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24.10.

98 EN Official Journal of the European Communities C 327/5

concerning the obligations inherent in the concept of a pending before that court between Ermanno Agostini and
public service in transport by rail, road and inland Emanuele Agostini and Ligue Francophone de Judo et
waterway (OJ, English Special Edition 1969 (I), p. 276), Disciplines AssocieÂes ASBL and Ligue Belge de Judo ASBL
as amended by Council Regulation (EEC) No 1893/91 of on the interpretation of Articles 6, 48 and 59 of the EC
20 June 1991 (OJ L 169, 29.6.1991, p. 1), in particular Treaty, of Regulation (EEC) No 1612/68 of the Council of
Article 1(3) in conjunction with Article 4 thereof Ð the 15 October 1968 on freedom of movement for workers
Court (Sixth Chamber), composed of: H. Ragnemalm, within the Community (OJ, English Special Edition
President of the Chamber, R. Schintgen, G. F. Mancini, 1968 (II), p. 475), and of Council Directive 73/148/EEC
P. J. G. Kapteyn (Rapporteur) and G. Hirsch, Judges; of 21 May 1973 on the abolition of restrictions on
P. LeÂger, Advocate General; H. von Holstein, Deputy movement and residence within the Community for
Registrar, for the Registrar, has given a judgment on nationals of Member States with regard to establishment
17 September 1998, in which it has ruled: and the provision of services (OJ L 172, 19.6.1973, p. 14)
Ð the Court, composed of: G. C. Rodríguez Iglesias,
President, C. Gulmann, H. Ragnemalm, M. Wathelet and
Regulation (EEC) No 1191/69 of the Council of 26 June R. Schintgen, Presidents of Chambers, G. F. Mancini
1969 on action by Member States concerning the (Rapporteur), J. C. Moitinho de Almeida, P. J. G.
obligations inherent in the concept of a public service in Kapteyn, J. L. Murray, D. A. O. Edward, J.-P. Puissochet,
transport by rail, road and inland waterway, as amended G. Hirsch, P. Jann, L. Sevón and K. M. Ioannou, Judges,
by Council Regulation (EEC) No 1893/91 of 20 June G. Cosmas, Advocate General, R. Grass, Registrar, made
1991, in particular Article 1(3) and Article 4 thereof, must an order on 8 July 1998, the operative part is as follows:
be construed as not obliging the Member States to grant
an application by a transport undertaking for partial
termination of its public service obligation, even if that
undertaking shows that maintaining the obligation The reference for a preliminary ruling made by the
involves economic disadvantages for it. However, the only Tribunal de PremieÁre Instance, Namur, by order of that
ground for refusing such an application is the need to court of 5 January 1998, is inadmissible.
ensure adequate transport services. That concept is to be
assessed, in accordance with Article 3 of Regulation
(1) OJ C 72, 7.3.1998.
(EEC) No 1191/69, by reference to the public interest, the
possibility of having recourse to other forms of transport
and the ability of such forms to meet the transport needs
under consideration, and the transport rates and
conditions which can be quoted to users. Where there
are several ways of ensuring, while satisfying similar
conditions, the provision of adequate transport services,
the competent authorities are to select the way least costly Action brought on 23 July 1998 by the Italian Republic
to the community. against the Commission of the European Communities
(Case C-295/98)
(1) OJ C 74, 8.3.1997.
(98/C 327/09)

An action against the Commission of the European


Communities was brought before the Court of Justice of
ORDER OF THE COURT the European Communities on 23 July 1998 by the Italian
of 8 July 1998 Republic, represented by Professor Umberto Leanza,
acting as Agent, assisted by Danilo Del Gaizo, Avvocato
in Case C-9/98: Ermanno Agostini and Emanuele Agostini dello Stato, with an address for service in Luxembourg at
v Ligue Francophone de Judo et Disciplines AssocieÂes the Italian Embassy, 5 Rue Marie-Adelaïde.
ASBL and Ligue Belge de Judo ASBL (1)
(Reference for a preliminary ruling Ð Inadmissibility)
The applicant claims that the Court should:
(98/C 327/08)

(Language of the case: French) Ð Annul Commission Decision 98/358/EC of 6 May


1998 (1) in so far as, in clearing the accounts presented
by the Italian Republic in respect of expenditure for
(Provisional translation; the definitive translation will be 1994, it declares that, for the reasons set out therein,
published in the European Court Reports) the amounts referred to are not chargeable to the
EAGGF;
In Case C-9/98: reference to the Court under Article 177
of the EC Treaty from the Tribunal de PremieÁre Instance,
Namur, for a preliminary ruling in the proceedings Ð Order the Commission to pay the costs.
C 327/6 EN Official Journal of the European Communities 24.10.98

Pleas in law and main arguments adduced in support: C. Cereals, rice, seeds and sugar

(1) Identifiable loss of durum wheat Ð natural


A. Export refunds Ð inquiry on prefinancing for beef disaster

The Commission adopted the adjustment in


The Italian Government submits that, given the question pending a specific decision and the
following factors, the fixed-rate adjustment ought to report on the disaster and the loss sustained' to be
have been based on the minimum rate (2 % instead transmitted to the EAGGF.
of 5 %):

The Italian Government considers the adjustment


(i) as the Conciliation Body recognised, there is no to be unlawful for infringement of both
firm evidence of serious risk for the EAGGF, in substantive law and essential procedural
view of the fact that comparatively few checks requirements. Pursuant to Articles 5(5), second
were carried out or irregularities found; sentence, and 8 of Council Regulation (EEC)
No 3492/90 (4), in conjunction with Article 2(3)(b)
of Commission Regulation (EEC) No 3597/90 (5),
the Commission should have adopted a specific
(ii) the cooking of the beef prior to the customs
decision in accordance with the procedure
inspection does not in itself suggest substantive
provided for in Article 13 of Council Regulation
irregularities in so far as it was monitored by a
(EEC) No 729/70 in order also to establish the
State body, namely the Istituto Nazionale per le
value of the quantities concerned.
Conserve Alimentari (INCA), on which that
responsibility was conferred by Ministerial Decree
of 5 July 1989.
(2) Quantity of durum wheat found to be missing
at the time of the sale and transfer of cereals
stored by an ente assuntore' (private intervention
B. Export refunds Ð inspections ex post facto under storage agency)
Council Regulation (EEC) No 4045/89 (2)

The AIMA was unable to establish and quantify


the missing quantities of durum wheat until
The Italian Government considers the 2 % fixed-rate December 1994, so it is only from that date that
adjustment applied by the Commission to be unlawful the EAGGF may lawfully deduct 80 948.394
because it was calculated on the basis of the full tonnes of durum wheat from the Community
amount of the expenditure incurred. That method of stocks. As that new month for deduction [i.e.
calculation is contrary to Article 8(2) of Council December 1994] falls within the following
Regulation No 729/70 (3) Ð on which the Commission financial year, none of the negative adjustments
based its exercise of the power to make adjustments required of the Italian authorities may be applied
Ð which provides that the financial consequences to the financial year 1994.
arising from irregularities or negligence are to be
borne by the Community, with the exception of the
consequences of irregularities or negligence
attributable to administrative authorities or other The Commission's decision to deduct the missing
bodies of the Member States. quantities from the February 1994 stocks is based
on mere supposition, whereas the finding of a
shortfall at the time of clearing the warehouses is
indisputable fact.

Clearly, therefore, the Commission should have


calculated the adjustment solely in respect of the
amount subject to review, because the infringements (3) Disposal of stocks without losses
allegedly committed by the Italian State related only to
that amount.
As regards the financial year 1994, on the other
hand, the failure to notify further losses stems
from the fact that these fall wholly within
For the same reasons, the method of calculation used the tolerance threshold provided for by the
is contrary to the principle of proportionality. Community legislation in force (2 %).
24.10.98 EN Official Journal of the European Communities C 327/7

Accordingly, it is quite unlawful and unjustified E. Wine Ð compulsory distillation


for the EAGGF to deduct from the Community
stocks the quantity of 4 963.651 tonnes of durum
wheat which is based on the estimated quantity' The Italian Government contests the new financial
of the product in the various warehouses on the adjustment as a matter of principle, on the ground
date when the CCIA undertook the verification. that there is no legal basis for regarding the Member
States as directly responsible for the result of
distillation, which is compulsory solely in respect of
Commission Regulation (EEC) No 618/90 (6), the products covered.
which is the basis for such verifications, provides
that the entire quantity of durum wheat
considered to be missing may be deducted from It also contests the rules for allocating the compulsory
the Community stocks only in cases where the quantities between the Member States and the table
tolerance set for the volumetric estimate (5 % indicating the wine percentages which each producer
more or less) is exceeded. must send for compulsory distillation.

The Italian Government also maintains that the


(4) Durum wheat as food aid for Algeria
EAGGF has not suffered any damage on account
of the failure to comply with the obligations entailed
by compulsory distillation because the volume of
There is nothing in the documents before the undistilled wine is so low and because the EAGGF did
AIMA and the EAGGF to suggest that quantities not assign any funds in respect of that quantity, either
of durum wheat have been set aside to be sent as for distillation or purchase of the alcohol, or for its
food aid to Algeria. Accordingly, the quantities of storage.
the product at issue are not of Community origin
(intervention) but of national origin and cannot
therefore be subject to financial adjustment. F. Meat and fish

(1) Stock accounting adjustments for bone-in beef in


D. Wine Ð permanent abandonment of wine-growing the statement of annual expenditure
areas
(2) Inaccurate declaration of expenses for the second
half of October 1994 (bone-in beef)
The analysis undertaken by the Commission discloses,
in particular, that certain areas in respect of which a
premium was granted were either over-estimated The deductions in this regard for 1994 spring from a
or under-estimated. The Community bodies have stock accounting verification made on 30 September
indicated that the discrepancy in the amounts paid Ð 1993, in which the Commission detected losses of
calculated by comparing the area for which a premium 1 204 tonnes of product.
was granted with the area eligible for a premium Ð
was 5 %. Subsequently, the Commission indicated that
that percentage had to be extended to cover all the The proposed reduction for 1993, referred to above,
premiums paid in Italy in the 1992/93 wine year in was designed to recoup the value of the product
view of the fact that the alleged infringements were so regarded as lost.
numerous and similar that they could be regarded as
representative of the true state of affairs in Italy.
AIMA's summary of the accounts from 1991 to 1995,
indicating the alleged losses in volume, shows that
those losses, albeit not precisely attributed to the
The Italian Government considers the adjustment to reference years, collectively cover the presumed loss of
be unlawful in respect of: 1 204 tonnes, and fall well short of the losses for
which the Community legislation makes allowance.

Ð the representativity of the sample;


G. Disjunction 1992 Ð illegal plantings of vines in
Apulia

Ð the method of calculating the percentage


discrepancy; The adjustment following two consecutive clearances
of the accounts in question for the 1992 and 1993
financial years is justified on the basis of a comparison
Ð the way in which the result was extended to of the 1989 and the 1992 figures for the winegrowing
cover the whole territory. areas.
C 327/8 EN Official Journal of the European Communities 24.10.98

According to the Commission, that comparison does preliminary ruling in the case of Schutzverband gegen
not explain the replanting of 2 446 hectares of vines. Unwesen in der Wirtschaft e.V. v Warsteiner Brauerei
Haus Cramer GmbH & Co. KG on the following
question:
The Italian authorities' failure to shed any light on
that point led the Commission to conclude that the Does Council Regulation (EEC) No 2081/92 of 14 July
area must be considered to have been unlawfully 1992 on the protection of geographical indications and
planted, giving rise without any financial aim to designations of origin for agricultural products and
expenditure for the grubbing-up of that same surface foodstuffs (1) preclude application of a national provision
area' and it set the adjustment at LIT 31 861 816 140, which prohibits the misleading use of a simple
multiplying the number of hectares considered to be geographical designation of origin, that is, an indication in
illegally planted by the value of the average cessation the case of which there is no link between the
premium paid for Apulia between 1989 and 1992 characteristics of the product and its geographical origin?
pursuant to Council Regulation (EEC) No 1442/88 (7).
(1) OJ L 208, 24.7.1992, p. 1.

The Italian Government maintains that the adjustment


is unlawful because Council Regulation (EEC) No 822/
87 (8) on the common organisation of the market in
wine is silent on the question of financial penalties
Reference for a preliminary ruling from the Oberlandes-
applicable to individual cases and merely provides, in
gericht Köln, by order of that court of 4 August 1998 in
respect of vines planted or re-planted without
proceedings concerning an administrative fine imposed on
authorisation, for compulsory distillation of the yield
Arnold Claasen
to be used in the preparation of alcohol with an actual
alcoholic strength by volume of at least 80 % (Case C-313/98)
(Articles 6(3) and 7(4)). (98/C 327/11)

Reference has been made to the Court of Justice of the


In any case, the subtraction of the adjustment amount European Communities by order of the Oberlandesgericht
from the sum paid for grubbing-up with a premium Köln (Higher Regional Court, Cologne) of 4 August 1998,
pursuant to Regulation (EEC) No 1442/88 seems received at the Court Registry on 13 August 1998, for a
unwarranted, since those amounts were paid for the preliminary ruling in the proceedings concerning an
grubbing-up of existing vines. administrative fine imposed on Arnold Claasen, on the
following question (1):
(1) OJ L 163, 6.6.1998, p. 28.
(2) OJ L 388, 30.12.1989, p. 18. Does the amount of the charge payable under Article 8(1)
(3) OJ, English Special Edition 1970(I), p. 218. of the Agreement depend solely on the number of
(4) OJ L 337, 4.12.1990, p. 3. axles fitted to the motor vehicle or articulated vehicle
(5) OJ L 350, 14.12.1990, p. 43. combination in question, regardless of whether an axle is
(6) OJ L 67, 15.3.1990, p. 21.
used or raised during the journey, or are tandem axles/
(7) OJ L 132, 28.5.1988, p. 3.
(8) OJ L 84, 27.3.1987, p. 1. raisable axles to be left out of account in calculating the
charge?

(1) Concerning the interpretation of Article 8(1) of the Agreement


of 9 February 1994 on the levying of charges for the use of
certain roads by heavy commercial vehicles (Bundesgesetzblatt
[Federal Gazette], Part II, p. 1768).

Reference for a preliminary ruling from the Bundes-


gerichtshof by order of that court of 2 July 1998 in the
case of Schutzverband gegen Unwesen in der Wirtschaft
e.V. v Warsteiner Brauerei Haus Cramer GmbH & Co.
KG Reference for a preliminary ruling from the Nederlandse
Raad van State by judgment of that court of 10 August
(Case C-312/98) 1998 in the case of Snellers Auto's B.V. against Algemeen
Directeur van de Dienst Wegverkeer
(98/C 327/10)
(Case C-314/98)
(98/C 327/12)
Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesgerichts- Reference has been made to the Court of Justice of the
hof (Federal Court of Justice) of 2 July 1998, which was European Communities by judgment of the Netherlandse
received at the Court Registry on 12 August 1998, for a Raad van State (Netherlands Council of State) of