Case C-423/02: Action brought on 22 November 2002 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland
Date: 2003-01-25
Institutions: Court of Justice
Subjects: European Commission, Northern Ireland, United Kingdom, action for failure to fulfil an obligation, environmental protection, storage of waste, waste management

C 19/18

EN

Official Journal of the European Communities

25.1.2003

The Appellant claims that the Court should:

1.

set aside the judgment of the Court of First Instance of
12 September 2002 in case T-89/00;

2. make an order that the costs of and occasioned by these
proceedings, and those before the Court of First Instance,
be borne by the Council;

3.

annul the last indent of Article 3 of Council Regulation
(EC) No. 173/2000 of 24 January 2000 terminating the
anti-dumping proceedings concerning imports of certain
large aluminium electrolytic capacitors (‘LAECs’) originat-
ing in Japan, the Republic of Korea and Taiwan (2) in so
far as it does not state that the retroactive effect of this
Regulation shall apply from 4 December 1997 onwards;
or, in the alternative, refer the case back to the Court of
First Instance.

Finally, notwithstanding that the Appellant’s case is not based
on an infringement of the general principle of equal treatment,
the Appellant maintains that the Court of First Instance erred
in law in any event (and failed to give adequate reasoning)
when concluding in paragraph 57 of the judgment that the
difference in legal basis for the application of anti-dumping
duties against LAECs from the U.S.A. and Thailand on the one
hand, and Japan on the other, was sufficient reason to
render the principle of equal treatment inapplicable in the
circumstances of the present case.

(1) OJ C 163, 10.06.2000, p. 32.
(2) OJ L 22, 27.01.2000, p. 1.
(3) Council Regulation (EC) No. 384/96 of 22 December 1995 on
protection against dumped imports from countries not members
of the European Community (OJ L 56, 06.03.1996, p. 1).

Pleas in law and main arguments

The Appellant submits that the Court of First Instance wrongly
substituted its own understanding for what the Appellant had
claimed by stating in paragraph 48 of the judgment that the
Appellant had ‘essentially alleged an error in law with respect
to the application of the principle of equal treatment in the
Contested Regulation’. Rather, the Court of First Instance
should have held that the Appellant had essentially alleged an
error in law with respect to the application of the principle of
non discrimination, as laid down in Article 9(5) of the Basic
Anti-Dumping Regulation (‘BR’) (3), to the facts of the present
case. Had the Court of First Instance properly considered the
application of the principle of non discrimination laid down
in Article 9(5) BR, rather than concentrating on the principle of
equal treatment, it should have reached a different conclusion.

The Appellant also submits that the Court of First Instance
erred in law by concluding in paragraph 58 of the judgment
in relation to Article 9(5) BR that:

(i) Article 9(5) BR relates only to the initial imposition of

anti-dumping duties;

(ii) Article 9(5) BR does not necessarily apply to the mainten-
ance in force of anti-dumping duties, pursuant
to
Article 11(2) BR; and

Action brought on 22 November 2002 by the Com-
mission of the European Communities against the United
Kingdom of Great Britain and Northern Ireland

(Case C-423/02)

(2003/C 19/32)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 22 November 2002 by the
Commission of the European Communities, represented by
X. Lewis and M. Konstantinidis, acting as agents, with an
address for service in Luxembourg.

The Applicant claims that the Court should:

1)

declare that by failing to adopt the laws, regulations or
administrative provisions necessary to comply fully with
Council Directive 1999/31/EC of 26 April 1999 on the
landfill of waste (1) or, in any event, by failing to notify
such provisions to the Commission, the United Kingdom
of Great Britain and Northern Ireland has failed to fulfil
fully its obligations under Article 18 of that Directive;

(iii) Article 9(5) BR may be applied at the discretion of the
Council and as such is a non-mandatory rule of law.

2)

order the United Kingdom of Great Britain and Northern
Ireland to pay the costs.

25.1.2003

EN

Official Journal of the European Communities

C 19/19

Pleas in law and main arguments

Pleas in law and main arguments

The Commission considers that it is the duty of the authorities
of the United Kingdom to initiate, in due time, the procedures
necessary for incorporating Directive 1999/31/EC into dom-
estic law so that such process is complete within the time limit
laid down, irrespective of the nature of such procedures, and
to inform the Commission thereof.

Since the United Kingdom has not informed the Commission
of the provisions adopted to comply fully with the Directive,
and since the Commission is in possession of no other
information enabling it to conclude that the United Kingdom
has adopted the necessary provisions, it is compelled to assume
that the United Kingdom has not yet adopted such provisions
and has thus failed to fulfil its obligations under the Directive.

( 1) OJ L 182, 16.07.1999, p. 1.

Article 249 EC, under which a directive shall be binding as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the
period for compliance laid down in the directive. That period
expired on 1 January 1990 without the United Kingdom of
Great Britain and Northern Ireland having enacted the pro-
visions necessary to comply with the directive referred to in
the conclusions of the Commission.

(1) OJ L 194, 25.07.1975, p. 23.
(2) OJ L 42, 12.02.1987, p. 43.

Action brought on 22 November 2002 by the Com-
mission of the European Communities against the United
Kingdom of Great Britain and Northern Ireland

(Case C-424/02)

(2003/C 19/33)

Reference for a preliminary ruling by the Cour Adminis-
trative (Grand-Duché de Luxembourg) by judgment of
that Court of 21 November 2002 in the appeal brought
by Johanna Maria Boor, née Delahaye, against the Minister
for Public Service and Administrative Reform

(Case C-425/02)

(2003/C 19/34)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 22 November 2002 by the
Commission of the European Communities, represented by
X. Lewis and M. Konstantinidis, acting as agents, with an
address for service in Luxembourg.

The Applicant claims that the Court should:

1)

declare that by failing to adopt the laws, regulations
or administrative provisions necessary to comply with
Article 3(1) of Council Directive 75/439/EEC requiring
Member States to take the measures necessary to give
priority to the processing of waste oils by regeneration (1),
as amended by Directive 87/101/EEC on waste oils (2) or,
in any event, by failing to notify such provisions to the
Commission, the United Kingdom of Great Britain and
Northern Ireland has failed to fully fulfil its obligations
under that Directive;

2)

order the United Kingdom of Great Britain and Northern
Ireland to pay the costs.

Reference has been made to the Court of
Justice of the
European Communities by order of the Cour Administrative
(Grand-Duché de Luxembourg) (Administrative Court, Grand
Duchy of Luxembourg) of 21 November 2002, received at the
Court Registry on 25 November 2002, for a preliminary ruling
in the appeal brought by Johanna Maria Boor, née Delahaye,
against the Minister for Public Service and Administrative
Reform on the following question:

Having regard to the provisions of Directives 77/187/EEC (1),
98/50/EC (2) and 2001/23/EC (3) identified herein, in the event
of the transfer of an undertaking from a non-profit-making
association, which is a legal person under private law, to the
State as transferee, is it permissible for the transferor’s rights
and obligations to be taken over only in so far as they are
in
compatible with the State’s own rules of public law,
particular in the area of remuneration, where the detailed
provisions and amounts of compensation are laid down by
grand ducal regulation, bearing in mind that the status of
public-sector employee confers legal benefits in the areas of,
inter alia, career development and job stability on the staff
concerned, and that, in the event of disagreement as regards
‘substantial changes’ to the employment relationship within