CELEX: C2001/227/08
Language: en
Date: 2001-08-11 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 3 July 2001 in Case C-378/98: Commission of the European Communities v Kingdom of Belgium (Failure by a Member State to fulfil its obligations — State aid — Article 93(2), second subparagraph, of the EC Treaty (now Article 88(2), second subparagraph, EC) — Obligation to recover aid granted under the Maribel bis and Maribel ter schemes — Impossible to put into effect)

11.8.2001                EN                      Official Journal of the European Communities                                            C 227/5
2.    The application by the competent institution of a Member State        1.    Declares that by not implementing within the prescribed period
      of Article 95a(4), (5) and (6) of Regulation No 1408/71 to                  the laws, regulations and administrative measures necessary to
      a request for review of a retirement pension, thus limiting the             comply with Directive 97/36/EC of the European Parliament
      retroactivity of the review to the detriment of the person                  and of the Council of 30 June 1997 amending Council
      concerned, constitutes a serious breach of Community law if                 Directive 89/552/EEC on the coordination of certain provisions
      those provisions are not applicable to the application in question          laid down by law, regulation or administrative action in
      and if it follows from a judgment delivered by the Court of                 Member States concerning the pursuit of television broadcasting
      Justice before the decision by the competent institution that the           activities, the Grand Duchy of Luxembourg has failed to fulfil
      institution wrongly applied and anti-overlapping rule of that               its obligations under that directive;
      Member State, and where it cannot be inferred from that
      judgment that the retroactive effect of such a review could be        2.    Orders the Grand Duchy of Luxembourg to pay the costs.
      limited.
                                                                            (1) OJ C 163 of 10.6.2000.
( 1) OJ C 163 of 10.6.2000.
                                                                                               JUDGMENT OF THE COURT
                  JUDGMENT OF THE COURT                                                                (Sixth Chamber)
                         (Fourth Chamber)                                                                of 3 July 2001
                           of 21 June 2001                                  in Case C-378/98: Commission of the European Communi-
                                                                                               ties v Kingdom of Belgium (1)
in Case C-119/00: Commission of the European Communi-
             ties v Grand Duchy of Luxembourg (1)
                                                                            (Failure by a Member State to fulfil its obligations — State
                                                                            aid — Article 93(2), second subparagraph, of the EC Treaty
(Failure by a Member State to fulfil its obligations —                      (now Article 88(2), second subparagraph, EC) — Obligation
Failure to implement Directive 97/36/EC amending Directive                  to recover aid granted under the Maribel bis and Maribel ter
89/552/EEC — Coordination of certain provisions laid down                               schemes — Impossible to put into effect)
by law, regulation or administrative action in Member States
 concerning the pursuit of television broadcasting activities)
                                                                                                        (2001/C 227/08)
                           (2001/C 227/07)
                                                                                                  (Language of the case: French)
                     (Language of the case: French)
                                                                            (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                           in the European Court Reports)
                    in the European Court Reports)
                                                                            In Case C-378/98: Commission of the European Communities
In Case C-119/00: Commission of the European Communities                    (Agent: G. Rozet) v Kingdom of Belgium (Agent: A. Snoecx,
(Agent: K. Banks) v Grand Duchy of Luxembourg (Agent:                       assisted by G. van Gerven and K. Coppenholle) — application
P. Steinmetz) — application for a declaration that, by failing              for a declaration that, by failing to adopt within the periods
to adopt the laws, regulations and administrative provisions                prescribed for under the Maribel bis/ter scheme which was
necessary to comply with Directive 97/36/EC of the European                 declared unlawful and incompatible with the common market
Parliament and of the Council of 30 June 1997 amending                      by Commission Decision 97/239/EC of 4 December 1996
Council Directive 89/552/EEC on the coordination of certain                 concerning aid granted by Belgium under the Maribel bis/ter
provisions laid down by law, regulation or administrative                   scheme (OJ 1997 L 95, p. 25), notified to it on 20 December
action in Member States concerning the pursuit of television                1996, the Kingdom of Belgium has failed to fulfil its obligations
broadcasting activities (OJ 1997 L 202, p. 60), and/or by                   under the fourth paragraph of Article 189 of the EC Treaty
failing to inform the Commission thereof, the Grand Duchy of                (now the fourth paragraph of Article 249 EC) and Articles 2
Luxembourg has failed to fulfil its obligations under that                  and 3 of the said decision — the Court (Sixth Chamber),
directive — the Court (Fourth Chamber), composed of: A. La                  composed of: C. Gulmann, President of the Chamber,
Pergola, President of the Chamber, D.A.O. Eward (Rapporteur)                J.-P. Puissochet, R. Schintgen, F. Macken and N. Colneric
and S. von Bahr, Judges; L.A. Geelhoed, Advocate General;                   (Rapporteur), Judges; A. Tizzano, Advocate General; D. Louter-
R. Grass, Registrar, has given a judgment on 21 June 2001, in               man-Hubeau, Head of Division, for the Registrar, has given a
which it:                                                                   judgment on 3 July 2001, in which it:
 ---pagebreak--- C 227/6                  EN                     Official Journal of the European Communities                                     11.8.2001
1.    Declares that, by failing to adopt within the period prescribed           1983, that being the Netherlands reference year), particu-
      the measures necessary to recover from the beneficiary undertak-          larly in the light of the judgment in Spagl (2): there is
      ings the aid provided for under the Maribel bis and Maribel ter           nothing to indicate that — as the Court of First Instance
      schemes which were declared unlawful and incompatible with                seeks to suggest — the Court of Justice intended to
      the common market by Commission Decision 97/239/EC of                     restrict the invalidity of Regulation No 857/84 (3) to cases
      4 December 1996 concerning aid granted by Belgium under                   in which the SLOM producers concerned were unable to
      the Maribel bis/ter scheme, the Kingdom of Belgium has                    resume production during the 1983 reference year,
      failed to fulfil its obligations under the fourth paragraph of            following the expiry of their non-marketing undertakings,
      Article 189 of the EC Treaty (now the fourth paragraph of                 which had by then come to an end. Had that indeed been
      Article 249 EC) and Articles 2 and 3 of the said decision;                the intention of the Court of Justice, it would have had to
                                                                                apply that limitation expressly, since the particular case
2.    Orders the Kingdom of Belgium to pay the costs.                           before it was precisely concerned whit a SLOM producer
                                                                                in respect of whom it had been established that he had
                                                                                produced non milk during the entire reference year,
(1) OJ C 378 of 5.12.1998.                                                      despite the fact that his non-marketing undertaking had
                                                                                expired during the course of that year (on 31 March
                                                                                1983). The interpretation arrived at by the Court of First
                                                                                Instance reflects the principal argument raised as a
                                                                                defence by the institutions in Spagl, which was manifestly
Appeal brought on 13 April 2000 by E. Bouma against the                         rejected in the judgment.
judgment delivered on 31 January 2001 by the Fourth
Chamber of the Court of First Instance of the European                          The case of Spagl was in the nature of a test case, and
Communities in Case T-533/93 between, on the one hand,                          was, moreover, treated as such by the Court of Justice. By
E. Bouma and, on the other, the Council of the European                         purporting, over ten years later, to limit the scope of the
Union and the Commission of the European Communities                            judgment in Spagl by applying a speculative gloss to the
                                                                                significance of the underlying facts, the Court of First
                                                                                Instance has misconstrued the judicial task of the Court
                          (Case C-162/01 P)                                     of Justice, thereby seriously undermining the principle of
                                                                                legal certainty.
                           (2001/C 227/09)                                      The judgment in the present case directly conflicts with
                                                                                an earlier judgment delivered by the Court of First
An appeal against the judgment delivered on 31 January 2001                     Instance itself, in Joined Cases T-195/94 and T-202/94
by the Fourth Chamber of the Court of First Instance of the                     Quiller and Heusmann.
European Communities in Case T-533/93 between, on the one
hand, E. Bouma and, on the other, the Council of the European              —    Violation of the principle of equality, the principle of the
Union and the Commission of the European Communities                            protection of legitimate expectations, the principle of
was brought before the Court of Justice of the European                         legal certainty and the obligation to provide a statement
Communities on 13 April 2001 by E. Bouma, represented by                        of reasons, inasmuch as the Court of First Instance, in
E.H. Pijnacker Hordijk, advocaat, the other parties tot the                     assessing Mr Bouma’s compensation claims, attached
proceedings being the Council of the European Union, rep-                       significance to the fact that he did not produce any milk
resented by A.M. Colaert, and the Commission of the European                    between 31 December 1983 and 1 April 1984: it is
Communities, represented by T. van Rijn.                                        impossible to see why a defence previously rejected by
                                                                                the Court of Justice (in paragraphs 15 and 16 of its
                                                                                judgment in Mulder I, paragraph 14 of its judgment in
The appellant claims that the Court should:                                     Spagl and paragraph 17 of its interim judgment in
                                                                                Mulder II) and also by the Court of First Instance (see
—     set aside the judgment delivered by the Court of First
                                                                                paragraph 97 of the judgment in Quiller and Heusmann)
      Instance on 31 January 2001 in Case T-533/93 (1);
                                                                                should subsequently have been accepted by the Court of
—     refer the case back to the Court of First Instance;                       First Instance.
—     order the Council and the Commission to pay the costs                —    Violation of the principle of equality, the principle of the
      of the proceedings before both Courts.                                    protection of legitimate expectations, the principle of
                                                                                legal certainty and the obligation to provide a statement
                                                                                of reasons, inasmuch as the Court of First Instance
                                                                                wrongly assessed the compensation claims of SLOM 83
Pleas in law and main arguments                                                 producers, particularly in the light of the judgment in
                                                                                Mulder II: it is apparent that, in paragraph 23 of the
—     Breach of the principle of equality, the principle of the                 interim judgment of the Court of Justice of 19 May 1992,
      protection of legitimate expectations, the principle of                   cited by the Court of First Instance, the Court of
      legal certainty and the obligation to provide a statement                 Justice merely concluded that the four SLOM producers
      of reasons, inasmuch as the Court of First Instance                       concerned had made it sufficiently clear that they did in
      incorrectly assessed the compensation claims of SLOM                      fact intend to resume milk production. There is nothing
      83 producers (that is to say, SLOM producers whose non-                   to indicate that the Court of Justice intended to provide
      marketing undertakings expired during the course of                       an exhaustive list of the ways in which that intention