CELEX: C2001/245/12
Language: en
Date: 2001-09-01 00:00:00
Title: Case C-240/01: Action brought on 21 June 2001 by the Commission of the European Communities against the Federal Republic of Germany

C 245/6                EN                    Official Journal of the European Communities                                      1.9.2001
The applicant claims that the Court should:                                   budgetary plan. For the same reason, the co-financing
                                                                              regulation in dispute amounts to a circumvention of the
                                                                              budgetary provision in the first paragraph of
1.    annul Article 5(5) of Commission Regulation (EC)                        Article 269 EC. Moreover, the capping of own resources
      No 690/2001 of 3 April 2001 on special market support                   in accordance with Articles 269 and 270 EC would not
      measures in the beef sector (1), in so far as that provision            constitute an effective limit on Community expenditure
      requires the Member State concerned to finance 30 % of                  if the Commission had the power to order Community
      the cost of the meat purchase referred to in that                       expenditure without it being totally financed by the
      regulation;                                                             Community budget. By acting in that way, the procedure
                                                                              laid down in the second paragraph of Article 269 EC,
                                                                              requiring not only a unanimous decision of the Council
2.    order the Commission to pay the costs.                                  (after consultation with the Parliament) but also a ratifi-
                                                                              cation of that decision by the Parliaments of the Member
                                                                              States, could easily be circumvented.
                                                                        —     Infringement of Article 253 EC. Reference to the limited
Pleas in law and main arguments                                               nature of budgetary resources does not explain either
                                                                              with what justification the Commission purports to
                                                                              modify the principle of total financing of support
                                                                              measures in the beef sector by the Community budget by
                                                                              establishing compulsory co-financing, or why basis for
                                                                              allocation of 70 % — 30 % was necessary.
—     The Commission had no power to order a compulsory co-
      financing in the context of an implementing regulation.
      Article 5(5) of the contested regulation does not serve to
      ‘implement’ a corresponding general provision of the
      basic regulation, allowing co-financing in principle.             The applicant suggests that, in so far as it allows the action,
      Rather, it represents a clear departure from the provisions       the Court should maintain the effects of the regulation in order
      of Council Regulations Nos 1254/1999 and 1258/1999,               to protect the position of the operators concerned.
      which assume 100 % financing from the Community
      budget. The question of the financing of a specific support
      measure in the agricultural sector necessarily forms part
      of the essential features of the subject-matter of the            (1) OJ L 95, 5.4.2001, p. 8.
      legislation, which must be governed in the basic Council
      regulation. That is especially so since all the decisive
      questions on the financing of the common agricultural
      policy — including the Community beef market — are
      dealt with by Council Regulation No 1258/1999 (or
      Council Regulation No 1883/78, as the case may be).
—     Infringement of the financial provisions of the Treaty. By
      virtue of the system of the common organisation of the
      market in beef and the prohibition of State aid laid down
      by Article 87(1) EC, expressly confirmed in the thirty-
                                                                        Action brought on 21 June 2001 by the Commission of
      third recital in the preamble to Regulation
                                                                        the European Communities against the Federal Republic
      No 1254/1999, the support measures provided for by
                                                                                                    of Germany
      the contested regulation constitute, despite the partial
      financing by national budgetary resources, Community
      aid and therefore ‘expenditure of the Community’ within
      the meaning of the first paragraph of Article 268 EC. In                                   (Case C-240/01)
      accordance with that latter provision, ‘all items of revenue
      and expenditure of the Community [...] shall be included
      in estimates to be drawn up for each financial year and
      shall be shown in the budget’. The use of the adjective ‘all’                              (2001/C 245/12)
      (revenue and expenditure) in the first paragraph of
      Article 268 EC establishes the principle of the complete-
      ness/unity of the budget, which is a basic condition for a
      political weighting of revenue and expenditure in the             An action against the Federal Republic of Germany was
      budget procedure and democratic control of the                    brought before the Court of Justice of the European Communi-
      execution of the budget. That basic principle is not              ties on 21 June 2001 by the Commission of the European
      complied with where Community expenditure is (par-                Communities, represented by Enrico Traversa, Legal Adviser,
      tially) financed on the basis of an imperative regulation         and Kilian Gross, a member of the Legal Service, with an
      of secondary law from sources that are not part of the            address for service in Luxembourg.
 ---pagebreak--- 1.9.2001               EN                     Official Journal of the European Communities                                           C 245/7
The Commission claims that the Court should:                             Reference for a preliminary ruling from the Conseil
                                                                         d’État, Judicial Section, by decision of that court of 28 May
1.    declare that by applying Paragraph 4(1) Nr. 2(b) of the            2001 in the case of National Farmers’ Union against the
      Mineralölsteuergesetz (law on the taxation of mineral                     General Secretariat of the French Government
      oils) the Federal Republic of Germany has failed to fulfil
      its obligations under Council Directive 92/81/EEC of                                           (Case C-241/0l)
      19 October 1992 on the harmonisation of the structures
      of excise duties on mineral oils (1) inasmuch as it fails to
      charge excise duty on all mineral oils intended to be used                                    (2001/C 245/13)
      for heating;
                                                                         Reference has been made to the Court of Justice of the
2.    order the Federal Republic of Germany to pay the costs.            European Communities by decision of the Conseil d’État
                                                                         (French Council of State) Judicial Section, of 28 May 2001,
                                                                         received at the Court Registry on 22 June 2001, for a
                                                                         preliminary ruling in the case of National Farmers’ Union
                                                                         against the General Secretariat of the French Government on
Pleas in law and main arguments                                          the following questions:
                                                                         (1) whether, having regard to the legislative nature of Com-
The action concerns the rule laid down in Paragraph 4(1)                       mission Decision 98/692/EC of 25 November 1998 (1)
Nr. 2(b) of the German Mineralölsteuergesetz, and in particular                and Commission Decision 99/514/EC of 23 July 1999 (2),
the interpretation given to it in the Decree of the Bundesminis-               and notwithstanding the expiry of the time limit for
ter der Finanzen (Federal Minister of Finances) of 2 February                  challenging them, a Member State may validly invoke
1998 (III A 1 — V 0355 — 10/97). Under that decree,                            significant changes in the factual or legal circumstances
‘combustion’ was to be understood as meaning only the                          occurring after the expiry of that time-limit, where the
intentional use of the thermal value of a material, i.e. the total             changes in question are such as to cast doubt on the
or partial combustion of mineral oil for the production of heat                decisions’ validity;
to be transmitted wholly or partially to another material. That
other material, to which heat is transmitted, must thereby               (2) whether, at the date of the decisions taken by the French
acquire the character of a new carrier of energy or heat. The                  authorities, the abovementioned Commission decisions
use of the new heat carrier as a means of heating justifies the                were valid, having regard to the precautionary principle
conclusion that the mineral oil used to produce that heat                      laid down in Article 174 of the Treaty establishing the
carrier has been heated. In accordance with that interpretation,               European Community;
there is no ‘heating’ where the material receiving the energy
from the combustion is itself subjected to heat with a view to
the manufacture of a product and it thereby loses its material           (3) whether a Member State may draw from the provisions
characteristics. The same must therefore apply where the                       of Article 30 EC (formerly Article 36 of the EC Treaty)
flame comes into direct contact with the material to be                        the power to prohibit imports of agricultural products
worked/transformed or destroyed. Nor can there be ‘combus-                     and live animals, inasmuch as Directives 89/662/EEC (3)
tion’ where a pilot light is maintained with mineral oil in order              and 90/425/EEC (4) cannot be regarded as harmonising
to burn harmful gas emissions or where mineral oil is mixed                    the measures needed in order to attain the specific
in a combustion chamber with emissions that are to be                          objective of protecting the health and life of humans
destroyed and is completely consumed.                                          provided for by that article.
                                                                         (1) Commission Decision 98/692/EC of 25 November 1998
According to the Commission, that interpretation infringes                   amending Decision 98/256/EC as regards certain emergency
Article 2(2) of Directive 92/81. The words used in that                      measures to protect against bovine spongiform encephalopathy
provision, namely ‘intended for use ... as heating fuel’ must be             (OJ L 328 of 4.12.1998, p. 28).
interpreted independently and in the light of Community law.             (2) Commission Decision 1999/514/EC of 23 July 1999 setting the
The wording, purpose and system of the directive support the                 date on which dispatch from the United Kingdom of bovine
interpretation that ‘combustion’ must be interpreted in broad                products under the date-based export scheme may commence by
terms and that any consumption of mineral oil for heating                    virtue of Article 6(5) of Council Decision 98/256/EC (OJ L 195 of
must be regarded as a combustion. In particular, it appears to               28.7.1999, p. 42).
be irrelevant whether the heat produced is used indirectly by            (3) Council Directive 89/662/EEC of 11 December 1989 concerning
means of a heat carrier for the warming of an object, or                     veterinary checks in intra-Community trade with a view to the
                                                                             completion of the internal market (OJ L 395 of 30.12.1989,
directly, in order to initiate or continue a chemical or industrial
                                                                             p. 13).
process.                                                                 (4) Council Directive 90/425/EEC of 26 June 1990 concerning
                                                                             veterinary and zootechnical checks applicable in intra- Com-
                                                                             munity trade in certain live animals and products with a view to
                                                                             the completion of the internal market (OJ L 224 of 18.8.1990,
(1) OJ L 316, 31.10.1992, p. 12.                                             p. 29).