Case C-150/01: Action brought on 9 April 2001 by the Commission of the European Communities against the French Republic
Date: 2001-06-16
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, recognition of diplomas, vocational training

C 173/28

EN

Official Journal of the European Communities

16.6.2001

Reference for a preliminary ruling by the Court of Appeal
(England & Wales) (Civil Division), by order of that court
in the case of Commissioners of
of 13 March 2001,

Customs and Excise against First Choice Holidays plc

2. Does ‘the total amount to be paid by the traveller’
within Article 26.2 include the additional sum
referred to in (c) above?

(Case C-149/01)

(2001/C 173/47)

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ L 145, 13.06.77, p. 1).

Reference has been made to the Court of Justice of the
European Communities by an order of the Court of Appeal
(England & Wales) (Civil Division) of 13 March 2001, which
was received at the Court Registry on 26 March 2001, for a
preliminary ruling in the case of Commissioners of Customs
and Excise against First Choice Holidays, on the following
questions:

Where a tour operator within the meaning of Article 26 of
Council Directive 77/388/EEC (1)

(a)

supplies package holidays to customers through the
disclosed agency of a travel agent;

Action brought on 9 April 2001 by the Commission of
the European Communities against the French Republic

(Case C-150/01)

(2001/C 173/48)

(b) permits the agent to arrange the supply of package
holidays at a discount from the price published in the
tour operator’s brochure (the customer being liable to
pay only the discounted price for the holiday);

An action against the French Republic was brought before the
Court of Justice of the European Communities on 9 April
2001 by the Commission of the European Communities,
represented by M. Patakia and B. Mongin, acting as Agents,
with an address for service in Luxembourg.

(c)

(d)

(e)

(f)

requires the agent who arranges the supply of a package
holiday at a discount not only to pass on to the tour
operator the price actually charged to the customer but
also to pay to the tour operator an additional sum equal
to the discount given to the customer (who is unaware of
the financial arrangements between the tour operator and
the agent), so that the agent accounts to the tour operator
for the full brochure price of the holiday;

agrees to pay the agent a commission based on the
brochure price of the holiday, which in practice is paid
by set-off against
the sums due from the agent as
mentioned in (c) above;

does not know whether or not the agent has arranged the
sale of a particular holiday at a discounted price, or the
amount of the discount;

The Commission claims that the Court should:

1.

declare that, by retaining legislation which requires
intellectual property advisers established in other Member
States to appear on the register of French intellectual
property advisers, and thus to possess the French qualifi-
cation and to be ordinarily resident or have a place of
business in France, in order to supply services in France,
the French Republic has failed to fulfil its obligations
under Articles 49 to 55 of the EC Treaty and Council
Directive 89/48/EEC of 21 December 1988 on a general
system for the recognition of higher-education diplomas
awarded on completion of professional education and
training of at least three years’ duration (1);

2.

order the French Republic to pay the costs.

as between itself and the agent, accounts for the sale of
the holiday on the basis that it has been paid the full
brochure price of the holiday;

Pleas in law and main arguments

1. Having established the above facts, how should the
additional sum (referred to in (c) above) paid by the
travel agent to the tour operator be characterised for
the purposes of Article 26.2?

— By making an ‘intellectual property adviser’ who provides
services subject to the same obligations as an ‘intellectual
property adviser’ established in France, the French legis-
lation infringes Article 49 EC. While the pursuit, even as
a provider of services, of an activity which is not

16.6.2001

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Official Journal of the European Communities

C 173/29

harmonised at Community level may be subject
to
provisions justified in the general interest such as rules
concerning organisation of the profession, qualification
and professional conduct, the Commission considers that
the French legislation lays down disproportionate and
excessively restrictive conditions for the exercise in France
of the profession in question by intellectual property
advisers lawfully established in another Member State and
supplying services in France on an isolated occasion.
Other measures — less restrictive than mandatory entry
on a register preceded by an examination — could be
envisaged, for example:

a requirement to practice under the home-country
title;

The appellant claims that the Court should:

— set aside the order of the Court of First Instance of the

European Communities of 30 January 2001;

— order the European Commission to pay all the costs, with

all the legal consequences which that entails.

Pleas in law and main arguments

— Error of law: given the structure of the appellant com-
pany’s production chain, which is unique in the south-
west, the Court of First Instance should have specifically
examined whether, as at the date of its adoption, the
contested regulation particularly affected the appellant.

a requirement that the person practising the pro-
fession produces his qualification;

— Distortion of the appellant’s claims.

1.

2.

3.

a declaration system (such as that provided for in
Article 22 of Council Directive 85/384/EEC on the
mutual recognition of architects’ qualifications) (2).

— Infringement of Article 49 EC by imposing residence or
a place of business in France as a condition for the supply
of services there on an isolated occasion.

(1) OJ L 19, 24.1.1989, p. 16.
(2) Council Directive 85/384/EEC on the mutual recognition of
diplomas, certificates and other evidence of formal qualifications
in architecture,
including measures to facilitate the effective
exercise of the right of establishment and freedom to provide
services (OJ No L 223, 21.8.1985, p. 15).

— Absence of a sufficient statement of reasons for the ruling
on the plea alleging disregard of the right to seek effective
relief by bringing proceedings: the contested order does
not deal with the appellant’s argument that the Com-
mission’s
interpretation of Article 7 of Regulation
No 2081/92 (1), to the effect that that article restricts the
right to object to the procedure at Member State level,
disregards the right to seek effective relief by bringing
proceedings.

— Misinterpretation of Article 7 of Regulation No 2081/92:
disregard by the Community legal order of the guaranteed
right to seek effective relief by bringing proceedings,
which constitutes a general legal principle: the effect of a
failure to act on the part of a Member State must be such
as to permit an undertaking which otherwise fulfils the
admissibility requirements laid down by Article 7(4) to
raise an objection with the Commission.

(1) Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of
geographical indications and designations of origin for agricultural
products and foodstuffs (OJ L 208 of 24.7.1992, p. 1).

Appeal brought on 9 April 2001 by S.C.E.A. La Conqueste
against the order made on 30 January 2001 by the Fifth
Chamber of the Court of First Instance of the European
Communities in Case T-215/00 between S.C.E.A. La Con-
queste and the Commission of the European Communities

(Case C-151/01 P)

(2001/C 173/49)

An appeal against the order made on 30 January 2001 by the
Fifth Chamber of the Court of First Instance of the European
Communities in Case T-215/00 between S.C.E.A. La Conqueste
and the Commission of
the European Communities was
brought before the Court of Justice of the European Communi-
ties on 9 April 2001 by S.C.E.A. La Conqueste, represented by
A. Lyon-Caen, F. Fabiani and F. Thiriez, avocats, with an
address for service in Paris.

Reference for a preliminary ruling by the Sozialgericht
Leipzig by order of that court of 30 March 2001 in the
case of Karen Mau against Bundesanstalt für Arbeit

(Case C-160/01)

(2001/C 173/50)

Reference has been made to the Court of Justice of the
European Communities by order of the Sozialgericht Leipzig
(Social Court, Leipzig) of 30 March 2001, received at the Court
Registry on 12 April 2001, for a preliminary ruling in the case
of Karen Mau against the Bundesanstalt für Arbeit (Federal
Labour Office) on the following questions: