CELEX: C1999/366/28
Language: en
Date: 1999-12-18 00:00:00
Title: Case C-374/99: Action brought on 7 October 1999 by the Kingdom of Spain against the Commission of the European Communities

18.12.1999             EN                    Official Journal of the European Communities                                         C 366/17
On a proper construction of Article 1 thereof, is Council                        lation; is it relevant whether in this operation there is
Regulation (EC) No 3295/94 of 22 December 1994 laying                            an intention to bring the goods — inter alia through
down measures to prohibit the release for free circulation,                      completion of the operation — into circulation within
export, re-export or entry for a suspensive procedure of                         the Community contrary to the Community pro-
counterfeit and pirated goods (Official Journal of the European                  visions; or
Communities L 341 of 30 December 1994) also applicable to
situations in which goods of the type specified therein are, in             (c) should the words ‘cease to be covered’ be construed as
the course of transit between two countries not belonging to                     referring to the totality of the operations which result
the European Community, temporarily detained by the cus-                         in the goods being brought into circulation within the
toms authorities in a Member State on the basis of that                          Community otherwise than in a regular manner?
regulation, at the request of a holder of rights who claims that
his rights have been infringed and whose undertaking has                2. If the answer to the first question is in accordance with
its registered office in a Member State of the European                     heading (c), where does this cessation occur: does it occur
Community?                                                                  in the place where the first irregular operation is carried
                                                                            out, or in the place where a subsequent operation is carried
                                                                            out, in particular the place where the goods — in the
                                                                            present case following breaking of the seals — are unloaded
                                                                            from the means of transport?
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that court of 23 June 1999
in the case of Liberexim B.V. v Inspecteur Belasting-                   Action brought on 7 October 1999 by the Kingdom of
                dienst/Douane District Arnhem                           Spain against the Commission of the European Communi-
                                                                                                         ties
                         (Case C-371/99)
                                                                                                   (Case C-374/99)
                         (1999/C 366/27)                                                           (1999/C 366/28)
Reference has been made to the Court of Justice of the                  An action against the Commission of the European Communi-
European Communities by judgment of the Hoge Raad der                   ties was brought before the Court of Justice on 7 October
Nederlanden (Supreme Court of the Netherlands) of 23 June               1999 by the Kingdom of Spain, represented by Mónica
1999, received at the Court Registry on 4 October 1999, for a           López-Monı́s Gallego, Abogado del Estado, with an address for
preliminary ruling in the case of Liberexim B.V. v Inspecteur           service in Luxembourg at the Spanish Embassy, 4-6 Boulevard
Belastingdienst/Douane District Arnhem (Tax Inspector-                  E. Servais.
ate/Arnhem Customs District) on the following questions:
                                                                        The applicant claims that the Court of Justice should:
1. What is to be understood by the words ‘cease to be
    covered’ (‘onttrekken’) by the external transit arrangements        — Annul the Commission’s decision of 28 July 1999
    within the meaning of Article 7(3) of the Sixth Directive, if           amending Decision 99/187/EC (1) as regards the financial
    such cessation does not occur in a regular manner — that                adjustments imposed on the Kingdom of Spain and
    is to say, otherwise than by the goods being declared for               contested in the application, and
    free circulation:
                                                                        — order the defendant institution to pay the costs.
    (a) is this the first operation which, in relation to the
         goods, is carried out contrary to any provision connec-        Pleas in law and main arguments
         ted with those arrangements, and is it relevant whether
         in this operation there is an intention to bring the
         goods — inter alia through completion of the oper-             The Kingdom of Spain challenges the contested decision as
         ation — into circulation within the Community con-             regards the financial adjustments imposed in the following
         trary to that provision; or                                    sectors:
    (b) does such cessation occur (only) once the goods — in
         the present case following breaking of the seals —             1. A i d f o r t h e c o n s u m p t i o n o f o l i v e o i l
         have been unloaded from the means of transport
         without compliance with the obligation to produce the          PTE 6 206 113 141 corresponding to an adjustment of 10 %
         goods with documentation at the office of destination          of the expenditure incurred by Spain for the 1994 and 1995
         in accordance with Article 22(1) of the transit regu-          financial years.
 ---pagebreak--- C 366/18              EN                      Official Journal of the European Communities                                   18.12.1999
Such a large adjustment, amounting to 10 % of the entire                 — the principle of sound administration;
expenditure declared by Spain, contained in the contested
decision is not in any way justified pursuant to the general             — in the alternative, breach of the principle of pro-
Community law principle of proportionality. The system for                    portionality.
monitoring aid for the consumption of olive oil is an altogether
reliable system and the basic checks demanded by Community
legislation have been properly carried out. In particular, as            (1) OJ L 61 of 10.3.1999, p. 37.
recognised by the Conciliation Body itself, the importance of
the risk of any losses for the EAGGF may be non-existent. In
any event, in the contested decision the Commission goes
counter to its own measures in taking into consideration the
application of sanctions and the proper supervision of the
procedures (although Spain considers itself to have acted
correctly without infringing Community law) in its communi-
cation on guidelines for the calculation of the budgetary
implications in preparing the Decision on the clearance of the           Action brought on 7 October 1999 by the Kingdom of
accounts of the EAGGF, Guarantee Section, on the basis of                Spain against the Commission of the European Communi-
auxiliary and not basic cheeks. That should, of itself, lead in                                           ties
any event to a much smaller adjustment than that imposed in
the decision.
                                                                                                 (Case C-375/99)
                                                                                                 (1999/C 366/29)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice on 7 October
2. P r e m i u m s f o r s h e e p o r g o a t s                         1999 by the Kingdom of Spain, represented by Mónica
                                                                         López-Monı́s Gallego, Abogado del Estado, with an address for
                                                                         service in Luxembourg at the Spanish Embassy, 4-6 Boulevard
                                                                         E. Servais.
A total of PTE 159 802 819 corresponding to an adjustment
of 5 % of the payments made in the provinces of Palencia,                The applicant claims that the Court of Justice should:
Salamanca, Orense and Castellón and of 2 % of the payments
made in the province of Lugo in the financial years 1994 and             — Annul the Commission’s decision of 28 July 1999, exclud-
1995 for the marketing year 1993. The higher amounts                          ing from Community financing certain expenditure by the
considered by the Commission also include payments made in                    Member States in respect of the financial adjustments
1993, a financial year which had already been cleared by                      imposed on the Kingdom of Spain and contested in the
Decision 97/33/EC of 23 April 1997 and Decision 97/608/EC                     application;
of 30 July 1997 in which distinct penalties were imposed for
various reasons, no sum being separated for subsequent                   — order the defendant institution to pay the costs.
clearance.
                                                                         Pleas in law and main arguments
In general, breach of the following principles of Community
                                                                         The Kingdom of Spain expresses its disagreement with the
law:
                                                                         flat-rate adjustment amounting to 5 % of the expenditure
                                                                         declared and with the way in which the Commission’s staff
                                                                         acted, for the following reasons:
— principle of the right to a hearing: this principle has
     been breached in all the adjustments contested in the               (A) Since the financial adjustment was not calculated in the
     application. It was formally observed, but the Com-                      formal notification on the ground that it was subject to
     mission’s replies are in practice confined to repetition of              the sending of further information, it was not possible to
     the same points, without contradiction or rebuttal of the                know whether the conditions laid down in Commission
     arguments put forward;                                                   Decision 94/442/EC (1) in order to seek the intervention of
                                                                              the Conciliation Body had been satisfied.
                                                                         (B) The formal notification document states that, because of
— lack of evidence of the wrongful conduct attributed to the                  the laxity of the implementing legislation in the Member
     Member State: the Commission based the adjustments                       State, it was proposed in the clearance of the accounts for
     either on circumstantial factors or suspicions, or on data               the financial years 1996 and 1997 to impose a financial
     rebutted or corrected by the Spanish authorities;                        adjustment of 5 % of the expenditure declared by Spain