Principal Administrator, and M.-F. Contet, Administrator,
for the Registrar, has given a judgment on 10 December 2002,
in which it has ruled:                                                       Pleas in law and main arguments
1.     Consideration of the first question has not disclosed any factor
       of such a kind as to affect the validity of Directive 2001/37/
       EC of the European Parliament and of the Council of 5 June
       2001 on the approximation of the laws, regulations and                The Community Customs Code regulates the relationship
       administrative provisions of the Member States concerning the         between undertakings and the national authorities, which
       manufacture, presentation and sale of tobacco products.               governs the collection of the traditional own resources on
                                                                             behalf of the Community, whereas the relationship between
                                                                             the Community and the Member States is regulated by the
2.     Article 7 of Directive 2001/37 is to be construed as applying
                                                                             provisions of the Community financing scheme, that is,
       only to tobacco products marketed within the European
                                                                             in particular, Council Decision 94/728/EC, Euratom, the
       Community.
                                                                             implementing provisions of Council Regulation No 1552/
                                                                             89 (2) and also the general obligations under Article 10 EC.
                                                                             The fact that a purely technical link is created between the two
( 1) OJ C 56 of 02.03.2002.
                                                                             aforementioned sets of rules, in that Regulation No 1552/89
                                                                             covers to a certain extent various stages which under the
                                                                             Community Customs Code are carried out as part of the
                                                                             determination of the amount of duty owing and the rules for
                                                                             collection thereof, has no bearing on the issue of national
                                                                             authorities’ financial liability to the Community for any errors
                                                                             committed in the course of collecting the traditional own
                                                                             resources. The protection given to the person liable for
Action brought on 8 November 2002 by the Commission                          payment by the Customs Code, in particular Article 220(2)(b)
of the European Communities against the Kingdom of                           thereof, cannot be relied on by the Member State as against
                               Denmark                                       the Commission when that Member State has not collected the
                                                                             resources in question. If a Member State fails to collect the
                                                                             traditional own resources, it can, subject to certain conditions,
                           (Case C-392/02)                                   be freed from the obligation to place those resources at the
                                                                             disposal of the Commission only under Article 17 of Regu-
                                                                             lation No 1552/89.
                            (2003/C 31/07)
An action against the Kingdom of Denmark was brought                         In a number of cases in the period 1996-1997 the Danish
before the Court of Justice of the European Communities on                   authorities allowed the zero-rated import of frozen sugar peas
8 November 2002 by the Commission of the European                            from the People’s Republic of China, despite the fact that the
Communities, represented by H.P. Hartvig and G Wilms, acting                 undertaking in question did not have a permit to import the
as Agents, with an address for service in Luxembourg.                        goods at such a rate because of their particular end-use. There
                                                                             were even divergent opinions amongst the regional Danish
                                                                             authorities, which led to a finding on the part of the
The applicant claims that the Court should:                                  Commission, at the request of the Danish authorities and
                                                                             pursuant to Article 220(2)(b) of Council Regulation (EEC)
—      rule that since the Danish authorities have not transferred           No 2913/92 of 12 October 1992 establishing the Community
       to the Commission an amount of DKK 140 409,60 from                    Customs Code ( 3) that, due to an error on the part of the
       its own resources together with default interest thereon              Danish authorities, it could not require the importer to pay
       as from 20 December 1999, the Kingdom of Denmark                      duty for any of the imports in question.
 ---pagebreak--- 8.2.2003               EN                       Official Journal of the European Union                                              C 31/5
The determination of the time when the fixing (finding) should          The applicant claims that the Court should:
have taken place makes it possible to calculate the period
within which the own resources in question should have been
credited to the Commission’s account, in accordance with                —     Declare that
Article 10 of Regulation No 1552/89. Failure to comply within
that period triggers the obligation to pay default interest
pursuant to Article 11 of Regulation No 1552/89, an obli-                     (a)   by failing to adopt the measures necessary to comply
gation which, according to the case-law of the Court, arises                        with Articles 4, 9 and 13 of Council Directive 75/
without its being necessary to examine the reasons for the                          442/EEC ( 1), amended by Directive 91/156/EEC (2),
failure to comply within that period.                                               inasmuch as it failed to take the necessary measures
                                                                                    to ensure that waste from the pig farm located in ‘El
                                                                                    Pago de la Media Legua’ is recovered or disposed of
( 1) OJ 1994 L 293, p. 9.
                                                                                    without endangering human health and without
( 2) OJ 1989 L 155, p. 1.
( 3) OJ 1992 L 302, p. 1.
                                                                                    harming the environment and insofar as the farm
                                                                                    was not covered by the authorisation required under
                                                                                    the directive and by failing to carry out the requisite
                                                                                    regular checks in respect of such establishments;
                                                                              (b) by failing to carry out an impact assessment prior to
Reference for a preliminary ruling by the Bundesarbeits-
                                                                                    the construction or modification of the project,
gericht by order of that Court of 27 June 2002 in the case
                                                                                    contrary to the requirements of Articles 2 and 4(2)
of Gérard Merida against Federal Republic of Germany,
                                                                                    of Council Directive 85/337/EEC ( 3), either in its
      represented by the Amt für Verteidigungslasten
                                                                                    original wording or as amended by Directive 97/11/
                                                                                    EC (4);
                          (Case C-400/02)
                           (2003/C 31/08)                                     (c)   by failing to carry out the requisite hydrological
                                                                                    studies in the area affected by pollution, in accord-
                                                                                    ance with Articles 3(b), 5(1) and 7 of Council
Reference has been made to the Court of Justice of the                              Directive 80/68/EEC (5);
European Communities by order of the Bundesarbeitsgericht
(Federal Labour Court) of 27 June 2002, received at the Court
Registry on 12 November 2002, for a preliminary ruling in                     (d) by not subjecting urban waste-water from the
the case of Gérard Merida against Federal Republic of Germany,                      agglomeration of Vera to treatment which is more
represented by the Amt für Verteidigungslasten (Local Office                        stringent than that described in Article 4, as required
for Defence Expenditure) on the following question:                                 under Article 5(2) of Council Directive 91/271/
                                                                                    EEC ( 6);
Is Article 39 EC infringed by the fact that for the purposes of
calculating the basis of assessment of interim assistance in a
                                                                              (e)   by failing to declare the Rambla de Mojácar a
case arising under Paragraph 4(1)(b) of the collective agreement
                                                                                    vulnerable area, contrary to Article 3(1), (2) and (4)
on social security account must be taken of the notional
                                                                                    of Directive 91/676/EEC (7);
German tax on emoluments (second sentence of Para-
graph 4(3)(b) of that collective agreement) if the former
employee lives and is subject to tax abroad?
                                                                              the Kingdom of Spain has failed to fulfil its obligations
                                                                              under the abovementioned directives; and
                                                                        —     Order the Kingdom of Spain to pay the costs.
Action brought on 19 November 2002 by the Com-
mission of the European Communities against the
                        Kingdom of Spain
                          (Case C-416/02)                               Pleas in law and main arguments
                           (2003/C 31/09)
                                                                        —     Infringements (a) to (c) relate to the construction and
                                                                              running of an intensive pig farm situated in ‘El pago de la
An action against the Kingdom of Spain was brought before                     Media Legua’, in the municipal district of Vera, in the
the Court of Justice of the European Communities on 19 No-                    province of Almeria. The Spanish authorities admit that
vember 2002 by the Commission of the European Communi-                        that pig farm is illegal and is not covered by a municipal
ties, represented by Gregorio Valero Jordana, of its Legal                    licence, so that it must be deemed not to have the
Service, with an address for service in Luxembourg.                           requisite authorisation required by Article 9 of Directive