Case C-42/01: Action brought on 1 February 2001 by the Portuguese Republic against Commission of the European Communities
Date: 2001-04-07
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for annulment (EU), economic concentration, infringement of EU law, merger control

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and picks (28)

to the permissible sound power level of compressors (20)
as amended by Directive 85/406/EEC(21), Council Direc-
tive 84/534/EEC of 17 September 1984 on the approxi-
mation of the laws in the Member States relating to the
permissible sound power level of tower cranes (22) as
amended by Directive 87/405/EEC (23), Council Directive
84/535/EEC of 17 September 1984 on the approxi-
mation of the laws in the Member States relating to the
permissible sound power level of welding generators (24)
as amended by Directive 85/407/EEC (25), Council Direc-
tive 84/536/EEC of 17 September 1984 on the approxi-
mation of the laws in the Member States relating to the
permissible sound power level of power generators (26) as
amended by Directive 85/408/EEC (27), Council Directive
84/537/EEC of 17 September 1984 on the approximation
of the laws in the Member States relating to the permiss-
ible sound power level of powered hand-held concrete-
breakers
amended by Directive
as
85/409/EEC (29), Council Directive 84/538/EEC of
17 September 1984 on the approximation of the laws in
the Member States relating to the permissible sound
power level of lawnmowers (30) as amended by Directive
87/252/EEC (31), Directive 88/180/EEC (32) and Directive
88/181/EEC (33), Council Directive 86/594/EEC of
1 December 1986 on airborne noise emitted by house-
hold appliances(34), Council Directive 86/662/EEC of
22 December 1986 on the limitation of noise emitted by
hydraulic excavators, rope-operated excavators, dozers,
loaders and excavator-loaders (35) as amended by Direc-
tive 89/514/EEC (36) and Directive 95/27/EC (37), Euro-
pean Parliament and Council Directive 94/62/EC of
20 December 1994 on packaging and packaging
waste (38) and Commission Directive 97/35/EC of 18 June
1997 (39) adapting to technical progress for the second
time Council Directive 90/220/EEC on the deliberate
release into the environment of genetically modified
organisms (40) or in any event by failing to inform the
Commission, the United Kingdom has failed to fulfil its
obligations under these directives

— order the United Kingdom to pay the costs.

Pleas in law and main arguments

The third paragraph of Article 249 of the EC Treaty provides
that directives are to be binding, as to the result to be achieved,
on each Member State to which they are addressed. The first
paragraph of Article 10 of the Treaty provides that Member
States are to take all appropriate measures, whether general or
particular, to ensure fulfilment of the obligations arising out
of the Treaty or resulting from action taken by the institutions
of the Community.

The United Kingdom has not notified the Commission of
the transposition into national
law of the aforementioned
directives to cover the territory of Gibraltar. The Commission
therefore maintains that the United Kingdom is in breach of
its obligations under the Treaty.

(1) OJ 196, 16.8.1967, p. 1 (SE SER1 67, p. 234).
(2) OJ L 133, 30.5.1988, p. 1.
(3) OJ L 228, 17.8.1991, p. 67.
(4) OJ L 154, 5.6.1992, p. 1.
(5) OJ L 383, 29.12.1992, p. 113.
(6) OJ L 110, 4.5.1993, p. 20.
(7) OJ L 227, 8.9.1993, p. 9.
(8) OJ L 258, 16.10.1993, p. 29.
(9) OJ L 13, 15.1.1994, p. 1.
(10) OJ L 294, 30.11.1993, p. 21.
(11) OJ L 381, 31.12.1994, p. 1.
(12) OJ L 248, 30.9.1996, p. 1.
(13) OJ L 343, 13.12.1997, p. 19.
(14) OJ L 15, 17.1.1987, p. 29.
(15) OJ L 74, 27.3.1993, p. 81.
(16) OJ L 350, 28.12.1998, p. 58.
(17) OJ L 33, 8.2.1979, p. 15.
(18) OJ L 376, 30.12.1981, p. 49.
(19) OJ L 233, 30.8.1985, p. 9.
(20) OJ L 300, 19.11.1984, p. 123.
(21) OJ L 233, 30.8.1985, p. 11.
(22) OJ L 300, 19.11.1984, p. 130.
(23) OJ L 220, 8.8.1987, p. 60.
(24) OJ L 300, 19.11.1984, p. 142.
(25) OJ L 233, 30.8.1985, p. 16.
(26) OJ L 300, 19.11.1984, p. 149.
(27) OJ L 233, 30.8.1985, p. 18.
(28) OJ L 300, 19.11.1984, p. 156.
(29) OJ L 233, 30.8.1985, p. 20.
(30) OJ L 300, 19.11.1984, p. 171.
(31) OJ L 117, 5.5.1987, p. 22.
(32) OJ L 81, 26.3.1988, p. 69.
(33) OJ L 81, 26.3.1988, p. 71.
(34) OJ L 344, 6.12.1986, p. 24.
(35) OJ L 384, 31.12.1986, p. 1.
(36) OJ L 253, 30.8.1989, p. 35.
(37) OJ L 168, 18.7.1995, p. 14.
(38) OJ L 365, 31.12.1994, p. 10.
(39) OJ L 169, 27.6.1997, p. 72.
(40) OJ L 117, 8.5.1990, p. 15.

Action brought on 1 February 2001 by the Portuguese
Republic against Commission of the European Communi-
ties

(Case C-42/01)

(2001/C 108/09)

The Commission considers that it follows from the provisions
of the EC Treaty and of the 1972 Act of Accession to the
Communities by Denmark, Ireland and the United Kingdom
that the United Kingdom is under an obligation to extend the
transposition of the directives referred to in its conclusions to
cover the territory of Gibraltar.

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 1 February 2001 by the Portuguese Republic,
represented by L. Inês Fernandes and M.L. Duarte, acting as
Agents, and M. Marques Mendes, advogado, with an address
for service in Luxembourg.

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The applicant claims that the Court should:

1.

declare null and void Commission Decision C(2000)3543
final, of 22 November 2000, concerning a proceeding
pursuant
to Article 21 of Council Regulation (EEC)
No 4064/89 (1) of 21 December 1989 on the con-
trol of concentrations between undertakings
(Case
No COMPN.2054 - Secil/Holderbank/Cimpor);

2.

order the Commission to pay the costs.

Pleas in law and main arguments

Portugal has brought the present action on the ground that it
is not possible to ascertain what effects the Commission
attributes to the withdrawal, on 9 January 2001, of the
notification by Holderbel and Secil of their bid to acquire
shares in the capital of Cimpor, a withdrawal which, in the
view of the applicant, results in the lapse of the contested
decision.

Unlawfulness of the contested decision in that it constitutes

— Breach of Article 253 EC (ex Article 190 of the EC
Treaty): absence of a precise legal provision granting
sufficient authorisation. It is not possible to infer from
any of the references to Article 21 of Regulation No
4064/89 a precise indication of how and why that
provision empowers the Commission, in the absence of
communication of the ‘legitimate interests’ which the
‘appropriate measures’ are intended to protect, as pro-
vided for in the third paragraph of Article 21(3), to rule
on the compatibility with Community law of‘ interests
(allegedly) underlying the orders made by the Minister for
Finances on 5 July and 11 August 2000’.

— Breach of Article 253 EC (ex Article 190 of the EC
Treaty): no ground for alleged incompatibility between
Community law and national measures. If the system
which allows for possible limits on the acquisition of
large numbers of shares in the capital of privatised
undertakings, together with the national measures, at
issue here, were deemed to constitute ‘restrictions’, which
are not discriminatory, on the freedom of establishment
and free movement of capital in the EC, it would then be
necessary to analyse its possible justification by reference
not only to the express derogations provided by the
Treaty, but also to the imperative reasons in the general
interest which have been accepted in respect of both
those fields. However, the Commission merely adopted a
decision, devoid of any factual or legal grounds to
substantiate it, according to which the measures adopted

by the Portuguese Republic constitute restrictions on the
freedom of establishment and free movement of capital
and, thus, are not in pursuit of legitimate interests,
compatible with Community law, for the purposes of
Article 21(3) of Regulation (EEC) No 4064/89.

— Breach of Article 7(1), in fine, EC (ex Article 4(1) in fine,
of the EC Treaty) and of Article 21(1) and the third
paragraph of Article 21(3) of Regulation (EEC) No
4064/89: the Commission has no power to adopt the
contested decision. The third paragraph of Article 21(3)
defines, very clearly, the procedural requirements which
must be fulfilled in order for such a decision to be valid.
Failure by a State to inform, as is the case here, does not
provide the Commission with a legal basis for adopting a
decision. It is open to the Commission to open infringe-
ment proceedings so that it does not have to look to
Article 21(3)
for justification for a power exercised
contrary to the legal requirements expressly laid down in
that provision.

— Breach of Article 220 EC (ex Article 164 of the EC Treaty)
and of Article 21(1) of Regulation (EEC) No 4064/89: the
Commission infringed the Court’s jurisdiction. Pending
an action for failure to fulfil obligations, brought by the
Commission for a finding by the Court that the Portugue-
se privatisation scheme under,
in particular, Decree-
Law No 380/93 is contrary to Community law, the
Commission cannot impose on the Member State con-
is based on a
cerned an obligation which, since it
presumption of incompatibility, amounts to an unlawful
measure which prejudges the as-yet-unknown judgment
to be delivered by the Community judicature.

— Breach of the third paragraph of Article 5 EC (formerly
the third paragraph of Article 3b of the EC Treaty): the
contested decision gravely and manifestly infringes the
principle of proportionality. Even supposing that the
Portuguese Republic had infringed Community law with
regard to a concentration which has a ‘Community
dimension’, that is to say the merger between Holderbank
and Cimpor, the Commission should have made the
solution to that hypothetical infringement fit the sphere
in which it had allegedly occurred, without interfering
with the sphere reserved to the Portuguese Republic to
assess a concentration which does not have a ‘Community
dimension’, namely the Secil/Cimpor merger.

— Breach of Article 226 EC (ex Article 169 of the EC
Treaty): abuse of process.
In order to avoid what it
describes as the exclusion of the effectiveness of Article
21(3) of Regulation (EEC) No 4064/89, the Commission
deems itself empowered, in the absence of formal com-
munication, to declare incompatible with Community

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law the interests underlying the Ministerial orders. The
Commission’s claim that Article 21(3) may be understood
as conferring a duty on it to act by way of decision as if
its role as ‘guardian of the treaties’, together with the
overriding interests of Community law, required such
a solution, makes no sense whatever. In fact,
if the
Commission had reason to believe that the Portuguese
Republic infringed a particular duty to inform, the proper
procedure, and the only one in this case, was to bring
infringement proceedings under Article 226 EC.

(1) OJ 1989 L 395, p. 1.

Action brought on 2 February 2001 by Commission of
the European Communities against Italian Republic

(Case C-46/01)

(2001/C 108/10)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 2 February
2001 by the Commission of the European Communities,
represented by Hans Støvlbaek and Roberto Amorosi, acting
as Agents.

The applicant claims that the Court should:

— declare that, by failing to draw up and forward to
the Commission the appropriate plans, outlines and
summary inventories necessary to comply with Articles
11 and 4(1) of Council Directive 96/59/EC (1) of 16 Sep-
tember 1996 on the disposal of polychlorinated biphe-
the
nyls and polychlorinated terphenyls (PC13/PCT),
Italian Republic has failed to fulfil its obligations under
those provisions of the directive;and

— order the Italian Republic.

Pleas in law and main arguments

The Italian authorities should have taken steps to communicate
to the Commission the various plans, outlines and summary
inventories, provided for by Articles 11 and 4(1) of the
directive referred to in the Commission’s application, by
16 September 1999. To date, it has not yet done so.

(1) OJ L 243, 24.9.1996, p. 31.

Appeal brought on 6 February 2001 by Royal Olympic
Cruises and other companies against the order made on
12 December 2000 by the Second Chamber of the Court
of First Instance of the European Communities in Case
T-201/99 Royal Olympic Cruises and Others v Council of
the European Union and Commission of the European
Communities

(Case C-49/01 P)

(2001/C 108/11)

An appeal against the order made on 12 December 2000 by
the Second Chamber of the Court of First Instance of the
European Communities in Case T-201/99 Royal Olympic
Cruises and Others v Council of the European Union and
Commission of
the European Communities was brought
before the Court of Justice of the European Communities
on 6 February 2001 by Royal Olympic Cruises and other
companies, represented by Professor N. Skandamis, of the
Athens Bar, and A. Potamianos of the Piraeus Bar.

The appellants claim that the Court should:

— set aside the order of the Court of First Instance of

12 December 2000;

— refer back to the Court of First Instance for judgment
the action for damages brought by the appellants on
9 September 1999;

— order the Council of

the European Union and the

European Commission to pay the costs.

Pleas in law and main arguments

1.

Inadequate reasoning: the dismissal of the action for
damages as clearly unfounded denied the applicants
their procedural right to put forward and to develop
sufficiently their arguments concerning a case which is of
major importance and, in many respects, novel for the
case-law.

2. Misinterpretation of

the condition requiring a direct

causal link.