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C 299/12 EN Official Journal of the European Communities 26.9.

98

placement of employees as not being contrary to payment of tolls by the user constitutes a supply of
criminal law, with the result that the relevant services which must be subjected to value added tax. The
penalising provisions of national law must be fact that that activity is carried out by public bodies does
disapplied. not mean that it does not fall within the scope of VAT,
since it constitutes an economic activity for the purposes
of Article 2 of the sixth VAT Directive and is carried out
(b) Whether Articles 86 and 90 are to be interpreted as by taxable persons within the meaning of Article 4 of that
meaning that a system like that deriving from the Directive, notwithstanding the fact that those persons are
legislative amendments made by Law No 96 of public bodies.
24 June 1997 and Legislative Decree No 469 of
23 December 1997 constitutes an abuse of a
dominant position.
As regards the question of own resources, the Commission
considers that, where the Sixth VAT Directive is infringed
( ) Case C-55/96 Job Centre [1997] ECR I-7119.
1
and consequently the base for the calculation of own
resources is reduced, it must claim the amount of own
resources which is owed by reason of that infringement.
Otherwise the remaining Member States suffer financial
loss and the principle of equality is infringed.

Action brought on 16 July 1998 by the Commission of the (1) OJ L 145, 13.6.1977, p. 1.
European Communities against the Hellenic Republic (2) OJ L 155, 7.6.1989, p. 1.
(3) OJ L 155, 7.6.1989, p. 9.
(Case C-260/98)
(98/C 299/21)

An action against the Hellenic Republic was brought
before the Court of Justice of the European Communities
on 16 July 1998 by the Commission of the European
Communities, represented by Dimitrios Goulousis, Legal Action brought on 21 July 1998 by the Kingdom of the
Adviser, and HeÂleÁne Michard, of its Legal Service, with an Netherlands against Commission of the European
address for service in Luxembourg at the office of Carlos Communities
Gómez de la Cruz, of its Legal Service, Wagner Centre, (Case C-278/98)
Kirchberg.
(98/C 299/22)

The Commission claims that the Court should:

An action against the Commission of the European
1. declare that, by failing, contrary to Articles 2 and 4 of Communities was brought before the Court of Justice of
the sixth Council Directive 77/388/EEC (1), to subject the European Communities on 21 July 1998 by the
to value added tax road tolls, which constitute Kingdom of the Netherlands, represented by Marc Fierstra
consideration paid by the users in return for the and Nynke Wijmenga, Assistant Legal Advisers at the
supply to them of a service consisting of the making Ministry of Foreign Affairs, the Hague.
available of motorways and other road infrastructure,
and, in addition, by avoiding in that way payment of
own resources and of the interest due (Council
Regulations (EEC, Euratom) No 1552/89 (2) and (EEC, The applicant claims that the Court should:
Euratom) No 1553/89 (3)), the Hellenic Republic has
failed to fulfil its obligations under the EC Treaty;
1. annul Commission Decision 98/358/EC (1) of 6 May
2. order the Hellenic Republic to make available to the 1998 on the clearance of accounts presented by the
Commission the own resources which have not been Member States in respect of the expenditure for 1994
paid since 1987, together with interest for late of the Guarantee Section of the European Agricultural
payment; Guidance and Guarantee Fund (notified under
document number C(1998) 1124) (1), in so far as a
sum of NLG 16 378 716,63 concerning expenditure
3. order the Hellenic Republic to pay the costs. on advance payments of export refunds is excluded
from Community financing (reference C(98) 1124
final);
Pleas in law and main arguments adduced in support:

According to the Commission, the grant of the right to use 2. order the Commission to pay the costs of the
a motorway or other road facility in return for the proceedings.
26.9.98 EN Official Journal of the European Communities C 299/13

Pleas in law and main arguments adduced in support: Ð Infringement of the principle of equal treatment:

by departing in the contested decision from the
Ð Infringement of Article 5(2)(c) of Council Regulation
Commission's guidelines (3) without stating the reasons
(EEC) No 729/70 of 21 April 1970 on the financing of
for such a departure, the Commission infringed the
the common agricultural policy (2):
principle of equal treatment even though these
guidelines are not, as such, binding,
The verifications for the 1992 and 1993 financial
years cannot lead to the corrections of the expenditure Ð Infringement of the requirement to state reasons.
in the 1994 financial year. As regards the verifications
in 1994, the Commission cannot, on the basis of the
(1) OJ L 163, 6.6.1998, p. 28.
small number of checks carried out by the (2) Official Journal, English Special Edition 1970 (I), p. 218.
Commission and the small number of irregularities (3) Communication to the EAGGF Committee, VI/216/93, of
thereby found, take the view that the Netherlands 3 June 1993, Calculation of the financial consequence when
control scheme as a whole displays material defects preparing decisions on the clearance of accounts in the context
which justify a flat-rate reduction of 10 % for the of the EAGGF Guarantee' section.
cereals sector and 5 % for the beef and veal sector,

Ð Infringement of Article 5(2)(c) of Regulation (EEC)
No 729/70, the principle of good faith cooperation
and the principle of audi alteram partem:
Appeal brought on 23 July 1998 by Cascades SA against
the judgment delivered on 14 May 1998 by the Third
Chamber (Extended Composition) of the Court of First
The Commission did not carry out a dialogue in good
Instance of the European Communities in Case T-308/94
faith with the Netherlands' authorities concerning the
between Cascades SA and the Commission of the
procedure leading up to the clearance of the accounts
European Communities
for 1994. In its report of 13 February 1997 the
mediation body states that the Commission objected (Case C-279/98 P)
to every adjustment to its position. The Commission's (98/C 299/23)
refusal seriously to have regard to the arguments
which were submitted by the Netherlands' authorities
in support of their position is also clear from the
An appeal against the judgment delivered on 14 May
official notification of 28 June 1996. The Commission
1998 by the Third Chamber of the Court of First Instance
confines itself to repeating the arguments which it had
of the European Communities in Case T-308/94 between
previously submitted. It refers briefly to the
Cascades SA and the Commission of the European
improvements which have taken place in the
Communities was brought before the Court of Justice of
Netherlands but does not in any way deal with the
the European Communities on 23 July 1998 by Cascades
arguments on which the Netherlands' authorities have
SA, represented by Jean-Yves Art, of the Brussels Bar, with
requested the Commission to submit a view. The
an address for service in Luxembourg at the Chambers of
Commission does not allege that the arguments are
Arendt & Medernach, 8Ð10 rue Mathias Hardt.
incorrect or irrelevant, let alone give reasons for such
a view, but merely ignores those arguments,
The appellant claims that the Court should:

Ð Errors in the summary report:
Ð set aside the judgment delivered by the Court of First
Instance on 14 May 1998 in Case T-308/94 Cascades
SA v. Commission (1),
the Netherlands control system was in accordance
with the Community rules then in force; there is no
reason to apply Commission Regulation (EC) No 2221/ Ð grant the form of order sought before the Court of
95 by anticipation, First Instance of the European Communities by
Cascades SA (2),

Ð Infringement of the principle of legal certainty:
Ð order the Commission to pay the whole of the costs,
both of the proceedings before the Court of First
contrary to the express undertaking that financial Instance and of those before the Court of Justice,
consequences would follow from defects in national
control systems only from 1 July 1994, the in the alternative:
Commission made considerable flat-rate corrections
over the 1994 financial year. Furthermore, when
making the flat-rate corrections, the Commission Ð if the Court takes the view that the state of the
failed to take mitigating circumstances into account, proceedings does not allow final judgment to be given,