CELEX: C2003/146/56
Language: en
Date: 2003-06-21 00:00:00
Title: Case C-183/03: Action brought on 28 April 2003 by the Federal Republic of Germany against the Commission of the European Communities

C 146/34                EN                     Official Journal of the European Union                                         21.6.2003
The PIC Convention establishes the principle that import and           —     order the defendant to pay the costs.
export of a chemical covered by it can only take place with the
prior informed consent of the importing Party. The PIC
Convention establishes a procedure as a means to formally
obtain and disseminate the decisions of importing Parties and          Pleas in law and main arguments
to ensure compliance with these decisions by the exporting
Parties, called the ‘PIC procedure’.
                                                                       The action is directed against the contested decision in so far
                                                                       as it excludes from Community financing expenditure of
                                                                       EUR 26 446 505,00 incurred by the Federal Republic of
The Commission considers that the PIC Regulation falls within          Germany in respect of the arable crops sector in Brandenburg
the scope of the Community’s common commercial policy.                 for crop years 1999 and 2000 and imputes it to the Federal
The Regulation should therefore, as proposed by the Com-               Republic of Germany. That amount represents a flat-rate
mission, have been adopted as a Council Regulation based on            correction of 5 % of the expenditure notified for the Land of
Article 133 EC and not as a European Parliament and Council            Brandenburg for crop years 1999 and 2000 in the arable crops
Regulation based on Article 175(1) EC, which concerns                  sector.
measures adopted in the field of the Community’s environmen-
tal policy. The Commission maintains that the choice by the
European Parliament and the Council of the legal basis for the         In the opinion of the Federal Republic of Germany, the
adoption of the PIC Regulation is erroneous and the act in             decision was adopted in breach of procedural rules and general
question is therefore illegal and should be annulled.                  principles of Community law. The Commission’s inspection
                                                                       findings and conclusions, which formed the basis of the
                                                                       decision, were incorrect in a number of material factual
( 1) OJ L 63, 6.3.2003, p. 1.                                          respects and, moreover, were based on a misinterpretation of
                                                                       law. A flat-rate imputation of 5 % is therefore completely
                                                                       illegal. That follows from the following seven pleas in law:
                                                                       —     Procedural errors. The complaints subsequently made by
                                                                             the Commission:
                                                                             —     ‘no reliable or current data on the parcels in the
                                                                                   Allgemeines Liegenschaftsbuch (General Register of
                                                                                   Real Property) (ALB)’ (Under Paragraph 12 of the
Action brought on 28 April 2003 by the Federal Republic                            Gesetz über die Landesvermessung und das Liegen-
of Germany against the Commission of the European                                  schaftskataster in Brandenburg (Law on Topo-
                            Communities                                            graphic Survey and the Land Register in Branden-
                                                                                   burg — VermLiegG), the ALB constitutes, together
                                                                                   with the real property map and real property data,
                          (Case C-183/03)                                          the cadastre of the Land of Brandenburg. It is held
                                                                                   on computer),
                          (2003/C 146/56)                                    —     ‘double applications not detectable’,
                                                                             —     ‘there is hardly any or no connection between the
                                                                                   parcels entered in the land register and those in
An action against the Commission of the European Communi-                          agricultural use’ and
ties was brought before the Court of Justice of the European
Communities on 28 April 2003 by the Federal Republic of                      —     ‘it was not always possible to check and measure the
Germany, represented by Wolf-Dieter Plessing, Ministerialrat,                      specified agricultural parcels on the basis of, for
Moritz Lumma, Regierungsdirektor, and Annette Tiemann,                             example, maps or aerial photographs, since the
Regierungsrätin z. A., Federal Ministry of Finance, Graurhein-                     holdings do not enclose with their applications
dorfer Straße 108, D-53117 Bonn.                                                   any maps or sketches of the specified agricultural
                                                                                   parcels’,
                                                                             were not communicated to the German authorities in due
The applicant claims that the Court should:                                  time. Breach of the procedure for the clearance of the
                                                                             accounts (Article 7(4) of Regulation (EC) No 1258/
—     annul Commission Decision 2003/102/EC of 14 February                   1999 ( 1) and Article 8(1) of Regulation (EC) No 1663/
      2003 — C(2003) 500 final — excluding from Com-                         95 ( 2) and breaches of the principles of the right to a fair
      munity financing certain expenditure incurred by the                   hearing and proper administration are therefore alleged.
      Member States under the Guarantee Section of the
      European Agricultural Guidance and Guarantee Fund                —     Reliability of the land identification system. In its second
      (EAGGF) in so far as an amount of EUR 26 446 500,00                    plea in law, the Federal Government defends itself against
      is excluded from Community financing and imputed to                    the doubts expressed by the Commission concerning the
      the Federal Republic of Germany and                                    reliability of the identification system.
 ---pagebreak--- 21.6.2003                EN                         Official Journal of the European Union                                        C 146/35
—       Reliability of the on-the-spot checks, in particular                Reference for a preliminary ruling by the Tribunale di
        adequate measurement of agricultural land. In its third             Tolmezzo by order of that Court of 16 April 2003 in the
        plea in law, Germany rebuts the Commission’s complaint              case of Azienda Agricola Schnabl Rosa against A.G.E.A.
        that Brandenburg did not adequately measure land in the                                   and COSPALAT F.V.G.
        course of on-the-spot checks, which constitutes a breach
        of Article 6(5) of Regulation (EEC) No 3887/92 ( 3). That                                     (Case C-185/03)
        complaint is based, it submits, on factually and legally
        incorrect premisses.                                                                          (2003/C 146/57)
—       Adequate expansion of the sample coverage of on-the-
        spot checks. In its fourth plea in law, Germany deals with          Reference has been made to the Court of Justice of the
        the complaint that Brandenburg did not adequately                   European Communities by order of the Tribunale di Tolmezzo
        expand the required sample coverage of the on-the-spot              (Tolmezzo District Court) of 16 April 2003, received at the
        checks within the holdings visited.                                 Court Registry on 5 May 2003, for a preliminary ruling in the
                                                                            case of Azienda Agricola Schnabl Rosa against A.G.E.A. and
                                                                            COSPALAT F.V.G. on the following question:
—       The representative yields for non-food crops on set-aside
        land were assessed at a sufficiently high level. In its fifth       Must Article 1 of Regulation (EEC) No 856/84 (1) of 31 March
        plea in law, Germany demonstrates that the Commission’s
                                                                            1984 and Articles 1 to 4 of Regulation No 3950/92 ( 2) of
        complaint — that the representative yields of renewable             28 December 1992 be interpreted as meaning that the
        raw materials were assessed at too low a level — is                 additional levy on milk and milk products is in the nature of
        unjustified.
                                                                            an administrative penalty with the result that producers are
                                                                            liable to pay it only where quantities allocated have been
—       Lack of precision concerning the financial years to which           exceeded by them intentionally or as a result of negligence?
        expenditure is imputed. In its sixth plea in law, the level
        of expenditure imputed by the decision is contested. The            (1 ) OJ L 90 of 1.4.1984, p. 10.
        Commission’s decision is in part imprecise and is invalid           (2 ) OJ L 405 of 31.12.1992, p. 1.
        in so far as its operative part and the statements in the
        Annex concerning an amount of EUR 12 927 107 are
        inconsiystent. In the 1999 and 2000 financial years, the
        Land of Brandenburg incurred expenditure for crop years
        1999 and 2000 of EUR 270 387 968. Applying the flat
        rate of 5 % imposed by the Commission, which is                             Removal from the register of Case C-302/01 ( 1)
        being contested, that results in an imputed amount of
        EUR 13 519 398. However, an amount of
                                                                                                      (2003/C 146/58)
        EUR 262 446 505 was imputed. Consequently an
        amount of EUR 12 927 107 was wrongly imputed.
                                                                            By order of 6 February 2003 the President of the Court of
—       Incorrect risk assessment. Finally, in its seventh plea in          Justice of the European Communities ordered the removal
        law, it is argued that the declared flat-rate imputation of         from the register of Case C-302/01: Commission of the
        risk of 5 % is defective simply because no systematic               European Communities v Hellenic Republic.
        administrative or checking errors were the subject of
        complaint in Brandenburg in the relevant period. More-
                                                                            (1 ) OJ C 259 of 15.9.2001.
        over, the calculation of the alleged loss to the EAGGF was
        made using inappropriate methods and arrived at in
        breach of Article 10 EC.
( 1) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the                     Removal from the register of Case C-86/02 (1)
     financing of the common agricultural policy (OJ 1999 L 160,
     p. 103).                                                                                         (2003/C 146/59)
( 2) Commission Regulation (EC) No 1663/95 of 7 July 1995 laying
     down detailed rules for the application of Council Regulation
     (EEC) No 729/70 regarding the procedure for the clearance of the
     accounts of the EAGGF Guarantee Section (OJ 1995 L 158, p. 6).         By order of 7 March 2003 the President of the Court of Justice
( 3) Commission Regulation (EEC) No 3887/92 of 23 December                  of the European Communities ordered the removal from
     1992 laying down detailed rules for applying the integrated            the register of Case C-86/02: Commission of the European
     administration and control system for certain Community aid            Communities v Federal Republic of Germany.
     schemes (OJ 1992 L 391, p. 36).
                                                                            (1 ) OJ C 131 of 1.6.2002.