CELEX: C1999/246/32
Language: en
Date: 1999-08-28 00:00:00
Title: Case C-235/99: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Queen's Bench Division, Divisional Court, by order of that Court of 18 December 1998, in the case of The Queen against Secretary of State for the Home Department, Ex parte: Eleanora Ivanova Kondova

28.8.1999               EN                   Official Journal of the European Communities                                       C 246/15
     Denmark [1988] ECR 4607), preclude a national system                   — part of the revenue generated by the levy is allocated to
     under which criminal charges may be brought against a                       activities which, in view of their nature and immediate
     person who, contrary to certain national rules on the                       objectives, concern primary production of pigs in the
     packaging of beer and soft drinks, has marketed imported                    Member State, and thus also benefit exported pigs,
     canned cola in the metal packaging at issue in this case?                   whereas another part of the revenue generated by the
                                                                                 levy is allocated to activities which, in view of their
                                                                                 nature and immediate objectives, concern only slaugh-
(1) OJ 1994 L 365, p. 10.                                                        tering and further processing in the Member State and
                                                                                 the sale on the domestic and export markets of
                                                                                 nationally processed derivatives of the primary
                                                                                 product, and thus do not benefit exported pigs?
                                                                        II. If Question I is answered in the affirmative: does it make
                                                                            any difference to the answer that the levy scheme was,
                                                                            pursuant to Article 95(3) (Presumably Article 93(3)) of the
                                                                            EC Treaty, notified to and approved by the EU Commission
                                                                            as being lawful State aid?
Reference for a preliminary ruling by the Vestre Landsret
by order of 16 June 1999 in the case of Niels Nygård v
                        Svineafgiftsfonden
                         (Case C-234/99)
                                                                        Reference for a preliminary ruling by the High Court of
                         (1999/C 246/31)                                Justice (England and Wales), Queen’s Bench Division,
                                                                        Divisional Court, by order of that Court of 18 December
Reference has been made to the Court of Justice of the                  1998, in the case of The Queen against Secretary of State
European Communities by order of 16 June 1999 by the                    for the Home Department, Ex parte: Eleanora Ivanova
Vestre Landsret (Western Regional Court), which was received                                         Kondova
at the Court Registry on 21 June 1999, for a preliminary ruling
in the case of Niels Nygard v Svineafgiftsfonden on the                                          (Case C-235/99)
following questions:
                                                                                                 (1999/C 246/32)
I.   Must Articles 9, 12 and 16 of the EC Treaty or Article 95
     of the EC Treaty be construed as meaning that those
     provisions, or that provision, preclude a public body in a         Reference has been made to the Court of Justice of the
     Member State from charging a production levy in respect            European Communities by an order of the High Court of
     of pigs produced in the Member State in question and               Justice (England and Wales), Queen’s Bench Division, Div-
     exported live to another Member State, in the case where:          isional Court, of 18 December 1998, which was received at
                                                                        the Court Registry on 22 June 1999, for a preliminary ruling
                                                                        in the case of The Queen against Secretary of State for the
     — a similar levy is charged for each pig produced in the           Home Department, Ex parte: Eleanora Ivanova Kondova, on
         Member State in question and sold for slaughter on the         the following questions:
         domestic market;
                                                                        1. Does Article 45 of the Association Agreement between the
     — the detailed rules for calculating the levy do not give              EEC and the Republic of Bulgaria (‘the Agreement’: OJ
         rise to discrimination between the two product groups,             1993 L 358, p.1) (1) confer rights of establishment upon a
         since, when the different ‘weight categories’ are being            Bulgarian national who, under national immigration law,
         determined for slaughtered and live pigs, it can be                is treated as having entered the territory of that Member
         assumed that compensation is provided for the average              State illegally?
         difference between ‘carcass weight’ and ‘live weight’,
         but                                                            2. If the answer to the first question is ‘yes’, does Article 45
                                                                            of the Agreement have direct effect within the national
     — the levy in respect of pigs sold for slaughter on the                legal systems of Member States, notwithstanding the
         domestic market becomes payable when they are                      provisions of Article 59 of the Agreement?
         delivered for slaughter, whereas the levy in respect of
         pigs exported live becomes payable at the time of              3. If the answer to the second question is ‘yes’,
         export;
                                                                            i) to what extent may a Member State apply its laws and
                                                                                 regulations regarding entry and stay, work, labour
     — in the first case, the levy is payable by the producer,                   conditions and establishment of natural persons, and
         whereas in the second case it is payable by the exporter,               supply of services, to persons invoking Article 45 of the
         irrespective of whether he is also the producer, and;                   Agreement, without violating the proviso contained in
                                                                                 the penultimate sentence of Article 59(1) of the
     — the levy is not charged in respect of pigs sold live on                   Agreement and, inter alia, the principle of pro-
         the domestic market, and;                                               portionality?
 ---pagebreak--- C 246/16              EN                     Official Journal of the European Communities                                      28.8.1999
    ii) does Article 59, in any and if so what circumstances,           Action brought on 23 June 1999 by the Commission
        permit the refusal of an application under Article 45           of the European Communities against the Kingdom of
        of the Agreement made by someone whose initial                                                 Belgium
        entry into that Member State was otherwise unlawful?
                                                                                                  (Case C-236/99)
4. If the answer to the second question is ‘yes’, does Article                                    (1999/C 246/33)
    45 and/or Article 59 of the Agreement permit the appli-
    cation of a provision of national law under which the
    competent national authorities may require a Bulgarian              An action against the Kingdom of Belgium was brought before
    national seeking to exercise rights as a self-employed              the Court of Justice of the European Communities on 23 June
    person to demonstrate                                               1999 by the Commission of the European Communities,
                                                                        represented by Gregorio Valero Jordana, of its Legal Service,
                                                                        and Olivier Couvert-Castéra, a national civil servant on
                                                                        secondment to that Service, acting as Agents, with an address
    a) that this share of the profits of the business (disre-           for service in Luxembourg at the office of Carlos Gómez de la
        garding any alternative source of support) will be              Cruz, Wagner Centre, Kirchberg.
        sufficient to maintain and accommodate himself and
        any dependants without recourse to employment (as               The Commission of the European Communities claims that
        opposed to self-employment) or to public funds, and             the Court should:
                                                                        — declare that, by communicating to it a programme for the
    b) that until his business provides him with such an                     implementation of Council Directive 91/271/EEC of 21
        income (disregarding any alternative source of support)              May 1991 concerning urban waste-water treatment (1)
        he will have sufficient additional funds to maintain and             which is not in conformity with that directive as regards
        accommodate himself and any dependants without                       the Brussels-Capital Region, the Kingdom of Belgium has
        recourse to employment (as opposed to self-                          failed to fulfil its obligations under that directive and, in
        employment) or to public funds?                                      particular, under Article 17 thereof;
                                                                        — order the Kingdom of Belgium to pay the costs.
5. If the answer to the preceding questions is that a Bulgarian
    national who is an illegal entrant may rely upon directly           Pleas in law and main arguments
    effective rights of establishment under the Agreement,
    then
                                                                        The Belgian authorities were required, in accordance with
                                                                        Article 3 of the directive, to ensure that the Brussels-Capital
                                                                        Region was provided with a system for the collection of urban
    a) what factors, under such an Agreement, should the                waste water by 31 December 1998 at the latest. In addition,
        national court take into account in determining                 the Belgian authorities were required, whether as regards
        whether any breach by the competent authorities of              fulfilment of the obligations imposed in Article 5(2) of the
        that person’s directly effective rights was sufficiently        directive or as regards eligibility under Article 5(4) thereof, to
        serious to give rise to a right to reparation in damages        ensure that, before being discharged into the River Senne,
        against the Member State concerned; and, in particular,         the water in question underwent secondary treatment and
                                                                        additional treatment in respect of its nitrogen and phosphorus
                                                                        content. That treatment system was required to be set up by
                                                                        31 December 1998 at the latest. The Belgian authorities
    b) in the state of Community law at the relevant time (i.e.,        propose to discharge the above-mentioned obligations by
        when the decisions of August/September 1996 to                  constructing two waste water treatment plants in the Brussels-
        refuse the Applicant’s application for leave to remain          Capital Region, located to the north and to the south
        as a self-employed person, and/or the decision to               of Brussels respectively. However, it is apparent from the
        detain the Applicant, were taken), did the approach             implementation programme sent by the Kingdom of Belgium
        adopted by the competent national authorities consti-           to the Commission on 3 July 1996 that the plant to the north
        tute a ‘grave and manifest disregard’ of a superior rule        of the city will not be operational by the date provided for by
        of law?                                                         the directive, namely 31 December 1998 and that it will not
                                                                        become operational until five years later, that is to say, in
                                                                        2003. As to the plant to the south of Brussels, this should be
                                                                        completed sooner, but not before a date after that laid down
                                                                        by the directive. Moreover, several waste water collecting
(1) OJ 1994 L 358, p. 1.                                                systems to the north and south will not be operational by the
                                                                        date prescribed.
                                                                        (1) OJ L 135 of 30.5.1991, p. 40.