Case C-406/01: Action brought on 15 October 2001 by the Federal Republic of Germany against the European Parliament and the Council of the European Union
Date: 2001-12-08
Institutions: Court of Justice
Subjects: European Parliament, Germany, action for annulment (EU), marketing standard, tobacco industry, trade restriction

C 348/18

EN

Official Journal of the European Communities

8.12.2001

Pleas in law and main arguments

Action brought on 15 October 2001 by the Federal
Republic of Germany against the European Parliament
and the Council of the European Union

— Infringement of the conditions laid down by Decision
2001/376/EC (2),
the Commission adopted Decision
2001/577/EC without having carried out all the inspec-
tions prescribed by Article 21 of Decision 2001/376/EC.
The last inspection report of the Food and Veterinary
Office communicated to the French Republic before the
decision of 25 July 2001 was the report of 25 to 27 June
2001 in its final version DG(SANCO)3345/2001, which
does not examine the development of the incidence of
the disease and the effective enforcement of the relevant
national measures and does not contain a risk assessment
demonstrating whether appropriate measures to manage
from the
any risk have been taken.
conclusions of that report that, at the time when the
inspection report was submitted, the desired legislation
was not yet in force and certain Food and Veterinary
Office inspections were still awaited in order to avoid the
risk of ‘cross-contamination’ which have been revealed in
other countries. The Portuguese decree-law which sets
out the DBES was not approved until 12 July 2001, that
is to say two weeks before the lifting of the ban fixed for
1 August 2001, and the DBES application manual was to
be submitted to the Minister for Agriculture on 14 July.
The French Government therefore considers that ‘effective
enforcement of the relevant national measures’, within
the meaning of Article 21(2) was not ensured at the time
when the decision setting the date for the lifting of the
ban was adopted.

is apparent

It

Nor could the operational effectiveness of the procedures
set up be checked, either in terms of traceability of bovine
products or in terms of tests on cattle, on the date on
which the contested decision was adopted any more than
it could on the date set for the partial lifting of the ban.
Accordingly, the Commission infringed Article 22 of
Decision 2001/376/EC.

— Infringement of

the precautionary principle: while
Article 174 EC falls within the framework of Community
environmental policy, Community case-law does not
confine the precautionary principle to that field alone
and extends it to public health objectives. The nature and
seriousness of the risks relating to BSE warrant full
compliance with the precautionary principle.

(1) OJ L 203, 28.7.2001, p. 27.
(2) Commission Decision 2001/376/EC concerning measures made
necessary by the occurrence of bovine spongiform encephalopa-
thy in Portugal and implementing a date-based export scheme (OJ
L 132, 15.5.2001, p. 17).

(Case C-406/01)

(2001/C 348/33)

An action against the European Parliament and the Council of
the European Union was brought before the Court of Justice
of the European Communities on 15 October 2001 by the
Federal Republic of Germany, represented by Wolf-Dieter
Plessing, Ministerialrat, Moritz Lumma, Oberregierungsrat,
both of the Federal Ministry of Finance, 108 Graurheindorfer
Straße, D-53117 Bonn, and Jochim Sedemund, Rechtsanwalt,
of Freshfields Bruckhaus Deringer, 1 Potsdamer Platz,
D-10785 Berlin.

The applicant claims that the Court should:

1. Annul Article 3(1) in conjunction with Article 3(2) of
Directive 2001/37/EC of the European Parliament and of
the Council of 5 June 2001 on the approximation of the
laws, regulations and administrative provisions of the
Member States concerning the manufacture, presentation
and sale of tobacco products (1),
in so far as those
provisions prohibit the manufacture of cigarettes for
export from the European Community to non-member
countries;

2. Order the defendants to pay the costs.

Pleas in law and main arguments

prohibition

— Article 95 EC is not an adequate legal basis for the
contested
export. Approximation
of
measures under Article 95 EC must have as their subject
the elimination of differences between the legal systems
of
the Member States with the aim of eliminating
distortions of competition in relations between the
Member States or preventing them from occurring.
to non-member
Measures which concern exports
countries are not covered by Article 95 EC. The internal
market aim of removing barriers to trade which result
from differing national rules is achieved already by
the prohibition of marketing. That a prohibition of
manufacture is not necessary for that purpose is shown
by the fact that all comparable harmonisation directives
(for example,
in the field of regulating additives to
foodstuffs) confine themselves to prohibitions of market-
ing and do not lay down prohibition of manufacture. The
prohibition of manufacture in the contested Directive
thus in fact pursues exclusively the aim of the protection

8.12.2001

EN

Official Journal of the European Communities

C 348/19

of health of Community citizens, since according to
recital 11 of the Directive the prohibition is to ensure
that ‘the internal market provisions are not undermined’
(by illegal reimports). The prohibition of manufacture
thus appears, according to its true nature, as a pure
prohibition of export. However, in the opinion of the
German Government, such a measure cannot be based
on Article 95 EC either, since protection against illegal
imports (whether the causes are of a State or private
character) does not fall within the scope of Article 95 EC.
Nor, finally, can Article 95 be an appropriate ground of
competence for a general prohibition of manufacture and
export in view of the aim of preventing ‘evasion’ of the
rules of the internal market, since so comprehensive a
prohibition would be manifestly disproportionate to
achieving the aim pursued. That is because it is almost
exclusively cigarettes manufactured in non-member
countries, not in the Community, which are the object of
illegal imports.

— Article 133 EC is not a proper legal basis for the contested
prohibition of export. The aim of the contested measure
is not in fact the regulation of trade with non-member
countries or the influencing of commerce or trade flows,
but the prevention of illegal reimports. The measure does
not therefore meet the requirements for competence
defined by the Court of Justice in opinions 1/94 and
2/92.

the prohibition of export cannot,

In the alternative: even if the scope of Article 133 EC
were available,
in
the opinion of the German Government, be based on
Article 133, because it restricts disproportionately the
principle of freedom of export to be taken into account
by the Community legislature, and hence infringes the
third paragraph of Article 5 EC. In view of the trivial
extent of reimports of cigarettes manufactured in the
Community, the contested provision is not appropriate
for protecting Community citizens effectively
at all
against health risks caused by illegal imports into the
Community; that aim can only be effectively attained by
a reinforcement of import controls, which are necessary
anyway for combating the evasion of customs duty, are
much more effective, and involve much lesser competitive
disadvantages for Community industry. Since the contest-
ed provision does not constitute an ‘overt’ and ‘specific’
measure of external trade policy, but is intended to ensure
higher health standards in the Community, the reference
to Article 133 EC amounts
to an evasion of
Article 152(4)(c) EC.

— The combination of the above legal bases, each of which
is insufficient on its own, does not confer on them a
more extensive scope.

(1) OJ L 194 of 18.7.2001, p. 26.

Reference for a preliminary ruling by the Tribunale Civile
e Penale di L’Aquila by order of 5 October 2001 in the
case of Rolando Salusest v Giovanni Petrucci

(Case C-409/01)

(2001/C 348/34)

Reference has been made to the Court of Justice of the
European Communities by order of 5 October 2001 by the
Tribunale Civile e Penale di l’Aquila (Civil and Criminal District
Court, L’Aquila), which was received at the Court Registry on
16 October 2001,
for a preliminary ruling in the case
of Rolando Salusest v Giovanni Petrucci on the following
questions:

(a)

Is the provision of binding minimum tariffs contrary to
free competition on the ground that it prevents the free
fixing of fees for a lawyer’s services, as provided for under
Article 81(1)(a) EC, and does it also have the effect
of reinforcing the compartmentalisation of markets at
national level, thereby hindering the economic integration
intended by the Treaty?

Lawyers who are nationals of other EC Member States
and who work in Italy are also required under Article 13
of the Law of 9 February 1982 to comply with the tariff
for legal fees and thus also with the rule prohibiting
differentiation of amounts below a specified minimum
level.

(b) Are Articles 633(1)(2) and 636(1) of the Italian Code of
Civil Procedure, under which a lawyer is authorised to
have his fees determined by the Council of the order to
which he belongs through the adoption of an opinion
binding on his client and on the court (in enforcement
proceedings), allowing him to obtain entitlement based
the professional
on that unilateral determination of
fee pursuant to the abovementioned minimum tariffs,
contrary to free competition on the ground that they
prevent the free fixing of fees for a lawyer’s services, as
provided for under Article 81(1)(a) EC, by reserving such
determination to a body consisting exclusively of lawyers?