CELEX: C1996/269/22
Language: en
Date: 1996-09-14 00:00:00
Title: Action brought on 8 July 1996 by the French Republic against the Commission of the European Communities (Case C-232/96)

14 . 9 . 96             EN                    Official Journal of the European Communities                                      No C 269/9
Reference for a preliminary ruling from the Cour d'Appel,                  II . Can Commission Regulation ( EC ) No 1475/95
Douai, by judgment of that court of 20 June 1996 in the case                     of 28 June 1995 replacing Regulation ( EEC )
of SA Cabour and SA Nord Distribution Automobile v.                              No 123/85 (2) be interpreted as meaning that an
SARL Arnor 'Soco' ( interveners: SA Automobile Peugeot                           exclusive concession contract containing clauses of the
                  and SA Automobiles Citroen )                                   sort referred to in Question I ( 2 ) and ( 3 ) qualifies for
                           Case C-230/96 )                                       exemption under Article 1 of that Regulation, having
                                                                                 regard respectively to Articles 3 ( 3 ) and 4 ( 1 ) ( 3 ) of
                            ( 96/C 269/21
                                                                                 Regulation ( EC ) No 1475/95 in conjunction with
                                                                                 Article 5 ( 2 ) ( 2 ), ( 2 ) ( 3 ) and ( 3 )?
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Cour d'Appel                   III . In the event that Regulations ( EEC ) No 123/5 and ( EC )
( Court of Appeal ), Douai , of 20 June 1996 , which was                         No 1475/95 cannot be interpreted as conferring the
received at the Court Registry on 8 July 1996 , for a                            benefit of the exemption for which they provide on
preliminary ruling in the case of SA Cabour and SA Nord                          concession contracts of the kind referred to in
Distribution Automobile v. SARL Arnor ' Soco' ( interveners :
                                                                                 Questions I and II, must Article 85 ( 1 ) of the EC Treaty
SA Automobile Peugeot and SA Automobiles Citroen ), on                           be interpreted as meaning that an exclusive distribution
the following questions :                                                        network of a motor vehicle manufacturer which is
                                                                                 based, throughout the territory of a Member State, on
  I. Can Commission Regulation ( EEC ) No 123/85 of                              such concession contracts is caught by the prohibition
      12 December 1984 on the application of Article 85 ( 3 )                    set out in that provision ?
      of the EEC Treaty (') be interpreted as meaning that
      an exclusive concession agreement binding a car                    (') OJ No L 15 , 18 . 1 . 1985 , p . 16 .
      manufacturer to a concessionaire qualifies for                     ( 2 ) OJ No L 145 , 29 . 6 . 1995 , p . 25 .
      exemption under Article 1 of that Regulation where
      that contract :
      1 . does not exemplify the 'objectively valid reasons'
           referred to in Article 5 ( 2 ) ( 1 ) ( a ) and ( b ) and
           Article 5 ( 3 ) of that Regulation ;
                                                                         Action brought on 8 July 1996 by the French Republic
      2 . rules out any possibility for the concessionaire to                against the Commission of the European Communities
           sell new vehicles supplied by persons other than the
           manufacturer, even at commercial premises                                                   Case C-232/96 )
           separate from those at which contract goods are                                              ( 96/C 269/22 )
           offered for sale , except where objectively valid
           reasons not existing at the time when the contract
           was concluded are proved, a stipulation which has             An action against the Commission of the European
           to be considered in relation to the interpretation of         Communities was brought before the Court of Justice of the
           Articles 3 ( 3 ) and 5 ( 2 ) of the Regulation ;              European Communities on 8 July 1996 by the French
                                                                         Republic, represented by Catherine de Salins and Frederic
                                                                         Pascal , acting as Agents , with an address for service in
      3 . lays down a sales objective according to which the             Luxembourg at the French Embassy, 9 boulevard Henri .
           concessionaire       undertakes     to   use    its  best
           endeavours to sell during each annual period a
           quantity of contract vehicles which, if not specified         The applicant claims that the Court should :
           by agreement between the parties, is fixed by the
           manufacturer on the basis of forecasts made by it or          — declare null and void Commission Decision 96/311 /EC
           criteria determined by it, and specifies that, in the               of 10 April 1996 on the clearance of the accounts
           event that 90 % of 7/ 1 lths of the sales objective has             presented by the Member States in respect of the
           not been achieved on 31 August in the current                       expenditure for 1992 of the Guarantee Section of the
           annual period and the ' aggregate percentage                        European Agricultural Guidance and Guarantee Fund
           penetration ' of contract vehicles in the territory to              and in respect of certain expenditure for 1993 ('), in so
           which the concession relates, assessed on 31 July of                far as the Commission has disallowed for France for
           the current annual period, is 15 to 45% —                            1992 :
           depending on where the territory is located —
           lower than the national average penetration of
           contract vehicles, the manufacturer may, on giving                  — FF76 041 440 of eligible expenditure corresponding
                                                                                    to intervention measures in the beef and veal sector
           three or six months ' notice, alter the contract
           territory and/or withdraw from the concessionaire                        as regards the submission of tenders under the
           exclusive dealership in the territory, or terminate                      tendering procedure ,
           the concession contract, which stipulations should
           be considered in relation to the interpretation of                  — FF 86 061 448 of eligible expenditure corresponding
           Articles 4 ( 1 ) ( 3 ) and 5 ( 2 ) ( 2 ) and ( 3 ) of the                to intervention measures concerning the public
           Regulation ?                                                             storage of cereals,
 ---pagebreak--- No C 269/ 10           EN                  Official Journal of the European Communities                                         14 . 9 . 96
— in the alternative , consider those corrections to be                   some improvements in the public storage system run by
     disproportionate in amount,                                          ONIC ( National Cereals Trades Board ) and led the
                                                                          Commission unexpectedly to propose a financial
                                                                          correction, as from the financial year 1992 , whereas
— order the defendant to pay the costs .
                                                                          initially it had contemplated the possibility of financial
                                                                          corrections only for the financial year 1993 , before
Pleas in law and main arguments adduced in support:                       ruling out any correction with regard to the results of the
                                                                          mission monitoring intervention stocks in 1993 .
( As regards expenditure in the beef and veal sector )
                                                                      — ( In the alternative ) Disregard of the principle of
                                                                          proportionality : the 2 % financial correction was
— Breach of Council Regulation ( EEC ) No 729/70 of                       wrongly applied to budget item 10-13 which finances
     21 April 1970 on the financing of the common                         losses on stock sold . There cannot be losses for EAGGF
     agricultural policy ( 2 ): in accordance with the                    on stock sold as a result of storage ; losses are attributable
     arrangements under Regulation ( EEC ) No 859/89 ( 3 ) ,              solely to variations in market prices and are in no way
     applicable in 1992 , the Commission applied certain                  attributable to the inadequate supervision and
     conditions laid down as from the second tendering                    management of ONIC, as alleged by the EAGGF .
     procedure in September 1993 by Regulation ( EEC )
     No 2456/93 ( 4 ). Within the framework of Regulation
     ( EEC ) No 859/89 , the French authorities satisfied             (') OJ No L 117, 14 . 5 . 1996 , p . 19 .
     themselves that each undertaking was legally                     (2) Official Journal, English Special Edition 1970 ( 1 ), p. 218 .
     independent when considering their buying-in tenders .           (') OJ No L 91 , 4 . 4 . 1989 , p. 5 .
     The fact that a natural person performs management               (4) OJ No L 225 , 4 . 9 . 1993 , p . 4 .
     duties in a company and executes legal instruments on its
     behalf does not preclude him in law from managing
     other legal persons in the form of companies and
     carrying out on their behalf acts of management and
     decision-taking by virtue of the powers conferred on
     him, without the companies being connected thereby
     with each other .
— ( In the alternative ) Breach of the principle of
     subsidiarity : a correction affecting 2 % of EAGGF total         Action brought on 9 July 1996 by the Government of the
     expenditure in connection with public meat storage is            Kingdom of Denmark against the Commission of the
     disproportionate in relation to the absence of any risk of                            European Communities
     loss to the Community Fund arising from the tendering                                     ( Case C-233 /96 )
     procedure .
                                                                                                 ( 96/C 269/23 )
 ( As regards expenditure in the cereals sector )
                                                                      An action against the Commission of the European
                                                                      Communities was brought before the Court of Justice of the
 — Breach of Regulation ( EEC ) No 729/70 : the French
      authorities followed the Community procedure for                 European Communities on 9 July 1996 by the Government
      accepting cereal offered for intervention . Some remarks        of the Kingdom of Denmark, represented by Peter Biering,
                                                                      Kontorchef, with an address for service in Luxembourg at
      made by the Commission concerning the unsatisfactory
                                                                      the Danish Embassy , 4 boulevard Royal .
      nature of the management system relate to requirements
      which are not laid down in the rules in force ( for
      example, entering of stocks in real time in the computer
      system of the intervention agency's head office, putting        The applicant claims that the Court should :
      up signs systematically on storage premises ). Some
      observations made by the Commission following its
      1993 monitoring mission are connected with the                  — declare Commission Decision 96/311 /EC of 10 April
      situation at the end of 1992/93 marketing year which                 1996 on the clearance of the accounts presented by the
      was notable for an exceptionally large increase in the               Member States in respect of the expenditure for 1992 of
      quantities put into intervention . In some cases , goods             the Guarantee Section of the European Agricultural
      were put into store in non-specialized storage premises .            Guidance and Guarantee Fund and in respect of certain
      The French authorities dispute, however, the EAGGF's                 expenditure for 1 993 ( 1 ) void in so far as it provides that
      inference that it was impossible to check the                        the following expenditure incurred by Denmark cannot
      quantities .                                                         be financed by the EAGGF Guarantee Section :
 — Disregard of the principle of legal certainty : the                     — Dkr 26 867 909 for the intervention purchase of
      clearance procedure was initiated in the context of                      beef and veal during the 1991 and 1992 financial
      mutual cooperation reflected in the introduction of                      years ,