CELEX: C1999/204/46
Language: en
Date: 1999-07-17 00:00:00
Title: Case C-131/99: Action brought on 16 April 1999 by the Commission of the European Communities against the Portuguese Republic

17.7.1999              EN                     Official Journal of the European Communities                                          C 204/25
     to any aid granted, for which reason the Commission has             (4) Commission Regulation (EEC) No 334/93 of 15 February 1993
     no legal basis for taking action, having relied exclusively             laying down detailed implementing rules for the use of land set
     on grounds of expediency and immediacy, in the context                  aside for the provision of materials for the manufacture within
     of clearance of the accounts of the EAGGF Guarantee                     the Community of products not primarily intended for human or
                                                                             animal consumption (OJ L 38 of 16.2.1993, p. 12).
     Section, applying a financial adjustment to the expenditure         (5) Commission Regulation (EEC) No 536/93 of 9 March 1993 laying
     incurred by Spain in the sector in question. The fact is that,          down detailed rules on the application of the additional levy on
     where necessary, it is open to the Commission to challenge              milk and milk products (OJ L 57 of 10.3.1993, p. 12).
     action taken by a Member State by means of an action                (6) Council Regulation (EEC) No 729/70 of 21 April 1970 on the
     before the Court of Justice for failure to fulfil obligations.          financing of the Common Agricultural Policy (OJ, English Special
                                                                             Edition 1970 (1), p. 218).
                                                                         (7) Commission Regulation (EEC) No 1546/88 of 3 June 1988 laying
                                                                             down detailed rules for the application of the additional levy
(f) Flax                                                                     referred to in Article 5c of Regulation (EEC) No 804/68 (OJ L 139
                                                                             of 4.6.1988, p. 12).
— PTE 40 359 739 (aid for fibre flax): for the marketing year            (8) Commission Regulation (EEC) No 1164/89 of 28 April 1989
                                                                             laying down detailed rules concerning the aid for fibre flax and
     to which the adjustment was applied, the Community rules                hemp (OJ L 121, 29.4.1989, p. 4).
     did not expressly mention minimum quantifies of seed,
     but merely referred to the carrying out of normal culti-
     vation work (Article 4(a) of Commission Regulation
     1164/89) (8).
(g) Failure to observe time-limits for payment
— PTE 3 362 203 596 (payments made outside the time-                     Action brought on 16 April 1999 by the Commission
     limits laid clown by the Community legislation): the                of the European Communities against the Portuguese
     Kingdom of Spain considers that, since the requisite                                               Republic
     procedures for accepting or rejecting expenditure have not
     been completed, the normal procedure is to separate the                                        (Case C-131/99)
     sums in question and exclude them from the clearance of
     accounts until a later date.
                                                                                                    (1999/C 204/46)
     In general, breach of the following principles of Com-
     munity law:                                                         An action against the Portuguese Republic was brought before
                                                                         the Court of Justice on 16 April 1999 by the Commission of
     — the principle of a right to the hearing: this principle           the European Communities, represented by Francisco de Sousa
         has been infringed in relation to all the adjustments           Fialho, of its Legal Service, acting as Agent, with an address for
         contested in the application. It was formally observed,         service in Luxembourg at the office of Carlos Gómez de la
         but in practice the Commission’s replies are confined           Cruz, also of its Legal Service, Wagner Centre, Kirchberg.
         to repetition of the same points, without contradiction
         or rebuttal of the arguments put forward;
                                                                         The applicant claims that the Court of Justice should:
     — lack of evidence of the wrongful action imputed to the
         Member State: the Commission based the adjustments              — Declare that, by not bringing into force or informing the
         either on indicia or suspicions, or on data which had                Commission of all the laws, regulations and administrative
         been rebutted or corrected by the Spanish authorities;               provisions necessary to comply fully with Article 3(1)
                                                                              and Annex I, points 1.3 and 3.2, of Council Directive
     — the principle of sound administration;                                 84/360/EEC (1) of 28 June 1984 on the combating of air
                                                                              pollution from industrial plants, the Portuguese Republic
     — the principle of appropriateness of the penalty: this                  has failed to fulfil its obligations under Article 16 of that
         principle was infringed in particular with regard to                 directive and the third paragraph of Article 189 of the EC
         olive oil production aid. It is not permissible to refuse            Treaty;
         to refund the aid paid in advance merely because
         certain data bases have not been finalised; such action         — Order the Portuguese Republic to pay the costs.
         can only be based on a duly substantiated lack of
         checking which has been detrimental to the Com-
         munity budget;                                                  Contentions and principal arguments adduced in support
     — in the alternative, breach of the principle of pro-
         portionality.                                                   Under the third paragraph of Article 189 (now, after amend-
                                                                         ment, Article 249) of the Treaty, a directive is binding on the
                                                                         Member State to which it is addressed as regards the result to
(1) OJ L 061 of 10 March 1999, p. 34.                                    be achieved. Although the prescribed period expired on 30
(2) OJ L 061 of 10 March 1999, p. 37.                                    June 1987 (see Article 16 of the directive and Article 392 of
(3) Of 23 December 1992 laying down detailed rules for applying          the Accession Treaty), the Portuguese Republic has not yet
    the integrated administration and control system for certain         adopted all the provisions needed to ensure that its domestic
    Community aid schemes (OJ L 391 of 31.12.1992, p. 36).               law fully complies with the directive, since:
 ---pagebreak--- C 204/26                EN                         Official Journal of the European Communities                                     17.7.1999
— The Portuguese legislation does not impose the obligation                   Reference for a preliminary ruling from the Pretura di
     to seek prior authorisation from the competent authorities               Treviso, Oderzo Division, by order of that court of 7
     for the operation of coal gasification and liquefaction                  April 1999, in the case of Giuseppe Busolin and Others
     plants, as provided for in Article 3(1) and point 1.3 of                 against Ispettorato Centrale Repressione Frodi — Ufficio
     Annex I to the directive. The fact that, possibly, there are             di Conegliano — Ministero delle Risorse Agricole, Ali-
     no coal gasification and liquefaction plants in Portugal at                                    mentari e Forestali
     the present time is irrelevant.
— The Portuguese legislation does not impose the obligation                                           (Case C-155/99)
     to seek prior authorisation from the competent authorities
     for the operation of plants for the manufacture of asbestos,
     as provided for in Article 3(1) and point 3.3 of Annex I to
     the directive.                                                                                   (1999/C 204/48)
(1) OJ L 188 of 16 July 1984, p. 20.                                          Reference has been made to the Court of Justice of the
                                                                              European Communities, by order of the Pretura di Treviso,
                                                                              Oderzo Division, of 27 April 1999, for a preliminary ruling in
                                                                              the case of Giuseppe Busolin and Others against Ispettorato
                                                                              Centrale Repressione Frodi — Ufficio di Conegliano —
                                                                              Ministero delle Risorse Agricole, Alimentari e Forestali on the
                                                                              following questions:
                                                                              — whether the Commission’s decision to allocate the quantity
                                                                                  for compulsory distillation between the various production
                                                                                  regions for the wine year 1993/94 (as referred to in
Reference for a preliminary ruling by the Tribunal de                             Regulation (EC) No 343/94) (1) was invalid for infringe-
Première Instance de Tournai by judgment of that court                            ment of Article 39(11)(b) of Regulation (EEC)
of 31 March 1999 in the case of Floridienne S.A. and                              No 822/87(2) (as amended by Regulation (EEC)
           Berginvest S.A. against the Belgian State                              1972/87) (3) through failure to ascertain the existence of
                                                                                  the statutory prerequisite under that same legislation,
                                                                                  namely a significant difference between the quantities
                           (Case C-142/99)                                        available/normal consumption ratio for 1993/94 and the
                                                                                  same ratio for the reference years 1981/82, 1982/83 and
                                                                                  1983/84;
                           (1999/C 204/47)
Reference has been made to the Court of Justice of the                        — whether the Commission’s decision to allocate the quantity
European Communities by judgment of the Tribunal de                               for compulsory distillation between the various production
Première Instance, Tournai (Court of First Instance, Tournai)                     regions for the year 1993/94 (pursuant to Regulation (EC)
of 31 March 1999, received at the Court Registry on 21 April                      No 343/94) was valid, given that it appears to be defective
1999, for a preliminary ruling in the case of Floridienne S.A.                    for infringement of Article 190 (or for an ‘inadequate
and Berginvest S.A. v Belgian State on the following question:                    statement of reasons’) of the EC Treaty in that neither
                                                                                  Regulation No 343/94 nor the measures and documents
                                                                                  underlying refer to any assessment as to the existence of
                                                                                  the statutory precondition that the ratio between quantities
‘Must share dividends and interest on loans always be excluded                    available and normal consumption for the year 1993/94
from the denominator of the fraction (1) used to calculate the                    should differ significantly from that for the reference years
deductible proportion, even where the company receiving such                      1981/82, 1982/83 and 1983/84;
dividends and interest has involved itself in the management of
the undertakings paying or allocating them, save in the exercise
of its rights as shareholder?’
                                                                              — whether Regulation (EC) No 343/94, requiring Italy to
                                                                                  distil 12 150 000 hl, is invalid for infringement of the
                                                                                  principle of reasonableness, manifest error and inconsist-
                                                                                  ency in relation to the object pursued, in the light of the
(1) The fraction referred to in Article 19 of the Sixth Council Directive         system of calculation used by the Commission ... on
    77/388/EEC of 17 May 1977 on the harmonisation of the laws                    account of the unreasonableness and illogicality of the
    of the Member States relating to turnover taxes — Common
    system of value tax : uniform basis of assessment (OJ 1977 L 145,             updating of the percentage of 85 (4), comparing parameters
    p. 1).                                                                        that were entirely divorced from the reality of the wine
                                                                                  market in 1993/94. Moreover, for the reasons and in the
                                                                                  light of the calculations given above, the same rules also
                                                                                  appear to be invalid as being discriminatory against Italy
                                                                                  and thus in breach of the prohibition on discrimination in
                                                                                  Article 40 of the EC Treaty;