CELEX: C2002/247/12
Language: en
Date: 2002-10-12 00:00:00
Title: Case C-299/02: Action brought on 23 August 2002 by the Commission of the European Communities against the Kingdom of the Netherlands

12.10.2002             EN                     Official Journal of the European Communities                                               C 247/7
(b)   Selection criteria for mill samples for inspection                 So far as concerns the selection criteria for identifying ‘non-
                                                                         compliant’ producers to be inspected on the spot, the applicant
                                                                         states that such criteria, agreed with the competent authority
                                                                         of the Italian State, are based essentially on examination of the
                                                                         agronomic characteristics of the olive groves arising from the
                                                                         register of olive cultivation available in Italy, which thus fulfils
So far as concerns selection criteria for mill samples for               the purpose for which such a register was provided for by
inspection, the applicant points out that the various parameters         Community legislation.
are laid down in the work schedules submitted beforehand for
approval by the Member State and the European Commission.
In particular, the Commission was in a position to know of               (1 ) Commission Decision 2002/523/EC of 28 June 2002 excluding
                                                                              from Community financing certain expenditure incurred by the
those criteria and it is unacceptable that its services should                Member States under the Guarantee Section of the European
argue, in support of the claim that those criteria were not                   Agricultural Guidance and Guarantee Fund (EAGGF), OJ 2002
transparent, that ‘even where the Commission’s services receive               L 170, p. 73.
and approve the schedules submitted by the inspection bodies,            (2 ) Commission Regulation (EEC) No 3597/90 of 12 December 1990
that does not mean that they cannot criticise the management                  on the accounting rules for intervention measures involving the
system following an in-depth analysis on the spot’, inasmuch                  buying-in, storage and sale of agricultural products by intervention
as it is no more than a formal interpretation of the Com-                     agencies, OJ 1990 L 350, p. 43.
mission’s own powers and a breach of the obligation to                   (3 ) Commission Regulation (EEC) No 27/85 of 4 January 1985 laying
implement the aid provided for by under Community law. The                    down detailed rules for the application of Regulation (EEC)
great importance attributed by the Commission to the allegedly                No 2262/84 laying down special measures in respect of olive oil,
                                                                              OJ 1985 L 4, p. 5.
inadequate analysis carried out by the Italian authorities of
‘non-compliant’ producers in order to identify those mills most
‘at risk’ which ought to be inspected is inconsistent with
institutional procedure as laid down, moreover, in Community
regulations (Regulation (EEC) No 27/85) ( 3), which enable the
Member States and the European Community to guide the
work of the inspection bodies by means of the approval or                Action brought on 23 August 2002 by the Commission
modification of the draft schedules in each financial year.              of the European Communities against the Kingdom of the
                                                                                                      Netherlands
                                                                                                    (Case C-299/02)
                                                                                                    (2002/C 247/12)
(c)   Inspection of producers                                            An action against the Kingdom of the Netherlands was brought
                                                                         before the Court of Justice of the European Communities
                                                                         on 23 August 2002 by the Commission of the European
                                                                         Communities, represented by K.H.I. Simonsson and
                                                                         H.M.H. Speyaert, acting as Agents.
The Commission complains that very few inspections were                  The applicant claims that the Court should:
carried out at the premises of ‘non-compliant’ producers and
that such inspections were carried out excessively late and that         (1) declare that, by enacting and maintaining in force
the most ‘at risk’ cases were not checked. The number of                        Article 311 of the Wetboek van Koophandel (Commercial
inspections carried out in each financial year at the premises                  Code) and Article 8:169 of the Burgerlijk Wetboek (Civil
of various producers is set out in the draft work schedule                      Code), imposing requirements with regard to:
drawn up by the agency and approved by the Italian State and
by the European Commission. As regards the number of                            —    the nationality of the shareholders and directors of
inspections carried out, the agency did not fail to fulfil the                       any company owning a sea-going vessel which they
obligations accepted and approved by the national authorities                        wish to have entered in the Netherlands register; and
and the Commission’s inspectors. So far as concerns the
alleged delay in carrying out inspections of ‘non-compliant’                    —    the nationality and place of residence of the directors
producers, the applicant states that such inspections of olive                       of companies owning sea-going vessels entered in
producers and of surplus production cannot be carried out                            the Netherlands register and of the natural persons
until requests for aid are submitted by the producers them-                          responsible for the day-to-day management of the
selves and after publication in the Official Journal of yields in                    establishment from which, in the Netherlands, the
similar areas. That means that, at the earliest, there can be an                     shipping business necessary for entry of a sea-going
inspection in November or December of the financial year                             vessel in the Netherlands register is conducted,
following that in which aid to be checked is requested, that is
to say when there is already another olive crop and harvest                     the Kingdom of the Netherlands has failed to fulfil its
following the one which has given rise to the aid request.                      obligations under Articles 43 and 48 EC;
 ---pagebreak--- C 247/8                EN                   Official Journal of the European Communities                                   12.10.2002
(2) order the Netherlands Government to pay the costs.                 Action brought on 26 August 2002 by the Hellenic
                                                                       Republic against the Commission of the European Com-
                                                                                                     munities
Pleas in law and main arguments                                                                 (Case C-300/02)
                                                                                                (2002/C 247/13)
(As to the conditions concerning the status as Community
nationals of the shareholders and directors of companies,
pursuant to Article 311(3) of the Wetboek van Koophandel)
                                                                       An action against the Commission of the European Communi-
It follows from the wording of Article 48 EC that a company’s
                                                                       ties was brought before the Court of Justice of the European
connection with the Community may not be based on the
nationality of the persons owning or managing it, but rather           Communities on 26 August 2002 by the Hellenic Republic,
                                                                       represented by Ioannis Khalkias and Georgios Kanellopoulos.
on the following circumstances:
(1) incorporation of the company in accordance with the
       laws of a Member State; and                                     The applicant claims that the Court should:
(2) maintenance by the company of its registered office,               —     annul Decision C(2002) 2281 final of 26 June 2002 (1)
       central administration or principal place of business                 excluding from Community financing certain expenditure
       within the Community.                                                 incurred by the Member States under the Guarantee
                                                                             Section of the EAGGF, in so far as it relates to financial
                                                                             corrections to the detriment of the Hellenic Republic in
A condition requiring possession of the status of a Community                the arable crops sector;
national cannot constitute an appropriate means by which a
Member State may exercise control, as required by Article 91
of the UN Convention on the Law of the Sea, over sea-going             —     allow the present application and annul or, in the
vessels which fly its flag. The Commission is unable to see                  alternative, amend the contested Commission decision
what advantage the authority of a Member State having                        with regard to its particular chapters concerning financial
responsibility for the shipping register may derive from the                 corrections to the detriment of the Hellenic Republic.
Greek, Finnish or French nationality of the actual managers of
a shipping company which would be denied to it if those
managers were Japanese or American nationals. The argument
that, in order for the State whose flag a vessel flies to be able
to exercise actual control over that vessel, the shareholders
must be Community nationals, is equally disputable.                    Pleas in law and main arguments
                                                                       —     Incorrect legislative interpretation;
(As to the condition concerning the status as Community
                                                                       —     incorrect interpretation and application of Article 5(2)(c)
nationals of the persons responsible for the day-to-day man-
                                                                             of Regulation (EEC) No 729/70;
agement and of the directors of a shipping company, pursuant
to Article 311(1)(c) of the Wetboek van Koophandel and
Article 8:169 of the Burgerlijk Wetboek)                               —     incorrect assessment of the facts;
The Commission refers to its submissions concerning its first          —     defective statement of reasons;
plea in law. It maintains that it can find no justification for a
measure whereby a company may have a sea-going vessel
registered in the Netherlands where the day-to-day manage-             —     breach of the principle of proportionality.
ment of the company is entrusted to a Community national,
regardless of the latter’s place of residence, but prohibiting
registration where such day-to-day management is entrusted
                                                                       (1 ) OJ No L 170, 29.6.2002, p. 77.
to a national of a third country who resides in the Netherlands.