CELEX: C1999/033/02
Language: en
Date: 1999-02-06 00:00:00
Title: Reference for a preliminary ruling by the Supremo Tribunal Administrativo, 1.a Secção, 2.a Subsecção by judgment of that court of 27 October 1998 in the case of Directora-Geral do Departamento para os Assuntos do Fundo Social Europeu against Frota Azul - Transportes e Turismo, Lda. (Case C-413/98)

6.2.1999             EN                  Official Journal of the European Communities                                     C 33/1
                                                                 I
                                                           (Information)
                                              COURT OF JUSTICE
                                                       COURT OF JUSTICE
              JUDGMENT OF THE COURT                                  2. Sets the amount of the fine imposed on the appellant
                    of 17 December 1998                                  at ECU 2 950 000;
       in Case C-185/95 P: Baustahlgewebe GmbH v
                                                                     3. For the rest, dismisses the appeal;
        Commission of the European Communities (1)
(Appeal Ð Admissibility Ð Duration of procedure Ð                    4. Orders the appellant to bear its own costs and three
Preparatory inquiries Ð Access to the file Ð Competition                 quarters of the Commission's costs.
Ð Agreements, decisions and concerted practices Ð Fines)
                       (1999/C 33/01)                                (1) OJ C 208, 12.8.1995.
              (Language of the case: German)
 (Provisional translation; the definitive translation will be
         published in the European Court Reports)                    Reference for a preliminary ruling by the Supremo
                                                                     Tribunal Administrativo, 1.a SeccËaÄo, 2.a SubseccËaÄo by
                                                                     judgment of that court of 27 October 1998 in the case of
In Case C-185/95 P: Baustahlgewebe GmbH, a company
                                                                     Directora-Geral do Departamento para os Assuntos do
incorporated under German law, established in
                                                                     Fundo Social Europeu against Frota Azul Ð Transportes e
Gelsenkirchen (Germany), represented by Joachim
                                                                                             Turismo, Lda.
Sedemund and Frank Montag, Rechtsanwälte, Cologne,
with an address for service in Luxembourg at the                                           (Case C-413/98)
Chambers of Aloyse May, 31 Grand-Rue Ð appeal                                               (1999/C 33/02)
against the judgment of the Court of First Instance of the
European Communities (First Chamber) of 6 April 1995
in Case T-145/89 Baustahlgewebe v Commission [1995]                  Reference has been made to the Court of Justice of the
ECR II-987, seeking to have that judgment set aside, the             European Communities by judgment of the Supremo
other party to the proceedings being: Commission of the              Tribunal Administrativo, 1.a SeccËaÄo, 2.a SubseccËaÄo
European      Communities      (Agents:      initially  Bernd        (Second Sub-Chamber of the First Chamber of the
Langeheine, then Paul Nemitz, assisted by Alexander                  Supreme Administrative Court) of 27 October 1998,
Böhlke) Ð the Court, composed of: G. C. Rodríguez                    which was received at the Court Registry on 20 November
Iglesias, President, J.-P. Puissochet and G. Hirsch                  1998, for a preliminary ruling in the case of
(Presidents of Chambers), G. F. Mancini, J. C. Moitinho              Directora-Geral do Departamento para os Assuntos do
de Almeida, D. A. O. Edward, H. Ragnemalm                            Fundo Social Europeu against Frota Azul Ð Transportes e
(Rapporteur), L. Sevón, M. Wathelet, R. Schintgen and                Turismo, Lda. on the following questions:
K. M. Ioannou, Judges; P. LeÂger, Advocate General; H. A.
Rühl, Principal Administrator, for the Registrar, has given
a judgment on 17 December 1998, in which it:                         1. Under Council Regulation No 2950/83 (1), must a
                                                                         decision by a Member State not to certify the accuracy
                                                                         of the facts and accounts concerning the portion of the
1. Annuls paragraph 2 of the operative part of the                       expenditure in respect of a training operation to which
    judgment of the Court of First Instance of 6 April                   the European Social Fund (ESF) has contributed, on
    1995 in Case T-145/89 Baustahlgewebe v Commission                    the ground that: it does not correspond to the actual
    in so far as it sets the amount of the fine imposed on               cost of the goods and services on the domestic market;
    the appellant at ECU 3 million;                                      the cost of services submitted exceeds the maximum
 ---pagebreak--- C 33/2               EN                  Official Journal of the European Communities                                 6.2.1999
   laid down in the Member State; the administrative                   approved expenditure, that the expenditure has
   costs charged are excessive; the quantities and types of            remained within the overall ceilings of each item and
   materials used bear no relation to the operation or the             that it is accounted for by formally acceptable
   quantities are not justified by that specific operation;            documents in accordance with the applicable
   or on similar grounds, be deemed to be a decision as                accounting rules?
   to the ineligibility of the expenditure, or is it, on the
   contrary, a decision which falls within the scope of
   negative certification of the accuracy of the facts and
   accounts in payment claims, pursuant to the second               5. Is the application to the expenditure incurred of
   part of Article 5(4) of that regulation?                            substantive assessment criteria, namely, whether such
                                                                       expenditure corresponds to actual market prices,
                                                                       whether the administrative costs of the undertaking
                                                                       which carried out the training course have been
2. Does the reduction of the national contribution,                    properly charged, whether the use of a certain
   decided upon by the competent national body when                    quantity or even a certain type of materials is
   clearing and paying the final balance, as a result of               unreasonable (e.g. materials more costly than others
   failure to certify certain expenditure on the grounds               equally suitable) with a view to organising a specific
   set out in the preceding question, entail, pursuant to              training course, capable of reserving a power of
   the combined provisions of Article 5(4), the first part             assessment to Community bodies, with the result that
   of Article 7(1) of the regulation and Article 5(1)                  those criteria must be identical and thus all traders
   and (5) of Decision 83/516/EEC, a corresponding                     within the Community be accorded equal treatment,
   proportional reduction in the amount of Community                   with the implications which that entails for the
   assistance (2), so that any reassessment by the                     interpretation and application of Article 5(4) of
   Community bodies of the correctness or accuracy of                  Regulation (EEC) No 2950/83?
   the facts and accounts in respect of such expenditure,
   such as to enable the ESF none the less to make its full
   contribution, serves no purpose and is not viable?
                                                                    6. Does the power reserved to the Commission, to the
                                                                       exclusion of other bodies, to suspend, reduce or
                                                                       withdraw the Fund's assistance, laid down in
3. Likewise, where, having found serious irregularities                Article 6(1) of the regulation, extend to the
   vitiating the entire framework within which the                     suspension, reduction or withdrawal of the national
   financing was assessed and granted, a Member State                  contribution' by the national body which manages aid
   decides, upon receiving a claim for final payment of                for training purposes?
   the balance pursuant to Article 5(4) of the regulation,
   to withdraw national assistance, despite the fact that
   some kind of training course was organised, or that                 Accordingly, if the competent national body is not
   the course was only a sham, does the body managing                  precluded by Community law from suspending,
   the ESF cease to have any discretion, and is there no               reducing or withdrawing the national assistance, does
   justification for it to take a final decision, by virtue of         the adoption of a decision of that kind after
   the fact that any possibility of a Community                        submission of the claim for final payment take
   contribution towards that course is irretrievably                   immediate and automatic effect in respect of the
   precluded, and that the withdrawal of assistance' has              corresponding proportion of the Community
   even at Community level already taken effect in law,                contribution and, in addition, does it allow the
   simply because the national body has taken a decision               national body to demand the immediate repayment of
   to that effect and because that preclusion follows                  the national contribution, or of the national
   necessarily and automatically, being contained in the               contribution and the Community contribution?
   abovementioned articles of the regulation and the
   decision, as well as in the rules set out in general terms
   in the aforementioned provisions of Community law,
   inasmuch as they govern participation in financing'                Or else, is it an absolute requirement of Community
   and contribution by the Fund' since, in the                        law that the national body must restrict itself to not
   circumstances set forth above, situations of that kind              certifying certain expenditure and await a final
   would no longer arise?                                              decision from the Commission and can only then
                                                                       demand repayment of any amount advanced on
                                                                       account of final payment for the operation, since it is
                                                                       only then, on fulfilment of the precondition of the
4. Must certification of the accuracy of the facts and                passing of time, that it is lawfully vested with power
   accounts in payment claims' be understood as                        to make decisions regarding the recovery or repayment
   excluding any assessment whatever as to whether the                 of sums paid or granted but not due?
   expenditure is justified by the operation actually
   carried out, the cost of goods and services on the
   domestic market, and the reasonableness of the costs
   charged within a complex structure, and therefore as             7. May certification of the accuracy of the facts and
   requiring such assessment to be restricted to a formal              accounts in claims for final payment in respect of
   verification that the expenditure submitted refers to               training courses, as referred to in the second part of
 ---pagebreak--- 6.2.1999               EN                 Official Journal of the European Communities                                         C 33/3
     Article 5(4) of Council Regulation (EEC) No 2950/83,                 Regulation (EEC) No 838/93, extend back only to the
     be validly effected only by means of an entry in box 18              point in time when the areas under cultivation ceased
     of the form set out in Annex II to Commission                        to be farmed extensively or is the discrepancy to be
     Decision 83/673 (3) of 22 December 1983 when the                     calculated and deducted for the whole period of the
     claim for final payment is forwarded, pursuant to the                undertaking?
     first indent of Article 1(2) and Article 1(3) and (4) as
     well as Article 6(1) and (2) of the abovementioned
     decision, or do those provisions apply only to                  3. What are the criteria for determining whether there
     inter-departmental procedural formalities, of no                     is a serious infringement within the meaning of
     external relevance since they are not essential, which               Article 16(3) of Regulation (EEC) No 4115/88, as
     do not make it impossible for the department                         amended by Regulation (EEC) No 838/93?
     concerned subsequently to issue a certificate which
     differs from the first certificate, either as a separate
     document or on a fresh form, provided that, in either           (1) OJ L 361, 29.12.1988, p. 13.
                                                                     (2) OJ L 88, 8.4.1993, p. 16.
     case, it takes account of the legal nature of the
     measures in question and complies with the limits and
     conditions laid down by national law for making the
     relevant alteration?
(1) Council Regulation (EEC) No 2950/83 of 17 October 1983 on
    the implementation of Decision 83/516/EEC on the tasks of
    the European Social Fund (OJ L 289, 22.10.1983, p. 1).           Action brought on 3 December 1998 by the Commission
(2) Council Decision 83/516/EEC of 17 October 1983 on the             of the European Communities against the Italian Republic
    tasks of the European Social Fund (OJ L 289, 22.10.1983,
    p. 38).                                                                                    (Case C-439/98)
(3) Commission Decision 83/673/EEC of 22 December 1983 on
    the management of the European Social Fund (OJ L 377,
                                                                                                (1999/C 33/04)
    31.12.1983, p. 1).
                                                                     An action against the Italian Republic was brought before
                                                                     the Court of Justice of the European Communities on
                                                                     3 December 1998 by the Commission of the European
                                                                     Communities, represented by Antonio Aresu, of its Legal
                                                                     Service, acting as Agent, with an address for service in
            Reference for a preliminary ruling by the
                                                                     Luxembourg at the office of Carlos Gómez de la Cruz, of
   Verwaltungsgericht Schwerin by order of that court of
                                                                     its Legal Service, Wagner Centre, Kirchberg.
               17 September 1998 in the case of
   Landerzeugergemeinschaft e.G. Gross Godems against
                Amt für Landwirtschaft Parchim
                                                                     The applicant claims that the Court should:
                        (Case C-414/98)
                         (1999/C 33/03)
                                                                     1. Declare that, by failing to adopt and bring into force
                                                                          within the prescribed period the laws, regulations and
Reference has been made to the Court of Justice of                        administrative provisions necessary to comply with
the European Communities by order of the                                  Commission Directive 95/30/EC (1) of 30 June 1995
Verwaltungsgericht Schwerin (Administrative Court,                        adapting to technical progress Council Directive
Schwerin) of 17 September 1998, received at the Court                     90/679/EEC (2) of 20 November 1990 on the
Registry on 20 November 1998, for a preliminary ruling                    protection of workers from risks related to exposure
in the case of Landerzeugergemeinschaft (agricultural                     to biological agents at work (seventh individual
producer group) e.G. Gross Godems against Amt für                         Directive within the meaning of Article 16(1) of
Landwirtschaft Parchim (Office for Agriculture, Parchim)                  Directive 89/391/EEC) (3), or by failing                 to
on the following questions:                                               communicate such provisions, the Italian Republic has
                                                                          failed to fulfil its obligations under that directive;
1. Does the penalty laid down by the first sentence of
     Article 16(1) of Regulation (EEC) No 4115/88 (1), as            2. Order the Italian Republic to pay the costs.
     amended by Regulation (EEC) No 838/93 (2), still
     apply where the discrepancy between the number of
     units for which the aid is requested and the number of
                                                                     Pleas in law and main arguments adduced in support:
     units measured is not more than 10 % of the area but
     more than two hectares?
                                                                     Under Article 189 of the EC Treaty, according to which a
2. Does the reduction with regard to aid paid in advance,            directive is to be binding, as to the result to be achieved,
     laid down by the second sentence of Article 16(1) of            upon each Member State to which it is addressed,
     Regulation (EEC) No 4115/88, as amended by                      Member States are required to observe the time-limits laid