CELEX: C1998/055/56
Language: en
Date: 1998-02-20 00:00:00
Title: Action brought on 16 December 1997 by Nederlandse Antillen against the Council of the European Union (Case T-310/97)

20.2.98               EN                   Official Journal of the European Communities                                    C 55/27
The applicant claims that the Court should:                           April 1997 that in view of the proposed review of the
                                                                      GBP the Article 169 procedure had been suspended and
                                                                      the reasoned opinion had not been served on the United
Ð annul the Commission's Decision dated 16 May 1997,                  Kingdom Government.
     9 July 1997 and 18 September 1997 in so far as it
     relates to refusal of access to the following documents:
                                                                      The applicant remains of the opinion that the amended
                                                                      GBP still contravenes Article 30 and that the Commission
     The reasoned opinion of the Commission formulated                was mistaken in its decision to terminate the Article 169
     following an investigation into the provisions of                procedure against the United Kingdom. It considers that
     Article 7(3) of The Supply of Beer (Tied Estates) Order          access to the reasoned opinion will assist in its action
     1989 SI 1989/2390,                                               against the United Kingdom Government because that
                                                                      opinion will formally reflect the Commission's views as to
                                                                      the legality under Community law of the GBP as
Ð order that the Commission pay the costs of these                    originally drafted and will enable the applicant's legal
     proceedings.                                                     representatives to advise at a preliminary stage on the
                                                                      likelihood of success in an action against the United
                                                                      Kingdom Government before undertaking the expense of
Pleas in law and main arguments adduced in support:
                                                                      litigation.
The applicant, an importer of German beer mainly for
sale in public houses and bars in the North of England,               Nevertheless, the Commission refused repeated requests by
found itself unable to sell its products as a large number            the applicant for a copy of the reasoned opinion on the
of public houses in the United Kingdom are covered by                 ground that refusal to grant access to the reasoned
tie' arrangements under which they are obliged to                    opinion was justified where disclosure could undermine
purchase their supplies of beer from particular brewers               the protection of the public interest, in particular where
under exclusive purchasing agreements and because of the              Commission inspections          and investigations       were
overwhelming market dominance enjoyed by the major                    concerned. This exception is provided for in the Code of
British brewers.                                                      Conduct concerning public access to Commission and
                                                                      Council documents, adopted by the Commission on
                                                                      8 February 1994.
In 1989 The Supply of Beer (Tied Estate) Order 1989 SI
1989/2390 was brought into effect by the United Kingdom
Government. This order provided that those UK brewers                 The applicant submits that this approach is contrary to
with an interest in more than 2 000 pubs would be                     this Code of Conduct which provides that the public will
obliged to allow the tenants of those pubs the opportunity            have the widest possible access to documents held by the
to purchase a guest beer' from another brewery.                      Commission'. Furthermore, it is in particular contrary to
Article 7(2)(a) (known as the Guest Beer Provision GBP')             the legal principles set forth by the Court of First Instance
provided that the guest beer should be a cask                        in Case T-105/95 (WWF UK Worldwide Fund for Nature
conditioned' beer with an alcoholic strength exceeding                v. Commission of the European Communities).
1,2 % by volume.                                                      Fundamental objectives of proper administration,
                                                                      transparency and accountability demand that the reasoned
                                                                      opinion be released to the applicant as requested.
This provision had the effect of barring the applicant's
product from the pubs controlled by the regional brewers.
Therefore, the applicant contends that the GBP represents
a measure having an effect equivalent to a quantitative
restriction on imports and is therefore illegal pursuant to
Article 30 of the EC Treaty. By effectively denying the
British public the opportunity to taste German beer, the              Action brought on 16 December 1997 by Nederlandse
GBP restricts competition and consumer choice at both                      Antillen against the Council of the European Union
wholesale and retail levels.
                                                                                             (Case T-310/97)
                                                                                               (98/C 55/56)
Having regard to these circumstances, the applicant
submitted a complaint to the Commission in April 1993,
which by notification to the applicant in September 1995                             (Language of the case: English)
initiated an investigation into the GBP and had served a
notice on the United Kingdom Government to that effect
in accordance with the procedure laid down in Article 169             An action against the Council of the European Union was
of the EC Treaty. After a press release issued by the                 brought before the Court of First Instance of the European
Commission in August 1996 announcing that the decision                Communities on 16 December 1997 by Nederlandse
had been taken to serve a reasoned opinion on the United              Antillen, represented by P. V. F. Bos and M. M. Slotboom,
Kingdom Government, the United Kingdom Government                     of the Rotterdam Bar, with an address for service in
announced a proposal to amend the GBP. As a result of                 Luxembourg at the offices of Loesch & Wolter, 11, rue
this, the applicant was informed by the Commission in                 Goethe.
 ---pagebreak--- C 55/28                EN                Official Journal of the European Communities                                    20.2.98
The applicant claims that the Court should:                         Ð breach of the order of preference established by the
                                                                        EC Treaty in favour of OCT goods,
Ð annul Council Decision 97/803/EC of 24 November
     1997 (OJ L 329, 29.11.1997, p. 50) pursuant to                 Ð infringement of Article 85 of the OCT Decision in
     Articles 173 and 174 of the EC Treaty,                             conjunction with Annex XXXII to the LomeÂ
                                                                        Convention,
     or, in the alternative,
                                                                    Ð infringement of Article 18 of the Vienna Convention
                                                                        on the Law of Treaties.
Ð annul paragraphs 31, 32, 53 (in so far as it concerns
     Article 232(1), first and second indents), 54 and 55 of
                                                                    (1) OJ L 263, 19.9.1991, p. 1.
     Article 1 of Council Decision 97/803/EC of
     24 November 1997 (OJ L 329, 29.11.1997, p. 50)
     pursuant to Articles 173 and 174 of the EC Treaty,
     and
                                                                    Action brought on 8 December 1997 by Masotti and
Ð order the Council to pay the costs.                               Others against the Commission of the European
                                                                                             Communities
                                                                                           (Case T-312/97)
Pleas in law and main arguments adduced in support:
                                                                                             (98/C 55/57)
The contested Decision (hereinafter the Decision') amends
Decision 91/482/EEC on the association of the overseas                             (Language of the case: Italian)
countries and territories with the EEC (1) (hereinafter the
OCT Decision') by supplementing a number of
                                                                    An action against the Commission of the European
provisions. As the OCT Decision is addressed to the
                                                                    Communities was brought before the Court of First
Netherlands Antilles pursuant to Articles 237 and 238 of
                                                                    Instance of the European Communities on 8 December
the OCT Decision and Annex I to that Decision, expressly
                                                                    1997 by Masotti srl, Masotti Ermidio, F.lli Pevere
listing the Netherlands Antilles as one of the OCT, the
                                                                    autotrasporti srl, Giacomo Folicaldi & figli snc, Tam
Decision modifies the rights and obligations of the
                                                                    Alceo di Tam Pierluigi, Nuova Friultrasport srl, Del
applicant, in particular the preferential treatment of goods
                                                                    Fabbro Rudi e del Fabbro Raffaele, Assisped srl,
originating in the OCT and the system for minimum
                                                                    Castagnara Trasporti srl, Castelletti Ezio autotrasporti di
export prices.
                                                                    Castelletti Ezio & C. sas, Cesca Nazzario, Cesca Roberto,
                                                                    D. & G. Spedizioni srl, Tracev srl, S. N. U. A. srl, Tecno
The applicant fears that it will suffer substantial damage          Trasport srl, Italspurghi ecologia srl, Tib-cunja srl,
and be deprived of a valuable tool for its social and               Grusovin Edoardo, La Goriziana srl, Luigi Kodermac
economic development.                                               succ. srl, Autotrasporti Kusterle srl, Romano Caprara srl,
                                                                    Gia.Tra.Gianesini trasporti srl, Autotrasporti Ribi SpA,
                                                                    Mattia Winkler srl, Interbartolo SpA, Paolo Ceriani
The pleas in law raised by the applicant to contest the             Autotrasporti srl, Trasporti teatrali di Paoletti Roberto &
Decision concern lack of competence, breach of essential            C. snc, Gianesini Erminio srl, Mar-Ter spedizioni SpA,
procedural requirements and infringements of the                    represented by Roberto Petiziol and Alessandra Pergolese,
EC Treaty, of provisions implementing the EC Treaty and/            of the Udine Bar, with an address for service at their
or general principles of Community law. In particular, the          Chambers at Udine, via Ginnasio Vecchio, 6.
applicant puts forward the following pleas:
                                                                    The applicants claim that the Court should:
Ð lack of competence ratione temporis,
                                                                    Ð annul Commission Decision C(97) 2735 final of
Ð breach of Articles 131(3), 132(1) and (5), 133(1),                    30 July 1997,
     136(2) and 227(1) of the EC Treaty,
                                                                    Ð in the alternative, annul Article 5 of that Decision
Ð breach of the principle of legal certainty,                           inasmuch as it requires the Member State to recover
                                                                        the aid (granted as from 1 July 1990), together with
                                                                        the interest accrued as from the date on which the aid
Ð breach of Article 3(r) of the EC Treaty in conjunction                was paid,
     with Article 131(2) of the EC Treaty,
                                                                    Ð in any event, order the Commission of the European
Ð breach of the principle of proportionality,                           Communities to pay the costs.