title: Case T-141/99: Action brought on 10 June 1999 by Vela s.r.l. against Commission of the European Communities

text:
C 246/40              EN                       Official Journal of the European Communities                                       28.8.1999
Action brought on 10 June 1999 by Vela s.r.l. against                     — Manifest contradiction, inadequacy and illogicality of the
         Commission of the European Communities                                statement of reasons as regards the alleged lack of partici-
                                                                               pation in joint funding and justification of certain invoiced
                                                                               expenses.
                        (Case T-141/99)
                                                                          — Breach of the principles of legal certainty and protection
                        (1999/C 246/79)                                        of legitimate expectations. The applicant took all the
                                                                               measures and action provided for in the decision awarding
                                                                               the grant, bearing all the expenses mentioned therein. That
                   (Language of the case: Italian)                             fact, together with the positive outcome of the checks
                                                                               undertaken by the defendant before paying each of the
An action against the Commission of the European Communi-                      individual instalments of the Community grant, caused the
ties was brought before the Court of First Instance of the                     applicant to entertain the legitimate expectation that its
European Communities on 10 June 1999 by Vela s.r.l.,                           conduct had been procedurally and substantively correct.
represented by Piero A. M. Ferrari, Aurelio Pappalardo and Pier                In particular, the applicant considered, until it received the
Francesco Meneghini, of the Roma, Trapani and Milan Bars,                      letter of objections of 3 April 1998, that it had lawfully
with an address for service in Luxembourg at the Chambers of                   implemented the project, above all following the second
Alain Lorang, 51 Rue Albert Premier.                                           check prior to payment of the final balance.
The applicant claims that the Court of First Instance should:             Finally, breach is alleged of the principle of proportionality.
— Annul Commission Decision C (1999) 540 of 9 March
    1999 or, in the alternative, reduce the amount of the grant           (1) Council Regulation (EEC) No 4256/88 of 19 December 1988
    to be repaid to the Commission to such extent as may be                   laying down provisions for implementing Regulation (EEC) No
    decided in the course of the proceedings;                                 2052/88 as regards the EAGGF Guidance Section (OJ L 337 of
                                                                              24.12.1994, p. 11).
— order the Commission to pay the costs.
Pleas in law and main arguments
The applicant contests Commission Decision C (1999) 540 of
9 March 1999, which reduces the contribution made by the
Commission under Commission Decision C (92) 1494 of 30
June 1992 concerning grant of the EAGGF, Guidance Section,                Action brought on 10 June 1999 by Vela s.r.l., as promoter
contribution under Council Regulation (EEC) No 4256/88 (1),               of Sonda s.r.l., against Commission of the European
in connection with Project No 92.IT.06.001 entitled ‘Action                                         Communities
in the form of a demonstrative project for the introduction
and promotion of cylindrical luffa in disadvantaged European                                       (Case T-142/99)
areas’.
                                                                                (1999/C 246/80)
In support of its claims, the applicant puts forward the
following pleas:
— Infringement and misapplication of the Treaty and of                                        (Language of the case: Italian)
    secondary law and misuse of powers. The two legal
    bases relied on by the Commission, Article 23 of the
    abovementioned regulation, on which it based its on-the-              An action against the Commission of the European Communi-
    spot inspection carried out from 10 to 12 November                    ties was brought before the Court of First Instance of the
    1997, and Article 24 thereof, on which it based its letter            European Communities on 10 June 1999 by Vela s.r.l., as
    of objections of 3 April 1998 and the subsequent decision             promoter of Sonda s.r.l., represented by Piero A. M. Ferrari,
    cancelling and withdrawing the grant, are not correct. The            Aurelio Pappalardo and Pier Francesco Meneghini, of the
    applicant also considers that either the project in question          Roma, Trapani and Milan Bars, with an address for service in
    was presented, carried out and monitored without the                  Luxembourg at the Chambers of Alain Lorang, 51 Rue Albert
    participation of the Member State concerned, in which                 Premier.
    case the defendant is not entitled to apply Article 23 of the
    Regulation, since the application of those provisions                 The applicant claims that the Court of First Instance should:
    presupposes the joint participation of the Member State
    and the Community; or else, if the project in question was
    presented, carried out and monitored jointly with the                 — Annul Commission Decision C (1999) 541 of 4 March
    Member State concerned, it is not clear why the Com-                       1999 or, in the alternative, reduce the amount of the grant
    mission involved the Italian Republic only at the stage of                 to be repaid to the Commission to such extent as may be
    objecting to the alleged irregularities on the part of the                 decided in the course of the proceedings;
    beneficiary, without however allowing the latter properly
    to express its views in that procedure.                               — Order the Commission to pay the costs.


title: Action brought on 24 October 1997 by the Commission of the European Communities against the Kingdom of the Netherlands (Case C-367/97)

text:
C 370/4             I EN                     Official Journal of the European Communities                                   6 . 12 . 97
Reference for a preliminary ruling by the Centrale Raad                      23 November 1993 concerning the minimum health
van Beroep by judgment of that court of 24 September                         and safety requirements for work on board fishing
1997 in the case of H. Nijhuis v. Landelijk Instituut                        vessels and/or by failing to inform the Commission
                     Sociale Verzekeringen                                   thereof; and
                        ( Case C-360/97 )
                                                                        b ) condemn Ireland to bear the costs of the procedure .
                           ( 97/C 370/07 )
                                                                        Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the
European Communities by judgment of the Centrale Raad                   Article 189 of the EC Treaty, under which a directive shall
van Beroep (Higher Social Security Court ) of 24 September              be binding, as to the result to be achieved, upon each
1997, received at the Court Registry on 22 October 1997,                Member State, carries by implication an obligation on the
for a preliminary ruling in the case of H. Nijhuis v.                   Member States to observe the period for compliance laid
Landelijk Instituut Sociale Verzekeringen on the following              down in the directive. That period expired on
questions .                                                             23 November 1995 without Ireland having enacted the
                                                                        provisions necessary to comply with the directive referred
                                                                        to in the conclusions of the Commission .
1 . When applying Article 46 ( 2 ) in conjunction with
     Article 45 (4 ) of Regulation ( EEC ) No 1408/71 , and
     on the basis of Articles 48 and 51 of the EC Treaty, is            (') OJ L 307, 13 . 12 . 1993 , p . 1 .
     point 4 ( a ) of section J of Annex VI to Regulation
     ( EEC ) No 1408/71 ( in the version in force at the
     material time ) to be interpreted as meaning that, in the
     case of a person who has worked exclusively in the
     Netherlands in the period from 15 October 1968 to
     1 April 1974 and who was insured throughout that                   Reference for a preliminary ruling by the Tribunale Civile
     period against invalidity under a special scheme for               e Penale di Firenze by order of that court of 8 October
     civil servants, that period should also be taken into              1997 in the criminal proceedings against Massimo and
     account in accordance with that section of the annex                                          Paolo Romanelli
     when determining invalidity benefits ?                                                        ( Case C-366/97 )
                                                                                ( 97/C 370/09 )
2 . If so, is the competent institution for the
     determination of benefits on the basis of those periods
     the institution referred to in point 2 ( b ) of section J of       Reference has been made to the Court of Justice of the
     Annex 2 to Regulation ( EEC ) No 574/72 or is it the               European Communities by order of the Tribunale Civile e
     competent institution under national law in regard to              Penale di Firenze ( Civil and Criminal District Court,
     invalidity insurance for civil servants, notwithstanding           Florence ) of 8 October 1997, received at the Court
     the fact that the latter institution is not referred to in         Registry on 24 October 1997, for a preliminary ruling in
     the said annex ?                                                   the criminal proceedings against Massimo and Paolo
                                                                        Romanelli on the following question :
                                                                        whether the expression 'repayable funds' contained in
                                                                        Directive 89/646/EEC (') of 15 December 1989 refers only
                                                                        to financial instruments which possess the intrinsic
Action brought on 22 October 1997 by the Commission                     characteristic of repayability or whether that expression
         of the European Communities against Ireland                    refers also to those financial instruments which, although
                                                                        not possessing that intrinsic characteristic, are the subject
                         ( Case C-364/97 )                              of a contractual agreement to repay the amount paid ?
                            ( 97/C 370/08 )
                                                                         (») OJ L 386 , 30 . 12 . 1989, p . 1 .
An action against Ireland was brought before the Court of
Justice of the European Communities on 22 October 1997
 by the Commission of the European Communities,
 represented by Mr Pieter Jan Kuijper, legal adviser, acting
 as Agent, with an address for service in Luxembourg at                  Action brought on 24 October 1997 by the Commission
 the office of Mr Carlos Gomez de la Cruz, a member of                   of the European Communities against the Kingdom of the
 its Legal Service, Centre Wagner, Luxembourg.                                                          Netherlands
                                                                                Case C-367/97 )
 The applicant claims that the Court should :
                                                                                ( 97/C 370/ 10 )
 a ) find that Ireland has failed to fulfil its obligations
      under the EC Treaty by failing to adopt the laws,                  An action against the Kingdom of the Netherlands was
      regulations or administrative provisions necessary to              brought before the Court of Justice of the European
      comply     with     Council     Directive    93/103 (')   of       Communities on 24 October 1997 by the Commission of
 ---pagebreak--- 6. 12. 97             I EN I                 Official Journal of the European Communities                                      C 370/5
the European Communities, represented by B. J. Drijber,                 2 . order the Kingdom of Belgium to pay the costs .
acting as Agent, with an address for service in
Luxembourg at the office of C. Gomez de la Cruz, of the                 Pleas in law and main arguments adduced in support:
Legal Service, Wagner Centre, Kirchberg .
                                                                        These are analogous to those in Case C-367/97 ( 2 ).
The applicant claims that the Court should :
                                                                        (') OJ L 319 , 12 . 12 . 1994 , p. 20 .
                                                                        ( 2 ) See p. 4 of this Official Journal .
1 . declare that, by not laying down the laws, regulations
     and administrative provisions necessary in order to
     comply with Council Directive 94/5 7/EC (') of
     22 November 1994 on common rules and standards
     for ship inspection and survey organizations and for
     the relevant activities of maritime administrations, the
                                                                        Reference for a preliminary ruling from the Oberster
     Kingdom of the Netherlands has failed to fulfil its                Gerichtshof, Austria, by order of that court of 7 October
     obligations under this directive and under the EC                  1997 in the case of Schutzverband gegen unlauteren
     Treaty;                                                                 Wettbewerb v. F. W. Woolworth Co . Gesellschaft mbH
                                                                                ( Case C-369/97 )
2 . order the Kingdom of the Netherlands to pay the
     costs .                                                                                ( 97/C 370/ 12 )
Pleas in law and main arguments adduced in support:                     Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Forth Senate of
                                                                        the Oberster Gerichtshof ( Supreme Court ), Austria , of
Under the mandatory provisions of the third paragraph of                7 October 1997, which was received at the Court Registry
Article 189 and of the first paragraph of Article 5 of the
                                                                        on 27 October 1997, for a preliminary ruling in the case
EC Treaty, the Member States are required to lay down                   of Schutzverband gegen unlauteren Wettbewerb v. F. W.
the necessary rules in order to comply with directives                  Woolworth Co Gesellschaft mbH on the following
addressed to them before expiry of the period laid down                 question :
in those directives . In this case that period expired on
31 December 1995 without the Netherlands having laid
                                                                        does Article 30 of the EC Treaty preclude a provision
down the necessary provisions .
                                                                        which reserves the fitting and supplying of corrective
                                                                        spectacles and hence also the marketing of ready-made
(') OJ L 319 , 12 . 12 . 1994 , p . 20 .                                reading glasses to opticians who are permitted to exercise
                                                                        their craft trade only on providing proof of qualifications,
                                                                        if account is taken of the fact that
                                                                        ( a ) spectacles fitted by opticians are substantially more
                                                                               expensive than ready-made reading glasses and
Action brought on 24 October 1997 by the Commission                            opticians will therefore be more interested in sales of
of the European Communities against the Kingdom of                             glasses fitted by them that in selling ready-made
                                Belgium                                        reading glasses; and
                          ( Case C-368/97)
                                                                        ( b ) ready-made reading glasses come ( partly ) from abroad,
                            ( 97/C 370/ 11 )                                   whereas spectacles fitted by opticians form part of
                                                                               domestic production ?
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities
on 24 October 1997 by the Commission of the European
Communities, represented by B. J. Drijber, acting as
Agent, with an address for service in Luxembourg at the
office of C. Gomez de la Cruz, of the Legal Service,                    Reference for a preliminary ruling by the Tribunale Civile
Wagner Centre , Kirchberg.                                              e Penale di Venezia, First Chamber, by order of 7 October
                                                                        1997       in  the    case    of Cinzia    Gozza and Others v.
                                                                        ( 1 ) Università degli Studi di Padova; ( 2 ) Ministero
The applicant claims that the Court should:                             dell'Università e della Ricerca Scientifica e Tecnologica;
                                                                        ( 3 ) Ministero della Sanità; and ( 4 ) Ministero della
1 . declare that, by not laying down the laws, regulations                                        Pubblica Istruzione
     and administrative provisions necessary in order to                                            ( Case C-371/97 )
     comply with Council Directive 94/57/EC (') of
     22 November 1994 on common rules and standards                                                   ( 97/C 370/ 13 )
     for ship inspection and survey organizations and for
     the relevant activities of maritime administrations, the           Reference has been made to the Court of Justice of the
     Kingdom of Belgium has failed to fulfil its obligations            European Communities by order of 7 October 1997 from
     under this directive and under the EC Treaty;                      the Tribunale Civile e Penale di Venezia ( Civil and


title: Case T-246/01: Action brought on 6 October 2001 by UCAR International Inc. against the Commission of the European Communities

text:
C 17/16                EN                     Official Journal of the European Communities                                      19.1.2002
Pleas in law and main arguments                                          European Communities on 6 October 2001 by UCAR Inter-
                                                                         national Inc., represented by Mr K.P.E. Lasok QC of Monckton
                                                                         Chambers, London (United Kingdom) and Mr B. Hartnett of
                                                                         Squire Saunders Dempsey LLP, Brussels (Belgium).
The action concerns Commission Decision C(2001)1986 of
18 July 2001 in which the Commission found that the
applicant, a Japanese firm, together with seven other undertak-
ings, had infringed Article 81(1) EC and Article 53(1) of the
EEA Agreement by participating in a complex system of                    The applicant claims that the Court should:
agreements and concerted practices in the graphite electrodes
sector. It imposed a fine of EUR 17.4 million on the applicant.
In parallel proceedings in the United States, a fine was imposed         —     annul Article 3 of the Commission Decision made on
upon a subsidiary company of the applicant.                                    18 July 2001 in Case No. COMP/E-1/36.490 — Graphite
                                                                               Electrodes, in so far as it imposes a fine on UCAR;
                                                                               alternatively, reduce the level of that fine;
The applicant contests the calculation of the fine and submits
that the fine is unwarranted, discriminatory and dispro-                 —     annul Article 4 of the Commission Decision made on
portionate. It submits that the Commission violated the                        18 July 2001 in Case No. COMP/E-1/36.490 — Graphite
principles of non-discrimination and proportionality in using                  Electrodes, in so far as it applies to UCAR; alternatively,
a 250 % ‘deterrence factor’ only for the applicant, the resulting              modify the terms of payment applicable to the fine
mark-up effectively eliminating the leniency reduction. Such a                 payable by UCAR in accordance with the terms and
‘deterrence factor’ is not objectively justified, and the Com-                 conditions set forth in Annex 50;
mission erred in law by referring to total group-wide turnover
as a justification, even though the ‘deterrence factor’ is not
rationally related to, or necessary for, effective deterrence.           —     annul the decision contained in the Commission’s letter
                                                                               dated 23 July 2001, in so far as it provides that the
                                                                               Commission will undertake collection of the fine on
                                                                               expiry of the period for its payment unless UCAR has not
Furthermore, the applicant alleges that the Commission erred
                                                                               only instituted proceedings for the annulment of the
in law in basing the basic fine on the worldwide market share
                                                                               Decision made on 18 July 2001 but also satisfies the two
instead of EEA-wide turnover, and at the same time ignoring
                                                                               conditions referred to in the letter; alternatively, modify
fines imposed in other jurisdictions. Finally, the Commission
                                                                               those terms in accordance with the terms and conditions
violated the principles of non-discrimination and pro-
                                                                               set forth in Annex 50;
portionality in reducing the fine imposed on UCAR Inter-
national Inc. by 15.2 % without proportionally reducing the
applicant’s fine.
                                                                         —     annul the decision contained in the Commission’s letter
                                                                               dated 9 August 2001, in so far as the Commission has
                                                                               rejected any and all proposals that do not involve
                                                                               payment of the fine in full, payment of interest, and/or
                                                                               provision of a bank guarantee ensuring payment of the
                                                                               fine plus accrued interest, and has in particular rejected a
                                                                               lien on the assets of UCAR; alternatively, modify those
                                                                               terms in accordance with the terms and conditions set
                                                                               forth in Annex 50;
Action brought on 6 October 2001 by UCAR Inter-
national Inc. against the Commission of the European                     —     order the Commission to pay its own costs and those
                           Communities                                         incurred by UCAR International Inc.
                         (Case T-246/01)
                          (2002/C 17/28)                                 Pleas in law and main arguments
                  (Language of the case: English)
                                                                         By a decision of 18 July 2001, the European Commission
                                                                         found that eight undertakings had infringed Article 81(1) of
                                                                         the EC Treaty and Article 53(11) of the EEA Agreement by
                                                                         participating in a complex of agreements and concerted
An action against the Commission of the European Communi-                practices in the graphite electrodes sector. A fine of
ties was brought before the Court of First Instance of the               EUR 50.4 million was imposed on the applicant and the terms
 ---pagebreak--- 19.1.2002              EN                    Official Journal of the European Communities                                             C 17/17
of payment of this fine were specified in Article 4 of the              under its principal credit facilities, its ability to pay and the
Decision. Fines and sanctions subsequent to these infringe-             effect on competition in the graphite electrodes market if the
ments have been imposed upon the applicant in other states.             applicant were forced into bankruptcy.
                                                                        (1) Commission Notice of 18 July 1996 on the non-imposition or
                                                                            reduction of fines in cartel cases (OJ [1996] C 207, p. 4).
The Decision was sent to the applicant by letter dated 23 July
2001 from the Commissioner responsible for competition
matters, in which further matters regarding payment, including
statements about a possible collection of the fine in case of
non-payment, were mentioned. The applicant submits that
this letter constitutes a separate decision which it contests.          Action brought on 26 September 2001 by eCopy, Inc.
                                                                        against the Office for Harmonisation in the Internal
                                                                                Market
                                                                                (Case T-247/01)
The applicant made representations to the Commission on the                                         (2002/C 17/29)
subject of payment terms. The Commission replied by letter of
9 August 2001 which, according to the applicant, constitutes
a third distinct decision, of which it seeks the annulment.                                 (Language of the case: English)
                                                                        An action against the Office for Harmonisation in the Internal
                                                                        Market was brought before the Court of First Instance of the
                                                                        European Communities on 26 September 2001 by eCopy,
The applicant does not contest the findings in the first Decision       Inc., represented by Mr Brian C. Read, Barrister, of 19 Old
that it committed an infringement of the EC competition rules,          Buildings, London (United Kingdom)
nor does it contest that a fine should be imposed for this
infringement. It does, however, contest the imposition of a
fine on it in the above-mentioned amount. It alleges that it            The applicant claims that the Court should:
should have been accorded a greater reduction of the fine for
its cooperation with the Commission under the Leniency                  —     annul the Board Decision of 13 July 2001;
Notice (1), and that the level of the fine is unlawfully high,
having regard to the gravity and duration of the infringement,
and to aggravating and attenuating circumstances and other              —     order the Office for Harmonisation in the Internal Market
general factors. The Commission has also breached certain                     to grant Community trade application no. 1718667,
essential procedural requirements in failing properly to investi-             alternatively to continue prosecution of the application
gate and assess the role of the former owners of the applicant                according to the judgment of the Court;
in the cartel.
                                                                        —     order the Office for Harmonisation in the Internal Market
                                                                              to pay the costs of eCopy, Inc.
                                                                        Pleas in law and main arguments
Furthermore, the applicant contests the associated payment
terms and grounds and submits that Article 4 of the Decision
of 18 July 2001 and the alleged third decision of 9 August              Applicant for the Com-            eCopy, Inc.
2001 are void for the lack of reasoning. The applicant disputes         munity trade mark:
the Commission’s position that it will seek to enforce the fine,
even if proceedings for its annulment are pending before the            The Community trade               The verbal mark ECOPY in respect
Court, unless a bank guarantee covering the amount of the               mark concerned:                   of certain goods in class 9.
fine and interest is provided. It is submitted that the Com-
mission erred when it refused to accept a lien on company               Decision of the Exam-             Refusal of the application
assets as security for the fine and when it refused to accept or        iner:
even consider a payment schedule which did not include a
bank guarantee. Finally, the Commission erroneously refused             Decision of the Board of          Rejection of the Appeal
to take account of the restrictions imposed on the applicant            Appeal:


title: Judgment of the Court of 10 July 2003 in Case C-472/00 P: Commission of the European Communities v Fresh Marine Company A/S (Appeal — Non-contractual liability of the Community — Provisional anti-dumping and countervailing duties imposed on imports of farmed Atlantic salmon originating in Norway)

text:
23.8.2003               EN                            Official Journal of the European Union                                              C 200/3
compensatory aid to banana producers for the 1995 and 1996                                       JUDGMENT OF THE COURT
campaigns — the Court (Fifth Chamber), composed of
D.A.O. Edward, acting as President of the Fifth Chamber, A. La
Pergola, P. Jann, S. von Bahr (Rapporteur) and A. Rosas, Judges;
J. Mischo, Advocate General; R. Grass, Registrar, gave a judg-                                           of 10 July 2003
ment on 19 June 2003, in which it:
1.    Dismissed the action in its entirety;                                   in Case C-472/00 P: Commission of the European Commu-
                                                                                nities v Fresh Marine Company A/S (1)
2.    Ordered the Kingdom of Spain to pay the costs.
                                                                              (Appeal — Non-contractual liability of the Community —
(1) OJ C 335 of 25.11.2000.                                                   Provisional anti-dumping and countervailing duties imposed
                                                                              on imports of farmed Atlantic salmon originating in
                                                                                Norway)
                                                                                (2003/C 200/05)
                  JUDGMENT OF THE COURT
                                                                                (Language of the case: English)
                           (Fifth Chamber)
                            of 3 July 2003
in Case C-457/00: Kingdom of Belgium v Commission of
                  the European Communities (1)
                                                                              In Case C-472/00 P, Commission of the European Commu-
                                                                              nities (Agents: V. Kreuschitz and S. Meany, assisted by N. Khan,
(State aid — Aid to the Belgian group Verlipack — Hollow                      barrister): Appeal against the judgment of the Court of First
                        container glass sector)                               Instance of the European Communities (Third Chamber,
                                                                              Extended Composition) of 24 October 2000 in Case T-178/98
                                                                              Fresh Marine v Commission [2000] ECR II-3331, seeking to
                           (2003/C 200/04)
                                                                              have that judgment set aside, the other party to the proceed-
                                                                              ings being: Fresh Marine Company A/S, established in Trond-
                     (Language of the case: French)                           heim (Norway), represented by J.-F. Bellis and B. Servais,
                                                                              avocats, with an address for service in Luxembourg, Fresh
                                                                              Marine Company A/S, established in Trondheim (Norway)
(Provisional translation; the definitive translation will be published in     (represented by J.-F. Bellis and B. Servais), the Court (Third
                      the European Court Reports)                             Chamber,         Extended       Composition),        composed    of:
                                                                              G.C. Rodríguez Iglesias, President, J.-P. Puissochet, R. Schintgen
                                                                              and C.W.A. Timmermans (Presidents of Chambers),
                                                                              C. Gulmann, D.A.O. Edward, A. La Pergola, V. Skouris, S. von
In Case C-457/00, Kingdom of Belgium (Agent: A. Snoecx,                       Bahr, J.N. Cunha Rodrigues (Rapporteur) and A. Rosas, Judges;
assisted by J.-M. De Backer, G. Vandersanden and L. Levi,                     C. Stix-Hackl, Advocate General; L. Hewlett, Principal Adminis-
avocats) v Commission of the European Communities (Agent:                     trator, for the Registrar, has given a judgment on 10 July
G. Rozet): Application for annulment of Commission Decision                   2003, in which it:
2001/856/EC of 4 October 2000 concerning State aid to
Verlipack, Belgium (OJ 2001 L 320, p. 28), the Court (Fifth
Chamber), composed of: C.W.A. Timmermans, President of the
Fourth Chamber, acting as President of the Fifth Chamber,                     1.    Dismisses the main appeal and the cross-appeal;
D.A.O. Edward, A. La Pergola, P. Jann and S. von Bahr
(Rapporteur), Judges; F.G. Jacobs, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 3 July
2003, in which it:                                                            2.    Orders the Commission of the European Communities to pay
                                                                                the costs relating to the main appeal;
1.    Dismisses the appeal;
                                                                              3.    Orders Fresh Marine Company A/S to pay the costs relating to
2.    Orders the Kingdom of Belgium to pay the costs.                               the cross-appeal.
(1) OJ C 45 of 10.2.2001.                                                     (1) OJ C 61 of 24.2.2001.


title: Action brought on 22 May 1995 by the Commission of the European Communities against the Hellenic Republic (Case C-159/95)

text:
No C 208/4                EN                  Official Journal of the European Communities                                     12 . 8 . 95
The pleas in law and main arguments adduced in support are                        return on an investment, the behaviour of an investor
the same as those relied upon with regard to Regulation                           operating under normal market conditions . The
(EC ) No 2791 /94 in Case C- 9/95 (2 ).                                           estimated costs of insolvency ( shareholder loans,
                                                                                dismantling installations, ground clearance ) would
(•) OJ No L 51 , 8 . 3 . 1995 , p . 8 .                                           be clearly higher than the cost of withdrawing and
( 2 ) OJ No C 54 , 10 . 3 . 1995 , p . 9 .                                        compensating for losses . The desire to protect an
                                                                                image must also be included as falling under the
                                                                                criterion of return on investment in its widest sense .
                                                                                Moreover, when making a comparison with the
                                                                                conduct of a hypothetical pri\*ate investor regard
                                                                                must also be had to the situation in the particular
Action brought on 22 May 1995 by the Federal Republic of                          Member State ; the particular social, legal and
Germany against the Commission of the European                                    economic conditions in the Federal Republic of
                              Communities                                         Germany, like the principle enshrined in the Basic
                           ( Case C-158/95 )                                      Law that ownership involves social responsibility,
                                                                                must not be disregarded,
                             ( 95 /C 208/08 )
                                                                             — the payment of DM 20 million to the
An action against the Commission of the European                                  Lech-Stahlwerke GmbH is the making available of
Communities was brought before the Court of Justice of the                        risk capital in accordance with normal investment
European Communities on 22 May 1995 by the Federal                                practice under market conditions,
Republic of Germany, represented by Dr Ernst Roder,
Ministerialrat, Federal Ministry of Economic Affairs,                        — the sum of DM 56 million for particular items of
D-53107 Bonn .
                                                                                expenditure was covered by the Commission's
                                                                                approval of the support measures in August
The applicant claims that the Court should :                                      1988/June 1989 . The basis for those measures was
                                                                                the 1987 Framework Agreement, of which the
1 . declare void the Commission's decision of 4 April 1995                        Commission was aware, and the agreement in it to
      concerning a proposed State aid by the Federal State of                     transfer the assets without burdens of the past
      Bavaria      to    the     EGKS-Stahlunternehmen       Neue                 ('Altlasten'). It is a misuse of powers for the
      Maxhiitte Stahlwerke GmbH, Sulzbach-Rosenberg, and                          Commission now to claim that the aids concerned
      Lech-Stahlwerke GmbH , Meitingen-Herbertshofen                              are not capable of approval ,
       ( COM(95 ) 814 final );
                                                                         — breach of the principle of proportionality: the financial
2 . order the defendant to pay the costs .                                   measures in question have only minimal effects on the
                                                                             Community steel market. The undertaking's share of
Pleas in law and main arguments adduced in support:                          total crude steel production in the ECSC was 0,2 % in
                                                                              1993 . The undertaking's range of products has hardly
— Insufficient statement of reasons ( Article 15 , first                     any supraregional importance .
      paragraph, of the ECSC Treaty): the Bavarian
      Government has explained on numerous occasions that
      the proposed payment to the pro rata loss compensation
      is an act of a shareholder voluntarily introducing its own
      capital ( in order to increase capital reserves for the
      purpose of setting them off against the loss carry-over ).         Action brought on 22 May 1995 by the Commission of the
      The Commission refuses to regard the cases given by                   European Communities against the Hellenic Republic
      way of example as adequate proof that taking over losses
      in order to protect an image is the conduct of an investor                                 ( Case C-159/95 )
      operating under market conditions . The Commission                                           ( 95/C 208/09 )
      also starts out from incorrect findings of fact and
      wrongly evaluates the facts,                                       An action against the Hellenic Republic was brought before
                                                                         the Court of Justice of the European Communities on
— infringement of the right to be heard : The Commission
      has not heard the views of the Bavarian Government as
                                                                         22 May 1995 by the Commission of the European
                                                                         Communities, represented by Maria Kondou Durande, of
      regards its intention to treat the injection by Bavaria as a       its Legal Service, with an address for service in Luxembourg
      ' lost subsidy' ( verlorener ZuschuS ); in its notice OJ No
                                                                         at the office of Yiorgos Kremlis, of its Legal Service, Wagner
      C 377, p. 3 it had found that in order to privatize the
      State 's shares the Bavarian Government intended to
                                                                         Centre, Kirchberg.
      make a pro rata contribution to compensate for losses as
      an 'injection' into the equity of the company,                     The applicant claims that the Court should :
— infringement of Article 4 ( c ) of the ECSC Treaty:                    — declare that, by omitting to adopt and communicate to
                                                                              the Commission within the requisite period of time the
      — the injection of capital of DM 125,7 million in order                 laws, regulations and administrative provisions
           to compensate for losses is, from the point of view of             necessary in order to comply with Council Directive
 ---pagebreak--- 12 . 8 . 95            EN                  Official Journal of the European Communities                                   No C 208/5
     90/313/EC ( ) of 7 July 1990 on freedom of access to             comply with the Directive, and to inform the Commission
     information on the environment, the Hellenic Republic            accordingly.
     has failed to fulfil its obligations under the EC Treaty
     and that Directive,                                              Since the Hellenic Republic has not hitherto informed the
                                                                      Commission of the adoption of those measures,
— order the Hellenic Republic to pay the costs.                       notwithstanding the letter before action of 9 August 1993
                                                                      and the reasoned opinion of 7 June 1994 addressed to it, the
                                                                      Commission seeks by this application a declaration that the
Pleas in law and main arguments adduced in support:                   Hellenic Republic has failed to fulfil its obligations under the
In accordance with Article 9 of Directive 91 / 156/EC the
                                                                      third paragraph of Article 1 89 and under the first paragraph
                                                                      of Article 5 of the Treaty, and under the provisions of the
Member States were required by 1 April 1993 to adopt the              Directive .
laws , regulations and administrative provisions necessary to
comply with the Directive, and to inform the Commission               ( ] ) OJ No L 78 , 26 . 3 . 1991 , p . 32 .
accordingly.
Since the Hellenic Republic has not hitherto informed
the Commission of the adoption of those measures,
notwithstanding the letter before action of 12 March 1993
and the reasoned opinion of 1 9 July 1 994 addressed to it, the
                                                                      Action brought on 22 May 1995 by the Commission of the
                                                                           European Communities against the Hellenic Republic
Commission by this application seeks a declaration that the
Hellenic Republic has failed to fulfil its obligations under the                                 ( Case C-161 /95 )
third paragraph of Article 1 89 and under the first paragraph                                      ( 95/C 208/ 11 )
of Article 5 of the Treaty, and under the provisions of the
Directive .                                                           An action against the Hellenic Republic was brought before
                                                                      the Court of Justice of the European Communities on
(') OJ No L 158 , 23 . 6 . 1990 , p . 56 .                            22 May 1995 by the Commission of the European
                                                                      Communities, represented by Maria Kondou Durande, of
                                                                      its Legal Service, with an address for service in Luxembourg
                                                                      at the office of Yiorgos Kremlis, of its Legal Service, Wagner
                                                                      Centre, Kirchberg .
Action brought on 22 May 1995 by the Commission of the                The applicant claims that the Court should :
   European Communities against the Hellenic Republic                 — declare that, by omitting to adopt and communicate to
                        ( Case C-160/95 )                                   the Commission within the requisite period of time the
                          ( 95/C 208/ 10 )                                  laws, regulations and administrative provisions
                                                                            necessary in order to comply with Council Directive
                                                                            91 /271 /EC ( l ) of 21 March 1991 concerning urban
An action against the Hellenic Republic was brought before                  waste water treatment, the Hellenic Republic has failed
the Court of Justice of the European Communities on                         to fulfil its obligations under the EC Treaty and that
22 May 1995 by the Commission of the European                               Directive,
Communities, represented by Maria Kondou Durande, of
its Legal Service, with an address for service in Luxembourg          — order the Hellenic Republic to pay the costs .
at the office of Yiorgos Kremlis, of its Legal Service, Wagner
Centre, Kirchberg.                                                    Pleas in law and main arguments adduced in support:
                                                                      In accordance with Article 9 of Directive 91 /271 /EC the
The applicant claims that the Court should :
                                                                      Member States were required by 30 June 1993 to adopt the
— declare that, by omitting to adopt and communicate to               laws, regulations and administrative provisions necessary to
    the Commission within the requisite period of time the            comply with the Directive, and to inform the Commission
    laws, regulations and administrative provisions                   accordingly.
    necessary in order to comply with Council Directive               Since the Hellenic Republic has not hitherto informed the
     91 / 156/EC (') of 18 March 1991 amending Directive
                                                                      Commission of the adoption of those measures,
     75/442/EC on waste, the Hellenic Republic has failed to
                                                                      notwithstanding the letter before action of 9 August 1993
    fulfil its obligations under the EC Treaty and that               and the reasoned opinion of 25 May 1994 addressed to it,
    Directive,
                                                                      the Commission seeks by this application a declaration that
                                                                      the Hellenic Republic has failed to fulfil its obligations under
— order the Hellenic Republic to pay the costs .                      the third paragraph of Article 189 and under the first
                                                                      paragraph of Article 5 of the Treaty, and under the
Pleas in law and main arguments adduced in support:                   provisions of the Directive .
In accordance with Article 9 of Directive 91 / 156/EC the             (») OJ No L 135 , 30 . 5 . 1991 , p . 40 .
Member States were required by 1 April 1993 to adopt the
laws, regulations and administrative provisions necessary to


title: Case C-516/99: Reference for a preliminary ruling from the Berufungssenat V of the Finanzlandesdirektion for Vienna, Niederösterreich and Burgenland, by order of that court of 2 December 1999 in the case of Walter Schmid v Finanzamt for the 9th, 18th and 19th Districts in Vienna

text:
18.3.2000               EN                       Official Journal of the European Communities                                         C 79/15
     Even if the latest scientific position is not yet clear, it is         of the Salzburger Grundverkehrsgesetz (Salzburg Land Transfer
     legally wrong for the Commission to lay down more                      Law) of 1997 in the version published in LGBl. No. 11/1999,
     stringent requirements in respect of measures adopted by               whereby any person who wishes to acquire a building plot in
     Member States than it does in respect of itself. In any                the federal Land of Salzburg must comply with a notification
     event, in a situation of general uncertainty where, even in            or authorisation procedure in respect of the acquisition of that
     the Commission’s view, it is impossible to make any                    plot, with the consequence that one of the fundamental
     definitive statements on the danger, and the harmonising               freedoms of the acquirer of title as guaranteed by the laws of
     directive itself provides for timely re-evaluation, the Mem-           the European Union has been infringed in this case?
     ber States must have discretion as to the continuing need
     for national risk-avoidance measures. That is exactly the
     purpose of the national sovereignty exception in old
     Article 100a(4) and the same must apply to Article 95(5)
     EC.
                                                                            Reference for a preliminary ruling from the Berufungs-
(1) The Commission’s decision of 26.10.1999 on an individual                senat V of the Finanzlandesdirektion for Vienna, Niederö-
    Member State’s conditions for mineral wool communicated by              sterreich and Burgenland, by order of that court of
    Germany in derogation from Directive 97/69/EC adapting to               2 December 1999 in the case of Walter Schmid v Finan-
    technical progress for the 23rd time Council Directive 67/548/EEC           zamt for the 9th, 18th and 19th Districts in Vienna
    on the approximation of the laws, regulations and administrative
    provisions relating to the classification, packaging and labelling
                                                                                (Case C-516/99)
    of dangerous substances
                                                                                (2000/C 79/28)
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by order of the Berufungssenat V
                                                                            (Appeal Chamber V) of the Finanzlandesdirektion (Regional
                                                                            Finance Appeal Authority) for Vienna, Niederösterreich and
                                                                            Burgenland, of 2 December 1999, which was received at the
                                                                            Court Registry on 30 December 1999, for a preliminary ruling
References for a preliminary ruling by the Unabhängiger                     in the case of Walter Schmid v Finanzamt (Finance Authority)
Verwaltungssenat Salzburg by orders of that court of                        for the 9th, 18th and 19th Districts in Vienna, on the following
22 December 1999 in the appeals concerning (1) Hans                         questions:
Reisch and twenty-eight others, (2) Bürgermeister der
Landeshauptstadt Salzburg, (3) Grundverkehrsbeauftrag-                      1. Do Article 73b(1) in conjunction with Article 73d(1)(a)
ter des Landes Salzburg and (4) Grundverkehrslandes-                             and (b) and (3) of the EC Treaty (now Article 56(1) in
               kommission des Landes Salzburg                                    conjunction with Article 58(1)(a) and (b) and (3) EC)
                                                                                preclude a provision such as Paragraph 97 of the Einkom-
                                                                                mensteuergesetz (‘EStG’; Law on Income Tax) of 1988
           (Cases C-515/99 and C-519 to C-540/99)                                (BGBI 1988/400; as amended, BGBI 1996/797), which
                                                                                provides (pursuant to Paragraph 1(1)(1)(c) of the Endbe-
                            (2000/C 79/27)                                       steuerungsgesetz (Law on Final Taxation), BGBI 1993/11)
                                                                                that final taxation of dividends, interest and other earnings
                                                                                from foreign shares is excluded, and thus the rate of
Reference has been made to the Court of Justice of the                           taxation in respect of domestic shares is 25 %, whereas the
European Communities by orders of the Unabhängiger Verwal-                       rate of taxation in respect of foreign shares may be up to
tungssenat Salzburg of 22 December 1999, received at the                         50 %?
Court Registry on 30 December 1999, for preliminary rulings
in the appeals concerning (1) Hans Reisch and twenty-eight                  2. Do Article 73b(1) in conjunction with Article 73d(1)(a)
others, (2) Bürgermeister der Landeshauptstadt Salzburg, (3)                     and (b) and (3) of the EC Treaty (now Article 56(1) in
Grundverkehrsbeauftragter des Landes Salzburg and (4) Grund-                     conjunction with Article 58(1)(a) and (b) and (3) EC)
verkehrslandeskommission des Landes Salzburg on the follow-                      preclude a provision such as Paragraph 37(1) and (4) of
ing question:                                                                    the EStG of 1988 (BGBI 1988/400), which provides that
                                                                                dividends of any kind from shareholdings in domestic
                                                                                limited companies in the form of shares are subject to a
Are the provisions of Article 56 et seq. of the EC Treaty to be                  tax rate reduced to half of the average tax rate applicable
interpreted as precluding                                                        to the aggregate income, but that dividends of any kind
                                                                                from shareholdings in limited companies whose seat and
— (Cases C-519/99 to C-526/99:) the application of Para-                         place of management are in another EU Member State or
     graphs 12 to 14                                                             a non-Member State are not subject to any reduction of
                                                                                that kind?
— (Cases C-515/99 and C-527/99 to C-540/99:) the appli-
     cation of Paragraphs 12, 36 and 43


title: Case C-313/02: Reference for a preliminary ruling by the Oberster Gerichtshof (Supreme Court) by order of that Court of 8 August 2002 in the case of Nicole Wippel against Peek & Cloppenburg GmbH & Co KG

text:
23.11.2002              EN                    Official Journal of the European Communities                                        C 289/9
Reference for a preliminary ruling by the Oberster                                 pay for men and women (OJ 1975 L 45, p. 19,
Gerichtshof (Republic of Austria) by order of that Court                           hereinafter ‘Directive 75/117/EEC’) and Clause 2
of 23 July 2002 in the case of Peter Haackert against                              of the Framework Agreement on part-time work
        Pensionsversicherungsanstalt der Angestellten                              concluded by UNICE, CEEP and the ETUC (herein-
                                                                                after, the ‘Framework Agreement on part-time
                                                                                work’), which was implemented by Council Directive
                           (Case C-303/02)                                         97/81/EC (OJ 1997 L 14, p. 9), and Point 9 of the
                                                                                Community Charter of the Fundamental Social
                           (2002/C 289/14)                                         Rights of Workers of 9 December 1989 to be
                                                                                construed in such a way (concept of ‘worker’) that
                                                                                constant protection is afforded even to persons such
                                                                                as the claimant in the present case who, in a
                                                                                comprehensive framework agreement on employ-
Reference has been made to the Court of Justice of the
                                                                                ment, agree terms on pay, termination of employ-
European Communities by order of the Oberster Gerichtshof
                                                                                ment and the like but also stipulate that the amount
(Republic of Austria) (Supreme Court) of 23 July 2002,
                                                                                and positioning of working time should be governed
received at the Court Registry on 26 August 2002, for a
                                                                                by the workload and agreed by the parties in the
preliminary ruling in the case of Peter Haackert against
                                                                                light of the individual circumstances of each case?
Pensionsversicherungsanstalt der Angestellten (Salaried
Employees’ Pension Insurance Institution) on the following
question:
                                                                              (b) Does the concept of ‘worker’ within the meaning of
                                                                                Question 1(a) apply where there is a prospect of
‘Is the derogation contained in Article 7(1)(a) of Council                         work on approximately three days a week and two
Directive 79/7/EEC of 19 December 1978 ( 1) on the progress-                       Saturdays in each month without any binding
ive implementation of the principle of equal treatment for                         commitment?
men and women in matters of social security to be interpreted
as being applicable to a benefit such as the early old-age
pension in connection with unemployment in respect of which                   (c)  Does the concept of ‘worker’ within the meaning of
different pensionable ages for men and for women are                               Question 1(a) apply where work is actually carried
determined in national law?’                                                       out on approximately three days a week and two
                                                                                Saturdays in each month?
( 1) OJ L 6 [1979], p. 24.
                                                                              (d) Is the Community Charter of the Fundamental Social
                                                                                Rights of Workers of 9 December 1989 legally
                                                                                binding, at least in so far as reliance is placed on it
                                                                                in the interpretation of other rules of Community
                                                                                law?
Reference for a preliminary ruling by the Oberster
Gerichtshof (Supreme Court) by order of that Court of                    2.   Are Article 141 EC and Article 1 of Directive 75/117/
8 August 2002 in the case of Nicole Wippel against Peek                       EEC and Article 5 of Directive 76/207/EEC (OJ L 039,
                 & Cloppenburg GmbH & Co KG                                   p. 14, hereinafter ‘Directive 76/207/EEC’) and Clause 4 of
                                                                              the Framework Agreement on part-time work to be
                                                                              construed as meaning that it constitutes objectively
                           (Case C-313/02)                                    unjustified unequal treatment if,
                           (2002/C 289/15)
                                                                              in the case of full-time workers (approximately 60 % men
                                                                              and 40 % women), provision is made by statute or
                                                                              collective agreement for there to be rules not only on the
Reference has been made to the Court of Justice of the                        amount of working time but also (to some extent)
European Communities by order of the Oberster Gerichtshof                     regarding its positioning, the observance of which a full-
(Supreme Court) of 8 August 2002, received at the Court                       time worker is entitled to demand even in the absence of
Registry on 5 September 2002, for a preliminary ruling in the                 a contractual arrangement,
case of Nicole Wippel against Peek & Cloppenburg GmbH &
Co KG on the following questions:
                                                                              whereas there are no such rules for part-timers, the vast
1.    (a)    Are Article 141 EC and Article 1 of Council                      majority of whom are women (approximately 90 %
             Directive 75/117/EEC of 10 February 1975 on the                  women and 10 % men), even where the contracting
             approximation of the laws of the Member States                   parties have not come, as required by statute, to a
             relating to the application of the principle of equal            contractual arrangement on this point?
 ---pagebreak--- C 289/10               EN                   Official Journal of the European Communities                                  23.11.2002
3.  Are Article 141 EC and Article 1 of Directive 75/117/                             ment, it would be possible to schedule working
    EEC and Article 5 of Directive 76/207/EEC and Clause 4                            time (potential working time), if the length of
    of the Framework Agreement on part-time work to be                                prior notice of a job placement should be less
    construed as meaning that it constitutes objectively                              than
    unjustified unequal treatment if, in the case of part-
    timers, on the assumption that the vast majority of them                          (a)   14 days or
    are women (approximately 90 % women and 10 % men),
    an employer expressly rules out an agreement on the                               (b) a reasonable amount of time?
    positioning and amount of working time, whereas in the
    case of full-time workers, on the assumption that women
    are not in that same majority, both the amount and, to
    some extent, the allocation of working time are already
    laid down by statute or collective agreement?
                                                                       Reference for a preliminary ruling by the Bundesfinanz-
                                                                       hof by order of that Court of 4 July 2002 in the
4.  Are Article 141 EC and Article 1 of Directive 75/117/              proceedings between Finanzamt Rendsburg and Detlev
    EEC and Article 5 of Directive 76/207/EEC and Clause 4                                          Harbs
    together with Clause 1(b) (facilitation of the development
    of part-time work) of the Framework Agreement on part-                                    (Case C-321/02)
    time work to be construed as meaning that in order to
    compensate for objectively unjustified unequal treatment                                  (2002/C 289/16)
    it is necessary and permissible
                                                                       Reference has been made to the Court of Justice of the
    A      with regard to the amount of working time, to               European Communities by order of the Bundesfinanzhof
           presume a definite amount and, if so, to presume            (Federal Finance Court) of 4 July 2002, received at the Court
                                                                       Registry on 13 September 2002, for a preliminary ruling in
                                                                       the proceedings between Finanzamt Rendsburg and Detlev
           1.   normal working time, or                                Harbs on the following question:
                                                                       Where the owner of a farm:
           2.   the maximum length of weekly working time
                actually worked, unless the employer can prove         —    gives up part of his farm (the entire dairy cow operation)
                that this was due to unusually high demand for              and leases the property necessary for that operation to
                work at that particular time, or                            another farmer;
                                                                       —    and continues to farm on a not insignificant scale after
           3.   the demand ascertained at the date of con-                  granting the lease,
                clusion of the contract of employment, or
                                                                       may he treat the turnover from the lease — like the rest of his
                                                                       turnover — under the flat-rate scheme for farmers (Article 25
           4.   average weekly working time, and                       of Directive 77/388/EEC), or is the turnover from the lease
                                                                       taxable under the general rules?
    B      with regard to the positioning of working time, in
           order to compensate for the extra burden on the
           worker caused by flexibility and for the benefit
           afforded to the employer, to award the worker
                                                                       Reference for a preliminary ruling by the Sozialgericht
                                                                       Augsburg by order of that Court of 7 March 2002 in the
           1.   a ‘reasonable’ supplement on the hourly wage,          proceedings between Eva-Maria Weller and Deutsche
                determined in the light of the individual cir-                         Angestellten-Krankenkasse
                cumstances in question, or
                                                                                (Case C-322/02)
           2.   a minimum supplement equal to that paid to                                    (2002/C 289/17)
                full-time workers who work more than normal
                working hours (eight hours a day or forty
                hours a week), or                                      Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Sozialgericht Augsburg
                                                                       (Social Court, Augsburg) of 7 March 2002, received at the
           3.   irrespective of the amount of time worked,             Court Registry on 16 September 2002, for a preliminary ruling
                compensation for time not remunerated as               in the proceedings between Eva-Maria Weller and Deutsche
                working time during which, under the agree-            Angestellten-Krankenkasse on the following questions:


title: Reference for a preliminary ruling by the Verwaltungsgericht, Autonome Sektion für die Provinz Bozen, Italy, by order of that court of 16 December 1997 in the cases brought by the World Wildlife Fund (WWF), Italia Nostra, national association, and Günther Bachmann and others v. the Autonome Provinz Bozen, the Ministry of Transport, the Gemeinde Bozen, the Gemeinde Leifers, Südtiroler Transportstrukturen AG and Airport Bolzano-Bozen AG (Case C-435/97)

text:
7.3.98                EN                 Official Journal of the European Communities                                     C 72/5
                  ORDER OF THE COURT                                Registry on 16 December 1997, in the criminal
                       (Third Chamber)                              proceedings against Adrianus Hendrikus Albers, Martinus
                                                                    Johannes Maria Van den Berkmortel and Leon Victor
                    of 18 December 1997                             Pierre Maria Nuchelmans on the following question:
in Case C-409/96 P: Sveriges Betodlares Centralförening
and Sven ke Henrikson v. Commission of the European                Does the Verordening Stoffen met sympathico mimetische
                        Communities (1)                             werking (P.V.V.) 1991 and, more particularly, Article 3(1)
                                                                    thereof, contain technical regulations which, pursuant to
(Common agricultural policy Ð Agricultural conversion
                                                                    Article 8 of Directive 83/189/EEC (1), as it stood at the
    rate in the sugar sector Ð Appeal clearly unfounded)
                                                                    time when the Verordening came into force, should have
                         (98/C 72/08)                               been notified to the Commission beforehand?'
                (Language of the case: English)                     (1) OJ L 109, 26.4.1983, p. 8.
In Case C-409/96 P: Sveriges Betodlares Centralförening,
an association established under Swedish law, having its
registered office in Malmö (Sweden), and Sven ke
Henrikson, residing in Lund (Sweden), represented by
Otfried Lieberknecht, Rechtsanwalt, Düsseldorf, Michael             Reference      for    a     preliminary   ruling    by    the
Schütte, Rechtsanwalt, Berlin, and Vanessa Turner,                  Verwaltungsgericht, Autonome Sektion für die Provinz
Solicitor, with an address for service in Luxembourg at the         Bozen, Italy, by order of that court of 16 December 1997
Chambers of Bonn & Schmitt, 62 Avenue Guillaume Ð                   in the cases brought by the World Wildlife Fund (WWF),
appeal against the order of the Court of First Instance of          Italia Nostra, national association, and Günther
the European Communities (First Chamber) of 4 October               Bachmann and others v. the Autonome Provinz Bozen, the
1996       in    Case     T-197/95     Sveriges    Betodlares       Ministry of Transport, the Gemeinde Bozen, the
Centralförening and Henrikson v. Commission [1996]                  Gemeinde Leifers, Südtiroler Transportstrukturen AG and
ECR II-1283, seeking to have that order set aside, the                                Airport Bolzano-Bozen AG
other party to the proceedings being the Commission of                                      (Case C-435/97)
the European Communities (Agent: James Macdonald
                                                                                (98/C 72/10)
Flett) Ð the Court (Third Chamber), composed of: C.
Gulmann, President of the Chamber, J. C. Moitinho de
Almeida and J.-P. Puissochet (Rapporteur), Judges; M. B.
                                                                    Reference has been made to the Court of Justice of the
Elmer, Advocate General; R. Grass, Registrar, has made an
                                                                    European        Communities        by    order     of     the
order on 18 December 1997, the operative part of which
                                                                    Verwaltungsgericht, Autonome Sektion für die Provinz
is as follows:
                                                                    Bozen (Administrative Court, Separate Division for the
                                                                    Province of Bolzano), Italy, of 16 December 1997,
1. The appeal is dismissed.                                         received at the Court Registry on 24 December 1997, for
                                                                    a preliminary ruling in the cases brought by the World
                                                                    Wildlife Fund (WWF), Italia Nostra, national association,
2. The appellants are ordered to pay the costs.                     and Günther Bachmann and others against the Autonome
                                                                    Provinz Bozen (Autonomous Province of Bolzano), the
(1) OJ C 74, 8.3.1997.                                              Ministry of Transport, the Gemeinde Bozen (District of
                                                                    Bolzano), the Gemeinde Leifers (District of LaÁives),
                                                                    Südtiroler Transportstrukturen AG and Airport Bolzano-
                                                                    Bozen AG on the following questions:
                                                                    1. Is Article 4(2) of Directive 85/337/EEC (1) to be
                                                                         interpreted as meaning:
Reference for a preliminary ruling by the Gerechtshof
te 's-Hertogenbosch, by judgment of that court of
11 November 1997 in the criminal proceedings against                     (a) that certain classes of the projects listed in
Adrianus Hendrikus Albers, Martinus Johannes Maria                            Annex II may from the outset, in the absolute
Van den Berkmortel and Leon Victor Pierre Maria                               discretion of the Member States, be excluded in
                          Nuchelmans                                          their entirety from the obligation to carry out an
                                                                              environmental assessment; or
          (Cases C-425/97, C-426/97 and C-427/97)
                         (98/C 72/09)                                    (b) that the margin of discretion enjoyed by the
                                                                              Member States is limited by the obligation laid
                                                                              down in Article 2(1) of the directive to subject to
Reference has been made to the Court of Justice of the                        an environmental assessment in any event those
European Communities by judgment of the Gerechtshof                           projects likely to have significant effects on the
(Regional Court of Appeal) 's-Hertogenbosch, of                               environment, by virtue inter alia of their nature,
11 November 1997, which was received at the Court                             size or location?
 ---pagebreak--- C 72/6                EN                  Official Journal of the European Communities                                        7.3.98
   (c)   Does Article 4(2) of the directive, in conjunction          6. If the directive has been incorrectly transposed, is
         with Article 2(1) thereof, allow a Member State                 Article 4(2) thereof in conjunction with Article 2(1)
         to specify (or to fail to specify) types of project or          vertically directly effective (self-executing) in the sense
         criteria and/or thresholds so that the remodelling              that the authorities of the Member State are required
         of an airport with a runway shorter than                        to subject the projects at issue to an environmental
         2 100 metres is excluded from environmental                     assessment?
         assessment from the outset although it is
         environmentally significant, or is the margin of
         discretion which the Member State enjoys under              (1) OJ L 175, 5.7.1985, p. 40.
         Article 4(2) of the directive (if (b) is answered in
         the affirmative) thereby exceeded?
2. Is Article 4(2) of the directive, in conjunction with
   Article 2(1), to be interpreted as meaning that the
   obligation to carry out an environmental assessment
                                                                     Reference      for    a     preliminary     ruling    by    the
   also applies to the extension and remodelling of the
                                                                     Verwaltungsgerichtshof Wien by order of that court of
   projects in Annex II if significant effects on the
                                                                     18 December 1997 in the cases of (1) Evangelischer
   environment are likely, or do Articles 4(2) and 2(1)
                                                                     Krankenhausverein Wien v. Abgabenberufungskommission
   allow environmentally significant projects comprising
                                                                     and (2) Ikera Warenhandelsgesellschaft m.b.H. v.
   remodelling to be excluded, expressly or impliedly (for
                                                                                Oberösterreichische Landesregierung
   example by rules which are not applicable to airports),
   from environmental assessment from the outset?                                           (Case C-437/97)
                                                                                (98/C 72/11)
3. To what extent does      Article 2(1) of the directive, also
   in conjunction with      Article 2(2), allow the Member
   States to introduce      (or use) alternative assessment
   procedures to that        of an ordinary environmental            Reference has been made to the Court of Justice of the
   assessment and if a      positive answer is given to this         European        Communities        by      order     of     the
   question:                                                         Verwaltungsgerichtshof Wien (Administrative Court,
                                                                     Vienna) of 18 December 1997, received at the Court
                                                                     Registry on 24 December 1997, for a preliminary ruling
   (a) what essential requirements or minimum                        in the cases of (1) Evangelischer Krankenhausverein Wien
         requirements must such an assessment satisfy in             (Protestant Hospital Society, Vienna) v. Abgabenberu-
         order to accord with the objectives of the                  fungskommission (Tax Appeals Commission) and (2) Ikera
         directive and, in particular,                               Warenhandelsgesellschaft m.b.H. v. Oberösterreichische
                                                                     Landesregierung (Regional Government of Upper Austria)
                                                                     on the following questions:
   (b) is the participation of the public within the
         meaning of Article 6 of the directive an essential
         requirement of an environmental assessment?
                                                                     1. Does Article 33(1) of the Sixth Council Directive of
                                                                         17 May 1977 on the harmonisation of the laws of the
                                                                         Member States relating to turnover taxes Ð Common
4. May Article 1(5) of the directive be interpreted as also              system of value added tax: uniform basis of assessment
   covering projects which, while provided for in a                      (77/388/EEC) (1) preclude the maintenance in force of
   legislative provision which sets out a programme, are                 a levy on the supply for consideration of ice cream
   approved under a separate administrative procedure?                   (including fruits processed therein or added thereto)
                                                                         and beverages, in each case including the containers
                                                                         and accessories sold therewith, the rate of such levy
   What minimum environmental requirements must the                      being 10 % of the consideration in the case of ice
   legislative process' contain in order to achieve the                 cream and alcoholic beverages and 5 % of the
   objectives . . . including that of supplying information'            consideration in the case of non-alcoholic beverages,
   pursued by the directive?                                             where the consideration for the purposes of the
                                                                         relevant provisions of turnover tax law is measured in
                                                                         such a way as to exclude value added tax, service
5. Is the exclusion of projects from the scope of the                    charges and beverage duty?
   directive pursuant to Article 1(4) to be applied to an
   airfield used for both civil and military purposes?
                                                                     2. Do Article 3(2) or the second sentence of Article 3(3)
                                                                         of Council Directive 92/12/EEC (2) (Excise duties
   Could the applicable criterion be the predominant use                 directive) of 25 February 1992 preclude the
   or is it sufficient for the exclusion to apply that the               maintenance in force of a levy such as described in
   airfield is also used for military purposes?                          Question 1?