Case C-496/01: Action brought on 21 December 2001 by the Commission of the European Communities against the French Republic
Date: 2002-02-16
Institutions: Court of Justice
Subjects: EU Member State, European Commission, action for failure to fulfil an obligation, medical diagnosis, research body, social security

16.2.2002

EN

Official Journal of the European Communities

C 44/9

legislation in force, current health policy and veterinary
supervision’ also applied to caviar, their findings in fact
related exclusively to the production of horse meat and
pike fillets. The Commission made a proposal to the
Veterinary Committee without having itself carried out
any examination or appraisal and without submitting the
inspectors’ report.

— The Court of First Instance further disregarded the fact
that, in addition, the Commission clearly violated the
principle of the protection of legitimate expectations, to
the detriment of the appellant: according to Commission
Decision 1999/136 of 28 January 1999, published in the
Official Journal of 18 February 1999, the importation of
caviar from Kazakhstan continued to be permitted (List II).
Thereafter, at the beginning of March 1999, the appellant
concluded contracts for the supply of caviar from Kazakh-
stan for the 1999 season. However, in January 1999, at
all events before 18 February 1999, the Commission was
already aware of the results of the inspection, as set out
to the
in the report, which prompted it to submit
Veterinary Committee, for consideration at its meeting
on 23 February 1999, a draft providing for deletion from
List II. In view of the small number of importers affected,
it would have been easy for the Commission to inform
those undertakings of the results of the inspection visit,
which were available to it
the
consequences which those results might have for the
importation of caviar.

in January, and of

(1) Decision 1999/244/EC amending Decision 97/296/EC drawing
up the list of third countries from which the import of fishery
products is authorised for human consumption (OJ 1999 L 91,
p. 37).

Action brought on 21 December 2001 by the Commission
of the European Communities against the French Republic

(Case C-496/01)

(2002/C 44/16)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 21 December
2001 by the Commission of the European Communities,
represented by Maria Patakia, acting as Agent.

— requiring bio-medical analysis laboratories estab-
lished in other Member States to have their place of
business on French territory as a condition for
obtaining the requisite operating authorisation; and

— precluding any reimbursement of the cost of bio-
medical analyses carried out by bio-medical analysis
laboratories established in another Member State,

the French Republic has failed to fulfil its obligations
under Articles 43 and 49 of the EC Treaty; and

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

— Restriction of Article 43 EC by virtue of the fact that the
requisite administrative authorisation for operating a bio-
medical analysis laboratory (Article L 757 of the Public
Health Code) can only be delivered by the Préfet for the
département in which the laboratory operates (Article 15
of Decree No 76-1004). That provision precludes the
setting up of an establishment having the status of an
office or agency. The Commission does not dispute that
a Member State may provide for rules governing the
authorisation for operating laboratories. Such rules must
however take account of the requirements and safeguards
already complied with in another Member State of
establishment without disregarding that a higher level of
protection may exist in the first Member State. Otherwise,
failure to take into account safeguards already complied
with in another Member State would lead to a duplicate
procedure for applying for authorisation over and above
the authorisation which the foreign laboratory has already
obtained in its Member State of establishment. Such a
situation runs counter to the principle of proportionality
which requires that
the objectives pursued must be
achieved by the least restrictive means.

restricts

financial

assistance

— Restriction of Article 43 EC by virtue of the fact that the
French legislation (Article R 332-3 of the Social Security
Code)
from sickness
insurance schemes only to exceptional cases, that is to
say where the insured person is able to show that he
cannot obtain the appropriate treatment on French
territory, which is moreover not the case so far as
concerns bio-medical analysis laboratories. That consti-
tutes a barrier both to the freedom to provide services
(where a laboratory does not have an establishment in
France) and to the right to set up secondary establish-
ments (where a laboratory has a secondary establishment
where analyses are not however carried out).

The applicant claims that the Court should:

1. Declare that by:

The Commission takes the view that such restrictions are not
justified on public-health grounds in particular. The safeguards
afforded by the Council directives in the field (93/16/EEC,
85/432/EEC, 85/433/EEC, 78/1026/EEC and 78/1027/EEC)

C 44/10

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Official Journal of the European Communities

16.2.2002

ensure to a great extent the quality of medical services, so that
specific measures restricting the basic freedoms enshrined in
the Treaty should be exceptional and fully justified by special
circumstances. As for monitoring in particular, there is nothing
to prevent laboratories established in other Member States
agreeing, voluntarily, to comply with French standards when
applying for authorisation nor is there anything to prevent
French inspectors from travelling abroad so long as their
inspection is freely consented to by the laboratories concerned.

Reference for a preliminary ruling by the Tribunal d’Ar-
rondissement de Luxembourg by order of 19 December
2001 in the case of Zita Modes SARL v Administration
de l’enregistrement et des domaines

(Case C-497/01)

(2002/C 44/17)

Reference has been made to the Court of Justice of the
European Communities by order of 19 December 2001 by the
Tribunal d’Arrondissement de Luxembourg which was received
at the Court Registry on 24 December 2001, for a preliminary
ruling in the case of Zita Modes SARL v Administration de
l’enregistrement et des domaines on the following questions:

Member States relating to turnover taxes — Common
system of value added tax: uniform basis of assessment (1)
to be interpreted as meaning that the transfer of a totality
of assets to a taxable person constitutes a sufficient
condition for the transaction not to be made subject to
value added tax, whatever the taxable person’s activity
may be or whatever use he makes of the property
transferred?

If the answer to the first question is in the negative, is
Article 5(8) of the Sixth Directive to be interpreted as
meaning that the transfer of a totality of assets to a
taxable person is to be understood as meaning a transfer
of all or part of an undertaking to a taxable person who
continues the whole activity of the transferor undertaking
or continues the activity of the branch corresponding to
the part of the totality of assets transferred, or merely as
meaning a transfer of a totality of assets or part thereof
to a taxable person who continues the transferor’s line of
activity in whole or in part, without there being any
transfer of an undertaking or branch of an undertaking?

If the answer to any part of the second question is in the
affirmative, does Article 5(8) of the Sixth Directive require
or allow a State to require that the recipient’s activity be
pursued in accordance with the licence issued by the
competent authority for the activity or branch of activity
stipulated, assuming that the activity pursued falls within
lawful economic channels in the sense contemplated in
the case-law of the Court of Justice?

2.

3.

1.

Is Article 5(8) of the Sixth Council Directive 77/388/EEC
of 17 May 1977 on the harmonisation of the laws of the

(1) OJ L 145, 13.6.1977, p. 1.