CELEX: C2000/211/14
Language: en
Date: 2000-07-22 00:00:00
Title: Case C-178/00: Action brought on 12 May 2000 by the Italian Republic against Commission of the European Communities

C 211/8                 EN                      Official Journal of the European Communities                                           22.7.2000
Action brought on 11 May 2000 by the Italian Republic                           According to the Commission, there was no entitlement
    against Commission of the European Communities                              to a refund in such cases inasmuch as the olive oil was not
                                                                                included in the list of products in Article 3(8) of Regulation
                                                                                No 3665/87 (2) laying down common detailed rules for
                          (Case C-177/00)                                       the application of the system of export refunds on
                                                                                agricultural products. The Italian authorities disagreed,
                                                                                stating that the mixed oil could not be considered a
                          (2000/C 211/13)                                       compound product within the meaning of Article 8.
                                                                           (c) O t h e r c o r r e c t i o n s — S a l e o f i n t e r v e n t i o n
An action against the Commission of the European Communi-                       alcohol — Failure to lodge security
ties was brought before the Court of Justice of the European
Communities on 11 May 2000 by the Italian Republic,                             The Commission’s desire to apply a correction is altogether
represented by Umberto Leanza, assisted by Avvocato dello                       unlawful and unjustified and reliance may not be placed
Stato Danilo Del Gaizo, acting as Agents, with an address for                   on the refusal to reopen the file after the conciliation body
service in Luxembourg at the Italian Embassy, 5 Rue Marie-                      had delivered its opinion.
Adelaïde.
                                                                                On the other hand, given that failure to deal with the
                                                                                argument fully during the bilateral meeting between the
The applicant claims that the Court should:                                     Commission and the Italian authorities during the pro-
                                                                                cedure for the clearance of the accounts could not prejudge
                                                                                a new examination of the case, the statement put forward
— Annul the decision of the Commission C(2000) No 488                           by the Community institution to the effect that it had
     final of 1 March 2000 (1) excluding from Community                         received insufficient information to justify changing the
     financing certain expenditure incurred by the Member                       proposed correction was nothing more than an excuse in
     States under the Guarantee Section of the European                         view of the fact that, at the time, the Commission was
     Agricultural Guidance and Guarantee Fund (EAGGF) in so                     already in possession of all the information from which it
     far as it has carried out financial corrections to the                     would have been able to discern the reasons for the failure
     detriment of Italy, as set forth below, by excluding certain               to lodge the security and if, despite all this, the correction
     amounts from being charged to the fund itself when                         was proposed, that was due only to a misinterpretation of
     determining the total Italian expenditure charged in respect               the facts and of the legal situation, for which the Com-
     of the 1997 financial year and the period from 1995 to                     mission can only blame itself.
     1998, and
                                                                           (1) OJ 2000 L 67, p. 37.
— Order the Commission to pay the costs.                                   (2) OJ 1987 L 351, p. 1.
Pleas in law and main arguments
(a) E x p o r t r e f u n d s — e x a m i n a t i o n o f t h e            Action brought on 12 May 2000 by the Italian Republic
     physical monitoring of exports                                            against Commission of the European Communities
     The Italian Government challenges, first of all, the validity                                   (Case C-178/00)
     of the correction, inasmuch as the inspections carried out
     by Commission officials were carried out in blatant                                             (2000/C 211/14)
     infringement of the principles of audi alteram parte and
     the rights of the defence.                                            An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of Justice of the European
                                                                           Communities on 12 May 2000 by the Italian Republic,
     In the alternative, the correction in question is challenged          represented by Umberto Leanza, assisted by Avvocato dello
     also on the ground that the departments and operations                Stato Danilo Del Gaizo, acting as Agents, with an address for
     inspected were not a representative sample.                           service in Luxembourg at the Italian Embassy, 5 Rue Marie-
                                                                           Adelaïde.
(b) E x p o r t r e f u n d s — O l i v e o i l
                                                                           The applicant claims that the Court should:
     EAGGF officials found that export declarations had been               — Annul Commission Decision C(2000) No 486 final of
     accepted in respect of quantities of olive oil originating                 1 March 2000 (1) amending Decision 1999/187/EC (2)
     in the Community which had been mixed with non-                            relating to the clearance of the accounts presented by
     Community olive oil refined under inward processing                        the Member States in respect of the expenditure under
     arrangements.                                                              Guarantee Section of the European Agricultural Guidance
 ---pagebreak--- 22.7.2000             EN                     Official Journal of the European Communities                                         C 211/9
     and Guarantee Fund, in so far as it excludes from                  2. Does the fundamental right to protect disposals or the
     Community funding certain amounts relating to the cereal              principle of proportionality preclude the application of
     sector, and                                                           Article 4 of Regulation (EC) No 3108/94 to surplus stocks
                                                                           which were attributable to disposals (purchases or resales)
                                                                           made
— Order the Commission to pay the costs.
                                                                           (A) before the date on which that regulation was published,
Pleas in law and main arguments                                                 or
The Italian Government claims that the Commission’s decision               (B) before the time at which the circles concerned had to
is unlawful in so far as it proposes a financial correction for                 be notified that levies on surpluses were planned?
the purposes of the clearance of the EAGGF accounts in
respect of the amounts set out in the application, or, in the
alternative, in so far as concerns the final settlement of the             If so, is that regulation wholly or partially void because it
invoices for sale of cereal into intervention, in so far as it does        infringes those fundamental rights, or is it to be interpreted
not accept LIT 11 952 457 079 claimed by the Italian State.                as meaning that no levy is payable in such cases?
                                                                        3. (A) Is the vendor of goods which it had already resold
(1) OJ 2000 L 61, p. 15.                                                        prior to 1 January 1995, but without physically hand-
(2) OJ 1999 L 61, p. 37.
                                                                                ing them over to the customer, to be regarded as the
                                                                                ‘holder’ of those goods on 1 January 1995 where
                                                                                I.  the goods and the proceeds therefrom were pledged
                                                                                    to a bank, and pursuant to the pledging agreement:
                                                                                    (a) that bank held, as at 1 January 1995, the keys
                                                                                         to the proportion of the goods stored in a
                                                                                         pledge warehouse, or
Reference for a preliminary ruling by the Verwaltungsge-
richtshof by order of that court of 17 April 2000 in the
case of Dr Gerald Weidacher, Rechtsanwalt, as trustee in                            (b) the transport documents, in particular the
bankruptcy of Thakis Vertriebs- und HandelsgesmbH                                        multimodal bill of lading relating to the remain-
       v Federal Minister for Agriculture and Forestry                                   ing proportion of the goods which, having
                                                                                         cleared customs, were situated in railway trucks
                                                                                         at an Austrian railway station on 1 January
                         (Case C-179/00)                                                 1995, are made out to the order of that bank
                                                                                         and are in its possession, and
                         (2000/C 211/15)                                            (c) that bank had a 20 % interest in the proceeds
                                                                                         of the sales transaction concluded by the
                                                                                         pledgor,
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichts-
hof (Higher Administrative Court) of 17 April 2000, received                    and, furthermore, where
at the Court Registry on 12 May 2000, for a preliminary ruling
in the case of Dr Gerald Weidacher, as trustee in bankruptcy
of Thakis Vertriebs- und HandelsgesmbH v Federal Minister                       II. (a) the import charges were paid by the pledgor,
for Agriculture and Forestry, on the following questions:
                                                                                    (b) the purchase money due to the pledgor was
1. Does the levying of tax on surplus stocks in the new                                  subsequently paid into the account which he
     Member States as from 1 January 1995, as provided for in                            held with that bank but which he was unable
     Article 4 of Commission Regulation (EC) No 3108/94 of                               to use on account of the pledging agreement?
     19 December 1994 (1), constitute a transitional measure
     necessary to facilitate the transition from the existing
     regime in the new Member States to that resulting from                (B) Is the pledgor of the goods not the holder thereof if,
     application of the common organisation of the markets                      on 1 January 1995, he already intended to hold them
     under the conditions set out in Title IV: Agriculture of the               for his customer subject to the restrictions arising
     Act of Accession, within the meaning of Article 149(1) of                  under the pledge agreement? In that connection, does
     that Act, or is that regulation wholly or partially void                   the matter turn on whether or not that intention
     because of the Commission’s lack of competence?                            became outwardly apparent?