CELEX: C2003/112/24
Language: en
Date: 2003-05-10 00:00:00
Title: Case C-110/03: Action brought on 10 March 2003 by the Kingdom of Belgium against the Commission of the European Communities

C 112/14               EN                       Official Journal of the European Union                                         10.5.2003
Action brought on 7 March 2003 by the Commission of                     are liable to a maximum fine of PTE 50 000 whereas Spanish
the European Communities against the Kingdom of Spain                   nationals who fail to apply in time for their identity documents
                                                                        are liable to a fine of PTE 50 for every month of delay. The
                                                                        Commission gives an outline of some of the complaints which
                         (Case C-108/03)                                gave rise to the reasoned opinion and to the present application
                                                                        which, in its view, clearly show the difference in the scale of
                                                                        fines and their disproportionate nature.
                         (2003/C 112/23)
                                                                        (1 ) OJ English Special Edition 1968 (II), p 485.
                                                                        (2 ) OJ 1973 L 172, p. 14.
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 7 March
2003 by the Commission of the European Communities,
represented by Carmel O’Reilly, Legal Adviser, and Luis
Escobar Guerrero, of its Legal Service, with an address for
service in Luxembourg.
The applicant claims that the Court should :
                                                                        Action brought on 10 March 2003 by the Kingdom
—     Declare that the Kingdom of Spain has failed to fulfil its        of Belgium against the Commission of the European
      obligations under Articles 39, 43 and 49 of the EC Treaty                                     Communities
      and Article 4 of Council Directive 68/360/EEC ( 1) of
      15 October 1968 on the abolition of restrictions on
      movement and residence within the Community for
      workers of Member States and their families and Article 4                                   (Case C-110/03)
      of Council Directive 73/148/EEC (2) of 21 May 1973 on
      the abolition of restrictions on movement and residence
      within the Community for nationals of Member States                                         (2003/C 112/24)
      with regard to establishment and the provision of services
      inasmuch as non-Spanish Community nationals in the
      Kingdom of Spain are treated, as regards the degree of
      fault and scale of fines for infringement of provisions
      relating to residence permits, disproportionately differ-
      ently from Spanish nationals who commit the compar-               An action against the Commission of the European Communi-
      able infringement of the obligation to obtain or renew            ties was brought before the Court of Justice of the European
      national identity documents;                                      Communities on 10 March 2003 by the Kingdom of Belgium,
                                                                        represented by A. Snoecx, acting as Agent, assisted by D. Wael-
                                                                        broeck and D. Brinckman, lawyers.
—     Order the Kingdom of Spain to pay the costs.
                                                                        The applicant claims that the Court should:
Pleas in law and main arguments
                                                                        —     declare the application admissible and well founded;
Failure to fulfil requirements relating to residence permits —          —     annul Commission Regulation (EC) No 2204/2002 of
failure to submit the requisite documents, failure to apply for               12 December 2002 on the application of Articles 87 and
or renew permits — may be the subject of fines provided that                  88 of the EC Treaty to State aid for employment (1);
the amount of the fine is not disproportionate to the degree of
seriousness of the infringement. The Commission acknowl-
edges that the situation of non-Spanish nationals, as regards           —     so far as necessary, by virtue of Article 241 of the EC
residence permits, and that of Spanish nationals, as regards                  Treaty, declare inapplicable Council Regulation (EC) No
identity documents, are not identical. However, that has not                  994/98 of 7 May 1998 on the application of Articles 92
precluded, in the Commission’s view, the Court of Justice                     and 93 of the Treaty establishing the European Com-
considering those two situations in order to arrive at the                    munity to certain categories of horizontal State aid (2) as
concept of comparability of fines (see the judgment in Case                   the legal basis for the regulation at issue;
C-24/97 Commission v Germany [1998] ECR I-2133). The
Commission regrets that, for delaying up to three months
before applying for a residence permit, non-Spanish nationals           —     order the Commission to pay the costs.
 ---pagebreak--- 10.5.2003               EN                        Official Journal of the European Union                                           C 112/15
Pleas in law and main arguments                                           Finally, the Kingdom of Belgium wonders whether the regu-
                                                                          lation at issue should not be annulled for infringing the Treaty
                                                                          inasmuch as the regulation is based on the wrong legal basis.
                                                                          The Treaty provides for a specific legal basis for Community
                                                                          action in the field of employment. The enabling regulation
                                                                          enabled the Council to confer on the Commission the power
                                                                          to adopt actions in the field of employment; to that extent,
—     Infringement of Council Regulation (EC) No 994/98,                  that regulation should also be declared unlawful, since it runs
      hereinafter ‘the enabling regulation’. Commission Regu-             counter to the provisions of the Amsterdam Treaty which does
      lation (EC) No 2204/2002, hereinafter ‘the regulation at            not permit any such conferment of powers by way of a
      issue’, does not observe the enabling regulation in that it         Council regulation.
      does not attain any of the objectives relating to trans-
      parency and legal certainty pursued by the enabling
      regulation. First, the regulation at issue is not clear as
      regards the circumstances in which it applies, in view of           (1 ) OJ 2002 L 337, p. 3.
                                                                          (2 ) OJ 1998 L 142, p. 1.
      the parallel existence of guidelines and frameworks which
      the Commission can apply at the same time to aid for
      employment. Secondly, the regulation at issue is not clear
      either as regards the rules it contains. Finally, the lack of
      clarity affects the very measures which should fall within
      the scope of Article 87(1) of the EC Treaty and in respect
      of which the application of the regulation is necessary.
      Indeed, the regulation at issue gives the impression that it
      must also be applied to measures of general scope, that is
      to say, general measures adopted at regional level, when
      such measures should automatically have been excluded
      from the scope of Article 87(1) of the EC Treaty.
                                                                          Action brought on 12 March 2003 by the Commission
                                                                          of the European Communities against the Kingdom of
                                                                                                        Sweden
—     Breach of the principle of subsidiarity, by failing to take
      account of the constitutional organisation prevailing in
      Belgium and by therefore considering every action by a                                        (Case C-111/03)
      regional authority, which is exclusively competent in the
      field of employment, as specific and thus as falling within
      the scope of the regulation at issue.
                                                                                                    (2003/C 112/25)
—     Breach of the principle of non-discrimination: by main-
      taining earlier aid schemes which had previously been
      authorised while introducing a scheme which is altogether
                                                                          An action against the Kingdom of Sweden was brought before
      stricter for new aid and allowing to exist side by side two
      schemes which are diametrically different depending on              the Court of Justice of the European Communities on 12 March
                                                                          2003 by the Commission of the European Communities,
      the date on which the aid was implemented, the regu-
                                                                          represented by L. Ström and A. Borders, acting as Agents, with
      lation at issue also entails breach of the principle of non-
                                                                          an address for service in Luxembourg.
      discrimination, which is a general legal principle which
      must be observed when implementing Community
      administrative policy in general and in matters of compe-
      tition and State aid in particular. By leaving intact
      previously authorised aid schemes, the regulation at issue          The Commission claims that the Court should:
      discriminates between undertakings which will benefit
      from aid granted on the basis of earlier schemes and
      those which will be eligible to receive only lower levels           1.    Declare that by retaining a system of prior notification
      of aid on the basis of the new scheme.                                    and health checks for importers of certain food products
                                                                                of animal origin from other Member States the Kingdom
                                                                                of Sweden has failed to fulfil its obligations under Council
                                                                                Directive 89/662/EEC of 11 December 1989 concerning
                                                                                veterinary checks in intra-Community trade with a view
—     Breach of the principle of proportionality, by making it                  to the completion of the internal market ( 1), and
      difficult or impossible for Member States to pursue a
      genuine employment policy because of such lack of
      transparency, clarity and coherence of the legislation.             2.    Order the Kingdom of Sweden to pay the costs.