Case C-108/01: Reference for a preliminary ruling made by the House of Lords by order of that court of 8 February 2001, in the case of 1) Consorzio del Prosciutto Di Parma 2) Salumificio S. Rita S.P.A. against 1) Asda Stores Limited 2) Hygrade Foods Limited
Date: 2001-05-05
Institutions: Court of Justice
Subjects: Emilia-Romagna, designation of origin, interpretation of the law, location of production, meat product, preparation for market

5.5.2001

EN

Official Journal of the European Communities

C 134/9

iii) By assimilating the position of the existing four
global CRS operators with all other operators active
on the relevant market such as system vendors,
airlines or subscribers and in so doing failed to apply
the case law of the Court of Justice and, in particular
the Court’s decision in Bock and Piraiki-Patraiki.

b)

In finding that exceptional economic circumstances do
not mean that the Appellants are individually concerned
by the contested measure the Court of First Instance erred
as a matter of law:

i)

ii)

By failing to apply the principles laid down in the
judgments of the Court of First Instance in Codorniu
v. Council and Extrament Industrie v. Council and
subsequently applied by the Court of First Instance
and the Court of Justice and/or failing to distinguish
those cases adequately or at all.

By failing to take account of the decision of the
Court of First Instance in Case T-60/96, Merck and
others.

(1) OJ C 226, 7.8.1999, p. 34.

Action brought on 27 February 2001 by the Commission
the United
of

the European Communities against
Kingdom of Great Britain and Northern Ireland

(Case C-98/01)

(2001/C 134/13)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 27 February 2001 by the
Commission of the European Communities, represented by
Mr Frank Benyon and Ms Maria Patakia, acting as agents, with
an address for service in Luxembourg.

The Applicant claims that the Court should:

a)

declare that the provisions setting a limitation on interests
in voting shares in the BAA plc company (Article 40 of
the Articles of Association), as well as the authorisation
procedure on the disposal of assets of the company or
control in subsidiaries and winding-up (Article 10 of the
Articles of Association) are incompatible with Articles 43
and 56 of the EC Treaty;

Pleas in law and main arguments

Article 40 of BAA’s Articles, which prevents any person from
controlling more than 15 % of the company, restricts portfolio
investment, and restricts direct investment and, by the same
token, establishment: such restrictions fall under Articles 56
and 43 of the EC Treaty. While the restriction is not explicitly
of a discriminatory nature, such a restriction, liable to hinder
the exercise of these freedoms, must be justified by ‘imperative
requirements in the general interest’ and be necessary and
appropriate for these requirements.

The UK authorities have failed to demonstrate the imperative
requirements of general interest which are to be protected by
the rights attached to the Special share and by the 15 % equity
limit and, thus, a fortiori, their proportionality, and it therefore
must be concluded that the restrictions on the free movement
of capital and on establishment created thereby are in violation
of the obligations of the Member State under Articles 43 and
56 of the Treaty.

A breach of the Treaty may occur upon the introduction by a
Member State of restrictions on establishment or capital
movements, by whatever means.
In relation to BAA the
measures introduced by mechanisms of company law were
introduced by the State in its capacity as public authority and
are clearly intended to remain thus since Article 10(1) of BAA’s
Articles only allows the Special share to be transferred to ‘one
of Her Majesty’s Secretaries of State, another Minister of the
Crown or any other person acting on behalf of the Crown’.
Consequently, and in order in particular to uphold the
uniformity and supremacy of Community law, the adoption
by a Member State of the mechanisms of private company law
to introduce restrictions on Treaty freedoms can in no way
avoid the examination of the compatibility of such restrictions
with the Treaty.

After such examination the Commission has reached the
conclusion that the restrictions contained in Articles 10 and
40 of the Articles of Association of BAA are incompatible
with the provisions of Articles 43 and 56 of the Treaty on the
freedoms of establishment and capital movements.

Reference for a preliminary ruling made by the House of
Lords by order of that court of 8 February 2001, in the
case of 1) Consorzio del Prosciutto Di Parma 2) Salumi-
ficio S. Rita S.P.A. against 1) Asda Stores Limited 2) Hy-
grade Foods Limited

(Case C-108/01)

(2001/C 134/14)

b)

order the United Kingdom to pay the costs.

Reference has been made to the Court of Justice of the
European Communities by an order of the House of Lords, of

C 134/10

EN

Official Journal of the European Communities

5.5.2001

8 February 2001, which was received at the Court Registry on
7 March 2001,
for a preliminary ruling in the case of
1) Consorzio del Prosciutto Di Parma 2) Salumificio S. Rita
S.P.A. against 1) Asda Stores Limited 2) Hygrade Foods
Limited, on the following question:

2.

As a matter of Community law, does Council Regulation
(EEC) No 2081/92 (1) read with Commission Regulation (EC)
No 1107/96 (2) and the specification for the PDO (3)‘prosciutto
di Parma’ create a valid Community right, directly enforceable
in the court of a member state, to restrain the retail sale as
‘Parma ham’ of sliced and packaged ham derived from hams
duly exported from Parma in compliance with the conditions
of the PDO but which have not been thereafter sliced, packaged
and labelled in accordance with the specification?

(1) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the
protection of geographical indications and designations of origin
for agricultural products and foodstuffs (JO L 208, 24.07.1992,
p. 1).

(2) Commission Regulation (EC) No 1107/96 of 12 June 1996 on
the registration of geographical indications and designations of
origin under the procedure laid down in Article 17 of Council
Regulation (EEC) No 2081/92 (JO L 148, 21.06.1996, p. 1).

(3) (protected designation of origin).

Reference for a preliminary ruling from the Oberster
Gerichtshof, Austria, by order of that court of 22 February
2001 in the case of Gantner Electronic GmbH v Basch
Exploitatie Maatschappij B.V.

(Case C-111/01)

(2001/C 134/15)

Reference has been made to the Court of Justice of the
European Communities by an order of the Oberster Gerichts-
hof (Supreme Court), Austria, of 22 February 2001, which was
received at the Court Registry on 12 March 2001, for a
preliminary ruling in the case of Gantner Electronic GmbH v
Basch Exploitatie Maatschappij B.V. on the following questions:

1. Does the concept of

‘the same cause of action’

in
Article 21 of the Brussels Convention extend also to the
defence of the defendant that he has extinguished a part
of the claim sued for by extra-judicial set-off, where the
part of this counterclaim that is allegedly not extinguished
is the subject-matter of a legal dispute between the same
parties on the basis of an action that has already been
brought earlier in another Contracting State?

In the examination of the question whether ‘the same
cause of action’ has been brought, are exclusively the
pleadings of the plaintiff in the proceedings initiated by a
later action decisive and the defences and submissions of
the defendant therefore irrelevant, in particular also the
defence of the procedural objection of set-off concerning
a claim that is the subject-matter of a legal dispute
between the same parties on the basis of an action that
has already been brought earlier in another Contracting
State?

3. Where, on the basis of an action to enforce a contract
seeking damages for unlawful termination of a long-term
obligation, the question as to whether such a long-term
obligation existed at all is decided, is that decision also
binding in subsequent proceedings between the same
parties?

Reference for a preliminary ruling by the Vestre Landsret
by order of 9 March 2001 in the case of ApS SPKR 4
No 3482 v (1) Skatteministeriet, (2) Public limited com-
pany of 11/9 1996, and (3) A.T.S. I/S Arden Transport &
Spedition, represented by Søren Lauritsen and Lene
Lauritsen

(Case C-112/01)

(2001/C 134/16)

Reference has been made to the Court of Justice of the
European Communities by order of 9 March 2001 by the
Vestre Landsret (Western Regional Court), which was received
at the Court Registry on 12 March 2001, for a preliminary
ruling in the case of ApS SPKR 4 No 3482 v (1) Skatteministe-
riet (Ministry of Fiscal Affairs), (2) Public limited company of
11/9 1996, and (3) AT.S. I/S Arden Transport & Spedition,
represented by Søren Lauritsen and Lene Lauritsen, on the
following questions:

Question 1

Must the provisions in Council Regulation No 2913/92 (1) (the
Customs Code) and in Commission Regulation No 2454/93 (2)
(the implementing regulation), in particular Article 379(1) of
the implementing regulation, be construed as meaning that a
customs debt arising by reason of an offence or irregularity
in connection with external Community transit cannot be
recovered by the office of departure from the principal in so
far as the principal did not, before the end of the eleventh
month following the date of registration of the Community
transit declaration, receive the notification referred to in
Article 379 of the implementing regulation?