Case C-99/01: Reference for a preliminary ruling by the Verwaltungsgerichtshof, Vienna, by order of that court of 29 January 2001 in appeal proceedings brought by (1) Gottfried Linhart and (2) Dr Hans Biffl
Date: 2001-04-21
Institutions: Court of Justice
Subjects: advertising, approximation of laws, cosmetic product, interpretation of the law, labelling, marketing standard

C 118/18

EN

Official Journal of the European Communities

21.4.2001

Reference for a preliminary ruling by the Tribunale di
Brescia, by orders of that court of 20 January 2001, in
the cases of (1) Agricola Torriani Sas; (2) Finanziaria
Immobiliare Perugino SpA and (3) San Marco SpA v
Ministero delle Finanze

(Cases C-88/01, C-89/01 and C-90/01)

(2001/C 118/28)

References have been made to the Court of Justice of the
European Communities by orders of 20 anuary 2001, received
at the Court Registry on 21 February 2001, for a preliminary
ruling in the cases of (1) Agricola Torriani Sas; (2) Finanziaria
Immobiliare Perugino SpA and (3) San Marco SpA v Ministero
delle Finanze on the following questions:

1.

2.

Is Article 11(1) of Italian Law No 448 of 23 December
1998 (G.U.R.I. No 302 of 29 December 1998, ordinary
supplement) compatible with Community law, in particu-
lar with Articles 10 and 12 of Council Directive
69/335/EEC (1), inasmuch as it provides that the adminis-
trative charge is payable at a flat annual rate for regis-
tration of ‘other company documents’ for each of the
years from 1985 to 1992, equal to the sum of the
sum of ITL 750 000 for public limited companies and
partnerships limited by shares and ITL 400 000 for
private limited companies?

Is Article 11(3) of Law No 448/98 compatible with
Community law, inasmuch as it provides that interest on
the sums to be reimbursed in so far as they exceed the
sum provided for by Article 11(1) should be calculated
according to the legal rate in force at the date on which
that Law entered into force (2.5% per annum) and not
according to the rate provided for by Article 5 with
respect to Article 1 of Law No 29 of 26 January 1961, as
subsequently amended?

(1) Council Directive 69/335/EEC of 17 July 1969 concerning
indirect taxes on the raising of capital (OJ, English Special Edition
1969 (11), p. 412).

The applicant claims that the Court should:

— annul Commission decision C(2000) 3565 final of
15 November 2000 relating to State aid which Italy
intends to grant to Solar Tech Srl, insofar as it has failed
to apply 15 % GSE (1), provided for small and medium-
sized enterprises (SMEs), to the aid granted, and order the
Commission to pay the costs.

Pleas in law and main arguments

The Italian Government submits that, by basing the decision
not to recognise the increment provided for on a definition of
SMEs which fails to take account exclusively of the require-
ments mentioned in the rules for aid to SMEs, the Commission
infringed those rules, which the Court has held to be binding.

The Italian Government further submits that the contested
application of the rules contained in the decision at issue is
also contrary to the principles of legitimate expectations and
legal certainty.

(1) GSE = maximum concession in gross subsidy equivalent granted
according to the size of the undertaking and location of the
production unit.

Reference for a preliminary ruling by the Verwaltungsge-
richtshof, Vienna, by order of that court of 29 January
2001 in appeal proceedings brought by (1) Gottfried
Linhart and (2) Dr Hans Biffl

(Case C-99/01)

(2001/C 118/30)

Action brought on 21 February 2001 by the Italian
Republic against the Commission of the European Com-
munities

(Case C-91/01)

(2001/C 118/29)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 21 February 2001 by the Italian Republic,
represented by Danilo Del Gaizo, Avvocato dello Stato.

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichts-
hof (Supreme Administrative Court), received at the Court
Registry on 28 February 2001, for a preliminary ruling in the
appeal proceedings brought by (1) Gottfried Linhart and (2)
Dr Hans Biffl, on the following questions:

(1) Do Articles 28 and 30 EC, Council Directive 76/768/EEC
of 27 July 1976 (1) on the approximation of the laws of
the Member States relating to cosmetic products, as
amended
by Council Directives 88/667/EEC of
21 December 1988 (2)
(OJ 1988 L 382, p. 46) and
Council Directive 93/35/EEC of 14 June 1993 (3) (OJ
1993 L 151, p. 32) (hereinafter ‘Directive 76/768’), in

21.4.2001

EN

Official Journal of the European Communities

C 118/19

particular Article 6(3) thereof, together with Council
Directive 84/450/EEC of 10 September 1984 (4) on the
approximation of the laws, regulations and administrative
provisions of the Member States concerning misleading
advertising (OJ 1984 L 250, p. 17) (hereinafter ‘Directive
84/450’), in particular Articles 4 and 7 thereof, preclude
national legislation which, in connection with the market-
ing of cosmetic products, makes it an offence to refer to
medical opinions, by the use,
the
description ‘clinically tested’ or ‘dermatologically tested’ ,
if erroneous ideas as to the characteristics and functioning
of the cosmetic product could be engendered in the mind
of the consumer, as a result of a lack of information as to
the content and outcome of the opinion in question?

in particular, of

(2) Do Articles 28 and 30 EC, Directive 76/768, in particular
Article 6(3) thereof, and Directive 84/450, in particular
Articles 4 and 7 thereof, preclude national legislation
which permits information coming within the terms of
Question 1 to be used only after prior authorisation by
the competent Federal Minister?

(1) OJ 1976 L 262, p. 169.
(2) OJ 1988 L 382, p. 46.
(3) OJ 1993 L 151, p. 32.
(4) OJ 1984 L 250 p. 17.

Reference for a preliminary ruling from the Göta Hovrätt-
en by decision of that court of 23 February 2001 in
the case of Bodil Lindqvist v Kammaråklagaren (Public
Prosecutor), Jönköpning

(Case C-101/01)

(2001/C 118/31)

Reference has been made to the Court of Justice of the
European Communities by a decision of the Göta Hovrätten
of 23 February 2001, which was received at the Court Registry
on 1 March 2001, for a preliminary ruling in the case of Bodil
Lindqvist v Kammaråklagaren, Jönköpning, on the following
questions:

(1)

Is the mention of a person — by name or with name and
telephone number — on an Internet home page an action
which falls within the scope of the directive? (1) Does it
constitute ‘the processing of personal data wholly or
partly by automatic means’ to list on a self-made Internet
home page a number of persons with comments and
statements about their jobs and hobbies etc?

(2)

If the answer to the first question is no, can the act of
setting up on an Internet home page separate pages for

about fifteen people with links between the pages which
make it possible to search by first name be considered to
constitute ‘the processing otherwise than by automatic
means of personal data which form part of a filing system
or are intended to form part of a filing system’ within the
meaning of Article 3(1)?

If the answer to either of those questions is yes, the Hovrätten
also asks the following questions:

(3) Can the act of loading information of the type described
about work colleagues onto a private home page which
is none the less accessible to anyone who knows its
address be regarded as outside the scope of the directive
on the ground that it is covered by one of the exceptions
in Article 3(2)?

(4)

Is information on a home page stating that a named
colleague has injured her foot and is on half-time on
medical grounds personal data concerning health which,
according to Article 8(1), may not be processed?

(5) The directive prohibits the transfer of personal data to
third countries in certain cases. If a person in Sweden
uses a computer to load personal data onto a home page
stored on a server in Sweden — with the result that
personal data becomes accessible to people in third
countries — does that constitute a transfer of data to a
third country within the meaning of the directive? Would
the answer be the same even if, as far as known, no one
from the third country had in fact accessed the data or if
the server in question is actually physically in a third
country?

(6) Can the provisions of the directive, in a case such as the
above, be regarded as bringing about a restriction which
conflicts with the general principles of
freedom of
expression or other freedoms and rights, which are
applicable within the EU and are enshrined in inter alia
Article 10 of the European Convention on the Protection
of Human Rights and Fundamental Freedoms?

Finally, the Hovrätten asks the following question:

(7) Can a Member State, as regards the issues raised in the
above questions, provide more extensive protection for
personal data or give it a wider scope than the directive,
even if none of the circumstances described in Article 13
exists?

(1) Directive 95/46/EC of the European Parliament and of the Council
on the protection of individuals with regard to the processing of
personal data and on the free movement of such data (OJ 1995
L 281, p. 31).