Case C-302/02: Reference for a preliminary ruling by the Oberster Gerichtshof (Republic of Austria) by order of that Court of 11 July 2002 in the matter of the care of the minor Nils Laurin Effing
Date: 2002-12-07
Institutions: Court of Justice
Subjects: Austria, EU national, equal treatment, interpretation of the law, law of obligations, maintenance obligation, penalty

C 305/8

EN

Official Journal of the European Communities

7.12.2002

ORDER OF THE COURT

ORDER OF THE COURT

(First Chamber)

of 14 October 2002

in Case C-158/01 (Reference for a preliminary ruling from
the Circuit Court, County of Cork): Catherine Withers v
Samantha Delaney, Motor Insurers Bureau of Ireland
(MIBI) (1)

(Article 104(3) of the Rules of Procedure — Answer
which may be clearly deduced from existing case-law —
Approximation of laws — Directives 72/166/EEC and 84/
5/EEC — Compulsory insurance against civil liability in
respect of motor vehicles — Injury caused to passengers)

(2002/C 305/11)

(Language of the case: English)

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

In Case C-158/01: Reference to the Court under Article 234 EC
by the Circuit Court, County of Cork (Ireland), for a preliminary
ruling in the proceedings pending before that court between
Catherine Withers and Samantha Delaney, Motor Insurers
Bureau of Ireland (MIBI), on the interpretation of Council Direc-
tive 72/166/EEC of 24 April 1972 on the approximation of the
laws of the Member States relating to insurance against civil
liability in respect of the use of motor vehicles, and to the
enforcement of the obligation to insure against such liability
(OJ, English Special Edition 1972 (II), p. 360), and of Second
Council Directive 84/5/EEC of 30 December 1983 on the
approximation of the laws of the Member States relating to
insurance against civil liability in respect of the use of motor
vehicles (OJ 1984 L 8, p. 17), the Court (First Chamber), compo-
sed of: M. Wathelet, President of the Chamber, P. Jann(Rapporte-
ur) and A. Rosas, Judges; S. Alber, Advocate General; R. Grass,
Registrar, having informed the court of referral that the Court
proposed to give its decision by reasoned order in accordance
with Article 104(3) of the Rules of Procedure, having invited the
persons referred to in Article 20 of the EC Statute of the Court
of Justice to submit any observations which they might wish to
make in that regard, has made an order on 14 October 2002,
the operative part of which is as follows:

Council Directive 72/166/EEC of 24 April 1972 on the approxi-
mation of the laws of the Member States relating to insurance against
civil liability in respect of the use of motor vehicles, and to the enforce-
ment of the obligation to insure against such liability, and Second
Council Directive 84/5/EEC of 30 December 1983 on the approxi-
mation of the laws of the Member States relating to insurance against
civil liability in respect of the use of motor vehicles are to be interpreted
as meaning that theydo not precludea Member Statefrom maintaining
national
legislation which does not require compulsory insurance
against civil liability arising from the use of motor vehicles to cover
personal injuries to passengers carried in a part of the vehicle other than
a large public service vehicle, unless that part of the vehicle was designed
and constructed with seating accommodation for passengers.

( 1) OJ C 186 of 30.6.2001.

(First Chamber)

of 8 October 2002

in Case C-190/02 (Reference for a preliminary ruling from
the Giudice di pace de Genova-Voltri): Viacom Outdoor
Srl v Giotto Immobilier SARL (1)

(Reference for a preliminary ruling — Inadmissibility)

(2002/C 305/12)

(Language of the case: Italian)

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

(Italy)

In Case C-190/02: Reference to the Court, under Article 234
for a
EC, by the Giudice di Pace of Genoa-Voltri
preliminary ruling in the proceedings pending before that
court between Viacom Outdoor Srl and Giotto Immobilier
SARL, on the interpretation of Articles 2 EC; 3(1)(a), (b) and
(c) EC; 23 EC; 27(a), (b) and (d) EC; 31(1) and (3) EC; 49 EC;
the Court
50 EC; 81 EC; 82 EC; 86 EC and 87 EC,
(First Chamber), composed of: M. Wathelet, President of the
Chamber, P. Jann and A. Rosas (Rapporteur), Judges; S. Alber,
Advocate General; R. Grass, Registrar, has made an order on
8 October 2002, the operative part of which is as follows:

The reference for a preliminary ruling submitted by the Giudice di
Pace of Genoa-Voltri by order of 9 April 2002 is inadmissible.

(1) OJ C 169 of 13.7.2002.

Reference for a preliminary ruling by the Oberster
Gerichtshof (Republic of Austria) by order of that Court
of 11 July 2002 in the matter of the care of the minor Nils
Laurin Effing

(Case C-302/02)

(2002/C 305/13)

Reference has been made to the Court of
Justice of the
European Communities by order of the Oberster Gerichtshof
(Republic of Austria) (Supreme Court of Justice) of 11 July
2002, received at the Court Registry on 26 August 2002, for
a preliminary ruling in the matter of the care of the minor Nils
Laurin Effing on the following question:

7.12.2002

EN

Official Journal of the European Communities

C 305/9

Is Article 12 EC, in conjunction with Article 3 of Regulation
EEC No 1408/71 of the Council of 14 June 1971 (1) on the
application of social security schemes to employed persons
and their families moving within the Community, to be
interpreted as precluding a national rule that discriminates
against a Community citizen in receipt of advances on
maintenance payments, where the father liable for maintaining
that citizen is serving a criminal sentence in his Member State
of origin (i.e. not in Austria); and, where the child of a German
national
in Austria, does denying that child
entitlement to maintenance payments because his father is
serving a criminal sentence, which was handed down in
Austria, in his Member State of origin (and not in Austria)
constitute discrimination against that child?

is resident

( 1) OJ L 149 [1971], p. 2.

Action brought on 12 September 2002 by the Kingdom of
the Netherlands against the Commission of the European
Communities

(Case C-318/02)

(2002/C 305/14)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 12 September 2002 by the Kingdom of the
Netherlands, represented by H.G. Sevenster and N. Bel, acting
as Agents, with an address for service in The Hague.

The Kingdom of the Netherlands claims that the Court should:

(1)

annul the Commission’s decision No C(2002) 2281 def.
of 26 June 2002 excluding from Community financing
certain expenditure incurred by the Member States under
the European Agricultural
the Guarantee Section of
Guidance and Guarantee Fund (EAGGF),
in so far as
that decision concerns the exclusion from Community
financing of expenditure incurred by the Netherlands
under the European Agricultural Guidance and Guarantee
Fund in the financial years 1997 and 1998;

(2) order the Commission to pay the costs.

Pleas in law and main arguments

The Netherlands Government considers that the decision is
unlawful, or at least that it is based on an incorrect determi-
inasmuch as it deducts the sum of
nation of the facts,

20 291 540 euros from the amount of aid declared by the
Netherlands to the EAGGF in connection with the special
market support measures relating to classical swine fever in
the Netherlands in 1997 and 1998, comprising in particular:

— a deduction of 11 148 318,18 euros on account of the
fact that the Netherlands, by failing correctly to apply the
denaturing provisions, allegedly impaired the application
of the monitoring rules and thereby increased the risk of
evasion of the applicable legislation (flat-rate correction
of 5 %): even if it is accepted that, when carrying out the
denaturing of (parts of) pigs pursuant to Annex III to
Regulation (EC) No 413/97 (1), the authorities failed to
do so in the correct order, it cannot be maintained that,
in such denaturing, the objectives of Annex III (namely to
ensure that (parts of) pigs are slaughtered and destroyed
instead of coming back onto the market) were dis-
regarded;

— a deduction of 6 427 370,45 euros on account of the
fact that the Netherlands authorities allegedly miscon-
strued and misapplied the term ‘batch’ within the meaning
of Regulation (EC) No 413/97: having regard to the
wording of that regulation, to the way in which the term
‘batch’ in comparable legislation has been interpreted in
the past and to the fact that the interpretation of that
term advocated by the Commission (which draws a
distinction between different categories of piglets) has
proved unworkable in practice, the Netherlands auth-
orities did not misconstrue or misapply the term ‘batch’.
In the alternative, the Netherlands Government pleads
that the calculation carried out by the Commission to
determine the amount of the reduction is incorrect in
law;

— as regards the deduction of 2 750 070,91 euros on
account of the fact
that the Netherlands authorities
allegedly failed generally to comply with the checking
system and committed other administrative faults (flat-
rate correction of 2 %): the discrepancies established by
the Commission between the number of pigs needing,
according to individual veterinary surgeons,
to be
removed for reasons of wellbeing and the number actually
removed within the period of two days do not in any way
indicate that the numbers of pigs to be removed, as
declared by the individual veterinary surgeons, were
incorrect. As a result of
the
crisis, virtually all the pigs from the affected areas were
ultimately removed and destroyed. Consequently, even if,
and in so far as, it is to be accepted that, in some cases,
the declarations of the individual veterinary surgeons
were not well-founded, those declarations did not in
any way entail any financial prejudice or risk for the
Community budget. As regards the export of carcasses to
Germany, the Netherlands Government argues that the
checking and monitoring of shipments transported from
the Netherlands to the German destruction plants guaran-
teed that the (parts of) pigs were not unlawfully with-
drawn in order to be placed back on the market. The

the long duration of