CELEX: C2001/331/20
Language: en
Date: 2001-11-24 00:00:00
Title: Case C-367/01: Action brought on 24 September 2001 by the Commission of the European Communities against the Hellenic Republic

C 331/12              EN                      Official Journal of the European Communities                                       24.11.2001
Reference for a preliminary ruling by the Gerechtshof te                 Action brought on 24 September 2001 by the Com-
’s-Hertogenbosch by order of 5 September 2001 in the                        mission of the European Communities against Ireland
case of H. Barbier against the decision of the head of the
section ‘non-resident individuals/undertakings’, Heerlen,                                            (Case C-366/01)
                of the national revenue service
                                                                                                     (2001/C 331/19)
                         (Case C-364/01)
                                                                         An action against Ireland was brought before the Court of
                                                                         Justice of the European Communities on 24 September 2001
                                                                         by the Commission of the European Communities, represented
                        (2001/C 331/18)                                  by Marie Wolfcarius, acting as agent, with an address for
                                                                         service in Luxembourg.
                                                                         The Applicant claims that the Court should:
                                                                         (1) declare that by failing to adopt the laws, regulations
                                                                                or administrative provisions necessary to comply with
Reference has been made to the Court of Justice of European                     Commission Directive 1999/48/EC(1) of 21 May 1999
Communities by order of 5 September 2001 by the Gerechts-                       adapting for the second time to technical progress
hof (District Court) ’s-Hertogenbosch which was received at                     Council Directive 96/49/EC on the approximation of the
the Court Registry on 24 September 2001, for a preliminary                      laws of the Member States with regard to the transport of
ruling in the case of H. Barbier against the decision of the head               dangerous goods by rail, or in any event by failing to
of the section ‘non-resident individuals/undertakings’, Heerlen,                inform the Commission of those measures, Ireland has
of the national revenue service on the following questions:                     failed to fulfil its obligations under this Directive,
                                                                         (2) order Ireland to pay the costs.
1.   Is cross-border economic activity at present a precon-
     dition of the application of Community law?
                                                                         Pleas in law and main arguments
2.   When a Member State imposes, on inheritance of immov-               Article 249 EC, under which a directive shall be binding, as to
     able property situated in that Member State, a charge to            the result to be achieved, upon each Member State, carries by
     tax on the value of that property, does Community law               implication an obligation on the Member States to observe the
     preclude it from allowing deduction of the value of the             period for compliance laid down in the Directive. That period
     liability to transfer the legal title to that property where        expired on 1 July 1999 without Ireland having enacted the
     the testator at the time of death was resident in that              provisions necessary to comply with the Directive referred to
     Member State but not where at the time of death he was              in the conclusions of the Commission.
     resident in another Member State?
                                                                         (1) OJ L 169, 5.7.1999, p. 58.
3.   Does it make any difference to the reply to be given to
     Question 2, whether at the time of acquisition of the
     immovable property the testator no longer resided in the
     Member State in which the property is situated?
                                                                         Action brought on 24 September 2001 by the Com-
                                                                         mission of the European Communities against the Hellen-
4.   Is the distribution of the testator’s capital as between the                                       ic Republic
     State in which the property is situated, the State of
     residence and any other States relevant to Question 2?
                                                                                                     (Case C-367/01)
                                                                                                     (2001/C 331/20)
5.   If so, in which State is a capital investment which is
     constituted by a claim under current-accounting arrange-
     ments on a limited company such as that described in
     paragraph 2.4 invested?                                             An action against the Hellenic Republic was brought before
                                                                         the Court of Justice of the European Communities on 24 Sep-
                                                                         tember 2001 by the Commission of the European Communi-
                                                                         ties, represented by Antonio Caeiros, legal Adviser, and Panos
                                                                         Panagiotopoulos, a national civil servant on secondment to its
                                                                         Legal Service.
 ---pagebreak--- 24.11.2001             EN                     Official Journal of the European Communities                                        C 331/13
The Commission claims that the Court should:                             Communities on 25 September 2001 by the Kingdom of the
                                                                         Netherlands, represented by H.G. Sevenster and S. Terstal,
—     declare that, by failing to adopt and to notify to the             acting as Agents.
      Commission, within the time limit laid down, the laws,
      regulations and administrative provisions necessary to
      comply fully with Directive 1999/5/EC (1) of the European          The applicant claims that the Court should:
      Parliament and of the Council of 9 March 1999 on radio
      equipment and telecommunications terminal equipment
      and the mutual recognition of their conformity, the                1.    Annul Commission Decision SG (2001) D/289751 of
      Hellenic Republic has failed to fulfil its obligations under             11 July 2001 relating to Aid Measure No C 56/2001 on
      the EC Treaty,                                                           the granting of State aid in the area of maritime transport
                                                                               to the activities of Netherlands tug boats in internal waters
—     order the Hellenic Republic to pay the costs.                            and seaports within the EU (by which the Commission
                                                                               informs the Netherlands of its decision to initiate the
                                                                               procedure set out in Article 88(2) EC);
Pleas in law and main arguments                                          2.    Order the Commission to pay the costs.
In accordance with the third paragraph of Article 249 of the
Treaty establishing the European Community, directives are
binding, as to the result to be achieved, upon each Member               Pleas in law and main arguments
State to which they are addressed.
                                                                         —     Decision contrary to Article 88 EC and Regulation (EC)
Under the first paragraph of Article 10 of the Treaty, Member                  No 659/1999: the Commission does not have the power
States are to take all appropriate measures, whether general or                to classify, as a new aid measure, a measure that has
particular, to ensure fulfilment of the obligations arising out                already been approved. If the Commission, in the exercise
of the Treaty or resulting from action taken by the institutions               of its duties relating to the continuous monitoring of
of the Community.                                                              existing aid measures, were able, whether of its own
                                                                               motion or by reason of a complaint, to classify such an
                                                                               aid measure immediately and with retroactive effect as a
It is not disputed by the Hellenic Republic that it must adopt                 new aid measure, that would be contrary to the system
measures to comply with the abovementioned Directive.                          laid down in Article 88 EC and Regulation (EC)
                                                                               No 659/1999.
The Commission records that until now the Hellenic Republic                    The Commission has in no way decided that the appli-
has not adopted the appropriate measures for the full incorpor-                cation of ‘tax incentives’ and ‘taxation according to
ation of the Directive at issue into Greek law.                                tonnage’ to the activities of tug boats in ports and internal
                                                                               waters within the European Union is not covered by its
                                                                               decision approving the aid measure, with the result that
(1) OJ L 91, 7.4.1999, p. 10.                                                  the Commission cannot now decide to consider such
                                                                               application as constituting a new aid measure. The
                                                                               Commission’s reasoning that there is now a case of new
                                                                               aid, on the ground that the Netherlands Government
                                                                               formally agreed to the Commission proposal to adopt
                                                                               appropriate measures, within the period specified for that
                                                                               purpose, which expired on 5 January 1999, in order to
                                                                               bring the existing aid measures into line with the
                                                                               Guidelines, which might suggest that the Netherlands aid
Action brought on 25 September 2001 by the Kingdom of                          measures, as approved, had been brought into line with
the Netherlands against the Commission of the European                         the Guidelines and were compatible with them, is without
                           Communities                                         basis in Article 88 EC or Regulation (EC) No 659/1999.
                         (Case C-368/01)                                       The Commission’s reasoning in this regard is also entirely
                                                                               illogical. Assuming that the Netherlands Government had
                                                                               intended to notify the Commission that the Netherlands
                         (2001/C 331/21)                                       aid measures in question had been brought into line with
                                                                               the Guidelines and were thus in accordance with the
                                                                               conditions laid down therein, that must naturally also
                                                                               have been done on the basis of the Netherlands Govern-
An action against the Commission of the European Communi-                      ment’s knowledge of the interpretation of the Guidelines
ties was brought before the Court of Justice of the European                   at that time.