CELEX: C2000/020/28
Language: en
Date: 2000-01-22 00:00:00
Title: Case C-423/99: Action brought on 29 October 1999 by the Commission of the European Communities against the Italian Republic

22.1.2000               EN                     Official Journal of the European Communities                                          C 20/13
Action brought on 29 October 1999 by the Commission                       Giacinto Bisogni, acting as Agents, with an address for service
of the European Communities against the Italian Republic                  in Luxembourg at the office of Carlos Gómez de la Cruz, of its
                                                                          Legal Service, Wagner Centre, Kirchberg.
                           (Case C-421/99)
                                                                          The applicant claims that the Court should:
                            (2000/C 20/26)
                                                                          — declare that, by failing to adopt and bring into force or, in
An action against the Italian Republic was brought before the                 any event, by failing to communicate the laws, regulations
Court of Justice of the European Communities on 29 October                    and administrative provisions necessary to comply with
1999 by the Commission of the European Communities,                           Directive 97/51/EC of the European Parliament and of the
represented by Lena Ström, of its Legal Service, and Giacinto                 Council of 6 October 1997 amending Council Directives
Bisogni, an appeal court judge on secondment to its Legal                     90/387/EEC and 92/44/EEC for the purpose of adaptation
Service, acting as Agents, with an address for service in                     to a competitive environment in telecommunications (1),
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner                  the Italian Republic has failed to fulfil its obligations under
Centre, Kirchberg.                                                            that directive; and
The applicant claims that the Court should:
                                                                          — order the Italian Republic to pay the costs.
— declare that, by failing to adopt, or at any rate to
     communicate to the Commission, the laws, regulations
     and administrative measures necessary in order to comply
                                                                          Pleas in law and main arguments
     with Council Directive 94/67/EC of 16 December 1994 (1)
     on the incineration of hazardous waste, the Italian Republic
     has failed to fulfil its obligations under that directive;
                                                                          Under Article 249 of the EC Treaty, according to which a
                                                                          directive is to be binding, as to the result to be achieved, upon
— order the Italian Republic to pay the costs.
                                                                          each Member State to which it is addressed, Member States are
                                                                          required to observe the time-limits laid down in directives for
                                                                          their transposition. That time-limit expired on 31 December
Pleas in law and main arguments                                           1997 without the Italian Republic having brought into force
                                                                          the necessary provisions in order to comply with the directive
Article 249 EC (formerly Article 189 of the EC Treaty),                   referred to in the Commission’s application.
according to which a directive is to be binding, as to the result
to be achieved, upon each Member State to which it is
addressed, requires Member States to observe the time-limits
laid down in directives for their transposition. The time-limit           (1) OJ 1997 L 295, p. 23.
in the present case expired on 31 December 1996 without the
Italian Republic having adopted the necessary provisions in
order to comply with the directive referred to in the Com-
mission’s application.
(1) OJ L 365 of 31.12.1994, p. 34.
                                                                          Action brought on 29 October 1999 by the Commission
                                                                          of the European Communities against the Italian Republic
Action brought on 29 October 1999 by the Commission                                               (Case C-423/99)
of the European Communities against the Italian Republic
                                                                                                   (2000/C 20/28)
                           (Case C-422/99)
                                                                          An action against the Italian Republic was brought before the
                            (2000/C 20/27)
                                                                          Court of Justice of the European Communities on 29 October
                                                                          1999 by the Commission of the European Communities,
An action against the Italian Republic was brought before the             represented by Claudia Schmidt, of its Legal Service, and by
Court of Justice of the European Communities on 29 October                Giacinto Bisogni, acting as Agents, with an address for service
1999 by the Commission of the European Communities,                       in Luxembourg at the office of Carlos Gómez de la Cruz, of its
represented by Claudia Schmidt, of its Legal Service, and by              Legal Service, Wagner Centre, Kirchberg.
 ---pagebreak--- C 20/14               EN                      Official Journal of the European Communities                                      22.1.2000
The applicant claims that the Court should                               2. Paragraphs 1 and 3 of the Judgment of the Court of First
                                                                             Instance in case T-110/98 be set aside.
— declare that, by failing to adopt and bring into force or, in
    any event, by failing to communicate the laws, regulations
    and administrative provisions necessary to comply with               3. Commission Decision 98/687/ECSC of 10 June 1998 on
    Directive 98/10/EC of the European Parliament and of the                 German aid to the coal industry for 1997 (OJ 1998 L 234,
    Council of 26 February 1998 on the application of open                   p. 30) be annulled.
    network provision (ONP) to voice telephony and on
    universal service for telecommunications in a competitive            4. The Commission pay the costs of this appeal and those
    environment (1), the Italian Republic has failed to fulfil its           incurred before the Court of First Instance.
    obligations under that directive;
— order the Italian Republic to pay the costs.
                                                                         Pleas in law and main arguments
Pleas in law and main arguments
                                                                         The Appellant submits that any reading of the words
Under Article 249 of the EC Treaty, according to which a                 used in Article 1 of the Code (Commission Decision
directive is to be binding, as to the result to be achieved, upon        No. 3632/93/ECSC (2) of 28 December 1993 establishing
each Member State to which it is addressed, Member States are            Community rules for State aid to the coal industry) must
required to observe the time-limits laid down in directives for          conclude that Article 9 is a precondition before any aid may
their transposition. That time-limit expired on 30 June 1998             be considered Community aid and hence compatible with the
without the Italian Republic having brought into force the               common market. Compliance with Article 9 is not merely a
necessary provisions in order to comply with the directive               procedural requirement. It is a pre-condition. State aid, there-
referred to in the Commission’s application.                             fore, may be considered Community aid only if it complies
                                                                         with Article 9(4).
(1) OJ 1998 L 101, p. 24.
                                                                         The Appellant submitted to the Court of First Instance that, if
                                                                         the clear wording of the Code is applied, the Commission lacks
                                                                         the competence to consider State aid as Community aid if the
                                                                         State aid is paid without complying with Article 9 (and, thus,
                                                                         does not satisfy the condition of prior authorisation).
Appeal brought on 8 November 1999 by RJB Mining plc
against the judgment delivered on 9 September 1999 by
the First Chamber, Extended Composition, of the Court                    In rejecting the Appellant’s arguments the Court of First
of First Instance of the European Communities in case                    Instance held that:
T-110/98 (1) between RJB Mining plc and the Commission
of the European Communities, supported by the Federal
                                                                         a) a procedural provision could not have the same status as a
Republic of Germany, the Kingdom of Spain and RAG
                                                                             substantive provision, and, on that basis;
                       Aktiengesellschaft
                       (Case C-427/99 P)                                 b) non-compliance with a procedural provision did not have
                                                                             the legal consequence of depriving the Commission of the
                         (2000/C 20/29)                                      competence to approve the State aid.
An appeal against the judgment delivered on 9 September
1999 by the First Chamber, Extended Composition, of the                  The Appellant submits that the Court of First Instance’s
Court of First Instance of the European Communities in case              conclusion depends on a tortuous interpretation of the Code
T-110/98 between RJB Mining plc and the Commission of the                and is clearly wrong in law.
European Communities, supported by the Federal Republic of
Germany, the Kingdom of Spain and RAG Aktiengesellschaft,
was brought before the Court of Justice of the European                  According to the Appellant the Code makes no distinction
Communities on 8 November 1999 by RJB Mining plc, a                      between substantive and procedural pre-conditions to aid
public limited company incorporated in England with its                  being considered compatible with the common market and,
registered office at Harworth, United Kingdom, represented by            therefore, failing to satisfy either type of condition results in a
Mark Brealey, Barrister, of the Bar of England and Wales, and            lack of competence on the part of the Commission to approve
Jonathan Lawrence, Solicitor, with an address for service in             the aid.
Luxembourg at the Chambers of Arendt and Medernach, 8-10,
Rue Mathias Hardt.                                                       (1) OJ C 299 of 26.9.98, p. 38.
                                                                         (2) OJ 1993 L 329, p. 12.
The Appellant seeks an order that:
1. The Appeal be allowed.