title: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale per la Lombardia, by order of that court of 28 January 1998, in the case of Agenzia R di Recapito Srl v. Poste Italiane Ente Pubblico Economico and Rinaldi Agenzia di Recapito Srl (Case C-336/98)

text:
C 340/8               EN                 Official Journal of the European Communities                                     7.11.98
    Directive 76/464/EEC of 4 May 1976 on pollution                     merely clarified how product in Regulation (EEC)
    caused by certain dangerous substances discharged                   No 1768/92 was to be understood ab initio?
    into the aquatic environment of the Community, the
    Italian Republic has failed to fulfil its obligations           3. If the answer to Question 2 is that Regulation (EC)
    under that Directive;                                               No 1610/96 amended Regulation (EEC) No 1768/92:
2. declares that, by failing to provide the Commission                  When determining whether the conditions for granting
    with the information requested by it on the level of                a protection certificate under Article 19 of Regulation
    water pollution in Italy in order to enable it to                   (EEC) No 1768/92 are satisfied, is the relevant date
    establish the extent of the obligations flowing from                that on which the application for the protection
    Article 7 of Directive 76/464/EEC, the Italian                      certificate was made or that on which the national
    Republic has failed to fulfil its obligations under                 authority (here, the Austrian Patent Office) issued its
    Article 5 of the EC Treaty;                                         decision?
                                                                    4. If the term product in Article 19 of Regulation (EEC)
3. orders the Italian Republic to pay the costs.                        No 1768/92 is to be given a broad construction,
                                                                        whether ab initio or only since Regulation (EC)
(1) OJ C 294 of 5.10.1996.                                              No 1610/96, but the relevant legal position is that
                                                                        prevailing at the time of the decision on the
                                                                        application for the protection certificate:
                                                                        Does a breach of Article 19 of Regulation (EEC)
                                                                        No 1768/92 constitute a ground for invalidity that is
                                                                        not set out in Article 15 of that Regulation, or is the
Reference for a preliminary ruling by the Oberster                      protection certificate otherwise ineffective?
Gerichtshof by Decision of 12 August 1998 in the case of
The Wellcome Foundation Ltd v. Nycomed Austria GmbH                 (1) OJ L 182 of 2.7.1992, p. 1.
                       (Case C-330/98)                              (2) OJ L 198 of 8.8.1996, p. 30.
                        (98/C 340/13)
Reference has been made to the Court of Justice of the
European Communities by Decision of 12 August 1998
                                                                    Reference for a preliminary ruling by the Tribunale
from the Oberster Gerichtshof (Austrian Supreme Court),
                                                                    Amministrativo Regionale per la Lombardia, by order of
which was received at the Court Registry on 7 September
                                                                    that court of 28 January 1998, in the case of Agenzia R di
1998, for a preliminary ruling in the case of The
                                                                    Recapito Srl v. Poste Italiane Ente Pubblico Economico
Wellcome Foundation Ltd v. Nycomed Austria GmbH on
                                                                                and Rinaldi Agenzia di Recapito Srl
the following questions:
                                                                                (Case C-336/98)
1   Is the term product, as used in Ð inter alia Ð                                          (98/C 340/14)
    Article 19 of Council Regulation (EEC) No 1768/92
    of 18 June 1992 concerning the creation of a                    Reference has been made to the Court of Justice of the
    supplementary protection certificate for medicinal              European Communities by an order of the Tribunale
    products (1), to be construed in that article as covering       Amministrativo Regionale per la Lombardia (Lombardy
    only an active ingredient or substance in a specific            Regional Administrative Court) of 28 January 1998,
    chemical compound or Ð in so far as the                         which was received at the Court Registry on 14 September
    pharmacological characteristics are equivalent Ð also           1998, for a preliminary ruling in the case of Agenzia R di
    its derivatives (such as salts)?                                Recapito Srl v. Poste Italiane Ente Pubblico Economico
                                                                    and Rinaldi Agenzia di Recapito Srl, on the following
                                                                    questions:
2. if the answer to Question 1 is that the term product is
    to be broadly construed:
                                                                    1. Whether or not the reservation to the State of the
                                                                        express postal service, by virtue of Presidential Decree
    If such a construction of the term product as used in               No 156/76 (and the consequent restrictive power
    Article 19 of Council Regulation (EEC) No 1768/92                   under public law to grant concessions to third parties
    derives only from the recitals in the preamble to                   for the running of those services) conflicts with
    Regulation (EC) No 1610/96 of the European                          Articles 86 and 90 of the Treaty as regards the services
    Parliament and of the Council of 23 July 1996                       which are regarded as supplementary to the exclusive
    concerning the creation of a supplementary protection               right of the State to collect, carry and deliver mail and
    certificate for plant protection products (2), which may,           which in any event can be dissociated from that right
    mutatis mutandis, be used also for the purpose of                   on the basis of calculation of the added value arising
    construing Regulation (EEC) No 1768/92, was                         from the extra price which the customer is prepared to
    Regulation (EEC) No 1768/92 amended by Regulation                   pay, without, however, there being any impact on
    (EC) No 1610/96, or has Regulation (EC) No 1610/96                  price limits in the reserved sector?
 ---pagebreak--- 7.11.98                EN                  Official Journal of the European Communities                                   C 340/9
2. Whether in any event the award of reserved postal                      its action on the (more profitable) non-reserved
    monopoly services to a public undertaking, which                      services intended for the competition, and does so
    thereby occupies a dominant position in a substantial                 notwithstanding the express statutory commitments to
    part of the market, may be effected (without                          give absolute priority to the provision of services in
    Articles 86 and 90 of the Treaty being infringed)                     the public interest?
    without limitation as to time, directly by means of a
    law and implementing measures (in this case Article 2             5. Whether an infringement of Articles 85, 86 and 90 of
    of Law No 71/94); the foregoing in the absence of a                   the Treaty may derive (through confusion within the
    constitutive' State measure which Ð through                          same organisation between regulatory and operational
    impartial selection procedures Ð selects the most                     roles, inter alia through concession agreements that
    deserving undertaking which can most usefully                         self-selected the competition) form the fact that the
    respond to the public interest in having a more                       monopolistic operator of the general postal services (in
    efficient public service, the concession of the service               this case Ente Poste Italiane) notwithstanding the
    being for a limited period so that the results of the                 express statutory commitments to give absolute
    operation, upon which renewal might be made                           priority to the provision of those services rather than
    conditional, can be assessed?                                         to competing services, not only detaches itself from
                                                                          direct operation but also itself proceeds to appoint the
3. Whether the irregularity in paragraph 2 is aggravated                  outside concessionaires called on in turn to carry out
    by the fact that:                                                     the services covered by the monopoly, in breach of the
                                                                          very national law which reserves that power to the
    a) that public undertaking, appointed by legislative                  Member State (Article 111 of Law No 71/94)?
         measure to run all the reserved postal services, has
         not yet met the European standards by means of
         appropriate directions from the governing
         authority and the legislature intended to rationalise
         it (without any provision for cancellation in the
         event of failure to meet the objectives)?                    Action brought on 14 September 1998 by Commission of
                                                                          the European Communities against French Republic
    b) the State Ð pending the desired rationalisation Ð                                    (Case C-337/98)
         continues to allocate public money to deal with
         the undertaking's operating deficits?                                                (98/C 340/15)
    c) the State also proceeds to cover Ð again using                 An action against French Republic was brought before the
         public money Ð any non-profitable operations of              Court of Justice of the European Communities on
         the reserved service, without any comprehensive'            14 September 1998 by Commission of the European
         consideration of the profitability of that service,          Communities, represented by Michel Nolin, of its Legal
         which should, on the other hand, be assessed in              Service, acting as Agent, with an address for service in
         the context of the numerous territorial operations           Luxembourg at the office of Carlos Gómez de la Cruz,
         as a whole, without necessarily intervening in               Wagner Centre, Kirchberg.
         every area of difficulty, even though not reducing
         every entrepreneurial risk to zero?
                                                                      The applicant claims that the Court should:
    d) the EPI Ð by virtue of the combined effect of the
         provisions of the law establishing it, its statutes          Ð declare that, by adopting the Decision of 22 November
         and the programme contract Ð is at the same time                 1996 awarding Matra Transport the contract for the
         involved in the non reserved sector in (unequal?)                internal decoration of the light underground train
         competition       with    the    other     Community             project of the Greater Rennes District, the French
         undertakings, capitalising' to the maximum on its               Republic has failed to fulfil its obligations under
         role (its institutional role, deriving directly from a           Council Directive 93/38/EEC of 14 June 1993
         law) as a body in a dominant position covering the               coordinating the procurement procedures of entities
         entire postal monopoly?                                          operating in the water, energy, transport and
                                                                          telecommunications sectors (1), and in particular
                                                                          Articles 4(2) and 20(2)(c) thereof;
4. Whether Ð even if the foregoing points are
    disregarded Ð an infringement of Articles 85, 86 and              Ð order the French Republic to pay the costs.
    90 of the Treaty may derive from the fact that a public
    undertaking to which is entrusted by law without
    limitation as to time (and regardless of checks on                Pleas in law and main arguments adduced in support:
    productivity and efficiency) with the running of the
    general monopoly on postal services whilst at the same            The Commission considers that the contract in question
    time enjoying free access to the competing sectors (in            was concluded following a procedure without first being
    this case Ente Poste Italiane) may also, at its                   put up for tender even though the conditions set out in
    discretion, give up the direct operation of one or more           Article 20(2)(c) were not satisfied in the circumstances. It
    general services (subcontracting to third parties under           considers that the contract was awarded by resolution of
    concession agreements'), thus ultimately concentrating           the Greater Rennes District Council of 22 November 1996


title: Case C-172/02: Reference for a preliminary ruling by the Belgian Cour de Cassation by judgment of that Court of 29 April 2002 in the case of Robert Bourgard against Institut National d'Assurances Sociales pour Travailleurs Indépendants

text:
C 156/12                EN                  Official Journal of the European Communities                                      29.6.2002
—     Incorrect legal assessment of the letter of the director of      the pension of 5 % for each year by which the pension is taken
      the merger control directorate of 7 November 2001                in advance?
      The interpretation of the Court of First Instance that the
      letter of 7 November 2001 is to be imputed to the                (1) Council Directive 79/7/EEC of 19 December 1978 on the
      Commission as a contestable act, since in contrast to the            progressive implementation of the principle of equal treatment
      two previous letters there is no mention in it of the                for men and women in matters of social security (OJ L 6 of
      Commission not being bound, appears arbitrary and                    10.1.1979, p. 24).
      contrary to the principle of good faith and hence in
      breach of general principles of Community law.
      With a correct legal assessment, the Court of First Instance
      should have concluded that the letter of the merger              Reference for a preliminary ruling by the Corte Suprema
      control directorate of 7 November 2001 was not imput-            di Cassazione by order of that Court of 17 January 2002
      able to the Commission, so that there was a continuing           in the cases of 1) Agenzia per le erogazioni in agricoltura
      failure to act by the Commission.                                — AGEA against Azienda agricola Fava Alessandro &
                                                                       Delledonne Carla; 2) Agenzia per le erogazioni in agricol-
                                                                       tura — AGEA against Luigi Serpelloni; 3) Azienda agricola
                                                                       Coato Giovanni, Lorenzo & Vaccaro Ivana against Agen-
                                                                       zia per le erogazioni in agricoltura — AGEA; and 4) Agen-
(1) Not yet reported in the ECR.                                       zia per le erogazioni in agricoltura — AGEA against
                                                                                Battista e Giacomo Malzani
                                                                             (Case C-177/02, C-178/02, C-179/02 e C-180/02)
                                                                                (2002/C 156/22)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the la Corte Suprema di
                                                                       Cassazione (Supreme Court of Cassation) of 17 January 2002,
Reference for a preliminary ruling by the Belgian Cour de              received at the Court Registry on 13 May 2002, for a
Cassation by judgment of that Court of 29 April 2002 in                preliminary ruling in the cases of 1) Agenzia per le erogazioni
the case of Robert Bourgard against Institut National                  in agricoltura — AGEA against Azienda agricola Fava Alessan-
   d’Assurances Sociales pour Travailleurs Indépendants                dro & Delledonne Carla; 2) Agenzia per le erogazioni in
                                                                       agricoltura — AGEA against Luigi Serpelloni; 3) Azienda
                                                                       agricola Coato Giovanni, Lorenzo & Vaccaro Ivana against
                          (Case C-172/02)                              Agenzia per le erogazioni in agricoltura — AGEA; and
                                                                       4) Agenzia per le erogazioni in agricoltura — AGEA against
                                                                       Battista e Giacomo Malzani on the following question:
                          (2002/C 156/21)
                                                                       Must Article 1 of Regulation (EEC) No 856/84 (1) of 31 March
                                                                       1984 and Articles 1 to 4 of Regulation No 3950/92 (2) of
                                                                       28 December 1992 be interpreted as meaning that the
                                                                       additional levy on milk and milk products is in the nature of
Reference has been made to the Court of Justice of the
                                                                       an administrative penalty with the result that producers are
European Communities by judgment of the Belgian Cour de
                                                                       liable to pay it only where quantities allocated have been
Cassation (Third Chamber) of 29 April 2002, received at the
                                                                       exceeded by them intentionally or as a result of negligence?
Court Registry on 10 May 2002, for a preliminary ruling
in the case of Robert Bourgard against Institut National
d’Assurances Sociales pour Travailleurs Indépendants on the
following question:                                                    (1) OJ L 90 of 1.4.1984, p. 10.
                                                                       (2) OJ L 405 of 31.12.1992, p. 1.
Does Article 7(1)(a) of Directive 79/7/EEC (1) of the Council of
19 December 1978 authorise a Member State which has set
the pensionable age of male self-employed workers at 65 and
that of female self-employed workers at 60, with the result
that the old-age pension of male workers is calculated on the
basis of an insurance record expressed as a fraction with a
denominator of 45, whilst the denominator is 40 for female
workers, to impose on male workers, who alone have the right
to rquest early payment of the old-age pension in the five years
prior to normal retirement age, a reduction in the amount of


title: JUDGMENT OF THE COURT (First Chamber) of 12 September 1996 in Joined Cases C-58/95, C-75/95, C-112/95, C-119/95, C-123/95, C-135/95, C-140/95, C-141/95, C-154/95 and C-157/95 (reference for a preliminary ruling from the Pretura Circondariale di Roma, Sezione Distaccata di Tivoli and Sezione Distaccata di Castelnuovo di Porto): Criminal proceedings against Sandro Gallotti and Others (Approximation of laws - Waste - Directive 91/156/EEC)

text:
23 . 11 . 96           I EN                  Official Journal of the European Communities                                No C 354/5
15 October 1968 on freedom of movement for workers                      Council Directive 91 / 1 56/EEC of 18 March 1991 amending
within the Community ( Official Journal, English Special                Directive 75/442/EEC on waste ( OJ No L 78 , 1991 , p. 32 )
Edition 1968 ( II ), p. 475 ), — the Court ( Fifth Chamber )            — the Court ( First Chamber ), composed of: D. A. O.
composed of: D.A. O. Edward, President of the Chamber,                  Edward, President of the Chamber, L. Sevon ( Rapporteur )
J. -P. Puissochet, C. Gulmann, P. Jann ( Rapporteur ) and L.            and M. Wathelet, Judges; N. Fennelly, Advocate-General ;
Sevon, Judges ; Advocate-General : D. Ruiz-Jarabo Colomer,              R. Grass, Registrar, gave a judgment on 12 September 1996 ,
Registrar: H. von Holstein, Deputy Registrar, has given a               the operative part of which is as follows :
judgment on 12 September 1996 , in which it:
                                                                        Article 5 and the third paragraph of Article 189 of the EC
 1 . declares that, by requiring that dependent children of             Treaty must be interpreted as not precluding a Member
      migrant workers of the Community residing in Belgium              State from imposing criminal penalties to ensure compliance
      have completed their secondary education in an                    with the obligations laid down by Council Directive
      establishment subsidized or approved by the Belgian               91 / 1 56/EEC of 18 March 1991 amending Directive
      State or by one of its communities in order to be eligible        75/442/EEC on waste, provided that th.ose penalties are
     for tideover allowances, the Kingdom of Belgium has                analogous to those applicable to infringements of national
      failed to fulfil its obligations under Article 48 of the EC       law ofa similar nature and importance and are, in any event,
      Treaty and Article 7 ofRegulation (EEC) No 1612/68 of             effective, proportionate and dissuasive.
      the Council of 15 October 1968 on freedom of
      movement for workers within the Community;                        (') OJ   No C 119 , 13 . 5 . 1995 ,
                                                                            OJ   No C 137,  3 . 6 . 1995 ,
2 . dismisses the remainder of the application;                             OJ   No C 159,  24 . 6 . 1995 ,
                                                                            OJ   No C 208 , 12 . 8 . 1995 .
3 . orders the parties to bear their own costs.
(') OJ No C 351 , 1994 .
                                                                                JUDGMENT OF THE COURT
                                                                                ( Sixth Chamber )
                                                                                of 17 September 1996
                JUDGMENT OF THE COURT                                   in Joined Cases C-246/94 , C-247/94 , C-248/94 and
                            (First Chamber)                             C-249/94 ( references for preliminary rulings from the Corte
                                                                        Suprema di Cassazione ): Cooperativa Agricola Zootecnica
                        of 12 September 1996                            S. Antonio and Others v . Amministrazione delle Finanze
in Joined Cases C-58/95 , C-75/95 , C-l 12/95 , C-l 19/95 ,                                           dello Stato ( 1 )
C-123/95 , C-135 /95 , C-140/95 , C-141 /95 , C-154/95 and               (Commission Regulations (EEC) No 612/77 and (EEC)
C-157/95 ( reference for a preliminary ruling from the                  No 1384/77 — Special import arrangements in respect of
Pretura Circondariale di Roma, Sezione Distaccata di Tivoli              certain young male bovine animals for fattening — Council
 and Sezione Distaccata di Castelnuovo di Porto ): Criminal                                  Directive 79/623/EEC)
      proceedings against Sandro Gallotti and Others ( 1 )
                                                                                ( 96/C 354/09 )
 (Approximation of laws — Waste — Directive
                              91/156/EEC)
                                                                                (Language of the case: Italian)
                             ( 96/C 354/08 )
                                                                         (Provisional translation; the definitive translation will be
                  (Language of the case: Italian)                                 published in the European Court Reports)
 (Provisional translation; the definitive translation will be            In Joined Cases C-246/94 , C-247/94 , C-248/94 and
           published in the European Court Reports)                      C-249/94 : references to the Court under Article 177 of the
                                                                         EC Treaty from the Corte Suprema di Cassazione [ Court of
 In Joined Cases C-58/95 , C-75/95 , C-l 12/95 , C-l 19/95 ,             Cassation ] for preliminary rulings in the proceedings
 C-123/95 , C-135/95 , C-140/95 , C-141 /95 , C-154/95 and               pending before that court between Cooperativa Agricola
 C-157/95 : reference to the Court under Article 177 of the              Zootecnica S. Antonio and Others and Amministrazione
 EC Treaty from the Pretura Circondariale di Roma , Sezione              delle Finanze dello Stato — on the interpretation of Council
 Distaccata di Tivoli and Sezione Distaccata di Castelnuovo              Directive 79/623/EEC of 25 June 1979 on the har
 di Porto [District Magistrate's Court, Rome , Tivoli Division           monization of provisions laid down by law , regulation or
 and Castelnuovo di Porto Divisioni for a preliminary ruling             administrative action relating to customs debt ( OJ No
 in the criminal proceedings pending before that court                   L 179 , 1979 , p. 31 ) and Commission Regulation ( EEC )
 against Sandro Gallotti, Roberto Censi , Giuseppe Salmaggi ,            No 612/77 of 24 March 1977 laying down rules for the
 Salvatore Pasquire , Massimo Zappone, Francesco Segna                   application of the special import arrangements in respect of
 and Others, Cesare Cervetti, Mario Gasbarri , Isidoro                   certain young male bovine animals for fattening ( OJ No
 Narducci and Fulvio Smaldone on the interpretation of                   L 77, 1977, p. 18 ), as amended by Commission Regulation


title: ORDER OF THE COURT OF FIRST INSTANCE of 18 July 1997 in Case T-44/96: Oleifici Italiani SpA v. Commission of the European Communities (Tendering procedure for the free supply of olive oil to the people of Georgia and Armenia - Damage alleged by the successful tenderer as a result of a delay in the collection of the olive oil by the carrier designated by the Commission - Action for annulment of the Commission's refusal to grant compensation - Action to establish non-contractual liability - Contractual origin of the Commission's obligation on which the action to establish liability is based - Absence of any arbitration clause within the meaning of Article 181 of the EC Treaty - Clear lack of jurisdiction on the part of the Court of First Instance)

text:
C 357/26                 EN                 Official Journal of the European Communities                                 22 . 11 . 97
        Removal from the register of Case C-362/96 (')                         Removal from the register of Case C-57/97 (')
                            ( 97/C 357/47)                                                           ( 97/C 357/48 )
By order of 24 September 1997, the President of the Court
of Justice of the European Communities has ordered the
removal from the register of Case C-362/96 : Commission                By order of 24 September 1997, the President of the Court
of the European Communities v. Grand Duchy of                          of Justice of the European Communities has ordered the
Luxembourg.                                                            removal from the register of Case C-57/97: Commission of
                                                                       the European Communities v. French Republic.
(») OJ C 9 , 11 . 1 . 1997.
                                                                       (') OJ C 108 , 5 . 4 . 1997.
                                                      COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                              3.   orders the Commission to bear its own costs.
                        of 25 September 1997
                                                                       (■) OJ C 76 , 12 . 3 . 1994 .
in Case T-170/94: Shanghai Bicycle Corporation ( Group )
             v. Council of the European Union (')
(Dumping — State-trading country — Like product —
Individual treatment — Calculation of the dumping
                                margin)
                            ( 97/C 357/49 )
                                                                            ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 18 July 1997
                  (Language of the case: English)
                                                                       in Case T-44/96: Oleifici Italiani SpA v. Commission of
                                                                                the European Communities (')
In Case T-170/94: Shanghai Bicycle Corporation ( Group ),
established in Shanghai (People's Republic of China ),                 (Tendering procedure for the free supply of olive oil to the
represented by Izzet M. Sinan, Barrister, with an address              people of Georgia and Armenia — Damage alleged by the
for service in Luxembourg at the Chambers of Arendt and                successful tenderer as a result of a delay in the collection
Medernach, 8—10 Rue Mathias Hardt, against Council of                  of the olive oil by the carrier designated by the
the European Union ( Agents: Bjarne Hoff-Nielsen, Jorge                Commission — Action for annulment of the Commission 's
Monteiro, Hans-Jürgen Rabe and Georg M. Berrisch ),                    refusal to grant compensation — Action to establish non-
supported by Commission of the European Communities                    contractual liability — Contractual origin of the
( Agents : Eric White and Nicolas Khan ) and The European              Commission 's obligation on which the action to establish
Bicycle Manufacturers' Association ( EBMA ), established               liability is based — Absence of any arbitration clause
in Paris, represented by Jacques H. J. Bourgeois, of the               within the meaning of Article 181 of the EC Treaty —
Brussels Bar, with an address for service in Luxembourg at             Clear lack of jurisdiction on the part of the Court of First
the Chambers of Marc Loesch, 11 Rue Goethe —                                                            Instance)
application for annulment of Council Regulation ( EEC )                                              ( 97/C 357/50 )
No 2474/93 of 8 September 1993 imposing a definitive
anti-dumping duty on imports into the Community of
bicycles originating in the People's Republic of China and                               (Language of the case: Italian)
collecting definitively the provisional anti-dumping duty
( OJ L 228 , 9 . 9 . 1993 , p. 1 ) — the Court of First Instance
( Fifth Chamber, Extended Composition ), composed of: R.
                                                                       In Case T-44/96, Oleifici Italiani SpA, established at
García-Valdecasas, President, V. Tiili , J. Azizi, R. M.
                                                                       Ostuni, Italy, represented by Antonio Tizzano and Gian
Moura Ramos and M. Jaeger, Judges; A. Mair,
                                                                       Michele Roberti, both of the " Naples Bar, 36 Place du
Administrator, for the Registrar, has given a judgment on
                                                                       Grand Sablon, Brussels, against Commission of the
25 September 1997, in which it:                                        European Communities ( Agents: Eugenio de March and
                                                                       Alberto Dal Farro ) — application under Articles 178 and
1 . dismisses the application;                                         173 of the EC Treaty for compensation for the damage
                                                                       alleged to have been suffered by the applicant as a result
                                                                       of the delay in collection by the carrier designated by the
2 . orders the applicant to bear its own costs and to pay              Commission of the olive oil made available by the
      those of the defendant and the intervener EBMA;                  applicant under a tendering procedure for the free supply
 ---pagebreak--- 22 . 11 . 97          EN 1               Official Journal of the European Communities                                    C 357/27
thereof to the peoples of Georgia and Armenia and                   3 . The parties are ordered to bear their own costs.
for annulment of the Commission's refusal to grant
compensation — the Court of First Instance (Third                   (') OJ C 54, 22 . 2 . 1997.
Chamber), composed of B. Vesterdorf, President, C. P.
Briet and A. Potocki, Judges; H. Jung, Registrar, made an
order on 18 July 1997, the operative part of which is as
follows :
1 . The application is dismissed as clearly inadmissibile.               ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 17 September 1997
2. The applicant shall bear the costs.                              in Case T-26/97: Antillean Rice Mills NV v. Commission
                                                                                of the European Communities (')
H OJ C 180, 22 . 6 . 1996 .                                         (Action for annulment — Retroactive repeal of the
                                                                            contested measure — No need to adjudicate)
                                                                                ( 97/C 357/52 )
                                                                                (Language of the case: Dutch)
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                    In Case T-26/97, Antillean Rice Mills NV, established
                      of 3 October 1997                             in Bonaire, Netherlands Antilles, represented by W.
                                                                    Knibbeler, of the Amsterdam Bar, and K. J. Defares, of the
in Case T-184/96 : Eric Banda v. Commission of the
                                                                    Rotterdam Bar, with an address for service in Luxembourg
                   European Communities (')                         at the Chambers of M. Loesch, 11 Rue Goethe, against
     (Case not proceeding to judgment — Inadmissibility)            Commission of the European Communities ( Agent: T. van
                                                                    Rijn ) — application for annulment of Commission
                         ( 97/C 357/51 )                            Regulation ( EC ) No 21 /97 of 8 January 1997 introducing
                                                                    safeguard measures in respect of imports of rice
                 (Language of the case: French)                     originating in the overseas countries and territories ( OJ
                                                                    L 5, 9 . 1 . 1997, p. 24 ) — the Court of First Instance
                                                                    ( Fourth Chamber ), composed of K. Lenaerts, President,P.
In Case T-184/96: Eric Banda, a member of the local staff           Lindh and J. D. Cooke, Judges; H. Jung, Registrar, made
of the Commission of the European Communities,                      an order on 17 September 1997, the operative part of
represented by Marc-Albert Lucas, of the Liege Bar, with            which is as follows :
an address for service in Luxembourg at the Chambers of
Evelyne Korn, 21 Rue de Nassau, v. Commission of the                 1 . There is no need to adjudicate on the application.
European Communities (Agents: Florence Clotuche and
Christine Berardis-Kayser) — application, primarily, for
annulment of the Commission's decision by which it                  2 . The parties shall each bear their own costs, including
decided to invalidate the regional elections held amongst                those relating to the application for interim measures.
the local staff serving within Geographical Region No 11
 between 5 and 20 December 1994 and to reorganize the               (') OJ C 108 , 5 . 4 . 1997.
same and, in the alternative, for annulment of the
 Commission rules of 8 March 1990 entitled 'Transitional
Arrangements for the Representation of Staff Serving
 Outside the Community' and annulment of the regional
elections held amongst the local staff serving in
 Geographical Region No 11 between 4 and 15 November                     ORDER OF THE COURT OF FIRST INSTANCE
 1996 — the Court of First Instance ( Second Chamber),                                      of 29 September 1997
composed of A. Kalogeropoulos, President, and C. P. Briet
 and C. W. Bellamy, Judges; H. Jung, Registrar, made an             in Case T-83/97: Société Anonyme de Traverses en Béton
 order on 3 October 1997, the operative part of which is                   Armé ( Sateba) v. Commission of the European
 as follows :                                                                                Communities (M
                                                                     (Public procurement — Complaint — Proceedings for a
 1 . There is no need to give a decision on the application          declaration of failure to fulfil obligations — Decision not
      made by the applicant, as a candidate therein, for             to proceed — Application for annulment —
      annulment of the Commission 's decision invalidating                                      Inadmissibility)
      the elections held between 5 and 20 December 1994                                           ( 97/C 357/53 )
      amongst the local staff serving in Geographical Region
      No 1 1 and ordering the same to be reorganized.                                 (Language of the case: French)
 2 . The remainder of the application is dismissed as                In Case T-83/97: Société Anonyme de Traverses en Béton
      inadmissible.                                                  Armé ( Sateba ), established in Paris, represented by Jacques


title: Judgment of the Court (Sixth Chamber) of 23 October 2003 in Case C-40/02 (Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat im Land Niederösterreich): Margareta Scherndl v Bezirkshauptmannschaft Korneuburg (Directive 90/496/EEC — Nutrition labelling of foodstuffs — Vitamin content — Declared value — Average value — Reference date — Permissible differences between the declared value and the value established in the course of an official check — Proportionality — Legal certainty)

text:
13.12.2003               EN                          Official Journal of the European Union                                                 C 304/7
3.    Protocol No 2 concerning Article 119 of the Treaty establishing        1.    Articles 1(4)(k) and 6(8) of Council Directive 90/496/EEC of
      the European Community and the Protocol concerning                           24 September 1990 on nutrition labelling for foodstuffs must
      Article 141 EC annexed to the EC Treaty are to be interpreted                be interpreted as meaning that, first, the value of a nutrient
      as precluding the application of Article 119 of the Treaty and               such as vitamin C which is indicated on a foodstuff following
      Article 141(1) and (2) EC respectively to benefits provided                  an analysis of the foodstuff carried out by the manufacturer
      under an occupational social security scheme payable in respect              may correspond to the value of that nutrient in the foodstuff in
      of periods of employment prior to 17 May 1990, subject to the                question at the end of its minimum conservation period and,
      exception for workers or those claiming under them who have                  second, that the determination of the permissible differences
      before that date initiated legal proceedings or raised an                    between the value stated and the value established in the course
      equivalent claim under the applicable national law.                          of an official check is, in the present state of Community law,
                                                                                within the competence of the Member States.
(1) OJ C 109 of 4.5.2002.                                                    2.    Consideration of the third question has not disclosed any factor
                                                                                of such a kind as to affect the validity of Directive 90/496.
                                                                             (1) OJ C 109 of 4.5.2002.
                  JUDGMENT OF THE COURT
                          (Sixth Chamber)
                                                                                JUDGMENT OF THE COURT
                        of 23 October 2003
                                                                                (Fifth Chamber)
in Case C-40/02 (Reference for a preliminary ruling from
the Unabhängiger Verwaltungssenat im Land Niederöster-                                               of 23 October 2003
reich): Margareta Scherndl v Bezirkshauptmannschaft
                            Korneuburg (1)
                                                                             in Case C-109/02: Commission of the European Communi-
                                                                                ties v Federal Republic of Germany (1)
(Directive 90/496/EEC — Nutrition labelling of foodstuffs
— Vitamin content — Declared value — Average value
— Reference date — Permissible differences between the                       (Failure of a Member State to fulfil obligations — Sixth
declared value and the value established in the course of an                 VAT Directive — National legislation providing for a
     official check — Proportionality — Legal certainty)                     reduced rate for musical ensembles and soloists provided the
                                                                                latter organise the concert themselves)
                           (2003/C 304/09)
                                                                                (2003/C 304/10)
                    (Language of the case: German)
                                                                                (Language of the case: German)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-40/02: Reference to the Court under Article 234 EC
by the Unabhängiger Verwaltungssenat im Land Niederöster-                    In Case C-109/02, Commission of the European Communities
reich (Austria) for a preliminary ruling in the proceedings                  (Agents: E. Traversa and G. Wilms) v Federal Republic of
pending before that court between Margareta Scherndl and                     Germany (Agents: W.-D. Plessing and M. Lumma): Application
Bezirkshauptmannschaft Korneuburg, on the interpretation                     for a declaration that, by applying a reduced rate of value
and validity of Articles 1(4)(k) and 6(8) of Council Directive               added tax to services provided directly to the public by musical
90/496/EEC of 24 September 1990 on nutrition labelling for                   ensembles or for a concert organiser and to services provided
foodstuffs (OJ 1990 L 276, p. 40), the Court (Sixth Chamber),                directly to the public by soloists, but applying the standard
composed of: J.-P. Puissochet, President of the Chamber,                     rate of that tax to the services of soloists working for an
R. Schintgen, V. Skouris, F. Macken and J.N. Cunha Rodrigues                 organiser, the Federal Republic of Germany has failed to fulfil
(Rapporteur), Judges; J. Mischo, Advocate General; R. Grass,                 its obligations under the third subparagraph of Article 12(3)(a)
Registrar, has given a judgment on 23 October 2003, in which                 of the Sixth Council Directive 77/388/EEC of 17 May 1977
it has ruled:                                                                on the harmonisation of the laws of the Member States relating


title: JUDGMENT OF THE COURT of 12 December 1995 in Case C-399/93 (reference for a preliminary ruling from the Arrondissementsrechtbank, Zutphen): H.G. Oude Luttikhuis and Others v. Verenigde Coöperatieve Melkindustrie Coberco BA (Competition - Statutes of dairy cooperative associations - Fee payable on withdrawal or expulsion - Article 85 of the Treaty and Regulation No 26)

text:
No C 46/4              EN                  Official Journal of the European Communities                                       17. 2 . 96
    does not qualify for exemption pursuant to                        Principal Administrator, for the Registrar, has given a
    Article 85 (3), it is automatically void arid such nullity        judgment on 12 December 1995 , in which it rules :
    has retroactive effect.
                                                                      1 . In order to decide whether fees payable under the
2 . A national court before which a party pleads the nullity                statutes of a cooperative association on withdrawal or
    of a clause in the statutes of an agricultural cooperative              exclusion are compatible with Article 85 (1 ) of the EEC
    on the ground that it infringes Article 85 (1 ) of the                  Treaty, the national court must consider the object of
    Treaty, and before which the cooperative seeks to rely                  the agreement providing for such fees, the effects of that
    on Article 2 (1 ) of Regulation No 26, may continue the                 agreement and whether it affects intra- Community
    proceedings and adjudicate on the dispute if it is clear                trade, taking into account the economic context in
    that the criteria for the application of Article 85 (1) are             which the undertakings operate, the products or services
    not fulfilled, or may declare the clause void under                     covered by the agreement, the structure of the market
    Article 85 (2) if it is certain that that provision does not            concerned and the actual conditions in which it
    fulfil the conditions for application of the exception laid             functions.
    down in Article 2 (1 ) of Regulation No 26 and does not
    qualify for exemption under Article 85 (3). Where there
    is any doubt, the national court may, if it is appropriate        2 . Fees payable under the statutes of a cooperative
    and consistent with the national rules of procedure,                    association on withdrawal or exclusion may fall within
    obtain additional information from the Commission or                    the derogation provided for in Regulation No 26 of the
    allow the parties to seek a decision from the                           Council of 4 April 1962 applying certain rules of
     Commission .                                                           competition to production of and trade in agricultural
                                                                            products only if the agreement providing for them
(•) OJ No C 204 , 28 . 7 . 1993 .
                                                                            concerns a cooperative association belonging to a single
                                                                            Member State, does not cover prices but concerns rather
                                                                            the production or sale ofagricultural products or the use
                                                                            ofjoint facilities for the storage, treatment or processing
                                                                            of such products, and finally does not exclude
                                                                            competition or jeopardize the objectives of the common
                                                                            agricultural policy.
                 JUDGMENT OF THE COURT
                      of 12 December 1995                             (') OJ No C 274 , 12 . 10 . 1993 .
in Case C-3 99/93 (reference for a preliminary ruling from
the Arrondissementsrechtbank, Zutphen ): H.G. Oude
Luttikhuis and Others v. Verenigde Cooperatieve
                  Melkindustrie Coberco BA (*)
(Competition — Statutes of dairy cooperative associations
— Fee payable on withdrawal or expulsion — Article 85 of
                the Treaty and Regulation No 26)                                      JUDGMENT OF THE COURT
                           ( 96/C 46/06 )                                                       ( Sixth Chamber)
                                                                                of 12 December 1995
                  (Language of the case: Dutch)                        in Case C-469/93 (reference for a preliminary ruling from
                                                                       the Tribunale di Trieste): Amministrazione delle Finanze
 (Provisional translation; the definitive translation will be                       dello Stato v. Chiquita Italia SpA ( J )
         published in the European Court Reports)                      (Direct effect of provisions of the GATT and the Lomé
                                                                                Conventions — Internal taxation)
In Case C-399/93 : reference to the Court under Article 177                                        ( 96/C 46/07 )
of the EEC Treaty from the Arrondissementsrechtbank,
Zutphen ( Zutphen District Court ), ( Holland ), for a                                 (Language of the case: Italian)
preliminary ruling in the proceedings pending before that
court between H.G. Oude Luttikhuis and Others and
Verenigde Cooperatieve Melkindustrie Coberco BA — on                   (Provisional translation; the definitive translation will be
 the interpretation of Article 85 ( 1 ) of the EEC Treaty and                    published in the European Court Reports)
 Article 2 ( 1 ) of Regulation No 26 of the Council of 4 April
 1962 applying certain rules of competition to production of
 and trade in agricultural products ( OJ, English Special              In Case C-469/93 : reference to the Court under Article 177
 Edition 1959—1962, p. 129 ) — the Court, composed of                  of the EEC Treaty from the Tribunale di Trieste ( District
 G. C. Rodriguez Iglesias, President, C. N. Kakouris , D. A. O.        Court, Trieste ) ( Italy ) for a preliminary ruling in the
 Edward ( Rapporteur ), J. -P. Puissochet and G. Hirsch                proceedings pending before that court between
 (Presidents of Chambers ), J. C. Moitinho de Almeida, P. J.           Amministrazione delle Finanze dello Stato and Chiquita
 G. Kapteyn, C. Gulmann, J. L. Murray, P. Jann and L.                   Italia SpA — on the interpretation of the General Agreement
 Sevón, Judges; G. Tesauro, Advocate General; H. A. Rühl,               on Tariffs and Trade and the ACP-EEC Conventions signed


C 299/40               EN                   Official Journal of the European Communities                                  26.9.98
coal mining industry for the years 1994, 1995 and 1996;                       Removal from the register of Case T-49/98 (1)
the second and third Decisions concern the years 1997                                           (98/C 299/72)
and 1998. All of the contested Decisions contain operating
aids under Article 3 of the Code (1), closure aids under                               (Language of the case: Dutch)
Article 4 of the Code as well as aids to cover exceptional
charges under Article 5 of the Code.                                   By order of 15 July 1998 the President of the Second
                                                                       Chamber of the Court of First Instance of the European
                                                                       Communities has ordered the removal from the register of
The applicant claims to be gravely concerned by these                  Case T-49/98 ALZ NV v. Commission of the European
Decisions, as the British coal industry has over the last 10           Communities.
years undergone massive restructuring and rationalisation
and as the company was also trying to find a market for                (1) OJ C 137, 2.5.1998.
its coal overseas, in particular in Germany and Spain.
The pleas in law and main arguments are, with the
exception of an alleged infringement of the principle of
good administration, identical to those raised in Case                 Removal from the register of Joined Cases T-56/98 and
T-110/98 (2).                                                                                T-56/98 R (1)
                                                                                (98/C 299/73)
(1) Commission Decision No 3632/93/ECSC of 28 December
    1993, establishing Community rules for State aid to the coal                      (Language of the case: English)
    industry (OJ L 329, 30.12.1993, p. 12).
(2) See page 38 of this Official Journal.                              By order of 17 June 1998 the President of the First
                                                                       Chamber of the Court of First Instance of the European
                                                                       Communities has ordered the removal from the register of
                                                                       Cases T-56/98 and T-56/98 R VTech Electronics (UK) plc
                                                                       v. Commission of the European Communities.
                                                                       (1) OJ C 166, 30.5.1998.
    Partial removal from the register of Case T-185/96 (1)
                          (98/C 299/71)
                (Language of the case: French)
                                                                              Removal from the register of Case T-60/98 (1)
                                                                                (98/C 299/74)
By order of 10 July 1998 the President of the Third
Chamber of the Court of First Instance of the European                                (Language of the case: French)
Communities has ordered the removal of the name of the
applicant Max Labat Automobiles 17 from the list of                    By order of 2 July 1998 the President of the Second
names of the applicants in Case T-185/96 Max Labat                     Chamber of the Court of First Instance of the European
Automobiles 17 and Riviera Auto Service Ets Dalmasso v.                Communities has ordered the removal from the register of
Commission of the European Communities.                                Case T-60/98 Ecord Consortium for Russian Cooperation,
                                                                       composed of the following members: Danagro Adviser A/
                                                                       S, Plunkett Foundation and Irish Agri-Food Development
(1) OJ C 54, 22.2.1997.                                                Ltd v. Commission of the European Communities.
                                                                       (1) OJ C 209, 4.7.1998.


title: Case C-90/03: Action brought on 28 February 2003 by the Kingdom of Spain against the Council of the European Union

text:
C 135/8                 EN                          Official Journal of the European Union                                          7.6.2003
      Nor is there is any objective justification for that discrimi-        Action brought on 28 February 2003 by the Kingdom of
      nation. The general rule is the full applicability of all the               Spain against the Council of the European Union
      Community stock to new Member States from the very
      moment of accession and the derogations from that full
      applicability contained in an Act of Accession are always
      of a temporary nature and must be interpreted strictly.                                        (Case C-90/03)
      To extend those derogations beyond the transitional
      period provided for in the Act of Accession is to disregard
      the very essence of those derogations, namely their
      transitional and limited exceptional nature, and their                                        (2003/C 135/12)
      purpose, which is solely to permit the gradual integration
      of a new Member State into the Community.
—     Infringement of the Act of Accession of Spain: the non-
      allocation to Spain in the contested regulation of part of            An action against the Council of the European Union was
      the quotas in the Community waters of the North Sea                   brought before the Court of Justice of the European Communi-
      and the Baltic Sea which have been allocated since Spain’s            ties on 28 February 2003 by the Kingdom of Spain, represented
      accession has the effect of extending the transitional                by N. Díaz Abad, Abogado del Estado, with an address for
      period beyond that provided for in the Act and of thus                service in Luxembourg.
      infringing its provisions.
      It cannot be overlooked that had it not been for the
      transitional period in Article 166 of the Act of Accession,           The applicant claims that the Court should:
      Spain would have participated in the allocation of new
      quotas since 1986, on the basis of three factors:
                                                                            1.    annul Article 9(1)(b) of Regulation 2792/1999 ( 1) laying
                                                                                down the detailed rules and arrangements regarding
      —     its historical catches during the years 1973/1978,                    Community structural assistance in the fisheries sector,
            i.e. the period taken into consideration when the                     as amended by Council Regulation 2369/2002 of
            principle of relative stability was first established;                20 December 2002 (2);
                                                                            2.    order the Council to pay the costs.
      —     its catches of the same species in adjoining zones;
            and
      —     the need to rely on by-catches.
                                                                            Pleas in law and main arguments
—     Infringement of Article 20(2) of Council Regulation
      (EC) No 2371/2002 (2) of 20 December 2002 on the                      —     Breach of essential procedural requirements: Spain con-
      conservation and sustainable exploitation of fisheries                      tends that the text of Article 9(1)(b) of Regulation 2792/
      resources under the Common Fisheries Policy: upon                           1999, as amended by Regulation 2369/2002, published
      expiry of the transitional period, the new fishing oppor-                   in Official Journal L 358 of 31 December 2002, is not
      tunities allocated in the waters in question between                        the text approved by the Council. In the present case, the
      1992 and 1998 must be allocated taking into account                         text approved by the Council was that contained in the
      the interests of each Member State and therefore Spain’s                    final compromise document, i.e. the one bearing the
      too.                                                                        number SN 113/02, which tacitly amended the document
                                                                                containing the second compromise, SN 105/02, by
                                                                                providing the possibility of applying a basic weighting of
                                                                                1:1.35 to vessels of more than 100 GT, which implies
                                                                                that that weighting would also apply to vessels of more
( 1) OJ L 356, 31.12.2002, p. 12.                                                 than 400 GT and, therefore, the possibility of granting
( 2) OJ L 358, 31.12.2002, p. 59.                                                 aid for renewal this vessels of that type.
                                                                            —     Infringement of Article 254 EC: publication must be
                                                                                limited to reproducing the text of the measure, as adopted
                                                                                by the Organ with legislative or regulatory power. What
 ---pagebreak--- 7.6.2003               EN                       Official Journal of the European Union                                            C 135/9
      is not possible is the introduction, by publication, of                  limits which do not exist either for access by French
      amendments of the text approved by the legislature since                 vessels to Spanish coastal waters or for access by vessels
      to do so presupposes a usurpation of its powers.                         of the remaining Member States to the coastal waters of
                                                                               other Member States.
( 1) OJ L 337, 30.12.1999, p. 10.                                       —      Infringement of the Act of Accession of Spain: following
( 2) OJ L 358, 31.12.2002, p. 49.                                              the abolition of limits on access by Spanish vessels to
                                                                               waters under French jurisdiction outside the 12-mile zone
                                                                               upon expiry of the transitional period provided for in the
                                                                               Act of Accession, there is no justification for maintaining
                                                                               the 12-mile derogations. There are no specific measures
                                                                               for access to pelagic species in that zone that might
                                                                               require special management and, furthermore, catches of
                                                                               those pelagic species are taken by the same type of vessels
                                                                               (Cerco).
                                                                               In short, the maintenance of a restrictive and discriminat-
Action brought on 28 February 2003 by the Kingdom of                           ory arrangement for access by Spanish vessels to the
      Spain against the Council of the European Union                          waters of the French 12-mile zone in the Atlantic
                                                                               beyond the transitional period provided for in the Act of
                                                                               Accession, and a derogation from equivalent rules on
                         (Case C-91/03)                                        access to French waters in the Atlantic outside the
                                                                               12 miles in issue, are contrary to the restrictive and
                                                                               limited nature required of any exception to a general rule
                        (2003/C 135/13)                                        of the Treaty, a fortiori when what is being limited is a
                                                                               principle as essential as the principle of non-discrimi-
                                                                               nation on ground of nationality and, infringes the very
                                                                               essence of the provisions of an Act of Accession.
An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-            (1 ) OJ L 358, 31.12.2002, p. 59.
ties on 28 February 2003 by the Kingdom of Spain, represented           (2 ) Council Regulation of 20 December 1992 establishing a Com-
by Nuria Díaz Abad, Abogado del Estado, with an address for                  munity system for fisheries and aquaculture, OJ L 389,
service in Luxembourg.                                                       31.12.1992, p. 1.
The applicant claims that the Court should:
—     annul point 6 of Annex I to Council Regulation 2371/
      2002 ( 1) of 20 December 2002 on the conversation and
      sustainable exploitation of fisheries resources under the
      Common Fisheries Policy.
—     order the Council to pay the costs.                               Action brought on 4 March 2003 by the Kingdom of
                                                                              Spain against the Council of the European Union
                                                                                (Case C-100/03)
Pleas in law and main arguments
                                                                                (2003/C 135/14)
—     Infringement of the principle of non-discrimination:
      during the negotiations for Regulation 2371/2002, Spain
      sought amendment of point 6 of Annex I in order to
      remove the restriction applying to its vessels in the 6 to
      12 mile zone of the Atlantic waters off France deriving
      from the Act of Accession and to balance the conditions           An action against the Council of the European Union was
      of access to that zone with those enjoyed by French               brought before the Court of Justice of the European Communi-
      vessels in Spanish waters. However, the Council decided           ties on 4 March 2003 by the Kingdom of Spain, represented
      to leave point 6 of Annex I unaltered by comparison with          by N. Díaz Abad, Abogado del Estado, with an address for
      that recognised in Regulation 3760/92 (2) and thus to set         service in Luxembourg.


title: Case C-352/02: Action brought on 2 October 2002 by the Commission of the European Communities against the Hellenic Republic

text:
23.11.2002             EN                   Official Journal of the European Communities                                      C 289/17
Action brought on 2 October 2002 by the Commission of                  Reference for a preliminary ruling by the Tribunal du
the European Communities against the Hellenic Republic                 Travail de Nivelles, Section de Nivelles — 2ème Chambre
                                                                       by judgment of that Court of 24 September 2002 in
                                                                       the case of Anne Hennecart against Office National de
                                                                                l’Emploi
                         (Case C-352/02)
                                                                                (Case C-356/02)
                         (2002/C 289/28)
                                                                                (2002/C 289/29)
                                                                       Reference has been made to the Court of Justice of the
An action against the Hellenic Republic was brought before             European Communities by judgment of the Tribunal du Travail
the Court of Justice of the European Communities on 2 Octo-            de Nivelles, Section de Nivelles — 2ème Chambre (Labour
ber 2002 by the Commission of the European Communities,                Court of Nivelles, Nivelles Section — 2nd Chamber) (Belgium)
represented by Minas Konstantinidis, of its Legal Service.             of 24 September 2002, received at the Court Registry on
                                                                       3 October 2002, for a preliminary ruling in the case of Anne
                                                                       Hennecart against Office National de l’Emploi on the following
                                                                       question:
The Commission claims that the Court should:
                                                                       Does Community law — and more particularly the principles
                                                                       of citizenship and of freedom of movement of citizens
—     declare that, by failing to adopt, and in any event to           provided for by Articles [17] and 18 of the EC Treaty —
      communicate, the laws, regulations and administrative            preclude the accrual and continuation of entitlement to a
      provisions necessary to comply with Directive 2000/14/           social security benefit conferred by a Member State, the
      EC ( 1) of the European Parliament and of the Council of         recipient not being required to remain available on the
      8 May 2000 on the approximation of the laws of the               employment market of that State, being made subject to a
      Member States relating to the noise emission in the              condition of residence or habitual residence within that State?
      environment by equipment for use outdoors, the Hellenic
      Republic has failed to fulfil its obligations under that
      directive;
—     order the Hellenic Republic to pay the costs.
                                                                       Reference for a preliminary ruling by the Supremo
                                                                       Tribunal Administrativo by order of that Court of 3 July
                                                                       2002 in the appeal brought by Fazenda Pública against
                                                                                Sonae Distribução SGPS, SA
Pleas in law and main arguments
                                                                                (Case C-357/02)
The Member States are required by the binding character of
                                                                                (2002/C 289/30)
the third paragraph of Article 249 EC and Article 10 EC to
adopt the measures needed to transpose directives into national
law before the expiry of the time-limit laid down for that
purpose and to communicate those measures immediately to
the Commission. That time-limit expired on 3 July 2001                 Reference has been made to the Court of Justice of the
without the Hellenic Republic having notified to the Com-              European Communities by order of the Supremo Tribunal
mission the provisions transposing the directive in question           Administrativo (Supreme Administrative Tribunal) of 3 July
into national law.                                                     2002, received at the Court Registry on 3 October 2002, for a
                                                                       preliminary ruling in the appeal brought by Fazenda Pública
                                                                       against Sonae Distribução SGPS, SA on the following question:
( 1) OJ L 162 of 3.7.2000, p. 1.                                       Are Articles 1 and 2 of Order No 904/95 of 18 July 1995 and
                                                                       Article 408(1) of the Código do Mercado de Valores Mobiliá-
                                                                       rios (approved by Decreto-lei No 142-A/91 of 10 April 1991,
                                                                       in the version in force at the material time rather than the later
                                                                       version approved by Decreto-lei No 486/99 of 13 November


title: Case C-108/02: Action brought on 22 March 2002 by the Commission of the European Communities against the Federal Republic of Germany

text:
C 131/6                EN                     Official Journal of the European Communities                                           1.6.2002
at least partial security. The Federal Republic temporarily              The Commission claims that the Court should:
waived enforcement of its existing claims against the guarantor
association AIST only on the condition that the association              1.     Declare that, by failing to adopt the laws, regulations
continued to be liable with an appropriate own share and                        and administrative provisions necessary to comply with
assigned its claims against the reinsurer by way of security.                   Council Directive 97/43/Euratom (1) of 30 June 1997 on
Consequently, the claims arising in 1995 and the subsequent                     health protection of individuals against the dangers of
years were secured and should, to the extent that they had not                  ionising radiation in relation to medical exposure, and
been contested within the time-limit provided, have been                        repealing Directive 84/466/Euratom, in the field of
entered, at least partly, in the ‘A’ accounts and transferred.                  medical exposure in the operation of radiological instal-
                                                                                lations, and in any event by failing to notify the Com-
                                                                                mission of them, the Federal Republic of Germany has
                                                                                failed to fulfil its obligations under that directive;
The German authorities have not as yet supplied substantiated
proof for their submission that they acted vicariously in the
                                                                         2.     Order the Federal Republic of Germany to pay the costs.
Community interest to prevent a collapse of the TIR system.
If, however, actual evidence of such a serious crisis existed, it
is difficult to see why the German authorities did not, in the
Community interest, consult the Commission and the other
Member States before reaching their decision temporarily to              Pleas in law and main arguments
waive collection of the claims. The unilateral action of the
German authorities is just as much an infringement of the
duty of co-operation laid down in Article 10 of the EC Treaty            It follows from the binding nature of directives under the third
as the fact that it was only in their response to the letter setting     paragraph of Article 161 EA and from the first paragraph of
the deadline that the German authorities complied with the               Article 192 EA that the Member States to which a directive is
Commission’s repeated request for notification of the details            addressed are obliged to transpose its provisions into national
of the agreement concluded by the Federal Republic with the              law in such a way that they become fully effective in practice
guarantor association and of further agreements with other               from the date of expiry of the period for transposition.
security providers.
                                                                         In accordance with Article 14 of the directive, the Member
                                                                         States were obliged to comply with it before 13 May 2000.
(1) OJ L 155 of 7.6. 1989, p. 1.                                         Although the Federal Republic of Germany has now largely
(2) OJ L 130 of 31.5.2000, p. 1.                                         transposed the directive by means of the Strahlenschutzverord-
                                                                         nung of 20 July 2001, the necessary provisions for the
                                                                         operation of radiological installations are still lacking.
                                                                         (1) OJ L 180 of 9.7.1997, p. 22.
Action brought on 22 March 2002 by the Commission of
the European Communities against the Federal Republic
                            of Germany                                   Action brought on 22 March 2002 by the Commission of
                                                                         the European Communities against the Federal Republic
                                                                                of Germany
                         (Case C-106/02)
                                                                                (Case C-108/02)
                         (2002/C 131/11)
                                                                                (2002/C 131/12)
An action against the Federal Republic of Germany was                    An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-             brought before the Court of Justice of the European Communi-
ties on 22 March 2002 by the Commission of the European                  ties on 22 March 2002 by the Commission of the European
Communities, represented by Götz zur Hausen, Legal Adviser               Communities, represented by Götz zur Hausen, Legal Adviser
of the Commission of the European Communities, with an                   of the Commission of the European Communities, with an
address for service in Luxembourg at the office of Luis Escobar          address for service in Luxembourg at the office of Luis Escobar
Guerrero, of its Legal Service, Wagner Centre C 254, Kirchberg.          Guerrero, of its Legal Service, Wagner Centre C 254, Kirchberg.
 ---pagebreak--- 1.6.2002                EN                   Official Journal of the European Communities                                          C 131/7
The Commission claims that the Court should:                            The applicant claims that the Court should:
1.     Declare that, by failing to adopt the laws, regulations
       and administrative provisions necessary to comply with           1.    declare that, by applying a reduced rate of turnover tax
       Council Directive 1999/32/EC (1) of 26 April 1999                      to both services provided by musical ensembles which
       relating to a reduction in the sulphur content of certain              put on their own public performances or do so through
       liquid fuels and amending Directive 93/12/EEC, or in any               an events organiser and services provided by soloists
       case by failing to notify the Commission of them, the                  putting on their own public performances, whilst the
       Federal Republic of Germany has failed to fulfil its                   services of soloists who work for an organiser are subject
       obligations under Article 10 of that directive;                        to the normal rate, the Federal Republic of Germany has
                                                                              failed to fulfil its obligations under the third subparagraph
                                                                              of Article 12(3)(a) of the Sixth Council Directive 77/388/
2.     Order the Federal Republic of Germany to pay the costs.                EEC (1) of 17 May 1977 on the harmonisation of the laws
                                                                              of the Member States relating to turnover taxes —
                                                                              Common system of value added tax: uniform basis of
                                                                              assessment;
Pleas in law and main arguments
                                                                        2.    order the Federal Republic of Germany to pay the costs.
It follows from the binding nature of directives under the third
paragraph of Article 249 EC and from the first paragraph of
Article 10 EC that the Member States to which a directive is
addressed are obliged to transpose its provisions into national
law in such a way that they become fully effective in practice
from the date of expiry of the period for transposition. The
period prescribed by Article 10 of the directive expired on
1 July 2000.
                                                                        Pleas in law and main arguments
(1) OJ L 121 of 11.5.1999, p. 13.
                                                                        The action is directed against the rule in subparagraph (7)(a)
                                                                        of Article 12(2) of the German Law on turnover taxes, which
                                                                        is incompatible with the principles of the Sixth VAT Directive
                                                                        (fiscal neutrality, objectivity and uniform rate of duty). The
                                                                        third subparagraph of Article 12(3)(a) of the Sixth VAT
                                                                        Directive, in conjunction with Annex H thereto, does not
                                                                        permit a taxable activity to be divided into subgroups for the
                                                                        purpose of applying different rates of tax to such subgroups,
Action brought on 22 March 2002 by the Commission of                    as the rule at issue provides. Community law does not
the European Communities against the Federal Republic                   recognise an objective distinction as regards the different
                           of Germany                                   treatment at issue of the activities of performing artists
                                                                        according to whether the artists are appearing as soloists or as
                                                                        part of an ensemble. In the Commission’s view there is also
                         (Case C-109/02)                                competition between similar services provided by soloists and
                                                                        ensembles as ‘performing artists’ for the purposes of the
                                                                        third subparagraph of Article 12(3)(a), in conjunction with
                         (2002/C 131/13)                                paragraph 8 of Annex H to, the Sixth VAT Directive.
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-            (1) OJ L 145 of 13.6.1997, p. 1.
ties on 22 March 2002 by the Commission of the European
Communities, represented by Mr Enrico Traversa, Legal
Adviser, and Mr Günter Wilms, Member of its Legal Service,
with an address for service in Luxembourg at the office of
Mr Luis Escobar Guerrero, of its Legal Service, Wagner Centre
C 254, Kirchberg, Luxembourg.