CELEX: C1995/074/09
Language: en
Date: 1995-03-25 00:00:00
Title: Action brought on 2 February 1995 by the Federal Republic of Germany against the Commission of the European Communities (Case C-23/95)

No C 74/6           1 EN |               Official Journal of the European Communities                                   25 . 3 . 95
 (c) by the Commission delegate in not paying the Somalian           Action brought on 2 February 1995 by the Federal Republic
      part of the invoices for which the Italian part had been       of Germany against the Commission of the European
      paid.                                                                                   Communities
                                                                                             (Case C-23/95 )
 The Appellant submits that the Court of First Instance's
 assessment of its claim was wrong and that its dismissal of                                  ( 95/C 74/09 ) •
 the claim was unfounded .
 The Appellant also submits that the Court of First Instance         An action against the Commission of the European
 was wrong in considering that the Appellant had not                 Communities was brought before the Court of Justice of the
 produced evidence that the Commission's administration              European Communities on 2 February 1995 by the Federal
 failed to operate correctly.                                        Republic of Germany, represented by Ernst Roder
                                                                     (Ministerialrat), Bundesministerium fur Wirtschaft, Bonn,
 Second head of claim — the failure of the Commission to             D-53107.
pay compensation following termination of the contract
The Commission did not give adequate reasoning for its
 decisions and thus infringed the general principle of law laid      The applicant claims that the Court should :
 down in Article 190 of the Treaty.
The Appellant submits that Article 60 of the Financial              — declare void Articles 1 ( 2) and 2 of Commission
 Regulation applicable to the Fifth European Development                 Regulation (EEC ) No 2791/94 of 16 November 1994 on
 Fund and Article 93 ( 1 ) of the General Conditions were                the exceptional allocation of a quantity additional to the
incorrectly interpreted and applied and that there was an                tariff quota for imports of bananas in 1994 as a result of
incorrect appreciation of the Commission's duty to meet the              tropical storm Debbie (*);
Appellant's claims.
The Appellant also submits that Article 60 of the                   — order the defendant to pay the costs.
abovementioned Financial Regulation imposes on the
Commission a general duty to safeguard the interests of
Community enterprises working in unfavourable financial
environments and that the Commission failed to discharge             Pleas in law and main arguments adduced in support:
this duty.
Finally, the Appellant contends that the Court of First              Lack of a legal basis for the way in which the additional
Instance incorrectly assessed the fault committed by the            quantities have been allocated: Article 16 ( 3 ) of Council
Commission which led to the damage existing at the time of
termination of the contract.
                                                                    Regulation (EEC ) No 404/93 may support the increase in
                                                                    the import tariff quotas, but not a departure from the
                                                                    method of calculation laid down in Article 19 ( 1 ) of Council
                                                                    Regulation ( EEC ) No 404/93 on the common organization
                                                                    of the market in bananas; precisely in the event of an
                                                                    increase in the tariff quota in 'exceptional circumstances',
Reference for a preliminary ruling by order of the Juzgado          Article 19 (4) of the Council Regulation provides that the
Central de lo Penal de la Audiencia Nacional of 18 January          allocation should be made by the method laid down in
      1995 in criminal proceedings against Oscar Weg                Article 19 ( 1 ). If the Commission considers that it is not
                          (Case C-20/95 )                           adequate to compensate for the damage done by the storm,
                           ( 95/C 74/08 )                           it could ask the Council to alter the Regulation. Since the
                                                                    Commission is derogating from a Regulation expressly
Reference has been made to the Court of Justice of the              adopted by the Council, the measures cannot be regarded as
European Communities by order of the Juzgado Central de             implementing measures within the meaning of Article 20 of
lo Penal de la Audiencia Nacional ( Central Criminal Court,         the Council Regulation, either. Article 30 of the Council
National High Court) of 18 January 1955 , which was                 Regulation contemplates transitional measures only in
received at the Court Registry on 30 January 1995 , for a           order to overcome difficulties experienced in adapting the
preliminary ruling in criminal proceedings against Oscar            existing national market organization to the new EC banana
Weg.                                                                market rules . Storm damage is not confined to the period of
                                                                    adaptation or transition from one market organization to
                                                                    another.
The questions referred by the Juzgado Central del lo Penal
de la Audiencia Nacional to the Court of Justice for a
preliminary ruling are identical with those in Joined Cases
C-163/94 and C-165/94 I 1 ).                                        (In the alternative) Insufficient grounds (Article 190 of the
                                                                    EC Treaty). There is no indication of the extent of the
(!) OJ No C 218 , 6 . 8 . 1994, p . 14 .                            damage. If the damage is lost production in the amount of
                                                                    the additional quota the compensation is more than is
                                                                    necessary, because importers obtain more profit from
 ---pagebreak--- 25 . 3 . 95              EN                  Official Journal of the European Communities                                 No C 74/7
marketing non-Community bananas than from marketing                     Reference for a preliminary ruling from the Pretura
the same quantity of EC/ACP bananas.                                    Circondariale di Terni by order of 24 January 1995 in the
                                                                        criminal proceedings pending before it against Ivana Rosi
f 1 ) OJ No L 296 , 17 . 11 . 1994 , p. 33 .                                                   ( Case C-26/95 )
                                                                                                 ( 95/C 74/11 )
Reference for a preliminary ruling from the
                                                                        Reference has been made to the Court of Justice of the
Bundesverwaltungsgericht by order of that court of
28 September 1994 in the case Land Rheinland-Pfalz                      European Communities by an order of the Pretura
                                                                        Circondariale ( District Magistrate's Court), Terni, of
v.       Alcan Deutschland             GmbH; Joined         Party:
      Oberbundesanwalt beim Bundesverwaltungsgericht                    24 January 1995, which was received at the Court Registry
                                                                        on 6 February 1995 , for a preliminary ruling in the criminal
                          ( Case C-24/95 )                              proceedings pending before it against Ivana Rosi on the
                             ( 95/C 74/10 )                             following questions:
Reference has been made to the Court of Justice of the
European Communities by an order of the                                 whether the definitions of 'waste ' and 'waste destined for
Bundesverwaltungsgericht ( Federal Administrative Court)
                                                                        recovery' laid down in Council Directive 91/156/EEC (*),
of 28 September 1994 , which was received at the Court
Registry on 2 February 1995 , for a preliminary ruling in the
                                                                        Council Directive 91/689/EEC (2 ) and Regulation ( EEC )
case of Land Rheinland-Pfalz v. Alcan Deutschland GmbH;
                                                                        No 259/93 ( 3 ) should at present continue to be understood
                                                                        and interpreted in the light of the previous case-law of the
Joined             party:         Oberbundesanwalt           beim       Court and whether at the same time those two definitions
Bundesverwaltungsgericht ( Senior Federal Attorney at the
Federal Administrative Court), on the following                         may in every case be regarded as including all materials,
questions :
                                                                        however residual, derived from production or consumption
                                                                        cycles in a manufacturing or combustion process and, if so,
                                                                        whether those materials as well are to be regarded from the
1 . is the competent authority obliged, by reason of the                point of view of Community rules as being subject to the
      requirement to apply national law in such a way that              system established by the abovementioned directives;
      'the recovery required by Community law is not
      rendered practically impossible and the interests of the
      Community are taken fully into consideration', to
      revoke, in accordance with a final, binding decision of           whether a deactivation process intended merely to render
      the EC Commission ordering recovery, the aid decision             waste harmless may be included among the operations
      in question even if the authority has allowed the                 intended to make a residue re-usable and therefore as such
      preclusive time-limit which exists for that purpose under         falling outside the system laid down by the Community
      national law in the interest of legal certainty to                legislation on waste;
      elapse ?
2 . If the reply to Question 1 is in the affirmative :
                                                                        whether landfill tipping in hollows or embankmens may be
      is the competent authority obliged, by reason of the              regarded as the recovery of waste capable of being classified
       abovementioned requirement, to revoke, in accordance             as residues not governed by EEC legislation on waste;
      with a final, binding decision of the EC Commission
       ordering recovery, the aid decision in question even if
       the competent authority is responsible for the illegality
       of the aid decision to such a degree that revocation             whether waste incineration may be included among the
       appears to be a breach of good faith towards the                 recovery of materials simply because marketable residues
       recipient ?                                                      are obtained therefrom and may consequently fall outside
                                                                        the system laid down by the Community legislation on
                                                                        waste and in particular outside the incineration rules;
 3 . If the replies to Questions 1 and 2 are in the
       affirmative :
       is the competent authority obliged, by reason of the             whether waste may be classified as a re-usable residue
       abovementioned requirement, to demand, in                        without its characteristics or purpose being defined to that
       accordance with a final, binding decision of the EC              end and may thus fall outside the scope of the EEC
       Commission ordering recovery, the repayment of the aid           legislation on waste;
       which was granted even if such demand is excluded by
       national law because the gain no longer exists and in the
       absence of bad faith on the part of the recipient of the
       aid ?                                                            whether waste which is merely ground without its
                                                                        characteristics being altered in any way may become a
                                                                         residue falling outside the EEC legislation on waste where