Case C-170/02 P: Appeal brought on 7 May 2002 by Schlüsselverlag J.S. Moser Gesellschaft m.b.H., J. Wimmer Medien GmbH & Co KG, Styria Medien AG, Zeitungs- und Verlags-Gesellschaft m.b.H., Eugen Ruß Vorarlberger Zeitungsverlag und Druckerei Gesellschaft mbH, "Die Presse" Verlags-Gesellschaft m.b.H. and "Salzburger Nachrichten" Verlags-Gesellschaft m.b.H. & Co KG against the order made on 11 March 2002 by the Court of First Instance of the European Communities (Third Chamber) in Case T-3/02 between Schlüsselverlag J.S. Moser Gesellschaft m.b.H., J. Wimmer Medien GmbH & Co KG, Styria Medien AG, Zeitungs- und Verlags-Gesellschaft m.b.H., Eugen Ruß Vorarlberger Zeitungsverlag und Druckerei Gesellschaft mbH, "Die Presse" Verlags-Gesellschaft m.b.H. and "Salzburger Nachrichten" Verlags-Gesellschaft m.b.H. & Co KG and Commission of the European Communities
Date: 2002-06-29
Institutions: Court of Justice
Subjects: Austria, European Commission, General Court (EU), action for failure to act, competition law, economic concentration, press

29.6.2002

EN

Official Journal of the European Communities

C 156/11

Reference for a preliminary ruling by the Østre Landsret
by order of that Court of 1st May 2002 in the case of
Dansk Postordreforening against Skatteministeriet

(Case C-169/02)

(2002/C 156/19)

Reference has been made to the Court of Justice of the
European Communities by order of the Østre Landsret (Eastern
Regional Court) of 1st May 2002, received at the Court
Registry on 6 May 2002, for a preliminary ruling in the case
of Dansk Postordreforening against Skatteministeriet on the
following questions:

1.

Is Article 13(A)(1)(a) of the Sixth VAT Directive (Council
Directive 77/388/EEC) (1) to be interpreted as meaning:

(i)

that a Member State has the right to levy VAT on
the conveyance by the public postal services of COD
letters and parcels to private persons where the
Member State has removed such items of mail from
the exclusive right and obligation to convey mail
under the Member State’s national postal legislation,
or

(ii)

is a Member State required not to levy VAT on such
items of mail?

2.

If neither Question 1(i) or 1(ii) can be answered unequivo-
cally in the affirmative, what criteria should be used to
establish whether a Member State has a right, under the
circumstances set out in Question 1(i), to levy VAT on
the conveyance of COD letters and parcels to private
individuals or is it required not to levy VAT on such
items of mail?

(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 of 13.6.1977, p. 1).

Appeal brought on 7 May 2002 by Schlüsselverlag J.S.
Moser Gesellschaft m.b.H., J. Wimmer Medien GmbH
& Co KG, Styria Medien AG, Zeitungs- und Verlags-
Gesellschaft m.b.H., Eugen Ruß Vorarlberger Zeitungs-
verlag und Druckerei Gesellschaft mbH,
‘Die Presse’
Verlags-Gesellschaft m.b.H. and ‘Salzburger Nachrichten’
Verlags-Gesellschaft m.b.H. & Co KG against the order
made on 11 March 2002 by the Court of First Instance of
the European Communities (Third Chamber) in Case T-3/
02 between Schlüsselverlag J.S. Moser Gesellschaft m.b.H.,
J. Wimmer Medien GmbH & Co KG, Styria Medien AG,
Zeitungs- und Verlags-Gesellschaft m.b.H., Eugen Ruß
Vorarlberger Zeitungsverlag und Druckerei Gesellschaft
mbH, ‘Die Presse’ Verlags-Gesellschaft m.b.H. and ‘Salz-
burger Nachrichten’ Verlags-Gesellschaft m.b.H. & Co KG
and Commission of the European Communities

(Case C-170/02 P)

(2002/C 156/20)

An appeal against the order made on 11 March 2002 by the
Court of First Instance of the European Communities (Third
Chamber) in Case T-3/02 between Schlüsselverlag J.S. Moser
Gesellschaft m.b.H., J. Wimmer Medien GmbH & Co KG, Styria
Medien AG, Zeitungs- und Verlags-Gesellschaft m.b.H., Eugen
Ruß Vorarlberger Zeitungsverlag und Druckerei Gesellschaft
mbH, ‘Die Presse’ Verlags-Gesellschaft m.b.H. and ‘Salzburger
Nachrichten’ Verlags-Gesellschaft m.b.H. & Co KG and Com-
mission of the European Communities (1) was brought before
the Court of Justice of the European Communities on 7 May
2002 by Schlüsselverlag J.S. Moser Gesellschaft m.b.H., J.
Wimmer Medien GmbH & Co KG, Styria Medien AG, Zeitungs-
und Verlags-Gesellschaft m.b.H., Eugen Ruß Vorarlberger
Zeitungsverlag und Druckerei Gesellschaft mbH, ‘Die Presse’
Verlags-Gesellschaft m.b.H. and ‘Salzburger Nachrichten’ Ver-
lags-Gesellschaft m.b.H. & Co KG, represented by Dr Michael
Krüger, Rechtsanwalt, Linz.

The appellants claim that the Court should:

— Set aside the contested order and give judgment in
accordance with the form of order sought in the appli-
cation; in the alternative, set aside the contested order
and refer the case back to the Court of First Instance; in
either case, order the defendant Commission to pay the
costs.

Pleas in law and main arguments

— Incompleteness of findings of fact

Instance took the Commission’s
The Court of First
statement that the letters of 12 July 2001 and 3 Septem-
ber 2001 ‘give the opinion of
the merger control
directorate and are not binding on the European Com-
mission’ as the basis for its legal assessment without
including the content of that statement in its findings of
fact.

C 156/12

EN

Official Journal of the European Communities

29.6.2002

— Incorrect legal assessment of the letter of the director of
the merger control directorate of 7 November 2001

the pension of 5 % for each year by which the pension is taken
in advance?

(1) Council Directive 79/7/EEC of 19 December 1978 on the
progressive implementation of the principle of equal treatment
for men and women in matters of social security (OJ L 6 of
10.1.1979, p. 24).

Reference for a preliminary ruling by the Corte Suprema
di Cassazione by order of that Court of 17 January 2002
in the cases of 1) Agenzia per le erogazioni in agricoltura
— AGEA against Azienda agricola Fava Alessandro &
Delledonne Carla; 2) Agenzia per le erogazioni in agricol-
tura — AGEA against Luigi Serpelloni; 3) Azienda agricola
Coato Giovanni, Lorenzo & Vaccaro Ivana against Agen-
zia per le erogazioni in agricoltura — AGEA; and 4) Agen-
zia per le erogazioni in agricoltura — AGEA against
Battista e Giacomo Malzani

(Case C-177/02, C-178/02, C-179/02 e C-180/02)

(2002/C 156/22)

the Court Registry on 13 May 2002,

Reference has been made to the Court of Justice of the
European Communities by order of the la Corte Suprema di
Cassazione (Supreme Court of Cassation) of 17 January 2002,
received at
for a
preliminary ruling in the cases of 1) Agenzia per le erogazioni
in agricoltura — AGEA against Azienda agricola Fava Alessan-
dro & Delledonne Carla; 2) Agenzia per le erogazioni
in
agricoltura — AGEA against Luigi Serpelloni; 3) Azienda
agricola Coato Giovanni, Lorenzo & Vaccaro Ivana against
Agenzia per le erogazioni
in agricoltura — AGEA; and
4) Agenzia per le erogazioni in agricoltura — AGEA against
Battista e Giacomo Malzani on the following question:

Must Article 1 of Regulation (EEC) No 856/84 (1) of 31 March
1984 and Articles 1 to 4 of Regulation No 3950/92 (2) of
28 December 1992 be interpreted as meaning that
the
additional levy on milk and milk products is in the nature of
an administrative penalty with the result that producers are
liable to pay it only where quantities allocated have been
exceeded by them intentionally or as a result of negligence?

(1) OJ L 90 of 1.4.1984, p. 10.
(2) OJ L 405 of 31.12.1992, p. 1.

The interpretation of the Court of First Instance that the
letter of 7 November 2001 is to be imputed to the
Commission as a contestable act, since in contrast to the
two previous letters there is no mention in it of the
Commission not being bound, appears arbitrary and
contrary to the principle of good faith and hence in
breach of general principles of Community law.

With a correct legal assessment, the Court of First Instance
should have concluded that the letter of the merger
control directorate of 7 November 2001 was not imput-
able to the Commission, so that there was a continuing
failure to act by the Commission.

(1) Not yet reported in the ECR.

Reference for a preliminary ruling by the Belgian Cour de
Cassation by judgment of that Court of 29 April 2002 in
the case of Robert Bourgard against Institut National
d’Assurances Sociales pour Travailleurs Indépendants

(Case C-172/02)

(2002/C 156/21)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Belgian Cour de
Cassation (Third Chamber) of 29 April 2002, received at the
Court Registry on 10 May 2002, for a preliminary ruling
in the case of Robert Bourgard against Institut National
d’Assurances Sociales pour Travailleurs Indépendants on the
following question:

Does Article 7(1)(a) of Directive 79/7/EEC (1) of the Council of
19 December 1978 authorise a Member State which has set
the pensionable age of male self-employed workers at 65 and
that of female self-employed workers at 60, with the result
that the old-age pension of male workers is calculated on the
basis of an insurance record expressed as a fraction with a
denominator of 45, whilst the denominator is 40 for female
workers, to impose on male workers, who alone have the right
to rquest early payment of the old-age pension in the five years
prior to normal retirement age, a reduction in the amount of