CELEX: C1996/354/28
Language: en
Date: 1996-11-23 00:00:00
Title: Action brought on 26 August 1996 by the Federal Republic of Germany against the Commission of the European Communities (Case C-288/96)

No C 354/ 14           EN                Official Journal of the European Communities                                23 . 11 . 96
judgment delivered by the Court of First Instance of the            24 September 1996, the operative part of which is as
European Communities ( Fifth Chamber ) on 16 November               follows :
1994 in Case T-451 /93 San Marco v. Commission [ 1994]
ECR 11-1061 , and for compensation for the damage
allegedly suffered by the appellant in relation to a public         1 . When committing expenditure in implementation of its
works contract concluded by it with the Government of the               circular of 2 May 1996 inviting applications for
Somali Democratic Republic, the other party to the                      Commission funding of measures to assist the elderly
proceedings being the Commission of the European                        and of its circular received by the United Kingdom
Communities ( Agents: Hans Peter Hartvig and Claire Bury )              authorities on 15 May 1996 inviting applications for
— the Court ( First Chamber ), composed of D. A. O. Edward              Commission funding of measures to combat poverty
( Rapporteur ), President of the Chamber, P. Jann and L.                and social exclusion, the Commission shall clearly state
Sevon, Judges; Advocate-General : N. Fennelly, Registrar: R.            that such commitments are conditional upon the
Grass, made an order on 17 September 1996 , the operative               judgment of the Court in the main proceedings and shall
part of which is as follows :                                           make no payment until that judgment is delivered.
                                                                    2.  Costs are reserved.
1 . The appeal is dismissed.
                                                                    (') OJ No C 269 , 14 . 9 . 1996 .
2 . San Marco Impex Italiana is ordered to bear its own
      costs and to pay those incurred by the Commission.
t 1 ) OJ No C 74, 1995 .
                                                                    Action brought on 26 August 1996 by the Federal Republic
                                                                    of Germany against the Commission of the European
                                                                                               Communities
                                                                                           ( Case C-288/96 )
      ORDER OF THE PRESIDENT OF THE COURT                                                     ( 96/C 354/28 )
                     of 24 September 1996
in Joined Cases C-239/96 R and C-240/96 R: United                   An action against the Commission of the European
Kingdom of Great Britain and Northern Ireland supported             Communities was brought before the Court of Justice of the
by Federal Republic of Germany v. Commission of the                 European Communities on 26 August 1996 by the Federal
                   European Communities (*)                         Republic of Germany, represented by Bernd Kloke,
(Applications for interim measures — Social policy —                Oberregierungsrat, of the Federal Ministry of Economic
Community measures to assist the elderly — Community                Affairs, and Michael Schiitte, Rechtsanwalt, of Bruckhaus
       measures to combat poverty and social exclusion)             Westrick Stegemann, Brussels .
                          96/C 354/27
                                                                    The applicant claims that the Court should :
                 (Language of the case: English)
                                                                    — declare Commission Decision COM(96)1646 def. of
                                                                        29 May 1996 on aid from Niedersachsen to JAKO
(Provisional translation; the definitive translation will be            Jadekost GmbH & Co. KG void;
          published in the European Court Reports)
                                                                    — order the Commission to pay the costs .
In Joined Cases C-239/96 R and C-240/96 R: United
Kingdom of Great Britain and Northern Ireland ( Agents:             Pleas in law and main arguments adduced in support:
John Collins and Derrick Wyatt ), supported by Federal
Republic of Germany ( Agents : Ernst Roder and Bernd
Kloke ), against Commission of the European Communities             Infringement of the right to be heard : the Commission did
                                                                    not make available to Niedersachsen or the Federal
 ( Agents : Peter Oliver and Maria Patakia ) — application for
suspension of operation of the decisions or acts comprised          Republic of Germany the observations submitted by
or referred to in the Commission circular of 2 May 1996             competitors of Jadekost which apparently influenced the
                                                                    Commission 's decision .
inviting applications for Commission funding of measures
to assist the elderly and in the Commission circular received
by the United Kingdom authorities on 15 May 1 996 inviting          Breach of essential procedural requirements ( Article 173 ,
applications for Commission funding of measures to                  second paragraph, of the EC Treaty ): the Commission's
combat poverty and social exclusion, or for interim                 investigation of the facts was inadequate and its account of
measures — the President of the Court made an order on              them in the decision is inaccurate .
 ---pagebreak--- 23 . 11 . 96              EN                   Official Journal of the European Communities                                     No C 354/ 15
Misapplication of Article 92 ( 1 ) of the EC Treaty: the                  2 . If so , are the provisions applicable in the same way:
Commission misapplied Article 92 ( 1 ) of the EC Treaty in
finding that the guarantee provided by Niedersachsen was                        ( a ) if the decision in question is the first calculation of
incompatible with the common market. The findings in the                              the insured person's rights under the regulations by
decision with regard to Article 92 ( 1 ) are unlawful in both                         that institution ?
form and substance . The substantive illegality is sufficiently
demonstrated by the application by the Commission of the
fisheries guidelines published in Official Journal of the                       ( b ) if a first decision made before 1 June 1996 did not
European Communities No C 152 of 17 June 1992 , in                                    correctly calculate the rights under the regulations
connection with the investigation of the facts under                                  and has to be cancelled and replaced after 1 June
                                                                                      1992 by a rectification decision, the latter thus
Article 92 ( 1 ) of the Treaty, as well as by the absence of a
detailed examination of the individual circumstances when                             being the first to calculate the rights under the
                                                                                      regulations correctly ?
determining whether the requirements of fact were met. In
particular, the Commission failed entirely to take into
account the provision of valuable securities when                               ( c ) if a first decision made before 1 June 1992 and
determining the aid element, and to consider alternative                              otherwise correct has to be annulled and replaced
financing, omissions which led to false assumptions . The                             after 1 June 1992 because another institution
argument concerning distortion of competition is not                                  concerned has made a rectification decision ?
supported by any factual finding whatsoever and is,
moreover, contradictory. The decision does not comply                     3 . If the first two questions are answered in the affirmative,
with Article 190 of the EC Treaty and is therefore unlawful                     may the recalculation of the benefit on 1 June 1992 have
as to form as well .
                                                                                the consequence of reducing the benefit due, compared
                                                                                with the amount due on 31 May 1992 on the basis of the
Misapplication of Article 92 ( 3 ) ( e ) of the EC Treaty: the                  provisions applicable until that date, given that
guarantee for Jadekost satisfies the conditions laid down in                    Regulation ( EEC ) No 1248/92 did not amend or
Article 92 ( 3 ) ( e ) in order for it to be regarded as compatible             supplement the provisions of Articles 118 to 119a of
with the common market . The Commission 's verification of                      Regulation ( EEC ) No 574/72 ( 4 ) to make them
the presence of the conditions for application of this                          applicable on 1 June 1992 ?
exception was defective in both form and substance .
                                                                          (') OJ, English Special Edition 1971 ( II ), p. 416 .
                                                                          ( 2 ) OJ No L 136 , 19 . 5 . 1992 , p . 7 .
                                                                          (-') OJ No L 230, 22 . 8 . 1983 , p . 6 .
                                                                          (4 ) OJ, English Special Edition 1972 ( I ), p. 159 .
Reference for a preliminary ruling from the Tribunal du
Travail de Bruxelles by judgment of that court of
5 September 1996 in the case of Salvatore Baldone v. Institut
           National d 'Assurance Maladie-Invalidite
                            Case C-307/96                                 Action brought on 24 September 1996 by the Commission
                                                                          of the European Communities against the Kingdom of the
                             ( 96/C 354/29 )                                                              Netherlands
                                                                                                      ( Case C-310/96 )
 Reference has been made to the Court of Justice of the                                                 ( 96/C 354/30 )
 European Communities by a judgment of the Tribunal du
 Travail de Bruxelles [Brussels Labour Court] of 5 September
 1996 , which was received at the Court Registry on                       An action against the Kingdom of the Netherlands was
 23 September 1996 , for a preliminary ruling in the case of               brought before the Court of Justice of the European
 Salvatore    Baldone        v.   Institut   National    d'Assurance       Communities on 24 September 1996 by the Commission of
 Maladie-Invalidite on the following questions:                           the European Communities, represented by B. J. Drijber, of
                                                                           the Legal Service , acting as Agent, with an address for
                                                                           service at the office of C. Gomez de la Cruz, of the Legal
 1 . Are paragraphs 1 to 3 of Article 95a of Regulation                    Service , Wagner Centre , Kirchberg.
     ( EEC ) No 1408/71 ( ! ), inserted by Regulation ( EEC)
     No 1248/72 ( 2 ), to be interpreted as meaning that if an
                                                                           The Commission claims that the Court should :
     institution of a Member State after 31 May 1992
     calculates the rights of an invalid under the regulations,
     it must apply, for the period ending on 3 1 May 1992 , the            — declare that the Kingdom of the Netherlands has failed
     provisions of Regulation ( EEC ) No 1408/71 ( in                            to fulfil its obligations under Article 2 of Council
     particular Article 46 ) in the codified version of                          Directive 77/388/EEC of 17 May 1977 by maintaining
     Regulation ( EEC ) No 2001 /83 ( 3 ), and, from 1 June                      after 1 January 1990 a special provision by virtue of
      1992 , the provisions of Regulation ( EEC ) No 1408/71                     which certain supplies of waste and recuperable material
     as amended by Regulation ( EEC ) No 1248/92 ?                               are not required to be subject to value added tax;