CELEX: C1995/299/14
Language: en
Date: 1995-11-11 00:00:00
Title: Action brought on 1 September 1995 by the Kingdom of Spain against the Commission of the European Communities (Case C-292/95)

11 . 11 . 95          EN                   Official Journal of the European Communities                                         No C 299/9
  Action brought on 1 September 1995 by the Kingdom                       them with retroactive effect, allowing it to fix
     of Spain against the Commission of the European                      unilaterally the period of validity of the obligation
                          Communities                                     incumbent on the Member States .
                       ( Case C-2 92/95 )
                         ( 95/C 299/ 14 )                             — Retroactivity of measures : the Commission itself
                                                                          acknowledges that there are no retroactive effects in
                                                                          respect of the application of appropriate measures
An action against the Commission of the European                          which have not been accepted by a Member State and
Communities was brought before the Court of Justice of the                which give rise to the procedure provided for in
                                                                          Article 93 ( 2 ).
European Communities on 1 September 1995 by the
Kingdom of Spain , represented by Alberto Navarro
Gonzalez, Director-General for Community Legal and                        In the view of the Spanish Government, there is an
Institutional Coordination , and by Miguel Bravo-Ferrer                   obligation to cooperate regularly and periodically with
Delgado, Abogado del Estado , of the State Legal                          which      unilateral      measures   as  onerous       as those
Department dealing with matters before the Court of                       conferring retroactive effect to the directives , which is
Justice , acting as Agents , with an address for service in               tantamount to their innovatory introduction, are not in
Luxembourg at the Spanish Embassy , 4-6 Boulevard                         keeping.
E. Servais .
                                                                      — Exceptional circumstances justifying retroactive effect
The applicant claims that the Court should :                              In the view of the Spanish Government, there can be no
                                                                          justification whatsoever for conferring retroactive effect
1 . annul the decision of the Commission of 6 July 1995                   to measures, provided for in Article 93 ( 1 ) of the Treaty,
     retroactively extending the decision of 23 December                  which have been taken unilaterally and with the
     1992 as from 1 January 1995 ;                                        intention of departing from the procedure and the
                                                                          system of regular, periodic cooperation provided for by
                                                                          that provision of the Treaty, in particular when it is
2 . order the Commission to pay the costs .                               contrary to the principle of the non-retroactivity of
                                                                          measures laid down in the case-law, specifically in
                                                                          respect of the legal basis relied upon by the Commission
Pleas in law and main arguments adduced in support:                        ( Article 93 ( 1 )), even where it is imposed by way of a
                                                                          decision adopted pursuant to the procedure laid down in
                                                                           Article 93 ( 2 ).
— Impossible to extend that which has expired : there may
     be an extension in respect of a legal instrument subject to
     a timelimit only before the expiry thereof.                      (') Application : OJ No C 139 , 18 . 5 . 1993 , p . 1 1 ;
                                                                          Judgment : O J No C 229 , 2 . 9 . 199.5 .
— Such retroactive extension in fact constitutes a means of
     reintroducing the directives without complying with the
     requirement of consulting the Member States : the fact
     that the original directives were removed from the legal
     order means that fresh introduction thereof would be
     innovatory . However, those ' new' directives should be
     understood as being ' appropriate measures' proposed             Appeal brought on 8 September 1995 by Odigitria AAE
     by the Commission within the meaning of Article 93 (1 )          against the judgment delivered on 6 July 1995 by the First
     of the Treaty . According to the judgment in Case                Chamber of the Court of First Instance of the European
     C- 135/93 ('), that Article imposes the 'obligation of           Communities in Case T-5 72/93 between Odigitria AAE and
     regular, periodic cooperation ' between the Commission           the Council of the European Union and the Commission of
     and the Member States .                                                              the European Communties
                                                                                                ( Case C-293/95 P)
     The Commission claims, in the sixth paragraph of its                                          ( 95/C 299/ 15 )
     decision of 6 July 1995 , that it complied with the
     abovementioned requirement by means of the                       An appeal against the judgment delivered on 6 July 1995 by
     multilateral meeting of 4 July 1995 . At that meeting the        the First Chamber of the Court of First Instance of the
     delegations had available to them the document which             European Communities in Case T-572/93 between
     was to be discussed only shortly before the meeting or           Odigitria AAE and the Council of the European Union and
     were unaware of the existence of the document which
                                                                      the Commission of the European Communities was brought
     was the basis of the meeting ( the abovementioned                before the Court of Justice of the European Communities on
     judgment ).                                                       8 September 19 95 by Odigitria AAE, represented by
                                                                      E. Marias , G. Stefanaki and A. Chatzitzani , of the Athens
     In the 'context of collaboration', the Commission may             Bar, with an address for service in Luxembourg at the
      not arrogate to itself the power to act unilaterally in          Chambers of E. Thill-Kamitaki , 15 Avenue du Bois,
      order to introduce certain measures or to reintroduce            L-1251 .