CELEX: C2001/245/11
Language: en
Date: 2001-09-01 00:00:00
Title: Case C-239/01: Action brought on 21 June 2001 by the Federal Republic of Germany against the Commission of the European Communities

1.9.2001               EN                   Official Journal of the European Communities                                            C 245/5
(3) Must the third subparagraph of Article 8(3) of Council             Action brought on 19 June 2001 by the Commission of
      Directive 73/239/EEC, as amended by Article 6 of                   the European Communities against the Italian Republic
      Council Directive 92/49/EEC, be interpreted as precluding
      national legislation which, for the purposes of curbing                                     (Case C-235/01)
      inflation, also requires insurance undertakings, if the
      client so requests, to draw up policies the terms of which
      incorporate a bonus-malus arrangement (positive or                                          (2001/C 245/10)
      negative adjustment of the premium on the basis of the
      claims record) subject to an excess in an amount set
                                                                       An action against the Italian Republic was brought before the
      between the minimum and the maximum level permitted
                                                                       Court of Justice of the European Communities on 19 June
      by law?
                                                                       2001 by the Commission of the European Communities,
(4) Must the third subparagraph of Article 8(3) of Council             represented by Bernard Mongin and Roberto Amorosi, acting
                                                                       as Agents.
      Directive 73/239/EEC, as amended by Article 6 of
      Council Directive 92/49/EEC, be interpreted as precluding
      national legislation which, for the purposes of curbing          The applicant claims that the Court should:
      inflation, provides that, on expiry of the period during
      which premium rates were frozen, the insured person              —     Declare that, by failing to adopt the laws, regulation and
      may withdraw from the contract if, on the date for annual              administrative provisions necessary for compliance with
      renewal of the policy, an increase is applied to the                   Council Directive 98/35/EC of 25 May 1998 amending
      premium (not provided for under a customised arrange-                  Directive 94/58/EC on the minimum level of training of
      ment) higher than the scheduled rate of inflation decided              seafarers (1), or in any event by not forwarding those
      by the Government?                                                     provisions to the Commission, the Italian Republic has
                                                                             failed to fulfil its obligations under that directive;
(1) OJ L 228 of 16.8.1973, p. 3.
(2) OJ L 228 of 11.8.1992, p. 1.                                       —     Order the Italian Republic to pay the costs of the
                                                                             proceedings.
                                                                       Pleas in law and main arguments
Reference for a preliminary ruling by the Finanzgericht                Article 249 EC (formerly Article 189 of the EC Treaty), which
Berlin by order of that court of 28 May 2001 in the case               provides that a directive is binding on each Member State to
   of Arnoud Gerritse against Finanzamt Neukölln-Nord                  which it is addressed as to the result to be achieved, involves
                                                                       an obligation on Member States to respect the periods for
                        (Case C-234/O1)                                transposition laid down in directives. That period expired on
                                                                       1 July 1999 without the Italian Republic having issued the
                        (2001/C 245/09)                                provisions necessary for compliance with the directive cited in
                                                                       the forms of order sought by the Commission.
Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht (Finance            (1) OJ L 172 of 17.06.1998, p. 1.
Court), Berlin, of 28 May 2001, which was received at the
Court Registry on 19 June 2001, for a preliminary ruling in
the case of Arnoud Gerritse against Finanzamt (District Tax
Office) Neukölln-Nord on the following question:
Is there an infringement of Article 52 of the EC Treaty (now
                                                                       Action brought on 21 June 2001 by the Federal Republic
Article 43 EC) where, under Paragraph 50a(4), first sentence,
                                                                       of Germany against the Commission of the European
point (1) and second sentence, of the Einkommensteuergesetz
                                                                                                   Communities
(Law on Income Tax) as in force in 1996 (’EStG 1996’), a
Netherlands national who earns in the Federal Republic of
Germany taxable net income of approximately                                                       (Case C-239/01)
DEM 5 000 from self-employed activity in the calendar year is
subject to deduction of tax at source by the person liable to                                     (2001/C 245/11)
pay his fees at the rate of 25 % his (gross) revenue of
approximately DEM 6 000 plus solidarity surcharge, where it
is not possible, by means of an application for a refund or an         An action against the Commission of the European Communi-
application for a tax assessment, for him to recover, in whole         ties was brought before the Court of Justice of the European
or in part, the taxes paid?                                            Communities on 21 June 2001 by the Federal Republic of
                                                                       Germany, represented by W.-D. Plessing and J. Sedemund,
                                                                       acting as Agents.
 ---pagebreak--- C 245/6                EN                    Official Journal of the European Communities                                      1.9.2001
The applicant claims that the Court should:                                   budgetary plan. For the same reason, the co-financing
                                                                              regulation in dispute amounts to a circumvention of the
                                                                              budgetary provision in the first paragraph of
1.    annul Article 5(5) of Commission Regulation (EC)                        Article 269 EC. Moreover, the capping of own resources
      No 690/2001 of 3 April 2001 on special market support                   in accordance with Articles 269 and 270 EC would not
      measures in the beef sector (1), in so far as that provision            constitute an effective limit on Community expenditure
      requires the Member State concerned to finance 30 % of                  if the Commission had the power to order Community
      the cost of the meat purchase referred to in that                       expenditure without it being totally financed by the
      regulation;                                                             Community budget. By acting in that way, the procedure
                                                                              laid down in the second paragraph of Article 269 EC,
                                                                              requiring not only a unanimous decision of the Council
2.    order the Commission to pay the costs.                                  (after consultation with the Parliament) but also a ratifi-
                                                                              cation of that decision by the Parliaments of the Member
                                                                              States, could easily be circumvented.
                                                                        —     Infringement of Article 253 EC. Reference to the limited
Pleas in law and main arguments                                               nature of budgetary resources does not explain either
                                                                              with what justification the Commission purports to
                                                                              modify the principle of total financing of support
                                                                              measures in the beef sector by the Community budget by
                                                                              establishing compulsory co-financing, or why basis for
                                                                              allocation of 70 % — 30 % was necessary.
—     The Commission had no power to order a compulsory co-
      financing in the context of an implementing regulation.
      Article 5(5) of the contested regulation does not serve to
      ‘implement’ a corresponding general provision of the
      basic regulation, allowing co-financing in principle.             The applicant suggests that, in so far as it allows the action,
      Rather, it represents a clear departure from the provisions       the Court should maintain the effects of the regulation in order
      of Council Regulations Nos 1254/1999 and 1258/1999,               to protect the position of the operators concerned.
      which assume 100 % financing from the Community
      budget. The question of the financing of a specific support
      measure in the agricultural sector necessarily forms part
      of the essential features of the subject-matter of the            (1) OJ L 95, 5.4.2001, p. 8.
      legislation, which must be governed in the basic Council
      regulation. That is especially so since all the decisive
      questions on the financing of the common agricultural
      policy — including the Community beef market — are
      dealt with by Council Regulation No 1258/1999 (or
      Council Regulation No 1883/78, as the case may be).
—     Infringement of the financial provisions of the Treaty. By
      virtue of the system of the common organisation of the
      market in beef and the prohibition of State aid laid down
      by Article 87(1) EC, expressly confirmed in the thirty-
                                                                        Action brought on 21 June 2001 by the Commission of
      third recital in the preamble to Regulation
                                                                        the European Communities against the Federal Republic
      No 1254/1999, the support measures provided for by
                                                                                                    of Germany
      the contested regulation constitute, despite the partial
      financing by national budgetary resources, Community
      aid and therefore ‘expenditure of the Community’ within
      the meaning of the first paragraph of Article 268 EC. In                                   (Case C-240/01)
      accordance with that latter provision, ‘all items of revenue
      and expenditure of the Community [...] shall be included
      in estimates to be drawn up for each financial year and
      shall be shown in the budget’. The use of the adjective ‘all’                              (2001/C 245/12)
      (revenue and expenditure) in the first paragraph of
      Article 268 EC establishes the principle of the complete-
      ness/unity of the budget, which is a basic condition for a
      political weighting of revenue and expenditure in the             An action against the Federal Republic of Germany was
      budget procedure and democratic control of the                    brought before the Court of Justice of the European Communi-
      execution of the budget. That basic principle is not              ties on 21 June 2001 by the Commission of the European
      complied with where Community expenditure is (par-                Communities, represented by Enrico Traversa, Legal Adviser,
      tially) financed on the basis of an imperative regulation         and Kilian Gross, a member of the Legal Service, with an
      of secondary law from sources that are not part of the            address for service in Luxembourg.