Case C-103/01: Action brought on 2 March 2001 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2001-04-21
Institutions: Court of Justice
Subjects: EU trade mark, European Commission, Germany, action for failure to fulfil an obligation, fire protection, protective equipment

C 118/20

EN

Official Journal of the European Communities

21.4.2001

Action brought on 1 March 2001 by Italian Republic
against Commission of the European Communities

3.

The contested decision is also invalid on the following
grounds:

(Case C-102/01)

(2001/C 118/32)

failure to define the relevant market; misuse of powers
by misrepresentation of the facts; infringement of the
directive on postal services; infringement and erroneous
application of Articles 82 and 86 of the Treaty; misuse of
powers in that the decision is general and indeterminate.

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 1 March 2001 by the Italian Republic,
represented by Umberto Leanza, acting as Agent, assisted by
Ivo M. Braguglia and Francesca Quadri, avvocati dello Stato.

(1) Directive 97/67/EC of the European Parliament and of the Council
of 15 December 1997 on common rules for the development of
the internal market of Community postal services and the
improvement of quality of service (OJ 1998 L 15, p. 14).

The applicant claims that the Court should:

— annul the decision of the Commission of the European
Communities of 21 December 2000, notified to the
Italian Government on 22 December 2000;

— order the Commission to pay the costs.

Pleas in law and main arguments

1.

The Italian Government claims that the Commission
committed a manifest error when choosing the proper
legal basis for assessing whether the national rules at issue
were compatible with Community law and that that
erroneous legal basis has led in the present case to a
manifest breach of essential procedural requirements and
‘détournement de procédure’ (abuse of process), inasmuch
as a proceeding pursuant to Article 86(3) of the Treaty
was instituted and a decision adopted, instead of infringe-
ment proceedings under Article 226 of the Treaty for
failure to implement correctly Directive 97/76/EC (1) on
postal services.

By acting in that way, the Commission has also infringed
Article 86(3) of the Treaty, which is not applicable in the
present case, as well as Article 226 of the Treaty for
failure to apply the latter.

The decision does not contain the least statement of
reasons which led the Commission to follow the pro-
cedure under Article 86, so that it is vitiated on the
ground of inadequate statement of reasons.

2.

The decision is vitiated for breach of the rights of the
defence in that the final decision is vitiated with regard to
the letter of formal notice.

Action brought on 2 March 2001 by the Commission of
the European Communities against the Federal Republic
of Germany

(Case C-103/01)

(2001/C 118/33)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 2 March 2001 by the Commission of the European
Communities, represented by Josef Christian Schieferer, of its
Legal Service, with an address for service in Luxembourg at
the office of Carlos Go´ mez de la Cruz, of its Legal Service,
Wagner Centre C 254, Kirchberg.

The applicant claims that the Court should:

(1) declare that, by including in the legislation applicable
to individual Länder certain additional requirements
concerning personal protective equipment for fire brig-
ades which corresponds to the requirements of Directive
89/686/EEC (1) and bears the EC mark,
the Federal
Republic of Germany has infringed Articles 1 and 4 of
that directive;

(2) order the Federal Republic of Germany to pay the costs.

21.4.2001

EN

Official Journal of the European Communities

C 118/21

Pleas in law and main arguments

In the Commission’s view, the term ‘armed forces or [those
responsible for] the maintenance of law and order’, to whose
protective equipment the directive, pursuant to the second
indent of Article 1(4) and Annex I thereof, is not applicable, is
a concept of Community law, and is not to be defined by
reference to the legislation of the Member States. Fire brigades
do not form part of the ‘armed forces or [those responsible
for] the maintenance of law and order’ within the meaning of
the directive, even if, in a Member State, they are under the
control of the Minister of Defence or, as in Germany, that of a
Land authority.

(1) OJ L 399, 30.12.1989, p. 18.

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by order of 2 March 2001 in the case of
A.T. van der Plas en W.H. Guis

(Case C-105/01)

(2001/C 118/34)

Reference has been made to the Court of Justice of the
European Communities by order of 2 March 2001 by the
Hoge Raad der Nederlanden (Supreme Court of the Nether-
lands), which was received at the Court Registry on 5 March
2001, for a preliminary ruling in the case of A.T. van der Plas
en W.H. Guis on the following questions:

(1) On a proper construction of the first part of, and of
paragraph (2) of, Article 16, do the abovementioned
claims in 1(a) to (e), brought against a director, resident
in the Netherlands, of a company established in the
Netherlands which holds the shares in a company
established in France, in order to obtain his collaboration
in the calling of a general meeting and to effect certain
decisions concerning the company established in France,
relate to what is laid down in the abovementioned
provisions of the Convention, on the understanding that
the French court must be considered to have exclusive
jurisdiction as to those claims?

(2)

If
the answer to the first question is to be in the
affirmative, does the jurisdiction of a court, on the basis
of the first part of, and paragraph (2) of, Article 16 of
the Brussels Convention, preclude a court of another
contracting state from having jurisdiction on the basis of
Article 24 of the Brussels Convention to adopt provisional
or protective measures provided for by law?

(3)

If the first question is to be answered in the affirmative
and the second in the negative, must
the measures
requested in these proceedings be regarded as provisional
or protective measures within the meaning of Article 24
of the Brussels Convention?

Action brought on 6 March 2001 by the Commission of
the European Communities against the Grand Duchy of
Luxembourg

(Case C-107/01)

(2001/C 118/35)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 6 March 2001 by the Commission of the European
Communities, represented by M. Wolfcarius, acting as Agent,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Council Directive 98/76/EC of 1 October 1998 amending
Directive 96/26/EC on admission to the occupation of
road haulage operator and road passenger transport
operator and mutual recognition of diplomas, certificates
and other evidence of formal qualifications intended to
facilitate for these operators the right to freedom of
establishment
in national and international transport
operations, (1) or, in any event, by failing to communicate
such provisions to the Commission, the Grand Duchy of
Luxembourg has failed to fulfil its obligations under that
directive; and

— Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The mandatory nature of the provisions of the third paragraph
of Article 249 and the first paragraph of Article 10 of the EC
Treaty requires Member States to adopt the measures necessary
to transpose directives addressed to them into their domestic
law before the expiry of the period prescribed for doing so and
forthwith to inform the Commission thereof. That period,
which is laid down in Article 2(1) of Directive 98/76/EC,
expired on 1 October 1999 without
the Grand Duchy
into force the necessary
of Luxembourg having brought
provisions.

(1) OJ 1998 L 227, p. 17.