CELEX: C1996/233/02
Language: en
Date: 1996-08-10 00:00:00
Title: Action brought on 3 May 1996 by the Portuguese Republic against Council of the European Union (Case C-149/96)

10 . 8 . 96           EN                  Official Journal of the European Communities                              No C 233/ 1
                                                                   I
                                                            (Information)
                                               COURT OF JUSTICE
                                                         COURT OF JUSTICE
                   ORDER OF THE COURT                                 Chambers, G. F. Mancini, F. A. Schockweiler, J. C.
                        of 14 May 1996                                Moitinho de Almeida ( Rapporteur ), P. J. G. Kapteyn, C.
                                                                      Gulmann, J. L. Murray, P. Jann, FI . Ragnemalm, L. Sevón
in Case C-301 /94: Air Inter v. Commission of the European            and M. Wathelet, Judges; G. Tesauro, Advocate-General; R.
                        Communities ( 1 )                             Grass, Registrar, made an order on 14 May 1996 , the
(Actions brought before the Court ofJustice and the Court             operative part of which is as follows :
of First Instance for annulment of the same measure —
Jurisdiction declined by the Court of First Instance —
Discontinuance of the action brought before the Court of              1 . Case C-301 /94 is referred to the Court of First
                                                                          Instance:
Justice — Jurisdiction of the Court ofJustice to determine
the action brought by an individual — Referred to the Court
                        of First Instance)                            2.  the costs are reserved.
                          ( 96/C 233/01 )
                                                                      0 ) OJ No C 370 , 24 . 12 . 1994 .
                 (Language of tbe case: French)
(Provisional translation; the definitive translation will be          Action brought on 3 May 1996 by the Portuguese Republic
           published in the European Court Reports)                             against Council of the European Union
                                                                                              ( Case C- 1 49/96 )
                                                                                                 96/C 233/02 )
In Case C-301 /94 : Air Inter, a public limited company
governed by French law, whose seat is at Paray Vieille Poste,         An action against the Council of the European Union was
represented by Jean-Pierre Spitzer, of the Paris Bar, with an         brought before the Court of Justice on 3 May 1996 by the
address for service in Luxembourg at the Chambers of                  Portuguese Republic , represented by Dr Luis Fernandes and
Aloyse May, 31 Grand Rue , against Commission of the                  Dr Carlos Botelho Moniz, acting as Agents, with an address
European Communities ( Agents : Rolf Wägenbaur and                    for service in Luxembourg at the Portuguese Embassy, 33
Lucio Gussetti ), supported by TAT European Airlines ,                Allée Scheffer .
whose seat is at Tours ( France ), represented by Antoine
Winckler, of the Paris Bar, and Romano Subiotto, Solicitor,
with an address for service in Luxembourg at the Chambers             The applicant claims that the Court should:
of Elvinger & Hoss, 15 Côte d'Eich, and by the United
Kingdom of Great Britain and Northern Ireland ( Agent:                — annul the Council Decision of 26 February 1996 i 1 )
John E. Collins , of the Treasury Solicitor's Department ) —              'concerning the conclusion of Memoranda of
application for annulment of Article 1 of Commission                      Understanding between the European Community and
Decision 94/29 1 /EC ( notified under reference C(94 ) 637                the Islamic Republic of Pakistan and between the
final ) on a procedure relating to the application of Council             European Community and the Republic of India on
Regulation ( EEC) No 2408/92 [Case VII/AMA/IV/93 —                        arrangements in the area of market access for textile
TAT — Paris ( Orly)-Marseille and Paris ( Orly)-Toulouse]                 products ',
( OJ 1994 L 127, p . 32 ) — the Court, composed of G. C.
Rodriguez Iglesias , President, C. N. Kakouris, D. A. O.              — order the Council of the European Union to pay the costs
Edward , J. P. Puissochet and G. Hirsch, Presidents of                    in their entirety .
 ---pagebreak--- No C 233/2            EN                 Official Journal of the European Communities                                    10 . 8 . 96
Pleas in law and main arguments adduced in support:                        thereof apply retroactively to past situations ,
                                                                           without there being any justified need to derogate
— Breach of fundamental rules and principles of the                        from the general principle that legal provisions
    Community legal order, namely :                                        operate only as regards the future ,
   — the principle that legal provisions must be made                  — the principle of economic and social cohesion, in so
        public : the contested Decision and the Memoranda                  far as a legal regime has been approved which ,
        of Understanding approved by it have not been                      according to the Council's own analysis as set out in
        published in the Official Journal of the European                  the preamble to Council Regulation ( EC ) No 852/95
        Communities even though they change the                            of 10 April 1995 on the grant of financial assistance
        conditions contained in earlier legislative measures              to Portugal for a specific programme for the
        approved by the Council which were duly published                 modernization of the Portuguese textile and clothing
        in the Official Journal and contain legislative                    industry ( 4 ), aggravates inequalities and jeopardizes
        conditions which directly affect economic agents ,                the    economic       and    social  cohesion   of     the
                                                                          Community,
   — the principle of transparency : as well as not having
        been published — the only way of ensuring that the             — the principle of equal treatment for economic agents :
        conditions concerned come to the notice of all the
                                                                          the contested Decision involves an unequal sharing
        interested parties — the contested measure approves               of the burdens resulting from alteration of the
        Memoranda of Understanding drawn up in obscure                    timetable for opening up the Community market to
        and defective terms which prevent immediate                       international competition laid down in the ATC and
        apprehension by an ordinary reader of their                       in Regulation ( EC ) No 3030/93 , as amended in
        implications,                                                     1994 ; that unequal sharing of the burdens derives
                                                                          specifically from the double penalization of
   — the principle of sincere cooperation in relations                    producers in the cotton sector as compared with
        between the Community and the Member States : the                 producers in the wool sector, in that they, in contrast
        approval of the contested measure breaches the                    to the position of producers in the wool sector, are
       terms of the commitment unanimously approved by                    exposed to increased competition in the Community
       the Council regarding the conditions for signature of              market, without any compensatory opening up of
       the Final Act of the 'Uruguay Round ' and annexed                  the Indian and Pakistani markets, which is available
       agreements, in particular the 'Agreement on textiles               only to the producers in the wool sector.
       and clothing' ('ATC ')( 2 ); the breach of that
       commitment results , specifically in non-observance
       of the conditions under which Portugal gave its             — Breach of fundamental rules arrd principles of the World
       consent to signature of the Final Act recording                Trade Organization, namely :
       conclusion of the negotiations with India and
       Pakistan regarding access to the markets in question           — the publicity requirement laid down in GATT and
       in respect of textiles and clothing .                              the ATC : the agreements approved by the contested
                                                                          Decision were not properly made public , in
   — the principle of the protection of legitimate                        particular in an official publication , the only way of
       expectations : the adoption of the contested Decision             ensuring that they come to the notice of the
       alters, and substantially undermines, the legislative              remaining Contracting Parties and the economic
       framework — which was the result of long and                       agents affected by the conditions concerned ,
       complex negotiations — in which a timetable and
       quantities were agreed upon for the purpose of
       opening up the Community market to international               — the rules on the consolidation of duties , in particular
       competition during the transitional period of 10                  Article II of GATT: pursuant to part 2 of the
       years laid down in the ATC and in Council                         Memorandum of Understanding negotiated with
       Regulation ( EC ) No 3030/93 of 12 October 1993 on                India the latter country may, as it wishes , reintroduce
       common rules for imports of certain textile products              specific alternative duties in respect of products
       from third countries ( 3 ), as amended in 1994 to                 covered by measures for the consolidation of duties
       guarantee its compatibility with the ATC conditions;              and determine the level of such duties by reference to
       that unpredictable change in the conditions of                    the prices charged by Community exporters,
       competition on the Community market adversely                     discriminating between them ,
       affects the circumstances in which economic agents
       are proceeding with implementation of the                      — the Agreement on import licensing procedures : in
       restructuring measures which the Council itself                   breach of Articles 1 , 2 and 3 of that Agreement, the
       considers necessary, affecting its effectiveness and              system of ' special import licences ' applied in India
       causing serious harm to economic agents,                          makes the import into that country of Community
                                                                         textile products conditional upon the purchase, from
   — the principle that legal provisions should not operate              the Indian exporters, of import licences which the
       retroactively: the Memoranda of Understanding                     Indian Government has granted them and which
       approved by the contested Decision make the effects               thev may freely trade in on the market,
 ---pagebreak--- 10 . 8 . 96              EN                    Official Journal of the European Communities                                  No C 233 / 3
     — the principle that there must be a balance between                 argument put forward by the Luxembourg authorities, the
         the rights and obligations of the parties : in addition          sending of commercial samples free of charge does in fact
         to the concessions embodied in the ATC conditions,               constitute an operation covered by the Sixth Directive , in
         the Community has made a significant number of                   respect of which Article 5 ( 6 ) of that Directive lays down
         additional concessions in exchange for the measures              special arrangements consisting in an exemption
         for opening up the Indian and Pakistani markets                  accompanied by a refund of the input tax paid by the trader
         incorporated in the Memoranda of Understanding.                  concerned . Moreover, the position adopted by Luxembourg
         Furthermore , the measures for opening up those                  is inconsistent, inasmuch as it subjects to VAT imports of
         markets are extremely uncertain and liable to be                 commercial samples provided free of charge whilst enabling
         reversed .                                                       the tax thus paid to be deducted by taxable persons in
                                                                          Luxembourg .
(')  Not yet published in the Official Journal .
(2)  OJ No L 336 , 1994 , p . 50 .
(■') OJ No L 275 , 1993 , p . 1 .                                         (') OJ No L 145 , 13 . 6 . 1977, p . 1 .
(4)  OJ No L 86 , 1995 , p . 10 .
Action brought on 6 May 1996 by the Commission of the
European Communities against the Grand Duchy of                           Action brought on 10 May 1996 by the Portuguese Republic
                             Luxembourg                                                 against the European Commission
                          ( Case C-152/96 )
                                                                                                  ( Case C-159/96 )
                            ( 96/C 233 /03 )
                                                                                                    ( 96/C 233/04 )
An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European                       An action against the European Commission was brought
Communities on 6 May 1996 by the Commission of the                        before the Court of Justice on 10 May 1996 by the
European Communities, represented by Hélène Michard                       Portuguese Republic, represented by Dr Luis Fernandes and
and Enrico Traversa , acting as Agents , with an address for              Maria Lui'sa Duarte , acting as Agents, with an address for
service in Luxembourg at the office of Carlos Gômez de la                 service in Luxembourg at the Portuguese Embassy, 33 Allée
Cruz , of the Legal Service, Wagner Centre , Kirchberg .                  Scheffer .
The applicant claims that the Court should :
                                                                          The applicant claims that the Court should :
( a ) declare that, by introducing and applying national rules
      operating in such a way that supplies of samples such as            — declare void the Commission's practice of applying
      specimen discs or books, which are exempt for                           ' exceptional flexibility' measures in connection with the
      domestic       transactions    and     in  the    context   of
                                                                              administration of quantitative limits on the import by
      intra-Community supplies under Articles 5 ( 6 ) and                     the European Community of textile products and
      28c ( B ) ( a ) respectively of the Sixth Council VAT                   clothing from non-member countries and, specifically,
      Directive ( 77/388/EEC ) of 17 May 1977 on the                          the decision adopted by the Commission following the
      harmonization of the laws of the Member States
                                                                              meeting of the Textile Committee of 6 March 1996 on
      relating to turnover taxes — common system of value                     textile products from the People's Republic of China ,
      added tax : uniform basis of assessment ( 1 ), as amended ,
      cannot qualify for deduction of input value added tax,
      and by making imports of those goods subject to VAT,                — order the Commission to pay the costs .
      contrary to the provisions of Article 14 ( 1 ) ( a ) of the
      Sixth VAT Directive , the Grand Duchy of Luxembourg
      has failed to fulfil its obligations under the said                 Pleas in law and main arguments adduced in support:
      provisions of the Sixth VAT Directive;
( b ) order the Grand Duchy of Luxembourg to pay the                      — Manifest abuse by the Commission of its powers for the
      costs .                                                                 implementation of international agreements on trade in
                                                                              textile products and clothing : the ' exceptional flexiblity'
                                                                              measures, applied after full use has been made of all the
Pleas in law and main arguments adduced in support:                           mechanisms provided for in the Community legislation
                                                                              and the bilateral agreements between the European
Infringement of the provisions of the Sixth VAT Directive                     Community and supplier countries for flexible
( 77/388/EEC ) referred to in the claims : contrary to the                    observance of quantitative limits, cannot be regarded as