CELEX: C2000/122/10
Language: en
Date: 2000-04-29 00:00:00
Title: Case C-471/99: Reference for a preliminary ruling by the Sozialgericht Nürnberg by order of that court of 22 November 1999 in the case of (1) Alfredo Martinez Dominguez, (2) Joaquin Benitez Urbano, (3) Agapito Mateos Cruz, (4) Carmen Dolores Calvo Fernandez against Bundesanstalt für Arbeit, Kindergeldkasse

C 122/6                 EN                     Official Journal of the European Communities                                      29.4.2000
Reference for a preliminary ruling by the Sozialgericht                   Action brought on 6 January 2000 by the Government of
Nürnberg by order of that court of 22 November 1999 in                    the Kingdom of Denmark against the Commission of the
the case of (1) Alfredo Martinez Dominguez, (2) Joaquin                                        European Communities
Benitez Urbano, (3) Agapito Mateos Cruz, (4) Carmen
Dolores Calvo Fernandez against Bundesanstalt für
                                                                                                      (Case C-3/00)
                     Arbeit, Kindergeldkasse
                                                                                                    (2000/C 122/11)
                          (Case C-471/99)
                                                                          An action against the Commission of the European Communi-
                          (2000/C 122/10)                                 ties was brought before the Court of Justice of the European
                                                                          Communities on 6 January 2000 by the Government of
                                                                          the Kingdom of Denmark, represented by Jørgen Molde,
Reference has been made to the Court of Justice of the                    Kontorchef in the Danish Ministry of Foreign Affairs, acting as
European Communities by order of the Sozialgericht Nürnberg               Agent, with an address for service in Luxembourg at the Royal
(Social Court, Nuremberg) of 22 November 1999, received at                Danish Embassy, 4 Boulevard Royal. The applicant claims that
the Court Registry on 9 December 1999, for a preliminary                  the Court should:
ruling in the case of (1) Alfredo Martinez Dominguez, (2)
Joaquin Benitez Urbano, (3) Agapito Mateos Cruz, (4) Carmen               — Annul the Commission’s decision of 26 October 1999
Dolores Calvo Fernandez against Bundesanstalt für Arbeit,                      on the national provisions notified by the Kingdom of
Kindergeldkasse, on the following questions:                                   Denmark concerning the use of sulphites, nitrites and
                                                                               nitrates in foodstuffs;
1. Is Article 77(2)(b) in conjunction with Article 79(1) of               — Order the Commission to pay the costs of the proceedings.
     Regulation (EEC) No 1408/71 (1) to be interpreted as
     meaning that family allowances for the dependent children
     of pensioners who acquired entitlement to a pension in a
     Member State not solely under the legislation of the                 Pleas in law and main arguments
     Member State but under the coordinating provisions of
     European social law, must be paid as a full benefit where            — Essential formal defects
     the pension entitlement from the state of non-residence
     subsists in respect of periods or only as from a period in                — failure to provide Denmark with an opportunity to
     respect of which there is no (or no longer any) entitlement                   state its case before the contested decision was adopted
     to family benefit provided for under the legislation of the
     state of residence owing either to the fact that an age limit                 The principle of audi alteram partem was infringed
     or an income limit has been exceeded or it was not applied                    inasmuch as the Danish Government was not given an
     for?                                                                          opportunity to set out its views on the content or
                                                                                   implications of the Commission’s decision prior to its
                                                                                   adoption.
2. Is Article 78(2)(b) in conjunction with Article 79(1) of
     Regulation (EEC) No 1408/71 to be interpreted as meaning
     that family allowances for orphans of a deceased employee                 — failure to provide Denmark with an opportunity to
     or self-employed person, to whom the legislation of several                   state its views on the opinions received from other
     Member States applied, must be paid as a full benefit,                        countries
     where there is no entitlement to an orphan’s pension in a
     Member State whose legislation applied, either solely                         These opinions must be assumed to have had an
     under the legislation of the Member State or under                            influence on the Commission’s decision and the Com-
     the coordinating legislation of European social law, and                      mission ought to have given Denmark an opportunity
     entitlement to the orphan’s pension from the state of                         to comment on those opinions, which are to some
     non-residence subsists in respect of periods or only as                       extent based on a misunderstanding of the Danish
     from a period in respect of which there is no (or no longer                   rules.
     any) entitlement to family benefit provided for under the
     legislation of the state of residence owing either to the fact       — Legal defects
     that an age limit or an income limit was exceeded or it was
     not applied for?                                                          — The Commission’s decision is based on an error of law:
                                                                                   In determining rules, it is not possible to draw a
                                                                                   distinction between the assessment of a given substance
(1) English Special Edition 1971 (II), p. 416.                                     in regard to health and the assessment of the techno-
                                                                                   logical need governing its use. The use of any given
                                                                                   additive involves a potential risk to human health, and
                                                                                   its use can therefore be authorised only in so far as
                                                                                   there is a technological need for it. Technological need
                                                                                   is thus a relevant criterion in assessing matters relating