Case C-107/02: Action brought on 22 March 2002 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2002-08-10
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, health risk, ionising radiation, occupational health, public health

C 191/14

EN

Official Journal of the European Communities

10.8.2002

1.

2.

The action is dismissed.

The Federal Republic of Germany is ordered to pay the costs.

The question referred for a preliminary ruling by the Landesgericht
für Zivilrechtssachen Wien by decision of 5 November 2001 is
inadmissible.

(1) OJ C 348 of 8.12.2001.

(1) OJ C 84, 6.4.2002.

ORDER OF THE COURT

(Sixth Chamber)

of 21 March 2002

Action brought on 22 March 2002 by the Commission of
the European Communities against the Federal Republic
of Germany

(Case C-107/02)

(2002/C 191/25)

in Case C-447/01 (reference for a preliminary ruling
from the Landesgericht für Zivilrechtssachen Wien): DLD
Trading Company Import-Export, spol. s.r.o. v Republic
of Austria (1)

(Preliminary ruling — Inadmissibility)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 22 March 2002 by the Commission of the European
Communities, represented by Götz zur Hausen, legal adviser
to the Commission of the European Communities, with an
address for service in Luxembourg at the office of Luis Escobar
Guerrero, of the Commission’s Legal Service, Wagner Centre
C 254, Kirchberg.

(2002/C 191/24)

The applicant claims that the Court should:

(Language of the case: German)

1.

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-447/01: reference to the Court under Article 234
EC from the Landesgericht für Zivilrechtssachen Wien (Austria)
for a preliminary ruling in the proceedings pending before
that court between DLD Trading Company Import-Export,
spol. s.r.o. and Republic of Austria — first, as to whether
Austrian provisions infringe Community law in that they limit
travellers’ duty-free allowance to EUR 75 or EUR 100 when
coming from certain countries as well as certain quantitative
restrictions in regard to the relief from turnover tax and excise
duty on tobacco products and, secondly, as to the conditions
in which a Member State may be liable for damage suffered by
an individual as a result of infringements of Community law
— the Court (Sixth Chamber), composed of: F. Macken,
President of the Chamber, N. Colneric, R. Schintgen (Rappor-
teur), V. Skouris and J.N. Cunha Rodrigues, Judges; S. Alber,
Advocate General; R. Grass, Registrar, has made an order on
21 March 2002, in which it has ruled:

declare that, by failing to adopt, or in any event to
forward to the Commission, the laws, regulations and
administrative provisions necessary to comply with
Council Directive 96/29/Euratom (1) of 13 May 1996
laying down basic safety standards for the protection of
the health of workers and the general public against the
dangers arising from ionising radiation, in respect of the
clean-up of waste, the construction and clean-up of
uranium-ore extraction sites and the operation of radio-
logical installations, the Federal Republic of Germany has
failed to fulfil its obligations under that directive;

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

It follows from the binding nature of directives pursuant to
Article 161, third paragraph, EAEC and under Article 192,
first paragraph, EAEC that the Member States to whom the
directive is addressed are required to transpose the provisions
of the directive into national law in such a way that, from the
expiry of the period prescribed for transposition of that
directive, those provisions take full practical effect.

10.8.2002

EN

Official Journal of the European Communities

C 191/15

Under Article 55 of the directive, the Member States were
required to comply with that directive by 13 May 2000.
Although, in the meantime, the Federal Republic of Germany
has substantially transposed the directive into national law
by means of the Strahlenschutzverordnung (Ordinance on
protection from radiation) of 20 July 2001, there are still no
provisions regulating activities carried out in connection with
the clean-up of left-over waste from earlier activities and
works, the closure and clean-up of uranium-ore extraction
facilities and plants, and the construction and operation of
radiological installations facilities and stray radiation equip-
ment under the Röntgenverordnung (Ordinance on protection
against damage from ionising radiation).

(1) OJ L 159, 29.6.1996, p. 1.

Appeal brought on 17 May 2002 against the judgment
delivered on 6 March 2002 by the Third Chamber,
Extended Composition, of the Court of First Instance of
the European Communities in Joined Cases T-92/00 and
T-103/00 (not yet published) between Territorio His-
to´ rico de A´ lava — Diputacio´ n Foral de A´ lava and Others
and Commission of the European Communities

(Case C-186/02 P)

(2002/C 191/26)

An appeal against the judgment delivered on 6 March 2002
by the Third Chamber, Extended Composition, of the Court of
First Instance of the European Communities in Joined Cases
T-92/00 and T-103/00 between Territorio Histo´ rico de A´ lava
— Diputacio´ n Foral de A´ lava and Others and Commission of
the European Communities was brought before the Court of
Justice of the European Communities on 17 May 2002 by
Ramondı´n SA and Ramondı´n Ca´psulas SA, represented by
Javier Lazcano-Iturburu Ayestaran, abogado, Gran Vı´a 55,
Logron˜ o (La Rioja), Spain.

The appellants claim that the Court should:

1.

2.

declare the present appeal admissible and consequently:

set aside the judgment of the Court of First Instance of
6 March 2002 and annul the decision of the European
Commission of 22 December 1999 in so far as it
declares incompatible with the common market the fiscal
measures laid down in Normas Forales (regional Laws)
No 22/94 and 24/96 applicable to the appellants, Ramon-
dı´n SA y Ramondı´n Ca´psulas SA, and requires the Spanish
State to recover them, and order the Commission to pay
the costs of the proceedings.

Pleas in law and main arguments

Misuse of powers, discrimination, absence of effect on compe-
tition between undertakings and absence of effect on intra-
Community trade: Neither the Government of the Rioja in its
complaint nor the European Commission in its contested
decision have been concerned with distortion of competition
since their action against Ramondı´n was motivated by other
interests and the judgment makes an error of assessment of
the conditions governing State aid. The appellants flatly deny
the specific and selective nature of the contested aid claimed
by the Commission and found in the judgment at first instance
on the basis that the regional Law in question possesses those
characteristics, since it harms those taxable persons to whom
it does not apply where they are not located within the relevant
territorial
jurisdiction of the authority which enacted the
legislation but are based within the wider national territory
Member State. That argument cannot be accepted, since towns
or regions with legislative powers may act only within their
own territories and within the limit of their powers, just like
genuine full Member States, so that State aid proceedings are
inappropriate, the matter being one of tax harmonisation,
which clearly falls outside the Commission’s powers.

The Administracio´ n Foral (Regional Authority) had no dis-
cretion either to include or exclude Ramondı´n from the
legislation at issue, provided it fulfilled the relevant conditions.

In the alternative: if the Court should find that the measures at
issue were selective, those measures are justified by the nature
and structure of the scheme.

it specifically but not against

Ramondı´n was discriminated against when proceedings were
brought against
the other
undertakings concerned by the same Alava regional legislation,
or by similar legislation enacted by the other Basque auth-
orities, the Navarrese authorities by extension and by many
other territorial authorities in various Community countries.

No competitor has complained about the grant of alleged State
aid, nor has it lodged a complaint with any institution or
body either formally or informally against the hypothetical
advantages granted, nor have any complaints by third parties
been upheld.