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C 258/20

EN

Official Journal of the European Communities

15.8.98

legally permissible, that is to say, adequate, not vitiated by any error of law or of fact and not contradictory; Ð infringement of the Staff Regulations of officials of the European Communities, in particular Articles 12, 13, 14 and 17, the first and second paragraphs of Article 21, Article 25, the second paragraph of Article 87 and the fifth paragraph of Article 88 thereof and Annex IX thereto, in particular Articles 1, 2 and 3, the second paragraph of Article 7 and Article 11 of that annex; Ð breach of the general principles applicable under Community law, in particular the principle of the rights of the defence, the audi alteram partem rule, the principle that the court seised of the proceedings must be impartial (and Article 6 of the Convention on Human Rights), the principles of legal certainty, good faith and the protection of legitimate expectations, the duty to have regard for the welfare and interests of officials and the principle that all administrative acts must be based on legally permissible grounds, that is to say, grounds which are pertinent and not vitiated by any error of law or of fact. The contested judgment applies a restrictive interpretation to the fifth paragraph of Article 88 of the Staff Regulations of officials; the object of that provision is to ensure that the administrative authority charged with investigating the matter and thereafter, as the case may be, with imposing a disciplinary measure is fully informed of the facts alleged against the official concerned which form the subject-matter of the criminal prosecution brought against him. The appellant also complains that the Court of First Instance based its contested judgment on incorrect considerations and reasons which were contrary to the items contained in the case-file. The Court of First Instance failed in the contested judgment to arrive at the proper factual or legal conclusions which it should have drawn from the information in the file before it. The contested judgment should also be annulled on the ground that it misapplies the audi alteram partem rule, the principle of equality of arms and the obligation to provide a statement of pertinent reasons. Thus it wrongly concludes that the principle of equality of arms was respected on the ground that the appellant had access to the documents which were available to the Disciplinary Board for the purposes of delivering its opinion, on which the appointing authority relied in adopting the contested decision'. The Court of First Instance also wrongly based on the same grounds its conclusion that the appellant was given the opportunity of acquainting himself with all the facts on which the decision was based, in sufficient time to enable him to submit his observations'.
(1) Judgment of 19 March 1998 in Case T-74/96 (OJ C 137 of 2.5.1998, p. 13).

Reference for a preliminary ruling by the Regeringsrätten by order of that court of 29 April 1998 in the case of X AB and Y AB against Riksskatteverket (Case C-200/98) (98/C 258/33)

Reference has been made to the Court of Justice of the European Communities by order of 29 April 1998, received at the Court Registry on 22 May 1998, for a preliminary ruling in the case of X AB and Y AB against Riksskatteverket on the following question:

Under Paragraph 2(3) of Law 1947:576 on State Income Tax, an intra-group transfer is treated, under certain conditions, as having fiscal effect if it is made by a Swedish limited liability company to another Swedish limited liability company which is wholly owned either by the first-named company directly or by that company together with a wholly-owned Swedish subsidiary or subsidiaries. The fiscal result is the same if one, or more, of the wholly-owned subsidiaries is foreign provided it is established, or they are established, in one and the same Member State and Sweden has concluded with that State a double-taxation agreement containing a nondiscrimination clause. Against that background, is it compatible with existing Community law, in particular Article 52 in combination with Article 58 and Article 73b and d of the Treaty of Rome, to apply a set of rules under which an intra-group transfer is not treated as having the same fiscal effect when the Swedish parent company instead owns the recipient company together with two or more wholly-owned foreign subsidiaries which are established in different Member States with which Sweden has concluded a double-taxation agreement containing a non-discrimination clause?

Action brought on 25 May 1998 by the Commission of the European Communities against the Kingdom of Belgium (Case C-201/98) (98/C 258/34)

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 25 May 1998 by the Commission of the European Communities, represented by Frank Benyon, Legal Adviser, and Bernard Mongin, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the Office of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.

15.8.98

EN

Official Journal of the European Communities

C 258/21

The Commission of the European Communities claims that the Court should: Ð declare that, by concluding and maintaining in force the agreements with Mali containing cargo-sharing arrangements, and by omitting either to adjust the agreements with Senegal and Côte d'Ivoire in such a way as to provide for fair, free and non-discriminatory access by Community nationals to cargo-shares due to Belgium or to denounce those agreements, Belgium has failed to fulfil its obligations under Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (1), in particular Articles 3 and 4(1) thereof in the case of Senegal and Côte d'Ivoire and Article 5 thereof in the case of Mali; Ð order the Kingdom of Belgium to pay the costs.

The Kingdom of Belgium is wrong in maintaining that the time-limits for adjusting the cargo-sharing arrangements in respect of trades governed by the United Nations Code of Conduct for Liner Conferences have not expired and that the date on which Belgium signed the Code of Conduct did not constitute the deadline for adjusting the arrangement. The Commission observes that, in any event, no adjustment has been made 11 years after the entry into force of the regulation and 5 years after expiry of the final deadline for adjustment laid down by that regulation.

The agreement concluded after the entry into force of Regulation No 4055/86 (between the Belgo-Luxembourg Economic Union and Mali)

Pleas in law and main arguments adduced in support: The existing agreements (between the Belgo-Luxembourg Economic Union and Senegal and between the BelgoLuxembourg Economic Union and Côte d'Ivoire The agreements with Senegal and Côte d'Ivoire entered into force on 3 September 1984 and 25 October 1979, that is to say, prior to the entry into force of Regulation No 4055/86. They are existing agreements which are subject to the provisions of Articles 3 and 4 of that regulation. Each of those agreements contains cargo-sharing arrangements reserving up to 40 % of trade for Belgian or Luxembourg shipping companies, to the exclusion of shipping companies established in other Member States of the Community. According to Article 3 of the regulation, those arrangements are to be phased out or adjusted in accordance with the provisions of Article 4. Belgium is unable to produce any act effectively adjusting or phasing out the arrangements in the agreements with Senegal, and has not referred to any notice published in the Moniteur Belge. It has not therefore shown that the cargo-sharing agreement has been terminated. As regards adjustment of the agreement concluded with Côte d'Ivoire, a draft additional protocol to the maritime agreement between the Belgo-Luxembourg Economic Union and the Republic of Côte d'Ivoire was communicated to the Commission on 7 April 1998 (SG(98)A/5766). Quite apart from the fact that it requires various alterations in order to bring it into line with Community law, that draft has not yet been signed and has not entered into force.

The prohibition of cargo-sharing arrangements in any further agreements' (Article 5 of the regulation) is designed to obviate the significant legal effects of such arrangements, which undermine the principle of freedom to provide services to maritime transport applied by Regulation No 4055/86. In order to guarantee the effectiveness of the prohibition, the Member States are obliged to refrain from including cargo-sharing arrangements in any new agreements negotiated with third countries.

The agreement concluded with Mali contains cargosharing arrangements which, in the case of future agreements, may be authorised only in those exceptional circumstances, provided for in Article 5(1) of Regulation No 4055/86, where Community liner shipping companies would not otherwise have an effective opportunity to ply for trade to and from the country concerned, and which may be permitted in accordance with Article 6 of the regulation, which provides for a proposal to be submitted by the Commission to the Council. Those criteria and procedures are not satisfied in the present case.

The agreement in question reserves carriage between the parties thereto for vessels which fly the flag of either of those parties or which are operated by national shipping companies'. It follows that vessels operated by nationals of other Member States are excluded from the trade. The agreement has therefore been contrary to the regulation since it entered into force. Consequently, the regulation has been infringed, albeit that Belgium purports to wish to terminate the agreement as regards the future. In any event, no adjustment has been carried out to date.
(1) OJ L 378 of 31.12.1986, p. 1.