title: Case T-174/00: Action brought on 28 June 2000 by Société Biret International against the Council of the European Union

text:
C 285/10                EN                     Official Journal of the European Communities                                     7.10.2000
1.    Operation of the Commission’s decision of 9 March 2000              Action brought on 28 June 2000 by Société Biret Inter-
      concerning the withdrawal of authorisation for the placing on           national against the Council of the European Union
      the market of medicinal products for human use containing
      the substances ‘Clobenzorex’, ‘Fenbutrazat’, ‘Fenproporex’,
      ‘Mazindol’, ‘Mefenorex’, ‘Norpseudoephredin’, ‘Phenmetrazin’                                 (Case T-174/00)
      and ‘Propylhexedrin’ (C(2000) 608) is suspended pending the
      making of the orders bringing the proceedings for interim relief                             (2000/C 285/21)
      to a close.
2.    The costs are reserved.
                                                                                (Language of the case: French)
                                                                          An action against the Council of the European Union was
                                                                          brought before the Court of First Instance of the European
                                                                          Communities on 28 June 2000 by Société Biret International,
                                                                          established in Paris, represented by Stéphane Rodrigues, of the
Action brought on 16 May 2000 by Robert Schochaert                        Paris Bar.
         against the Council of the European Union
                          (Case T-131/00)                                 The applicant claims that the Court should:
                          (2000/C 285/20)                                 —     establish the liability of the European Community in the
                                                                                court-supervised liquidation of the company known as
                                                                                Biret International;
                    (Language of the case: French)
                                                                          —     order the Council of the European Union to pay to Biret
An action against the Council of the European Union was                         International damages in the sum of FRF 87 006 000;
brought before the Court of First Instance of the European
Communities on 16 May 2000 by Robert Schochaert, residing
in Brussels, represented by Jean A. Martin, of the Brussels Bar.          —     order the Council of the European Union to pay all the
                                                                                costs.
The applicant claims that the Court should:
—     annul the decision of the appointing authority refusing             Pleas in law and main arguments
      to promote the applicant to grade B1, and rule that he
      should be promoted to that grade, with retroactive effect
      from the 1999 promotions procedure, within one month                The applicant, a company incorporated under French law
      from the date of the Court’s decision, failing which the            which is currently in liquidation and the object of which is
      defendant is to pay a periodic penalty of 5 000 Belgian             trade in various agricultural food products, particularly meat,
      francs per day of delay.                                            claims compensation for the damage allegedly suffered by it as
                                                                          a result of the prohibition of imports into the Community of
                                                                          beef and veal, especially of American origin. The company is
Pleas in law and main arguments                                           co-owned, as to 34 % of its capital, by Cargill USA.
The applicant maintains, first, that the refusal to include his
name on the list of officials proposed for promotion to grade             That prohibition was decided upon and implemented pursuant
B1 was based on an error of fact, namely that the position                to Council Directive 88/146/EEC of 7 March 1988 prohibiting
occupied by him since 1998 did not involve responsibilities               the use in livestock farming of certain substances having a
justifying a promotion by comparison with the other candi-                hormonal action (1) and Council Directive 72/462/EEC of
dates for promotion. He claims in that regard that the position           12 December 1972 on health and veterinary inspection prob-
which he has occupied since 1998 — and which he occupied,                 lems upon importation of bovine animals and swine and fresh
in particular, at the time of the decision refusing his promotion         meat from third countries (2). Those two directives were
— corresponds, in fact and in law, to a post involving the                replaced by Council Directive 96/22/EC of 29 April 1996
duties of a grade B1 official.                                            concerning the prohibition on the use in stockfarming of
                                                                          certain substances having a hormonal or thyrostatic action
Second, he considers that the fact that he has been refused               and of ß-agonists, and repealing Directives 81/602/EEC,
promotion to grade B1 sixteen years in succession, despite his            88/146/EEC and 88/299/EEC (3).
having been awarded either ‘particularly high’ or ‘exceptionally
high’ grades in his staff reports, can be explained only by the
existence of some deep-rooted ill-feeling towards him at a                The applicant states in that regard that, since neither the
certain level in the hierarchy above him.                                 Community legislation nor the national legislation has progres-
                                                                          sed towards a lifting of the prohibitions or the introduction of
                                                                          a more flexible system, it has not been possible for the flow of
                                                                          business which it had envisaged to materialise.
 ---pagebreak--- 7.10.2000               EN                      Official Journal of the European Communities                                        C 285/11
The applicant asserts, first of all, that the two directives referred      In August 1993 the applicant, a Community Medical Specialist
to above infringed the principle of the protection of legitimate           in Rheumatology submitted to the Commission under
expectations. It was legitimately entitled to expect, first, that          Article 3(2) of Council regulation No. 17 an application for a
the prohibition of the hormones at issue was merely a                      finding that the GMC had infringed Articles 85 and 86 of the
temporary measure which was to apply pending the pro-                      EEC Treaty.
duction of an appropriate scientific assessment of the question
whether or not they presented a danger to human health and,
                                                                           The grounds and main arguments are similar to those invoked
second, that the scope of the derogations provided for in
                                                                           in case T-286/97 Goldstein/Commission (1). According to the
Directive 88/146 would be gradually extended to cover the
                                                                           applicant, the conditions laid down in Article 232 EC are
categories of animals which it proposed to import from the
                                                                           satisfied because 80 months have elapsed since it submitted,
United States into the Community.
                                                                           on 20 September 1995, his observations on the Commission’s
                                                                           letter of 9 February 1995 under Article 6 of Council Regulation
The applicant also pleads infringement of the WTO agree-                   No 99/63.
ments. It states in that regard that the European Union has
been censured by the dispute-settlement body of the WTO for
having enacted Directives 81/602, 88/146 and 96/22, on                     (1) OJ EC C 7, of 10.1.1998, p. 25.
account of infringement of the SPS agreement.
(1) OJ L 70 of 16.3.1988, p. 16.
(2) OJ, English Special Edition 1972 (31 December) JO L 302, p. 7.
(3) OJ L 125 of 23.5.1996, p. 3.
                                                                           Action brought on 29 June 2000 by Cargill BV against the
                                                                                Commission of the European Communities
                                                                                (Case T-176/00)
Action brought on 29 June 2000 by Anthony Goldstein
  against the Commission of the European Communities                                                (2000/C 285/23)
                          (Case T-175/00)
                                                                                (Language of the case: Dutch)
                          (2000/C 285/22)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 29 June 2000 by Cargill BV, a
                   (Language of the case: English)                         company incorporated under Netherlands law, established in
                                                                           Amsterdam, represented by H.J. Bronkhorst and L.H. van
An action against the Commission of the European Communi-                  Lennep, of the Brussels Bar, with an address for service in
ties was brought before the Court of First Instance of the                 Luxembourg at the Chambers of M. Loesch, 4 Rue Carlo
European Communities on 29 June 2000 by Anthony Gold-                      Hemmer.
stein, represented by Raymond St John Murphy, Solicitor,
Merriman White, London.
                                                                           The applicant claims that the Court should:
The applicant claims that the Court should:                                —     annul the decision of 24 February 2000 addressed to it
                                                                                by the Commission of the European Communities, in so
—     declare in accordance with Article 232 EC that the                         far as Article 1(2) of that decision is concerned;
      Commission has failed to act by not having delivered a
      decision on the applicant’s complaint lodged with the                —     order the European Commission to pay the costs.
      Commission on 10 August 1993;
—     order the defendant to pay the costs.                                Pleas in law and main arguments
Pleas in law and main arguments                                            In Article 1(2) of the contested decision, the Commission
                                                                           found that remission of import duties in respect of a specific
                                                                           sum was not justified.
The applicant challenges the inaction of the Commission in
relation to one complaint, focused on the alleged anti-
competitive practices on the part of the General Medical                   The applicant’s claim is based on the following grounds:
Council (GMC), a statutory body which regulates the medical
profession in the territory of the United Kingdom.                         (a)   violation of the rights of the defence:


title: Judgment of the Court (First Chamber) of 16 December 1999 in Case C-74/98 (reference for a preliminary ruling from the Østre Landsret): DAT-SCHAUB amba v Ministeriet for Fødevarer, Landbrug og Fiskeri (Agriculture — Common organisation of the market — Beef and veal — Export refunds — Beef processed before entering the country of import — International agreements — Effects — Cooperation Agreement between the European Economic Community, of the one part, and the countries parties to the Charter of the Cooperation Council for the Arab States of the Gulf, of the other part)

text:
C 63/2                     EN                      Official Journal of the European Communities                                              4.3.2000
1. Declares that, by failing, within the prescribed period, to classify       Council Directive 92/50/EEC of 18 June 1992 relating to the
     a sufficient area in the Poitevin Marsh as special protection areas,     coordination of procedures for the award of public service contracts is
     by failing to adopt measures conferring a sufficient legal status        to be interpreted as permitting a service provider to establish that it
     on the special protection areas classified in the Poitevin Marsh,        fulfils the economic, financial and technical criteria for participation
     and by failing to adopt appropriate measures to avoid deterio-           in a tendering procedure for the award of a public service contract by
     ration of the sites in the Poitevin Marsh classified as special          relying on the standing of other entities, regardless of the legal nature
     protection areas and of certain of those which should have been          of the links which it has with them, provided that it is able to show
     so classified, the French Republic has failed to fulfil its obligations  that it actually has at its disposal the resources of those entities which
     under Article 4 of Council Directive 79/409/EEC of 2 April               are necessary for performance of the contract. It is for the national
     1979 on the conservation of wild birds;                                  court to assess whether the requisite evidence in that regard has been
                                                                              adduced in the main proceedings.
2. Dismisses the remainder of the application;
3. Orders the French Republic to pay the costs.                               (1) OJ C 234 of 25.7.1998.
(1) OJ C 166 of 30.5.1998.
                                                                                JUDGMENT OF THE COURT
                    JUDGMENT OF THE COURT                                                                 (First Chamber)
                             (Fifth Chamber)                                                         of 16 December 1999
                          of 2 December 1999                                  in Case C-74/98 (reference for a preliminary ruling from
                                                                              the Østre Landsret): DAT-SCHAUB amba v Ministeriet
in Case C-176/98 (reference for a preliminary ruling from                                   for Fødevarer, Landbrug og Fiskeri (1)
the Tribunale Amministrativo Regionale per la Sardegna):
            Holst Italia SpA v Comune di Cagliari (1)                         (Agriculture — Common organisation of the market — Beef
                                                                              and veal — Export refunds — Beef processed before entering
(Directive 92/50/EEC — Public service contracts — Proof of                    the country of import — International agreements — Effects
standing of the service provider — Possibility of relying on                  — Cooperation Agreement between the European Economic
                 the standing of another company)                             Community, of the one part, and the countries parties to the
                                                                              Charter of the Cooperation Council for the Arab States of
                                                                                the Gulf, of the other part)
                              (2000/C 63/03)
                                                                                (2000/C 63/04)
                       (Language of the case: Italian)
                                                                                (Language of the case: Danish)
(Provisional translation; the definitive translation will be published
                      in the European Court Reports)
                                                                              (Provisional translation; the definitive translation will be published
In Case C-176/98: reference to the Court under Article 177 of                                     in the European Court Reports)
the EC Treaty (now Article 234 EC) from the Tribunale
Amministrativo Regionale per la Sardegna (Regional Adminis-                   In Case C-74/98: reference to the Court under Article 177 of
trative Court for Sardinia), Italy, for a preliminary ruling in the           the EC Treaty (now Article 234 EC) from the Østre Landsret
proceedings pending before that court between Holst Italia                    (Eastern Regional Court), Denmark, for a preliminary ruling in
SpA and Comune di Cagliari, intervener: Ruhrwasser AG                         the proceedings pending before that court between DAT-
International Water Management — on the interpretation of                     SCHAUB amba and Ministeriet for Fødevarer, Landbrug og
Council Directive 92/50/EEC of 18 June 1992 relating to the                   Fiskeri — on the interpretation of Article 17(2) of Commission
coordination of procedures for the award of public service                    Regulation (EEC) No 3665/87 of 27 November 1987 laying
contracts (OJ 1992 L 209, p. 1) — the Court (Fifth Chamber),                  down common detailed rules for the application of the system
composed of: J.C. Moitinho de Almeida, President of the Sixth                 of export refunds on agricultural products (OJ 1987 L 351,
Chamber, acting as President of the Fifth Chamber, L. Sevón,                 p. 1) — the Court (First Chamber), composed of: L. Sevón
C. Gulmann, J.-P. Puissochet (Rapporteur) and M. Wathelet,                    (Rapporteur), President of the Chamber, P. Jann and M. Wathe-
Judges; P. Léger, Advocate General; L. Hewlett, Administrator,                let, Judges; J. Mischo, Advocate General; H.A. Rühl, Principal
for the Registrar, has given a judgment on 2 December 1999,                   Administrator, for the Registrar, has given a judgment on
in which it has ruled:                                                        16 December 1999, in which it has ruled:
 ---pagebreak--- 4.3.2000                EN                     Official Journal of the European Communities                                              C 63/3
The second indent of the second subparagraph of Article 17(2) of          Where it is sought to import medicinal product X from Member
Commission Regulation (EEC) No 3665/87 of 27 November 1987                State A into Member State B, it is permissible for the person who
laying down common detailed rules for the application of the system       proposes to place the imported product upon the market in Member
of export refunds on agricultural products must be interpreted as         State B to seek and obtain a parallel import licence from the
meaning that the countries parties to the Charter of the Cooperation      competent authority in Member State B without complying with all
Council for the Arab States of the Gulf are not regarded, where           the requirements of Council Directive 65/65/EEC of 26 January
products are processed before being cleared through customs on the        1965 on the approximation of provisions laid down by law,
territory of one of those countries and then exported to others, as a     regulation or administrative action relating to medicinal products
single non-member country into which all the products resulting from      (OJ, English Special Edition 1965-1966, p. 20), as amended by
that processing have been imported.                                       Council Directive 93/39/EEC of 14 June 1993, if:
(1) OJ C 166 of 30.5.1998.
                                                                          — medicinal product X is the subject of a marketing authorisation
                                                                              granted in Member State A and was the subject of a marketing
                                                                              authorisation which has ceased to have effect in Member State B;
                                                                          — medicinal product Y is the subject of a marketing authorisation
                                                                              granted in Member State B, but is not the subject of a marketing
                                                                              authorisation granted in Member State A;
                 JUDGMENT OF THE COURT
                      of 16 December 1999                                 — medicinal product X has the same active ingredients and
                                                                              therapeutic effect as medicinal product Y, but does not use the
                                                                              same excipients and is manufactured by a different manufacturing
in Case C-94/98 (reference for a preliminary ruling from                      process, where the competent authority in Member State B is in
the High Court of Justice of England and Wales, Queen’s                       a position to verify that medicinal product X complies with the
Bench Division): The Queen v The Licensing Authority                          requirements relating to quality, efficacy and safety in normal
established by the Medicines Act 1968 (represented by                         conditions of use and is in a position to ensure normal
the Medicines Control Agency), ex parte: Rhône-Poulenc                        pharmacovigilance;
                 Rorer Ltd, May & Baker Ltd (1)
(Medicinal products — Marketing authorisation — Parallel                  — the marketing authorisations referred to above were granted to
                              imports)                                        different members of the same group of companies and the
                                                                              manufacturers of medicinal products X and Y are also members
                           (2000/C 63/05)                                     of that group of companies; and
                    (Language of the case: English)                       — companies within the same group as the holder of the marketing
                                                                              authorisation for product X which has been withdrawn in
                                                                              Member State B continue to manufacture and market product X
In Case C-94/98: reference to the Court under Article 177 of                  in Member States other than Member State B.
the EC Treaty (now Article 234 EC) from the High Court of
Justice of England and Wales, Queen’s Bench Division, United
Kingdom, for a preliminary ruling in the proceedings pending
before that court between The Queen and The Licensing                     In such a situation, the competent authority is not required to take
Authority established by the Medicines Act 1968 (represented              into consideration the fact that medicinal product Y was developed
by the Medicines Control Agency), ex parte: Rhône-Poulenc                 and introduced in order to provide a particular benefit to public
Rorer Ltd, May & Baker Ltd — on the interpretation of Council             health which medicinal product X does not provide and/or that that
Directive 65/65/EEC of 26 January 1965 on the approximation               particular benefit to public health would not be achieved if product X
of provisions laid down by law, regulation or administrative              and product Y were both on the market in Member State B at the
action relating to medicinal products (OJ, English Special                same time.
Edition 1965-1966, p. 20), as amended, in particular, by
Council Directive 93/39/EEC of 14 June 1993 (OJ 1993 L 214,
p. 22), and of the provisions of Community law relating to the
grant of parallel import licences for medicinal products —
the Court, composed of: G.C. Rodrı́guez Iglesias, President,              (1) OJ C 166 of 30.5.1998.
D.A.O. Edward, L. Sevón, R. Schintgen (Presidents of Cham-
bers), C. Gulmann (Rapporteur), J.-P. Puissochet, G. Hirsch,
P. Jann and H. Ragnemalm, Judges; A. La Pergola, Advocate
General; D. Louterman-Hubeau, Principal Administrator, for
the Registrar, has given a judgment on 16 December 1999, in
which it has ruled:


title: Case C-41/99 P: Appeal brought on 12 February 1999 by Sadam Zuccherifici Divisione della SECI SpA, Sadam Castiglionese SpA, Sadam Abruzzo SpA, Zuccherificio del Molise SpA and Società Fondiaria Industriale Romagnola SpA against the order made on 8 December 1998 by the Fourth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-39/98 Sadam Zuccherifici Divisione della SECI SpA, Sadam Castiglionese SpA, Sadam Abruzzo SpA, Zuccherificio del Molise SpA and Società Fondiaria Industriale Romagnola SpA v. Council of the European Union

text:
10.4.1999            EN                   Official Journal of the European Communities                                 C 100/11
Appeal brought on 12 February 1999 by Sadam                          Reference for a preliminary ruling by the Supremo
Zuccherifici Divisione della SECI SpA, Sadam                         Tribunal Administrativo, Second Chamber, by judgment of
Castiglionese SpA, Sadam Abruzzo SpA, Zuccherificio del              that court of 13 January 1999, in the case of FaÂbrica de
Molise SpA and SocietaÁ Fondiaria Industriale Romagnola              Queijo Eru Portuguesa Lda and Tribunal TeÂcnico de 2a
SpA against the order made on 8 December 1998 by the                                            InstaÃncia
Fourth Chamber (Extended Composition) of the Court of
                                                                                (Case C-42/99)
First Instance of the European Communities in Case T-39/
98 Sadam Zuccherifici Divisione della SECI SpA, Sadam                                       (1999/C 100/19)
Castiglionese SpA, Sadam Abruzzo SpA, Zuccherificio del
Molise SpA and SocietaÁ Fondiaria Industriale Romagnola
            SpA v. Council of the European Union                     Reference has been made to the Court of Justice of the
                                                                     European Communities by an judgment of the Second
                      (Case C-41/99 P)                               Chamber of the Supremo Tribunal Administrativo
                      (1999/C 100/18)                                (Supreme Administrative Court) of 13 January 1999,
                                                                     which was received at the Court Registry on 12 February
                                                                     1999, for a preliminary ruling in the case of FaÂbrica de
                                                                     Queijo Eru Portuguesa Lda and Tribunal TeÂcnico de 2a
An appeal has been brought before the Court of Justice of            InstaÃncia, on the following questions:
the European Communities on 12 February 1999 by
Sadam Zuccherifici Divisione della SECI SpA, Sadam
Castiglionese SpA, Sadam Abruzzo SpA, Zuccherificio del              1. Are the Explanatory Notes to the combined
Molise SpA and SocietaÁ Fondiaria Industriale Romagnola                   nomenclature (1), where they state that caseins
SpA, represented by Vincenzo Cerulli Irelli, Gualtiero                    containing by weight more than 15 % water are
Pittalis and Giancarlo Fanzini, of the Bologna Bar, with an               included under heading 0406 (cheese and curd)
address for service in Luxembourg at the Chambers of                      contrary to Commission Regulation (EEC) No 3174/
ArseÁne Kronshagen, 22 Rue Marie-AdeÂlaïde, against the                   88 (2) according to which (Chapter IV) they are to
order made on 8 December 1998 by the Fourth Chamber                       classified under heading 0406, as cheese, provided
(Extended Composition) of the Court of First Instance of                  that:
the European Communities in Case T-39/98 Sadam
Zuccherifici Divisione della SECI SpA, Sadam                              (a) they have a fat content of 5 % or more;
Castiglionese SpA, Sadam Abruzzo SpA, Zuccherificio del
Molise SpA and SocietaÁ Fondiaria Industriale Romagnola                   (b) they have a dry matter content, by weight, of at
SpA v. Council of the European Union.                                          least 70 % but not exceeding 85 %; and
                                                                          (c) they are moulded or capable of being moulded?
The appellants claim that the Court should set aside the
Court of First Instance's order of 8 December 1998 in
Case T-39/98 by declaring the application to be admissible           2. Having regard to Commission Regulation (EEC)
and refer the case back to the Court of First Instance for a              No 3174/88 are the imported goods (which have the
decision on the substance.                                                following composition: 54 % water, 0,9 % fat, 5,7 %
                                                                          phosphorus, 2 % salt and casein) to be classified
                                                                          under customs heading 3501 10 90 0 00 000 as
                                                                          casein Ð other Ð or under customs heading
Pleas in law and main arguments adduced in support                        0406 90 11 01 0 000 as other cheeses?
                                                                     (1) OJ C 342, 5.12.1994, p. 1.
The contested regulation (1) has direct, not indirect,               (2) OJ L 298, 31.10.1998, p. 1.
detrimental effects on the four plants of the appellant
sugar-producing undertakings operating in southern Italy.
Those four plants are effectively the sole specific
addressees of Article 2 of Regulation (EC) No 2613/97
and have individually been adversely affected.
                                                                     Reference for a preliminary ruling by the Conseil
                                                                     SupeÂrieur des Assurances Sociales du Grand-DucheÂ de
It follows     that  the   application    must    be  declared       Luxembourg, by judgment of that body of 10 February
admissible.                                                          1999 in the case of Ghislain Leclere and Alina Deaconescu
                                                                          against Caisse Nationale des Prestations Familiales
(1) Article 2 of Council Regulation (EC) No 2613/97 of                                       (Case C-43/99)
    15 December 1997 authorising Portugal to grant aid to sugar                             (1999/C 100/20)
    beet producers and abolishing all State aid from the 2001/
    2002 marketing year (OJ L 353, 24.12.1997, p. 3).
                                                                     Reference has been made to the Court of Justice of the
                                                                     European Communities by judgment of the Conseil


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 28 January 1999 in Case T-14/96: Bretagne Angleterre Irlande (BAI) v. Commission of the European Communities (State aid - Action for annulment - Decision terminating an examination procedure initiated under Article 93(2) of the EC Treaty - Definition of State aid within the meaning of Article 92(1) of the EC Treaty)

text:
C 86/16               EN                Official Journal of the European Communities                                  27.3.1999
  JUDGMENT OF THE COURT OF FIRST INSTANCE                            JUDGMENT OF THE COURT OF FIRST INSTANCE
                     of 28 January 1999                                                 of 21 January 1999
in Case T-14/96: Bretagne Angleterre Irlande (BAI) v.              in Joined Cases T-185/96, T-189/96 and T-190/96:
        Commission of the European Communities (1)                 Riviera Auto Service EÂtablissements Dalmasso SA and
(State aid Ð Action for annulment Ð Decision                         Others v. Commission of the European Communities (1)
terminating an examination procedure initiated under
Article 93(2) of the EC Treaty Ð Definition of State aid           (Competition Ð Article 85 of the EC Treaty Ð
    within the meaning of Article 92(1) of the EC Treaty)          Standard-form exclusive distributorship agreements for
                                                                   motor vehicles Ð Category exemption Ð Rejection of
                        (1999/C 86/32)                             complaints lodged by former dealers Ð Error of law Ð
                                                                   Manifestly erroneous assessment Ð Action for annulment
                                                                                Ð Action for damages)
                (Language of the case: French)
                                                                                (1999/C 86/33)
In Case T-14/96: Bretagne Angleterre Irlande (BAI),
established at Roscoff (France), represented by                                   (Language of the case: French)
Jean-Michel Payre, of the Paris Bar, with an address for
service in Luxembourg at the Chambers of Aloyse May,
31 Grand-Rue, v. Commission of the European
Communities (Agents: GeÂrard Rozet and Anders Christian
Jessen), supported by Kingdom of Spain (Agents: in the             In Joined Cases T-185/96, T-189/96 and T-190/96: Riviera
written procedure, Luis PeÂrez de Ayala Becerril and, in the       Auto Service EÂtablissements Dalmasso SA, established in
oral procedure, Santiago Ortíz Vaamonde) and Ferries               Nice (France), represented by Christian Bourgeon, of the
Golfo de Vizcaya SA, established at Bilbao (Spain),                Paris Bar, with an address for service in Luxembourg at
represented, in the written procedure, by Julian Ellison           the Office of FrancËois Brouxel, 6 Rue Zithe, Garage des
and, in the oral procedure, by Mr Ellison and Mark                 Quatre ValleÂes SA, established in Albertville (France),
Clough, Solicitors, with an address for service in                 Pierre Joseph Tosi, residing in Albertville, Palma SA (CIA
Luxembourg at the Chambers of Messrs Bonn and                      Ð Groupe Palma), established in Salon-de-Provence
Schmidt, 61 Avenue Guillaume Ð application for                     (France), Christophe and GeÂrard Palma, residing in
annulment of the decision of the Commission of 7 June              Salon-de-Provence, represented by Jean-Louis and GiseÁle
1995 terminating the examination procedure initiated               Portolano, of the Aix-en-Provence Bar (France), with an
under Article 93(2) of the EC Treaty (aid in favour of             address for service in Luxembourg at the Office of Nathan
Ferries Golfo de Vizcaya SA), notified to the Spanish              Roy, 18 Rue des Glacis, against Commission of the
Government on 11 Juli 1995 and published in the Official           European Communities (Agents: Giuliano Marenco, Guy
Journal of the European Communities (OJ C 321,                     Charrier and Loic Guerin), supported by Groupe
1.12.1995, p. 4) Ð the Court of First Instance (First              Volkswagen France SA, established in Villers-Cotterets
Chamber, Extended Composition), composed of: B.                    (France), represented by Joseph Vogel, of the Paris Bar,
Vesterdorf, President, and C. W. Bellamy, R. M. Moura              with an address for service in Luxembourg at the Office of
Ramos, J. Pirrung and P. Mengozzi, Judges; B. Pastor,              Arendt et Medernach, 8Ð10 Rue Mathias Hardt Ð
Principal Administrator, for the Registrar, has given a            application, first, for annulment of decisions to reject
judgment on 28 January 1999, in which it:                          complaints alleging infringements of Article 85(1) of the
                                                                   EC Treaty (Cases T-185/96, T-189/96 and T-190/96) and,
                                                                   secondly, for damages for loss allegedly suffered as a result
                                                                   of those decisions (Cases T-189/96 and T-190/96) Ð the
1. Annuls the decision of the Commission of 7 June 1995            Court of First Instance (Third Chamber), composed of:
     terminating the examination procedure initiated under         Tiili, President, A. Potocki and J. D. Cooke, Judges; B.
     Article 93(2) of the EC Treaty (aid in favour of Ferries      Pastor, Principal Administrator, for the Registrar, has given
     Golfo de Vizcaya SA), notified to the Spanish                 a judgment on 21 January 1999, in which it:
     Government on 11 July 1995 and published in the
     Official Journal of the European Communities.
                                                                   1. Dismisses the application in Case T-185/96.
2. Orders the Commission to pay the costs.
3. Orders the Kingdom of Spain and Ferries Golfo de                2. Dismisses as inadmissible the second head of claim in
     Vizcaya SA to bear their own costs.                                Cases T-189/96 and T-190/96.
(1) OJ C 77, 16.3.1996.
                                                                   3. Dismisses the remaining heads of claim in Cases
                                                                        T-189/96 and T-190/96.


title: Case T-216/01: Action brought on 21 September 2001 by ReiseBank AG against the Commission of the European Communities

text:
24.11.2001             EN                    Official Journal of the European Communities                                      C 331/27
Action brought on 21 September 2001 by ReiseBank AG                     In August 2001 the applicant made an application to inspect
  against the Commission of the European Communities                    the defendant’s files containing information on the fees and
                                                                        conditions applicable in the national investigations that were
                                                                        abandoned. The defendant refused that application in the
                         (Case T-216/01)                                contested decision.
                         (2001/C 331/44)                                In support of its claim the applicant submits that the defend-
                                                                        ant’s decision caused material and irreversible damage to its
                                                                        rights of defence. If it were not granted permission to carry
                  (Language of the case: German)
                                                                        out a search, the defendant — as it said it intended to do —
                                                                        would adopt a decision to impose a fine closing the procedure,
                                                                        which would adversely affect the applicant. Furthermore the
                                                                        applicant has not made submissions on the unequal treatment
                                                                        it received in the context of the investigation and the decision
An action against the Commission of the European Communi-               terminating the investigation would be adopted without the
ties was brought before the Court of First Instance of the              advisory committee and the College of Commissioners being
European Communities on 21 September 2001 by ReiseBank                  able to take advice on that unequal treatment. Even if the
AG, Frankfurt am Main (Germany), represented by Rechtsan-               financial penalty were to be annulled in court proceedings
wälte M. Klusmann and F. Wiemer.                                        subsequently, the applicant would still suffer irreversible
                                                                        damage.
The applicant claims that the Court should:
                                                                        The applicant submits that the defendant is under a duty to
                                                                        disclose to the undertakings to which the procedure relates all
—     annul the defendant’s decision of 14 August 2001                  documents both favourable and adverse. On the basis that
      in Case COMP/E-1/37.919 — bank fees for currency                  there must be equality of arms, the defendant must on no
      exchange in the Euro zone: Germany (Deutsche Ver-                 account be able to keep to itself information that is significant
      kehrsbank v Reisebank);                                           to the defence of the applicant. The documents which the
                                                                        applicant has asked to see are very likely to show that the
                                                                        applicant was treated unequally in comparison with other
—     order the defendant to pay the costs.                             banks concerned by the procedure to which the procedure
                                                                        relates to its detriment. Finally, the request to see the docu-
                                                                        ments cannot under any circumstances be refused on the
                                                                        ground that they relate to commercial secrets or are internal.
Pleas in law and main arguments
The applicant buys from and sells to the public foreign
currencies, inter alia. At the beginning of 1999 the defendant
opened an investigation into approximately 150 banks in
various Member States on suspicion that the banks had, in               Action brought on 20 September 2001 by SINAGA,
anticipation of the introduction of the euro, agreed on the             Sociedade de Indústrias Agrı́colas Açoreanas, SA against
structure and level of exchange fees for euro currencies during                  Commission of the European Communities
the transitional period from 1 January 1999. That investigation
was later divided into individual procedures at national level.
                                                                                (Case T-222/01)
In August 2000 the defendant sent the applicant its objections                                  (2001/C 331/45)
to which the applicant responded.
                                                                                (Language of the case: Portuguese)
In April and May 2001 the defendant announced that it had
abandoned the investigation into the Dutch, Belgian and some
of the German banks and justified that step by stating that             An action against the Commission of the European Communi-
those banks had lowered their fees beforehand. In May 2001              ties was brought before the Court of First Instance of the
the applicant sent the defendant an offer to bring the                  European Communities on 20 September 2001 by SINAGA,
investigation to a close by amicable agreement, which was               Sociedade de Indústrias Agrı́colas Açoreanas, SA, whose
similar to a decrease in fees proposed by another bank. The             registered office is at Ponta Delgada, Açores, Rua de Lisboa,
defendant declined that offer and further attempts to bring the         n.o 75, represented by Dr. Mário Marques Mendes Prof.
investigation to a close by consent failed.                             Doutora Maria Luı́sa Duarte, lawyers.


title: Case C-318/01: Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Roma by order of that court of 27 February 2001 in the case of Informatica e Telecomunicazioni I & T SpA against Direzione Regionale delle Entrate per il Lazio

text:
27.10.2001             EN                   Official Journal of the European Communities                                         C 303/9
      administrative authorities of instances of incorrect label-      2.    Is Article 13 of Decision No 1/80 of the Association
      ling, pursuant to Council Regulation (EC) No 1139/98 (1)               Council of 19 September 1980 on the development
      of 26 May 1998 concerning the compulsory indication                    of the Association between the European Economic
      of the labelling of certain foodstuffs produced from                   Community and Turkey also to be applied to workers
      genetically modified organisms of particulars other than               employed in Turkey, who, as long-distance lorry drivers
      those provided for in Directive 79/112/EEC (2), constitute             engaged in international haulage, regularly pass through
      ‘information relating to the environment’ within the                   a Member State of the Community without belonging to
      meaning of Article 2(a) of Council Directive                           the legitimate labour force of that Member State?
      90/313/EEC (3) of 7 June 1990 on the freedom of access
      to information on the environment?
                                                                       3.    Is Article 41(1) of the Additional Protocol of 23 Novem-
2.    Does information contained in administrative documents                 ber 1970 to the Agreement establishing an Association
      revealing the frequency with which administrative penal-               between the European Economic Community and Turkey
      ties have been imposed for infringement of Regulation                  to be interpreted as meaning that
      (EC) No 1139/98 constitute ‘information relating to the
      environment’ within the meaning of Article 2(a) of                     (a)   a Turkish worker is entitled to plead a restriction on
      Council Directive 90/313/EEC of 7 June 1990 on the                           the freedom to provide services which is contrary to
      freedom of access to information on the environment?                         the Additional Protocol and, if so, that
3.    Does information contained in administrative documents
      revealing the manufacturers and products to which                      (b) a new restriction on the freedom to provide services
      administrative penalties for infringement of Regulation                      also exists where a Member State of the Community,
      (EC) No 1139/98 relate constitute ‘information relating                      from the entry into force of the Additional Protocol,
      to the environment’ within the meaning of Article 2(a) of                    restricts the access of Turkish workers to the
      Council Directive 90/131/EEC of 7 June 1990 on the                           employment market and thereby impedes the free-
      freedom of access to information on the environment?                         dom to provide services of businessmen employing
                                                                                the workers?
(1) OJ 1998 L 159, p. 4.
(2) OJ 1979 L 33, p. 1.
(3) OJ 1990 L 158, p. 56.
Reference for a preliminary ruling by the Bundessozial-
                                                                       Reference for a preliminary ruling by the Commissione
gericht by order of that court of 20 June 2001 in the case
                                                                       Tributaria Provinciale di Roma by order of that court of
of 1. Eran Abatay, 2. Abdulgam Balikci, 3. Ismail Birer and
                                                                       27 February 2001 in the case of Informatica e Telecomu-
          4. Rafik Günes v Bundesanstalt für Arbeit
                                                                       nicazioni I & T SpA against Direzione Regionale delle
                                                                                Entrate per il Lazio
                         (Case C-317/01)
                         (2001/C 303/14)                                                        (Case C-318/01)
Reference has been made to the Court of Justice of the
European Communities by order of the Bundessozialgericht                                        (2001/C 303/15)
(Federal Social Court) of 20 June 2001, received at the Court
Registry on 13 August 2001, for a preliminary ruling in the
case of 1. Eran Abatay, 2. Abdulgam Balikci, 3. Ismail Birer           Reference has been made to the Court of Justice of the
and 4. Rafik Günes v Bundesanstalt für Arbeit (Federal Labour          European Communities by order of the Commissione Tributa-
Office) on the following questions:                                    ria Provinciale di Roma of 27 February 2001, which was
                                                                       received at the Court Registry on 14 August 2001, for a
1.    Is Article 13 of Decision No 1/80 of the Association             preliminary ruling in the case of Informatica e Telecomunica-
      Council of 19 September 1980 on the development                  zioni I & T SpA against Direzione Regionale delle Entrate per
      of the Association between the European Economic                 il Lazio on the following question:
      Community and Turkey to be interpreted as prohibiting
      a Member State of the Community from introducing
      national provisions which, in comparison with the pos-           Is a legislative measure imposing a charge on the net assets of
      ition under national law on 1 December 1980, lay down            a company having effects equivalent to an indirect charge on
      new restrictions on access to the employment market for          transfers compatible with Community law and in particular
      Turkish workers generally, or does the prohibition on            with Directive 69/335/EEC?
      introducing new restrictions under Article 13 of Decision
      No 1/80 relate only to the time when a worker is first
      legally resident and employed?


title: Case C-66/99: Reference for a preliminary ruling by the Finanzgericht Bremen by order of 2 February 1999 in the case of D. Wandel GmbH v Hauptzollamt Bremen

text:
15.5.1999             EN                     Official Journal of the European Communities                                         C 136/7
Appeal brought on 19 February 1999 by Karola Gluiber                    Pleas in law and main arguments
against the order made on 21 December 1998 by the First
Chamber of the Court of First Instance of the European                  — The Court of First Instance wrongly declared that the
Communities in Case T-122/98 Karola Gluiber versus                          claim, based on Article 173 of the EC Treaty and Article
Council of the European Union and Commission of the                         215 of the EC Treaty in conjunction with Article 5 of the
                    European Communities                                    Treaty on European Union, was inadmissible on the
                                                                            ground that the contested acts fell within the competence
                                                                            of a Member State. In the case of a community based on
                        (Case C-57/99 P)                                    law, such as the European Union, it is inappropriate to
                                                                            draw a distinction between acts of a Member State and acts
                                                                            of the Community. Directives constitute legal acts which
                        (1999/C 136/10)                                     impose on the Member States a duty to transpose the
                                                                            objectives fixed by the Commission or the Council. In the
An appeal against the order made on 21 December 1998 by                     event of failure properly to transpose a directive, it is
the first Chamber of the Court of First Instance of the European            incumbent upon the Court of Justice to intervene with a
Communities in Case T-122/98 Karola Gluiber versus Council                  view to rectifying the situation.
of the European Union and Commission of the European                    — Breach of the principle of the right to a fair hearing: the
Communities was brought before the Court of Justice of the                  contested order was made without the application having
European Communties on 19 February 1999 by Karola                           been notified to the defendant. In addition, that order
Gluiber, represented by Dieter Rogalla, Rechtsanwalt, with an               was made without any oral procedure taking place in
address for service in Luxembourg at the Chambers of Messrs                 accordance with Article 55 of the Rules of Procedure.
Decker & Braun, Avenue Marie-Thérèse, L-2013 Luxembourg.
The appellant claims that the Court should:
— set aside the order made by the Court of First Instance of            Reference for a preliminary ruling by the Finanzgericht
    the European Communities on 21 December 1998 in Case                Bremen by order of 2 February 1999 in the case of
    T-122/98;                                                                     D. Wandel GmbH v Hauptzollamt Bremen
— declare null and void the individual measures which                                            (Case C-66/99)
    unlawfully discriminate against the appellant on the
    ground of her sex;                                                                          (1999/C 136/11)
                                                                        Reference has been made to the Court of Justice of the
— order the respondent to retract and terminate, in accord-             European Communities by order of 2 February 1999 from the
    ance with the rules laid down by the Treaty on European             Second Chamber of the Finanzgericht Bremen (Finance Court,
    Union, the discriminatory measures taken against the                Bremen), which was received at the Court Registry on 25 Feb-
    appellant by the Federal Republic of Germany, as a Member           ruary 1999, for a preliminary ruling in the case of D. Wandel
    State of the Community, and by its federal organs;                  GmbH v Hauptzollamt Bremen on the following questions:
— order the respondent to pay to the appellant the total sum            1. Is Article 201(1)(a), in conjunction with Article 201(2),
    of DEM 18 700,32, being the expense incurred by the                     of the Council Regulation (EEC) of 12 October 1992
    appellant in the proceedings brought by her to no avail                 establishing the Community Customs Code (OJ L 302,
    before the German courts;                                               19.10.1992, p. 1) (‘the Customs Code’) to be construed as
                                                                            meaning that a customs debt on importation is incurred
                                                                            once a customs declaration for the release of non-
— order the respondent to pay the costs of the present                      Community goods into free circulation satisfying the
    proceedings;                                                            requirements of Article 62 of the Customs Code has
                                                                            been accepted by the competent customs office and that
— alternatively, stay the proceedings pursuant to Article                   acceptance is evidenced by the attachment of a customs
    82a(1)(b) of the Rules of Procedure of the Court of Justice             registration stamp?
    pending receipt of a preliminary ruling by the European
    Court of Human Rights concerning the finding that the               2. If Question 1 is answered in the affirmative:
    incomplete transposition into German law of Council                     Is Article 75 of the Customs Code to be construed as
    Directive 76/207/EEC infringes                                          meaning that the customs office which has accepted such
                                                                            a customs declaration is entitled to treat the declaration as
    (a) Article 6 of the European Convention on Human                       invalid or to invalidate it without a request by the declarant
         Rights (‘ECHR’);                                                   to that end, with the result that a customs debt incurred
                                                                            under Article 201(1)(a) of the Customs Code is deemed
                                                                            not to have been incurred or is extinguished under the first
    (b) article 11 of the ECHR;                                             indent of Article 233(c) of the Customs Code, if the
                                                                            declared goods cannot be released to the declarant because
    (c) article 14 of the ECHR; and                                         they were removed, before the customs examination
                                                                            ordered was carried out, from their prescribed place of
                                                                            storage and from the area for which the customs office is
    (d) article 50 of the ECHR.                                             responsible?
 ---pagebreak--- C 136/8                EN                   Official Journal of the European Communities                                     15.5.1999
3. If Question 1 is answered in the negative or Question 2 in          Pleas in law and main arguments
    the affirmative:
    Is Article 203(1) of the Customs Code to be construed as           Article 4(1) of the Directive imposes two obligations. Firstly,
    meaning that there is a removal from customs supervision           Member States must propose a list of sites designated as special
    where the non-Community goods declared for release into            areas of conservation and, secondly, they must transmit this
    free circulation are removed from the prescribed place of          list to the Commission, together with the relevant information
    storage/examination and consequently from the local area           on these sites.
    for which the customs office in question is responsible,
    even though the customs office had ordered a customs               The Commission submits that Ireland has proposed no site in
    examination?                                                       respect of 26 of the habitat types of Annex I of the Directive
                                                                       and 20 of Annex II in Ireland. In particular, Ireland has
4. If Question 3 is answered in the negative:                          proposed no sites for certain priority habitat types and species
    Is Article 204(1) of the Customs Code to be construed as           which have a significant presence on Ireland’s territory.
    meaning that the unauthorised removal of the goods from
    their place of storage has had ‘no significant effect’ on the      The Commission also draws attention to the fact that, for
    correct operation of the temporary storage if, after their         some habitat types and species, the competent Irish authority
    removal, the goods could, on request, have been presented          has communicated an intention of not proposing any site. The
    at another customs office?                                         Commission considers that such an exclusion from site
                                                                       proposal of natural habitat types and species is contrary to the
5. Can there be no question of a customs debt on importation           requirements of Article 4(1) of the Directive.
    being incurred
    (a) under Article 201(1)(a), in conjunction with Article           Secondly, the Commission concludes that, in the case of
        201(2), of the Customs Code, where the customs                 certain habitat types and species habitats, the number of sites
        declaration is simply accepted by the customs office,          definitively proposed by Ireland is manifestly insufficient in
        or                                                             the light of the criteria listed in Annex III and in view of the
                                                                       conservation objective pursued by the Directive. The natural
    (b) under Article 203(1) of the Customs Code, or                   importance of such habitats requires both that a larger number
                                                                       of sites be proposed and that the distribution of these sites be
    (c) under Article 204 of the Customs Code,
                                                                       more evenly balanced over the national territory as a whole.
        if formally unobjectionable certificates of origin corres-
        ponding to Form A were attached to the customs
        declaration accepted by the customs office and the             (1) OJ L 206, 22.7.1992, p. 7.
        preferential tariff rate ‘free’ applied to the goods
        covered by the declaration?
                                                                       Action brought on 26 February 1999 by the Commission
Action brought on 25 February 1999 by the Commission                   of the European Communities against the United
       of the European Communities against Ireland                                                  Kingdom
                         (Case C-67/99)
                                                                                (Case C-69/99)
                        (1999/C 136/12)
                                                                                (1999/C 136/13)
An action against Ireland was brought before the Court of
Justice of the European Communities on 25 February 1999 by             An action against the United Kingdom was brought before the
the Commission of the European Communities, represented                Court of Justice of the European Communities on 26 February
by Mr Richard Wainwright, Principal Legal Adviser, and Mr              1999 by the Commission of the European Communities,
Paolo Stancanelli, member of the Legal Service, acting as              represented by Mr Richard Wainwright, Principal Legal
agents, with an address for service in Luxembourg at the office        Adviser, acting as agent, with an address for service in
of Mr Carlos Gómez de la Cruz, member of the Legal Service            Luxembourg at the office of Mr Carlos Gómez de la Cruz,
of the Commission, Centre Wagner.                                      member of the Legal Service of the Commission, Centre
                                                                       Wagner.
The Applicant claims that the Court should:
— declare that, by failing to transmit to the Commission the           The Applicant claims that the Court should:
    full list of sites mentioned in the first subparagraph of
    Article 4(1) of Council Directive 92/43/EEC (1) of 21 May          — declare that, by failing to adopt all the measures necessary
    1992 on the conservation of natural habitats and of wild                to comply with its obligations under Article 3(1) and (2),
    fauna and flora, together with the information on each site             and under Article 5 of Council Directive 91/676/EEC (1) of
    required by the second paragraph of Article 4(1) of the                 12 December 1991 concerning the protection of waters
    said Directive, Ireland has failed to fulfil its obligations            against pollution of nitrates from agricultural sources, the
    under the Directive;                                                    United Kingdom has failed to fulfil its obligations under
                                                                            that Directive and under the Treaty establishing the
— order Ireland to bear the costs.                                          European Community;


title: Action brought on 4 December 1997 by the Commission of the European Communities against the Kingdom of the Netherlands (Case C-408/97)

text:
20.2.98               EN                 Official Journal of the European Communities                                     C 55/15
2. On a proper construction of the Combined                         The Commission notes that the Hellenic Republic has not
     Nomenclature, as established by Annex I to                     yet adopted the appropriate measures to incorporate the
     Commission Regulation (EEC) No 2551/93 of                      directives at issue fully into the Greek legal order.
     10 August 1993 amending Annex I to Council
     Regulation (EEC) No 2658/87 on the tariff and                  (1) OJ L 340, 31.12.1993, p. 15.
     statistical nomenclature and on the Common Customs             (2) OJ L 32, 5.2.1985, p. 14.
     Tariff, such goods are to be classified under the              (3) OJ L 315, 8.12.1994, p. 18.
     heading which occurs last in numerical order, namely           (4) OJ L 26, 31.1.1977, p. 67.
     subheading 6212 10 00.
(1) OJ C 145, 18.5.1996.
                                                                    Action brought on 19 November 1997 by Glasoltherm
                                                                    Sarl against the Commission of the European
                                                                                Communities
Action brought on 11 November 1997 by the Commission                                        (Case C-399/97)
of the European Communities against the Hellenic
                           Republic                                                           (98/C 55/28)
                       (Case C-385/97)
                         (98/C 55/27)                               An action against the Commission of the European
                                                                    Communities was brought before the Court of Justice of
                                                                    the European Communities on 19 November 1997 by
An action against the Hellenic Republic was brought                 Glasoltherm Sarl, represented by Mr Penciolelli, lawyer, of
before the Court of Justice of the European Communities             18 Avenue de la LibeÂration, 91130 Ris Orangis (France).
on 11 November 1997 by the Commission of the
European Communities, represented by Maria Kondou-
Durande, of its Legal Service, with an address for service          Glasoltherm Sarl claims that the Court should:
in Luxembourg at the office of Carlos Gómez de la Cruz,
of its Legal Service, Wagner Centre, Kirchberg.                     Ð order the Commission of the European Communities
                                                                        to support by all means, including the provision of
The applicant claims that the Court should:                             financial assistance, over a period of 10 years from the
                                                                        date of entry into industrial service of the two
Ð declare that, by failing to adopt within the time-limit               demonstration operations referred to, the action taken
     laid down the laws, regulations and administrative                 by a commercial company formed by Glasoltherm Sarl
     provisions necessary in order to comply with:                      to market Glasoltherm thermoelectric micro-heating
                                                                        technology in the European Community,
     Ð Council Directive 93/118/EC (1) of 22 December
         1993 amending Directive 85/73/EEC (2) on the               Ð order the Commission of the European Communities
         financing of health inspections and controls of                to pay the costs.
         fresh meat and poultrymeat, and
     Ð Commission Directive 94/59/EC (3) of 2 December              Pleas in law and main arguments adduced in support:
         1994 amending for the third time the Annexes
         to Council Directive 77/96/EEC (4) on the                  The pleas in law and main arguments are the same as in
         examination for trichinae (trichinella spiralis) upon      Case C-388/96 (1).
         importation from third countries of fresh meat
         derived from domestic swine,
                                                                    (1) OJ C 40, 8.2.1997, p. 11.
                                                                        OJ C 295, 27.9.1997, p. 9.
         the Hellenic Republic has failed to fulfil its
         obligations under the Treaty and those Directives,
Ð order the Hellenic Republic to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                    Action brought on 4 December 1997 by the Commission
                                                                    of the European Communities against the Kingdom of the
Under the third paragraph of Article 189 of the EC Treaty,                                    Netherlands
directives are binding, as to the result to be achieved,
upon each Member State to which they are addressed.                                         (Case C-408/97)
Under the first paragraph of Article 5 of the Treaty,                                         (98/C 55/29)
Member States are to take all appropriate measures,
whether general or particular, to ensure fulfilment of the
obligations arising out of the Treaty or resulting from             An action against the Kingdom of the Netherlands was
actions taken by the institutions of the Community.                 brought before the Court of Justice of the European
 ---pagebreak--- C 55/16               EN                 Official Journal of the European Communities                                  20.2.98
Communities on 4 December 1997 by the Commission of                 Action brought on 5 December 1997 by the Commission
the European Communities, represented by B. J. Drijber              of the European Communities against the Grand Duchy of
and H. Michard, of its Legal Service, acting as Agents,                                       Luxembourg
with an address for service in Luxembourg at the office of
                                                                                (Case C-410/97)
C. Gómez de la Cruz, of its Legal Service, Wagner Centre.
                                                                                (98/C 55/30)
The Commission claims that the Court should:
                                                                    An action against the Grand Duchy of Luxembourg was
                                                                    brought before the Court of Justice of the European
Ð declare that, by not charging value added tax on tolls            Communities on 5 December 1997 by the Commission of
     for the use of highway infrastructures, contrary to            the European Communities, represented by Marie
     Articles 2 and 4 of the Sixth VAT Directive (77/388/           Wolfcarius, of its Legal Service, acting as Agent, with an
     EEC) of 17 May 1977 (1) the Kingdom of the                     address for service in Luxembourg at the office of Carlos
     Netherlands has failed to fulfil its obligations under         Gómez de la Cruz, of its Legal Service, Wagner Centre,
     the EC Treaty, and                                             Kirchberg.
                                                                    The applicant claims that the Court should:
Ð order the Kingdom of Netherlands to pay the costs.
                                                                    Ð declare that, by failing to adopt the laws, regulations
Pleas in law and main arguments adduced in support:                      or administrative provisions necessary to comply with
                                                                         Council Directive 92/29/EEC of 31 March 1992 on
                                                                         the minimum safety and health requirements for
The Commission Ð like the Netherlands Government Ð                       improved medical treatment on board vessels (1), the
takes the view that the tolls charged in the Netherlands                 Grand Duchy of Luxembourg has failed to fulfil its
constitute consideration for the supply of a service within              obligations under that Directive,
the meaning of Article 2(1) of the Sixth Directive.
However, the Netherlands Government wrongly considers
that the bodies governed by public law charged with the             Ð order the Grand Duchy of Luxembourg to pay the
operation of facilities for which a toll is levied are acting            costs.
in that regard as public authorities within the meaning of
the exception in Article 4(5) of the Sixth Directive. In the
first place, a body governed by public law is taxable as a          Pleas in law and main arguments adduced in support:
general rule and exemption is an exception to that rule.
The first subparagraph of Article 4(5) constitutes an
exception to Article 4(1) and (2). The fact that the second         The pleas in law and main arguments are analogous with
and third subparagraphs of Article 4(5) constitute                  those relied upon in Case C-406/97 (2); the time-limit for
exceptions, in turn, to the first subparagraph does not             transposition expired on 31 December 1994.
detract from the exceptional nature of that first
subparagraph; on the contrary, it confirms that it provides         (1) OJ L 113, 30.4.1992, p. 19.
for a systematic exception. In the Netherlands                      (2) OJ C 41, 7.2.1998, p. 11.
Government's argument, the rule and the exception
appear to be reserved. The fact that exemption constitutes
an exception is further confirmed by the fact that there
would have been no need for the exemptions under, in
particular, Articles 13 and 28 of the Sixth Directive if
bodies governed by public law had not been subject to the
VAT system. Any other interpretation would run counter              Action brought on 5 December 1997 by the Commission
to the general character of the Community VAT system.               of the European Communities against the Kingdom of
The charging of tolls is not inherent in the exercise of                                        Belgium
public authority, which includes the construction, making
available and maintenance of certain infrastructures such                                  (Case C-411/97)
as tunnels and bridges, but a separate activity forming
                                                                                (98/C 55/31)
part of the operation thereof. There is no reason why
there should be no question of acting as a public authority
in relation to supplies of gas etc. whilst such should be the
case as regards the operation of bridges and tunnels.               An action against the Kingdom of Belgium was brought
                                                                    before the Court of Justice of the European Communities
                                                                    on 5 December 1997 by the Commission of the European
(1) OJ L 145, 13.6.1977, p. 1.                                      Communities, represented by Marie Wolfcarius, of its
                                                                    Legal Service, acting as Agent, with an address for service
                                                                    in Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                    of its Legal Service, Wagner Centre, Kirchberg.


title: Case C-40/07: Judgment of the Court (Eighth Chamber) of 8 November 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Failure to transpose within the period prescribed)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/21

         Judgment of the Court (Eighth Chamber) of 8 November 2007 — Commission of the European Communities v Italian Republic
   (Case C-40/07) (1)

   (Failure of a Member State to fulfil obligations - Directive 2001/42/EC - Assessment of the effects of certain plans and programmes on the environment - Failure to transpose within the period prescribed)
   (2007/C 315/36)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: D. Recchia and J.-B. Laignelot, Agents)

      Defendant: Italian Republic (represented by: I. M. Braguglia, Agent, and S. Fiorentino, avvocato dello Stato)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, all the measures necessary to comply with Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, the Italian Republic has failed to fulfil its obligations under that directive;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 82, 14.4.2007.


22 . 6 . 96         I EN |                   Official Journal of the European Communities                              No C 180/27
      Removal from the register of Case C-294/94 ( x )                        Removal from the register of Case C-230/95 (')
                           ( 96/C 180/64 )                                                           96/C 180/68 )
By order of 12 March 1996 , the President of the Court of               By order of 19 March 19 96 , the President of the Court of
Justice of the European Communities ordered the removal                 Justice of the European Communities ordered the removal
from the register of Case C-294/94 ( reference for a                    from the register of Case C-230/95 : Council of the European
preliminary ruling from the Juzgado Central de lo Penal de              Union v . European Parliament.
la Audiencia Nacional ): criminal proceedings against Luis
Carlos Quintanilha .                                                    (>) OJ No C 208 , 12 . 8 . 1995 .
(') OJ No C 351 , 10 . 12 . 1994 .
                                                                              Removal from the register of Case C-256/95 ( ] )
                                                                                ( 96/C 180/69 )
       Removal from the register of Case C-310/94 ( 1 )                 By order of 19 March 1996 , the President of the Court of
                            ( 96/C 180/65 )                             Justice of the European Communities ordered the removal
                                                                        from the register of Case C-256/95 : Commission of the
By order of 16 January 1996 , the President of the Second               European Communities v. French Republic .
Chamber of the Court of Justice of the European
Communities ordered the removal from the register of Case               (') OJ No C 248 , 23 . 9 . 1995 .
C-310/94 ( reference for a preliminary ruling from the
Tribunal de Commerce de Saintes ): Garage Ardon SA,
Bernard Martin — Garage Colin-Martin, Relais de
Saintonge SARL and Bernard Menet SARL v . Garage                              Removal from the register of Case C-318/95 ( )
Trabisco SA .
                                                                                ( 96/C 180/70
C ) OJ No C 380, 31 . 12 . 1994 .                                       By order of 14 March 1996 , thue President of the Court of
                                                                        Justice of the European Communities ordered the removal
                                                                        from the register of Case C-318/95 : Commission of
                                                                        European Communities v. Ireland .
        Removal from the register of Case C-20/95 ( )                   (•) OJ No C 333 , 9 . 12 . 1995 .
                            ( 96/C 180/66 )
By order of 12 March 1996 , the President of the Court of
Justice of the European Communities ordered the removal                       Removal from the register of Case C-374/95 (')
 from the register of Case C-20/95 ( reference for a                                                  96/C 180/71
preliminary ruling from the Juzgado Central de lo Penal de
 la Audiencia Nacional ): criminal proceedings against Oscar            By order of 12 March 1996 , the President of the Court of
Weg.                                                                    Justice of the European Communities ordered the removal
 (') OJ No C 74 , 25 . 3 . 1995 .
                                                                         from the register of Case C-374/95 ( reference for a
                                                                        preliminary ruling from the Southampton Industrial
                                                                        Tribunal ): James Paul Barker v . Service Children's
                                                                         Schools .
                                                                         (') OJ No C 31 , 3 . 2 . 1996 .
        Removal from the register of Case C-33/95 ()
                             ( 96/C 180/67 )
 By order of 20 March 1996 , the President of the Court of
                                                                              Removal from the register of Case C-381/95 ( )
Justice of the European Communities ordered the removal
 from the register of Case C-33/95 ( reference for a                                                ( 96/C 180/72 )
 preliminary ruling from the Tribunal de Grande Instance de
 Saint-Nazaire ): SARL Polypièces v. Directeur des Services              By order of 27 March 1996 , the President of the Court of
 Fiscaux de Loire-Atlantique .                                          Justice of the European Communities ordered the removal
                                                                         from the register of Case C-381 /95 : Commission of
 (') OJ No C 74, 25 . 3 . 1995 .                                         European Communities v. Kingdom of Spain .
                                                                         (') OJ No C 31 , 3 . 2 . 1996 .


title: Appeal brought on 27 November 1995 by the French Republic against the judgment delivered on 18 September 1995 by the First Chamber (enlarged composition) of the Court of First Instance of the European Communities in Case T-548/93 between Ladbroke Racing Ltd and the Commission of the European Communities, supported by the French Republic (Case C-379/95 P)

text:
No C 31 / 12               EN               Official Journal of the European Communities                                    3 . 2 . 96
      ( b ) Article 3 ( 1 ) of Law No 363/76 ( as last replaced by     similar reduction is provided for second-hand cars with the
            Article 2 ( 7 ) of Law No 2187/ 1994 ) which governs       latest technology this has created discrimination to the
            payment of the flat-rate added special duty without        detriment of imported second-hand cars with the latest
            any reduction for used cars; and                           technology in relation to equivalent Greek cars, since the
                                                                       residual portion of the reduced tax is incorporated in the
      ( c ) Article 1 of Law No 1858/1989 , as subsequently            latters' value, whereas the special consumption tax is
            amended by Laws No 1882/1990 ( Articles 37 ( 2 )           charged on the importation of the former without the
            and 42 ( 1 )) and No 2093/ 1992 ( Article 10 ) which       reduction provided for anti-pollutant cars .
            now applies with Article 2 ( 1 ) of Law
            No 2187/1 994, by which tax advantages ( reduction         The practical difficulties invoked by the Hellenic Republic
            of the special consumption tax ) are granted only to       cannot justify such an infringement of the first paragraph of
            new anti-pollutant cars and not to imported                Article 95 of the Treaty, as is clear from the consistent
            second-hand anti-pollutant cars,                           case-law of the Court of Justice .
      the Hellenic Republic is in breach of its obligations
      pursuant to Article 95 of the EC Treaty;
2 . order the Hellenic Republic to pay the costs .
                                                                       Reference for a preliminary ruling by the Pretura
Pleas in law and main arguments adduced in support:                    Circondariale di Roma — Sezione Distaccata di Tivoli by
                                                                       order of that court of 15 and 22 November 1995 in criminal
A. Special consumption tax                                               proceedings against Tersilio Onorati and Palma Marulli
                                                                                ( Cases C-377/95 and C-378/95 )
This tax is levied on cars manufactured in Greece when they
                                                                                ( 96/C 31 /23 )
first circulate as new cars and also on imported cars on
importation either new or second-hand . Accordingly the tax
is not levied on second-hand Greek cars .                              Reference has been made to the Court of Justice of the
                                                                       European Communities by orders of the Pretura
                                                                       Circondariali di Roma — Sezione Distaccata di Tivoli
The tax is levied on imported second-hand cars on the basis
of their presumed value , which is calculated by means of a            ( Rome District Magistrate's Court, Tivoli Division ) of 15
reduction from the price of equivalent new cars of 5 % for             and 22 November 1995 , which were received at the Court
each year of use , up to a maximum of 20% . In the                     Registry on 4 December 1995 , for a preliminary ruling in
Commission 's view, since                                              criminal proceedings against Tersilio Onorati and Palma
                                                                       Marulli
( a ) the actual reduced value of the cars exceeds 5 % per
        annum ;
                                                                       The questions referred by the Pretura Circondariale di
                                                                       Roma — Sezione Distaccata di Tivoli to the Court of Justice
                                                                       for a preliminary ruling are identical with those in Case
( b ) that reduction is not linear, but greater in the first years     C-58/95 ( M.
        and less subsequently;
                                                                       (>) OJ No C 119 , 13 . 5 . 1995 , p . 6 .
( c ) there is no provision for a reduction greater than
        20% ,
those rules result in higher taxation of imported cars,
because the residual ( incorporated ) portion of the tax in the
value of second-hand cars manufactured in Greece is less
than the amount of the tax levied on imported second-hand              Appeal brought on 27 November 1995 by the French
cars .
                                                                       Republic against the judgment delivered on 18 September
                                                                       1995 by the First Chamber ( enlarged composition ) of the
                                                                       Court of First Instance of the European Communities in
Accordingly this amounts to a breach of the first paragraph            Case T-548/93 ( ] ) between Ladbroke Racing Ltd and the
of Article 95 of the Treaty .                                          Commission of the European Communities, supported by
                                                                                the French Republic
B.      Flat-rate added special duty                                                         ( Case C-379/95 P)
                                                                                96/C 31 /24
The method of calculating this duty is the same as that used
in calculating the special consumption tax. Consequently
                                                                       An appeal against the judgment delivered on 18 September
the same comments as above apply by analogy.
                                                                        1995 by the First Chamber ( enlarged composition ) of the
                                                                       Court of First Instance of the European Communities in
C. Special consumption tax on anti-pollutant cars                      Case T-548/93 between Ladbroke Racing Ltd and the
                                                                        Commission of the European Communities was brought
By successive laws the Hellenic Republic has reduced in                 before the Court of Justice of the European Communities on
recent years the special consumption tax levied on new cars            27 November 1995 by the French Republic, represented by
with the latest technology ( anti-pollutant cars ). Since no           Jean-Marc Belorgey, Catherine de Salins and Jean-Francois
 ---pagebreak--- 3 . 2 . 96               EN I             Official Journal of the European Communities                                 No C 31 / 13
Dobelle , acting as Agents, with an address for service in           against a Member State for national legislation which is
Luxembourg at the French Embassy, 9 Boulevard Prince                 incompatible with the Treaty .
Henri
                                                                     (') OJ No C 286 , 28 . 10 . 1995 p . 12 .
The appellant claims that the Court should :
— annul the judgment of the Court of First Instance of
     18 September 1995 in Case T-548/93 , Ladbroke Racing
     Ltd v. Commission of the European Communities in so             Action brought on 5 December 1995 by the Commission of
     far as that judgment annuls the decision of the                 the European Communities against the Hellenic Republic
     Commission contained in the letter of 29 July 1993
                                                                                ( Case C-380/95 )
     rejecting Ladbroke 's complaint of 29 November
     1989 ,                                                                                ( 96/C 31 /25 )
— uphold the submissions put forward by the Commission               An action against the Hellenic Republic was brought before
     at first instance .                                             the Court of Justice on 5 December 1995 by the
                                                                     Commission of the European Communities , represented by
                                                                     Maria Kontou Durande of its Legal Service, with an address
Pleas in law and main arguments adduced in support:                  for service in Luxembourg at the office of Carlo Gomez de la
                                                                     Cruz, also of the Commission 's Legal Service, Wagner
The French Government considers that the Court of First              Centre, Kirchberg.
Instance erred in law in a number of respects .
                                                                     The applicant claims that the Court should :
In the first place , and principally, the French Government
considers that the Court's reasoning fails to take account of        1 . declare that, by failing to adopt within the prescribed
the case-law on the conduct of undertakings in the context                period the laws, regulations or administrative provisions
of national legislation which leaves no room for autonomy                 necessary to comply with Council Directive 91 /414/EEC
in such conduct .                                                         of 15 July 1991 concerning the placing of plant
                                                                          protection products on the market, the Hellenic
Where such conduct is required by statute, that is to say,                Republic has failed to fulfil its obligations under the
when there is no scope for autonomy as regards conduct                    Treaty and that Directive;
which may be the subject of a complaint, the application of
Articles 85 and 86 to the undertakings responsible must be           2 . order the Hellenic Republic to pay the costs .
excluded as long as the relevant legislation remains in
force .                                                              Pleas in law and main arguments adduced in support:
The French Government considers that when a complaint                Pursuant to the second paragraph of Article 169 of the
based on Articles 85 , 86 and 90 of the Treaty and                   Treaty, the Commission requests the Court to declare that,
concerning both the conduct of undertakings and national              by failing to take the necessary steps within the prescribed
measures relevant thereto has been brought before the                period ( which expired on 25 July 1993 ) to transpose into
Commission, it is bound to ascertain whether the national             Greek law Council Directive 91 /414/EEC of 15 July 1991
measures leave some degree of autonomy to the                        concerning the placing of plant protection products on the
undertakings . If they do not, the Commission must reject             market ('), the Hellenic Republic has failed to fulfil its
that part of the complaint which is based on Articles 85 and          obligations under the Treaty and the Directive .
 86 having to rule on the part of the complaint which
concerns the compatibility of the national measures with the          (') OJ No L 230 , 19 . 8 . 1991 , p . 1 .
Treaty . The Court of First Instance erred in law in its
reasoning, therefore, in deciding that the Commission
 should have completed its examination of the compatibility
 of the French legislation with the Treaty before rejecting the
 part of Ladbroke's complaint concerning Articles 85 and 86
 of the Treaty .                                                      Action brought on 6 December 1995 by the Commission
                                                                      of the European Communities against the Kingdom of
                                                                                Spain
 In the second place , the judgment appealed against takes no
 account of the consistent case-law to the effect that natural                                ( Case C-381 /95 )
 or legal persons who have sought confirmation from the                                            ( 96/C 31 /26 )
 Commission, pursuant to Article 3 ( 2)b of Regulation
 17/62 , that a breach of those articles has occurred are not         An action against the Kingdom of Spain was brought before
 entitled to demand that a decision be made as to whether or          the Court of Justice of the European Communities on
 not the alleged breach exists .                                      6 December 1995 by the Commission of the European
                                                                      Communities , represented by Miguel Diaz-Llanos La
 Lastly, the judgment has the effect of negating the                  Roche, with an address for service in Luxembourg at the
 Commission's discretion in deciding whether to take action           office of Carlos Gomez de la Cruz .