Case C-116/02: Reference for a preliminary ruling by the Oberlandesgericht Innsbruck by order of that Court of 25 March 2002 in the proceedings between Erich Gasser Gesellschaft m. b. H. and MISAT s. r. l.
Date: 2002-06-15
Institutions: Court of Justice
Subjects: Court of Justice of the European Union, courts and tribunals, judicial proceedings, jurisdiction, preliminary issue

15.6.2002

EN

Official Journal of the European Communities

C 144/17

— order the Kingdom of the Netherlands to pay the costs.

foreign competitors. Those rules result in a situation
whereby more waste is regarded as destined for disposal,
so that more waste is presented to AVR Chemie for
incineration.

(1) OJ 1993 L 30, p. 1.
(2) OJ 1975 L 194, p. 39.
(3) OJ 1991 L 78, p. 32.

Pleas in law and main arguments

— In cases in which 20 % of waste in the Netherlands can
be re-used and, in the country of destination, a smaller
proportion of the waste can be recovered, objections are
systematically raised. That possibility is not provided for
either in Regulation (EEC) No 259/93 or in Directive 75/
442/EEC. The Netherlands treats the extent of the recov-
ery which can be achieved by means of the processing
capacity in the Netherlands as a subjective criterion for
the current application of the fifth indent of Article 7(4)
of Regulation (EEC) No 259/93. It is not apparent from
any of the provisions of Regulation (EEC) No 259/93 that
this constitutes the objective or scope of that regulation.
On the contrary, the fifth indent of Article 7(4) provides
that the Member States are to carry out an individual test
in respect of each request for export, in the course of
which they are to consider in an objective manner — that
is to say, without regard to their own market situation —
the characteristics of that individual request.

— The Netherlands applies a criterion consisting of a
requirement for the calorific value of incineration of the
waste coupled with its chlorine content, and on that basis
draws the dividing line between recovery, with the main
use being fuel from hazardous waste, and definitive
disposal of hazardous waste. However,
in accordance
with the provisions of the regulation and of the directive,
the question whether waste is to be regarded as destined
for disposal or as destined for recovery depends chiefly
on the way in which the waste is processed. That is the
in particular, as regards the drawing of a
position,
distinction between waste for disposal,
in terms of
point D10 in Annex II A of the directive, and waste for
recovery, in terms of point R9 in Annex II B. For that
reason, it is necessary to fulfil the criteria connected with
the processing installation or the relevant use; and the
type and nature of contamination of the waste itself are
not relevant criteria for distinguishing between waste
destined for disposal and waste destined for recovery.

Reference for a preliminary ruling by the Oberlandesge-
richt Innsbruck by order of that Court of 25 March 2002
in the proceedings between Erich Gasser Gesellschaft m.
b. H. and MISAT s. r. l.

(Case C-116/02)

(2002/C 144/28)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht
Innsbruck (Higher Regional Court, Innsbruck) of 25 March
2002, received at the Court Registry on 2 April 2002, for a
preliminary ruling in the proceedings between Erich Gasser
Gesellschaft m. b. H. and MISAT s. r. l. on the following
questions:

1. May a court which refers questions to the Court of Justice
for a preliminary ruling do so purely on the basis of a
party’s (unrefuted) submissions, whether they have been
contested or not contested (on good grounds), or is it
first required to clarify those questions as regards the
facts by the taking of appropriate evidence (and if so, to
what extent)?

2. May a court other than the court first seised, within the
meaning of the first paragraph of Article 21 of the
Brussels Convention on Jurisdiction and the Enforcement
Judgments in Civil and Commercial Matters [‘the
of
Brussels Convention’], review the jurisdiction of the court
first seised if the second court has exclusive jurisdiction
pursuant to an agreement conferring jurisdiction under
Article 17 of the Brussels Convention, or must the agreed
second court proceed in accordance with Article 21 of
the Brussels Convention notwithstanding the agreement
conferring jurisdiction?

— The Commission considers that the rules contained in
Chapter 8.3 of Part I and Chapter 18 of Part II of the
Multi-annual Plan concerning hazardous waste for the
period 1997-2007 are inconsistent with the obligations
imposed on the Netherlands by Article 86 EC, inasmuch
as the effect of those rules is to protect and strengthen
the position of AVR Chemie to the detriment of its

3.

Can the fact that court proceedings in a Contracting State
take an unjustifiably long time (for reasons largely
unconnected with the conduct of the parties), so that
material detriment may be caused to one party, have the
consequence that the court other than the court first
seised, within the meaning of Article 21, is not allowed
to proceed in accordance with that provision?

C 144/18

EN

Official Journal of the European Communities

15.6.2002

4. Do the legal consequences provided for by Italian Law
No 89 of 24 March 2001 justify the application of
Article 21 of the Brussels Convention even if a party is at
risk of detriment as a consequence of
the possible
excessive length of proceedings before the Italian court
and therefore, as suggested in Question 3, it would not
actually be appropriate to proceed in accordance with
Article 21?

5. Under what conditions must the court other than the
court first seised refrain from applying Article 21 of the
Brussels Convention?

6. What course of action must the court follow if, in the
circumstances described in Question 3, it is not allowed
to apply Article 21 of the Brussels Convention?

Should it be necessary in any event, even in the circumstances
described in Question 3,
to proceed in accordance with
Article 21 of the Brussels Convention, there is no need to
answer Questions 4, 5 and 6.

3.

4.

with a moisture content of over 30 % and an average
moisture content, on entry to the processing undertaking,
of at least 35 % measured at most every ten days
compatible with Article 249(2) EC, Article 10 EC,
Article 34.2(2) EC, Council Regulation (EC) No 603/95
of 21 February 1995 and Commission Regulation (EC)
No 785/95 of 6 April 1995.

Is a national provision which makes the grant of aid for
the drying of green or fresh fodder subject
to the
condition that the fodder must be kept at the processing
plant for a maximum of 24 hours before it is processed
compatible with Article 249(2) EC, Article 10 EC,
Article 34.2(2) EC, Council Regulation (EC) No 603/95
of 21 February 1995 and Commission Regulation (EC)
No 785/95 of 6 April 1995?

Is a national provision which makes the grant of aid for
the drying of green or fresh fodder subject
to the
condition that the fodder must come from parcels situated
at a maximum distance of 100 kilometres from the
corresponding processing plant unless, in the latter case,
a greater distance may be justified by the use of the
appropriate
compatible with
Article 249(2) EC, Article 10 EC, Article 34.2(2) EC,
Council Regulation (EC) No 603/95 of 21 February 1995
and Commission Regulation (EC) No 785/95 of 6 April
1995?

specialised transport

Reference for a preliminary ruling by the Tribunal Supre-
mo, Sala de lo Contencioso-administrativo, Seccio´ n: Cuar-
ta by order of that Court of 6 February 2002 in the case
of Industrias de Deshidratacio´ n Agrı´cola, S.A. against
Administracio´ n del Estado

(1) OJ L 063 of 21.3.1995, p. 1.
(2) OJ L 079 of 7.4.1995, p. 5.

(Case C-118/02)

(2002/C 144/29)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunal Supremo, Sala
de lo Contencioso-administrativo, Seccio´ n: Cuarta (Supreme
Court — Chamber for contentious administrative matters,
Fourth Chamber) of 6 February 2002, received at the Court
Registry on 29 March 2002, for a preliminary ruling in the
case of Industrias de Deshidratacio´ n Agrı´cola, S.A. against
Administracio´ n del Estado on the following questions:

1.

Is a national provision which makes the grant of aid for
the drying of green or fresh fodder subject
to the
condition that
the fodder for drying is delivered to
processing undertakings chopped, and not baled compat-
ible with Article 249(2) EC, Article 10 EC, the second
subparagraph of Article 34(2) EC, Council Regulation
(EC) No 603/95 (1) of 21 February 1995 and Commission
Regulation (EC) No 785/95 (2) of 6 April 1995?

Action brought on 5 April 2002 by European Parliament
against Royal & Sun Alliance Insurance (RSA)

(Case C-123/02)

(2002/C 144/30)

An action against Royal & Sun Alliance Insurance (RSA)
was brought before the Court of Justice of the European
Communities on 5 April 2002 by the European Parliament,
represented by D. Petersheim, O. Caisou-Rousseau and
M. Ecker, acting as Agents, with an address for service in
Luxembourg.

The applicant claims that the Court should:

2.

Is a national provision which makes the grant of aid for
the drying of green or fresh fodder subject
to the
condition that the fodder must reach the processing plant

1.

declare null and void the terminations of guarantee
notified by RSA on 9 October and 6 November 2001;