Case C-388/00: Reference for a preliminary ruling by the Giudice di Pace di Genova by order of that court of 16 October 2000 in the case of Radiosistemi Srl against Prefetto di Genova
Date: 2001-01-27
Institutions: Court of Justice
Subjects: Italy, interpretation of the law, marketing, radio equipment, technical standard, telecommunications equipment

C 28/10

EN

Official Journal of the European Communities

27.1.2001

JUDGMENT OF THE COURT

(Fifth Chamber)

of 16 November 2000

in Case C-280/98 P: Moritz J. Weig GmbH & Co. KG v
Commission of the European Communities (1)

(Appeal — Competition — Article 85(1) of the EC Treaty
(now Article 81(1) EC) — Fines — Determination of the
amount — Statement of reasons — Mitigating circum-
stances)

(2001/C 28/17)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-280/98 P: Moritz J. Weig GmbH & Co. KG,
established in Mayen, Germany, represented by T. Jestaedt, of
the Brussels Bar and V. von Bomhard, Rechtsanwalt, Hamburg,
with an address for service in Luxembourg at the Chambers of
P. Dupont, 8-10 Rue Mathias Hardt, appeal against
the
judgment of the Court of First Instance of the European
Communities (Third Chamber, Extended Composition) of
14 May 1998 in Case T-317/94 Weig v Commission [1998]
ECR II-1235, seeking to have that judgment set aside, the other
party to the proceedings being, Commission of the European
Communities (Agent: R. Lyal assisted by D. Schroeder) — the
Court (Fifth Chamber), composed of: A. La Pergola, President
of the Chamber, M. Wathelet (Rapporteur), D.A.O. Edward,
P. Jann and L. Sevo´ n, Judges; J. Mischo, Advocate General;
R. Grass, Registrar, has given a judgment on 16 November
2000, in which it:

1. Annuls paragraph 3 of the operative part of the judgment of
the Court of First Instance of 14 May 1998 in Case T-317/94
Weig v Commission;

2.

Fixes at EUR 1 900 000 the amount of the fine to be imposed
on Moritz J. Weig GmbH & Co. KG by Article 3 of Commission
Decision 94/601/EC of 13 July 1994 relating to a proceeding
under Article 85 of the EC Treaty (IV/C/33.833 — Car-
tonboard);

3. Dismisses the remainder of the appeal;

4. Orders Moritz J. Weig GmbH & Co. KG to bear its own costs
and to pay two-thirds of the costs of the Commission of the
European Community before the Court of Justice;

5. Orders the Commission of the European Communities to bear

one-third of its own costs before the Court of Justice.

(1) OJ C 299 of 26.9.1998.

Reference for a preliminary ruling by the Giudice di Pace
di Genova by order of that court of 16 October 2000 in
the case of Radiosistemi Srl against Prefetto di Genova

(Case C-388/00)

(2001/C 28/18)

Reference has been made to the Court of Justice of the
European Communities by order of the Giudice di Pace
(District Court), Genoa, of 23 October 2000, received at the
Court Registry on 16 October 2000, for a preliminary ruling
in the case of Radiosistemi Srl against Prefetto di Genova on
the following questions:

(1) Does Community law, in the light also of its fundamental
principles for which there is no primary textual source,
preclude legislation and/or national administrative prac-
tice which — in the context of a system where matters
concerning conformity assessment procedures for the
purposes of placing radio equipment on the market and
putting such equipment into service have been delegated
to the administrative authorities, to be decided merely at
their discretion — precludes economic operators from
importing, marketing or holding in stock, with a view to
selling, radio equipment that has not undergone national
type-approval, and which does not admit other forms of
evidence, equally reliable but less burdensome to obtain,
to prove that such equipment is in conformity with
requirements concerning the proper use of the radio
frequencies authorised under national law?

(2) Does Directive 1999/5/EC (1) of the European Parliament
and of the Council of 9 March 1999 confer on individuals
rights upon which they may rely before the national
courts, where the Directive itself has not been formally
transposed into national law and the deadline for such
transposition has already expired? If that question is
answered in the affirmative,
is it compatible with
Article 7(2)) of Directive 1999/5/EC to maintain in force
legislation and/or administrative practice which, after
8 April 2000, prohibits the marketing and/or the putting
into service of radio equipment which does not bear
the national type-approval stamp, where it has been
confirmed that such equipment makes efficient and
proper use of the radio frequencies authorised under
national law, or where it is easy to verify that this is the
case?

(3) On a proper construction of Article 1 of Decision
No 3052/95/EC (2) of the European Parliament and of the
Council of 13 December 1995, how is the term ‘the
measure’ to be interpreted and does that term cover the
situation where the administrative authorities, having
seized a particular model or a particular type of product
which is lawfully marketed in another Member State,
continue to withhold that model or product after it has
been ascertained by the public authorities responsible for
technical checks that the good in question is in conform-
ity with both national and Community legislation, that is
to say, after the evidential purposes justifying the initial
seizure have been served?

27.1.2001

EN

Official Journal of the European Communities

C 28/11

(4) Are penalties such as those provided for under Article 399
of the Codice Postale Italiano (Italian Postal Regulations
set out in Presidential Decree No 156 of 1973) compatible
with Community law, in the light of the principles of
non-discrimination and proportionality?

(1) OJ L 91 of 7.4.1999, p. 10.
(2) OJ L 321 of 30.12.1995, p. 1.

Action brought on 26 October 2000 by the Commission
of the European Communities against the Italian Republic

(Case C-396/00)

(2001/C 28/19)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 26 October
2000 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, of its Legal Service,
and by Roberto Amorosi, judge on secondment to the Legal
Service, acting as Agents, with an address for service in
Luxembourg at the office of Carlos Go´ mez de la Cruz, of its
Legal Service, Wagner Centre, Kirchberg.

Pleas in law and main arguments

The Commission claims that even though there existed,
within the area in question, waste-water treatment plants by
31 December 1998, Italy should have adopted measures to
identify the discharges for the purposes of applying Article
5(5) of the directive by adapting, if necessary, the relevant
plants. Italy cannot justify its delay in fulfilling its obligations
under the directive by arguing that the main factors on the
basis of which the present situation was to be characterised,
for the purposes of the applicability of its obligations under
Articles 5(2) and 5(5), have not yet been examined and
assessed, since those obligations had been entrusted to local
bodies (the Regions). As the Court of Justice has consistently
held, Member States cannot rely on provisions of their own
internal legal order in order to justify failure to respect the
obligations and time-limits laid down by a directive.

As regards the exemption under Article 5(4) of the directive, it
is clear that it cannot apply unless it can be shown that the
minimum percentage of reduction of the overall load entering
all urban waste water treatment plants in that area is of a
certain value, which is impossible for the time being because
there is no treatment plant in existence.

By declaring a state of emergency, the Italian authorities have
shown themselves to be seriously willing to resolve the
situation even if the Commission is concerned that, despite
having indicated the expected dates of completion of the
works, by letter of 9 July and of 27 October 1999, in reply to
the letter of formal notice, the latest letter of 6 April 2000
makes no further mention in that respect. In any event, so far
as concerns the present case, nothing of the foregoing changes
the fact that Italy is in breach of Community law.

The applicant claims that the Court should:

(1) OJ 1991 L 135, p. 40.
(2) OJ 1991 L 375, p. 1.

— Declare that, by failing to adopt the provisions necessary
to ensure that, by 31 December 1998, discharges of
urban waste water from Milan collected in a basin
draining into the ‘Po delta’ and ‘northwestern Adriatic
coastal areas’, as defined by the Decree Law No 152 of
the Italian Republic of 11 May 1999 (Provisions on the
prevention of pollution of water and implementation of
Council Directive 91/271/EEC (1) concerning urban
waste-water
Directive
91/676/EEC (2) of 12 December 1991 concerning the
protection of waters against pollution caused by nitrates
from agricultural sources), pursuant
to Article 5 of
concerning urban waste-water treatment, were subject to
more stringent treatment than the secondary treatment
or equivalent described by Article 4 of that directive, the
Italian Republic has failed to fulfil its obligations under
Article 5(2) of the aforementioned directive, as laid down
in Article 5(5);

treatment

Council

and

— Order the Italian Republic to pay the costs.

Action brought on 30 October 2000 by Kingdom of Spain
against Commission of the European Communities

(Case C-398/00)

(2001/C 28/20)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 30 October 2000 by the Kingdom of Spain,
represented by Santiago Ortiz Vaamonde, Abogado del Estado,
acting as Agent, with an address for service in Luxembourg at
the Spanish Embassy, 4-6 boulevard E. Servais.