Case C-124/01: Action brought on 16 March 2001 by the Commission of the European Communities against the Italian Republic
Date: 2001-06-02
Institutions: Court of Justice
Subjects: European Commission, Italy, acquisition of property, action for failure to fulfil an obligation, contract, real property

2.6.2001

EN

Official Journal of the European Communities

C 161/7

The appellant claims that the Court should:

— partially annul the contested judgment; and

— adjudicate accordingly on the claim at first instance (1)

the export licences acquired. If the Court had made its
doubts on this point known, the plaintiff would have
been able to give a breakdown of the figures at the
hearing; the Court was therefore not entitled to reject the
claim in its entirety on that ground.

(1) Not yet published in the ECR.

Pleas in law and main arguments

— The Court of First Instance wrongly proceeded on the
basis that the plaintiff passed the cost of the export
licences on to its customers and therefore suffered no
loss. The plaintiff made no declaration on the point
because the question of any possible unjustified loss did
not in any event fall within the scope of its evidentiary
burden.

If the plaintiff did pass on the cost of obtaining the export
licences to its customers, it did so because the market
would bear those prices. Without the requirement to
produce export licences from Costa Rica, the plaintiff
would have obtained the same sale price but made a
greater profit. The loss arose with the payment for the
illegal export licences, which thereby concluded legal
relations between the party causing the loss and the party
the party
suffering it. Whether and to what extent
suffering the loss succeeds, on account of its skill and the
market situation, in opening up new sources of income
for itself with which to compensate for its expenditure
on the export licences, is an entirely different question to
be determined in accordance with new (and appropriate)
causal links. That is how this legal question was deter-
mined by the higher German courts. The relevant con-
sideration is the recognition that the party causing the
loss may not unfairly escape responsibility.

— The subsidiary reasoning of the Court of First Instance
concerning the balancing of advantages between the
various operators also fails to support the contested
judgment. The principle of balancing advantages applies
only if the advantage which arises (raising of quotas,
reduction in customs duties) stems from the same
legal infringement as the loss (expenditure incurred in
obtaining export licences). Raising of quotas and customs
duties, by contrast, do not constitute a legal infringement.
How exactly this compensation for loss is to be quantified
in the plaintiffs assessment of its loss is a matter which
the plaintiff is unable to discover from the contested
judgment.

— The contested judgment suffers from an insufficient
statement of reasons, because it is not clear whether the
Court is unprepared in principle to allow certification of
the loss by sworn auditors as evidence.

— The Court of First Instance wrongly doubts the probative
value of the customs payments, tested by auditors, which
the plaintiff made for actual imports corresponding to

Action brought on 16 March 2001 by the Commission of
the European Communities against the Italian Republic

(Case C-124/01)

(2001/C 161/13)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 16 March
2001 by the Commission of the European Communities,
represented by Antonio Aresu, acting as Agent.

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 94/47/EC of the European Parliament and the
Council of 26 October 1994(1) on the protection of
purchasers in respect of certain aspects of contracts
relating to the purchase of the right to use immovable
properties on a timeshare basis, the Italian Republic has
failed to fulfil its obligations under that directive;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

a)

F a i l u r e
D i r e c t i v e 9 4 / 4 7 / E C

t o c o m p l y w i t h A r t i c l e

9 o f

The Italian authorities indicated that they were to amend
Article 11 of Decree No 427/98 in order fully to transpose
Article 9 of the directive. However, no definite timetable has
yet been communicated concerning that amendment, from
which it must be presumed that the infringement is continuing.

C 161/8

EN

Official Journal of the European Communities

2.6.2001

b)

F a i l u r e t o c o m p l y w i t h A r t i c l e 1 0 o f
D i r e c t i v e 9 4 / 4 7 / E C

3.

Is the Chamber obliged, pursuant to the case-law of the
Court of Justice, to refrain from applying the provision
concerning the prescriptive period?

Article 12 of Decree No 427/98 does not lay down any
penalties or specify any other type of consequence resulting
from a vendor’s failure to comply with its obligation to provide
any person requesting the same with a document setting out
at least brief and accurate information on the particulars
mentioned in points (a) to (g), (i) and (1) of the annex to the
directive. In particular, the decree does not provide for any
fine or similar sanction in the event of omission of the
particulars mentioned in points (a), (b), (c), (i) and (1) of the
annex to the directive.

Furthermore, the information in question must be given in the
document mentioned not only to ensure effective protection
of purchasers, but also to avoid distortions of competition
between vendors at the level of the internal market.

For those reasons, the Commission submits that Article 10 of
the directive has not been fully and properly transposed by the
Italian Republic.

(1) OJ L 280, 1994, p. 83.

Reference for a preliminary ruling from the Sozialgericht
Leipzig, by order of that court of 21 February 2001 in the
case of Peter Pflücke against Bundesanstalt für Arbeit

(Case C-125/01)

(2001/C 161/14)

Reference has been made to the Court of Justice of the
European Communities by order of the Sozialgericht Leipzig
(Leipzig Social Court) of 21 February 2001, received at the
Court Registry on 19 March 2001, for a preliminary ruling in
the case of Peter Pflücke against Bundesanstalt für Arbeit on
the following questions:

1.

Is a prescriptive period for bringing claims for payment
by the guarantee institution of outstanding wage claims
compatible with Article 9 of Council Directive
80/98/EEC (1) of 20 October 1980 on the approximation
of the laws of the Member States relating to the protection
of employees in the event of the insolvency of their
employer?

2. Does the Court of Justice share the Chamber’s view that
such a prescriptive period does not constitute a legal
provision which is more favourable to employees within
the meaning of Article 9 of Directive 80/987/EEC?

(1) OJ L 283, 28.10.1980, p. 3.

Action brought on 20 March 2001 by the Commission of
the European Communities against the Italian Republic

(Case C-128/01)

(2001/C 161/15)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 20 March
2001 by the Commission of the European Communities,
represented by Luca Visaggio, acting as Agent.

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Council Directive 96/51/EC of 23 July 1996 (1) amending
Directive 70/524/EEC concerning additives in feeding-
stuffs, or by failing to communicate such provisions, the
Italian Republic has failed to fulfil its obligations under
that directive and the Treaty;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

According to Article 249 EC, directives are binding upon the
Member States as to the result to be achieved. Article 10 EC
provides that the 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, and to
facilitate the achievement of the Community’s tasks.

The Commission submits that, because the Italian Republic
failed to adopt, or to communicate, the provisions necessary
to conform to the directive mentioned, it has failed to fulfil its
obligations under the directive and the Treaty.

(1) OJ L 235, 1996, p. 39.