Case C-281/02: Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 5 July 2002, in the case of Andrew Owusu against 1) N. B. Jackson (trading as Villa Holidays Bal-Inn Villas), 2) Mammee Bay Resorts Ltd, 3) Mammee Bay Club Ltd, 4) The Enchanted Garden Resorts & Spa Ltd, 5) Consulting Services Ltd, 6) Town & Country Resorts Ltd
Date: 2002-09-28
Institutions: Court of Justice
Subjects: enforcement of ruling, interpretation of the law, jurisdiction, legal action, national law

C 233/16

EN

Official Journal of the European Communities

28.9.2002

Action brought on 25 July 2002 by the Commission of
the European Communities against the French Republic

(Case C-274/02)

(2002/C 233/25)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 25 July
2002 by the Commission of the European Communities,
represented by D. Booss and G. Berscheid, acting as Agents,
with an address for service in Luxembourg.

The Commission of the European Communities claims that
the Court should:

— declare that, by failing to take the necessary measures to
comply with the judgment of the Court of Justice of the
European Communities of 13 December 2001 in Case
C-1/00 (1), that the French Republic, by refusing to adopt
the measures necessary to comply with Council Decision
98/256/EC of 16 March 1998 concerning emergency
measures to protect against bovine spongiform encepha-
lopathy, amending Decision 94/474/EC and repealing
Decision 96/239/EC (2),
in the version resulting from
Commission Decision 98/692/EC of 25 November
1998 (3), in particular with Article 6 and Annex III, and
Commission Decision 1999/514/EC of 23 July 1999 (4)
setting the date on which dispatch from the United
Kingdom of bovine products under the date-based export
scheme may commence by virtue of Article 6(5) of
Decision 98/256, in particular with Article 1, in particu-
lar, by refusing to permit the marketing in its territory
after 30 December 1999 of products subject to that
scheme which are correctly marked or labelled, was in
breach of its obligations under those two decisions, in
particular their provisions referred to above, the French
its obligations under
Republic has
Article 228 of the Treaty establishing the European
Community,

failed to fulfil

— order the French Republic to pay into the Commission’s
‘own resources of the EC’ account, a penalty payment of
EUR 158 250 per day, for each day’s delay in taking the
measures necessary to comply with the judgment given
by the Court of Justice in Case C-1/00, calculated from
the date of delivery of that judgment,

— order the French Republic to pay the costs.

Pleas in law and main arguments

make good that failure. A Member State may not rely on
provisions, practices or circumstances existing in its internal
legal order to justify its failure to comply with obligations laid
down by Community law. Under no circumstances may it
make its compliance with the judgment subject
to any
conditions whatsoever. The task given to the AFSSA by the
French Government’s new referral, namely a study whether
‘DBES’ products and French products are comparable, amounts
to casting doubt on the primacy of Community law. The
argument based on the alleged complexity of the judgment of
13 December 2001 cannot in any circumstance justify any
the operative part of the
delay in compliance; moreover,
judgment is very clear, namely that the French Republic is
required to permit the marketing of correctly marked or
labelled ‘DBES’ products in its territory.

In the alternative: it is not open to a Member State to rely
upon the illegality of decisions addressed to it as a defence to
an action for failure to fulfil its obligations based on its failure
to comply with those decisions, either in proceedings under
Article 226 EC, or, a fortiori, in proceedings under Article 228
EC.

So far as the amount of the penalty payment is concerned, the
Commission refers to its information notices of 21 August
1996 (5) and 28 February 1997 (6) and applies to the basic
amount of EUR 500 a factor of 15 (maximum possible: 20)
for the seriousness of the infringement, a factor of 1 (maximum
possible: 3) for its duration, and a factor of 21,1 for France’s
ability to pay.

(1) [2001] ECR I-9989.
(2) OJ L 113, 15.4.1998, p. 33.
(3) OJ L 328, 4.12.1998, p. 35.
(4) OJ L 195, 28.7.1999, p. 42.
(5) OJ C 242, p. 6.
(6) OJ C 63, p. 2.

Reference for a preliminary ruling by the Court of Appeal
(England & Wales) (Civil Division), by order of that court
dated 5 July 2002, in the case of Andrew Owusu against
1) N. B. Jackson (trading as Villa Holidays Bal-Inn Villas),
2) Mammee Bay Resorts Ltd, 3) Mammee Bay Club Ltd,
4) The Enchanted Garden Resorts & Spa Ltd, 5) Consulting
Services Ltd, 6) Town & Country Resorts Ltd

(Case C-281/02)

(2002/C 233/26)

The simple fact that the Court has found that a Member State
has failed to fulfil its obligations obliges the Member State to

Reference has been made to the Court of
Justice of the
European Communities by an order of the Court of Appeal

28.9.2002

EN

Official Journal of the European Communities

C 233/17

(England & Wales) (Civil Division) dated 5 July 2002, which
was received at the Court Registry on 31 July 2002, for
a preliminary ruling in the case of Andrew Owusu and
1) N. B. Jackson (trading as Villa Holidays Bal-Inn Villas),
2) Mammee Bay Resorts Ltd, 3) Mammee Bay Club Ltd, 4) The
Enchanted Garden Resorts & Spa Ltd, 5) Consulting Services
Ltd, 6) Town & Country Resorts Ltd, on the following
questions:

(1)

Is it inconsistent with the Brussels Convention on Jurisdic-
tion and the Enforcement of Judgments 1968, where a
Claimant contends that
jurisdiction is founded on
Article 2, for a court of a Contracting State to exercise a
discretionary power, available under its national law, to
decline to hear proceedings brought against a person
domiciled in that State in favour of the courts of a non-
Contracting State:

(a)

(b)

the jurisdiction of no other Contracting State

if
under the 1968 Convention is in issue;

if the proceedings have no other connecting factors
to any other Contracting State?

(2)

If the answer to question (1)(a) or (1)(b)
is it
consistent in all the circumstances or only in some and if
so in which?

is yes,

Pleas in law and main arguments

The Italian Government claims that, by adopting the contested
implementing regulation,
the Commission has, de iure,
accorded limited and inconsistent protection to ‘traditional
terms’, in particular to Italian ‘traditional terms’, contrary to
the guiding principles of the rules in the sector, as clarified in
the preamble to Council Regulation (EC) No 1493/1999 (2).
This has not only prejudiced the efforts directed towards the
reclassification of Community produce, but also the interests
of producers and consumers, as recognised by the Treaty, the
protection of which constitutes the purpose of the common
agricultural policy and of free competition.

(1) OJ 2002 L 118, p. 1. Commission Regulation (EC) No 753/2002
of 29 April 2002 laying down certain rules for applying Council
Regulation (EC) No 1493/1999 as regards the description, desig-
nation, presentation and protection of certain wine sector prod-
ucts (OJ L 118, 4.5.2002, p. 1).

(2) OJ 1999 L 179, p. 1. Council Regulation (EC) No 1493/1999 of
17 May 1999 on the common organisation of the market in wine.

Action brought on 9 August 2002 by the Kingdom of
Spain against the Commission of the European Communi-
ties

Action brought on 25 July 2002 by the Italian Republic
against the Commission of the European Communities

(Case C-287/02)

(2002/C 233/28)

(Case C-283/02)

(2002/C 233/27)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 25 July 2002 by the Italian Republic,
represented by U. Leanza, acting as Agent and M. Fiorilli,
avvocato dello Stato.

The applicant claims that the Court should:

— annul Article 24 and, to the extent of the complaints
advanced to that effect, Annexes A and B of Commission
Regulation (EC) No 753/2002 (1) of 29 April 2002.

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 9 August 2002 by the Kingdom of Spain
represented by Lourdes Fraguas Gadea, Abogada del Estado,
with an address for service in Luxembourg at the Spanish
Embassy, 4 - 6 Boulevard Emmanuel Servais.

The applicant claims that the Court should:

— annul the contested decision (1) as regards the financial
corrections imposed on the Kingdom of Spain and
contested by this action;

— order the Commission to pay the costs.