Case C-122/01 P: Appeal brought on 19 March 2001 by T. Port GmbH & Co. KG against the judgment delivered on 1 February 2001 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-1/99 between T. Port GmbH & Co. KG and the Commission of the European Communities
Date: 2001-06-02
Institutions: Court of Justice
Subjects: General Court (EU), action for annulment (EU), export licence, import, selling price, tropical fruit

C 161/6

EN

Official Journal of the European Communities

2.6.2001

— by maintaining in force Article 15 in Title IV of Law
No 409 of 24 July 1985, which refers to Article 1 of Law
No 1398 of 14 December 1964, having the effect that
only dentists of Italian nationality may remain registered
as practitioners upon transferring their residence to
another Member State,

the Italian Republic has failed to fulfil its obligations under
Articles 48 and 52 of the EC Treaty (now, after amendment,
Articles 39 EC and 43 EC) — the Court (Sixth Chamber),
composed of: C. Gulmann, President of the Chamber, V. Skou-
ris, J.-P. Puissochet, R. Schintgen (Rapporteur) and F. Macken,
Judges; P. Léger, Advocate General; R. Grass, Registrar, has
given a judgment on 18 January 2001, in which it:

1. Declares that:

— by allowing Legislative Decree No 233 of the Provisional
Head of State of 13 September 1946 on the reconstitution
of the associations of the health-care professions and the
regulation of the practice of those professions, despite
amendment by Article 9 of Law No 362 of 8 November
1991 on the rules for the re-organisation of the pharma-
ceutical sector, to remain in force in such a way as to leave
dentists practising in Italy still subject to a de facto
residence requirement,

— by maintaining in force Article 15 of Law No 409 of
24 July 1985 on the profession of dental surgeon and on
the provisions concerning the right of establishment and the
freedom to provide services of dentists who are nationals of
Member States of the European Communities, which refers
to Article 1 of Law No 1398 of 14 December 1964
amending and supplementing Law No 736 of 10 July
1960 as regards the registration of Italian members of the
health-care professions residing abroad, having the effect
that only dentists of Italian nationality may remain regis-
tered with their professional association upon transferring
their residence to another Member State,

the Italian Republic has failed to fulfil its obligations under
Articles 48 and 52 of the EC Treaty (now, after amendment,
Articles 39 EC and 43 EQ;

2. Orders the Italian Republic to pay the costs.

(1) OJ C 188 of 3.7.1999.

Reference for a preliminary ruling by the Raad van State
by order of 13 March 2001 in the case of Verol Recycling
Limburg B.V. and Minister van Volkshuisvesting, Ruimte-
lijke Ordening en Milieubeheer

(Case C-116/01)

(2001/C 161/11)

1. Must Directive 75/442/EEC of 15 July 1975 (1) on waste
(the Framework Directive) be interpreted as permitting a
process for processing waste in which more than one
operation is performed, as described above, to be assessed
as a whole?

2.

3.a.

If so, does the process concerned constitute recovery
within the meaning of R1, R3 and R5 of Annex 11 B to
the Framework Directive if it results in the complete use
of the waste employed therein?

If the answer to question 1 is in the negative, is the
extent (expressed as calorific values) to which the waste
contributes to the incineration process or the extent
(expressed as the level of material re-used) to which the
ash residues from that waste contribute to the production
process relevant as regards the classification of each
individual operation as recovery or disposal (R1, R3 and
R5 and D10 respectively)?

3.b. If so, on the basis of which criteria is it necessary to
assess whether or not the contribution is sufficient for
classification as recovery? In the absence of Community
criteria in this respect is it possible to apply national
criteria?

4.

If one operation must be classified as recovery and
another operation as disposal, how must the process be
regarded as a whole?

(1) OJ L 194, 1975, p. 39.

Appeal brought on 19 March 2001 by T. Port GmbH &
Co. KG against the judgment delivered on 1 February
2001 by the Fifth Chamber of the Court of First Instance
of the European Communities in Case T-1/99 between
T. Port GmbH & Co. KG and the Commission of the
European Communities

(Case C-122/01 P)

(2001/C 161/12)

Reference has been made to the Court of Justice of the
European Communities by order of 13 March 2001 by the
Raad van State (Council of State), which was received at the
Court Registry on 15 March 2001, for a preliminary ruling in
the case of Verol Recycling Limburg B.V. and Minister van
Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer on
the following questions:

An appeal against the judgment delivered on 1 February 2001
by the Fifth Chamber of the Court of First Instance of the
European Communities in Case T-1/99 between T. Port GmbH
& Co. KG and the Commission of the European Communities
was brought before the Court of Justice of the European
Communities on 19 March 2001 by T. Port GmbH & Co. KG,
represented by G. Meier, Rechtsanwalt, Cologne.

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.