Case C-435/02: Reference for a preliminary ruling by the Landgericht Essen by order of that Court of 25 November 2002 in proceedings relating to the commercial register between Axel Springer AG and Zeitungsverlag Niederrhein GmbH & Co. Essen KG
Date: 2003-02-22
Institutions: Court of Justice
Subjects: equal treatment, freedom of the press, interpretation of the law, limited partnership, private limited company, publication of accounts

C 44/12

EN

Official Journal of the European Union

22.2.2003

Action brought on 16 October 2002 by the Commission
of the European Communities against the Italian Republic

(Case C-374/02)

(2003/C 44/22)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 16 October
2002 by the Commission of the European Communities,
represented by M. Konstantinidis and Roberto Amorosi, acting
as Agents.

received at the Court Registry on 29 November 2002, for a
preliminary ruling in the administrative judicial proceedings
between Arnold André GmbH & Co. KG and the Landrat
(Principal Officer) of the Herford Local Authority on the
following question:

Is the provision in Article 8 of Directive 2001/37/EC (1), by
which, with a view to the approximation of
the laws,
regulations and administrative provisions of the Member States
concerning the manufacture, presentation and sale of tobacco
products, the placing on the market of tobacco for oral use is
the Act
prohibited, without prejudice to Article 151 of
concerning the Accession of Austria, Finland and Sweden,
compatible with the superior law of the European Communi-
ties?

The applicant claims that the Court should:

(1) OJ L 194, p. 26.

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Council Directive 1999/31/EC (1) of 26 April 1999 on
the landfill of waste, or in any event by failing to inform
the Commission thereof, the Italian Republic has failed to
fulfil its obligations under Article 18 of that directive:

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

Article 249 EC, according to which a directive is to be binding,
as to the result to be achieved, upon each Member State to
which it is addressed, implies that Member States are required
to comply with the time-limits for transposition laid down in
directives. When the time-limit expired, the Italian Republic
had not promulgated the provisions necessary to comply with
the directive referred to in the Commission’s claims.

( 1) OJ L 182 of 16.7.1999, p. 1.

Reference for a preliminary ruling by the Verwaltungsger-
icht Minden by order of that Court of 14 November
2002 in the administrative judicial proceedings between
Arnold André GmbH & Co. KG and the Landrat of the
Herford Local Authority

(Case C-434/02)

(2003/C 44/23)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht
Minden (Administrative Court Minden) of 14 November 2002,

Reference for a preliminary ruling by the Landgericht
Essen by order of that Court of 25 November 2002 in
proceedings relating to the commercial register between
Axel Springer AG and Zeitungsverlag Niederrhein GmbH
& Co. Essen KG

(Case C-435/02)

(2003/C 44/24)

Reference has been made to the Court of
Justice of the
European Communities by order of the Landgericht Essen
(Regional Court Essen) of 25 November 2002, received at the
Court Registry on 2 December 2002, for a preliminary ruling
in proceedings relating to the commercial register between
Axel Springer AG and Zeitungsverlag Niederrhein GmbH &
Co. Essen KG on the following questions:

(1)

(2)

Is Directive 90/605/EEC (1),
in conjunction with
Article 47 of Directive 78/660/EEC (2), compatible with
the fundamental Community right of freedom to exercise
a trade or profession in so far as Kommanditgesellschaften
(limited partnerships) whose personally liable partner is a
private limited company are obliged to publish their
annual accounts and annual report, in particular without
any restriction being imposed on the group of persons
entitled to inspect those documents?

Is Directive 90/605/EEC, in conjunction with Article 47
of Directive 78/660/EEC, compatible with the fundamen-
tal Community rights of freedom of the press and radio
in so far as Kommanditgesellschaften whose personally
liable partner is a private limited company and which are
engaged in the press and publishing sector or the radio
broadcasting sector are obliged to publish their annual
accounts and annual report, in particular without any
restriction being imposed on the group of persons
entitled to inspect those documents?

22.2.2003

EN

Official Journal of the European Union

C 44/13

(3)

Is Directive 90/605/EEC compatible with the general
principle of equality in so far as it places at a disadvantage
those Kommanditgesellschaften whose personally liable
partner is a private limited company as compared with
Kommanditgesellschaften whose personally liable partner
is a natural person, even though creditors of a GmbH &
Co. KG (a limited partnership in which the unlimited
partner is a private company) are better protected by the
duty of disclosure imposed on private limited companies
than are creditors of a Kommanditgesellschaft whose
personally liable partner, as a natural person, is not under
any duties of disclosure?

( 1) OJ L 317 of 16.11.1990, p. 60.
( 2) OJ L 222 of 14.8.1978, p. 11.

Appeal brought on 13 December 2002 by Sgaravatti
Mediterranea S.r.l. against the judgment delivered on
26 September 2002 by the Fifth Chamber of the Court of
First Instance of the European Communities in Case
T-199/99 between Sgaravatti Mediterranea S.r.l and the
Commission of the European Communities

(Case C-455/02 P)

(2003/C 44/25)

An appeal against the judgment delivered on 26 September
2002 by the Fifth Chamber of the Court of First Instance
of the European Communities in Case T-199/99 between
Sgaravatti Mediterranea S.r.l and the Commission of the
European Communities was brought before the Court of
Justice of the European Communities on 13 December 2002
by Sgaravatti Mediterranea S.r.l., a company with registered
offices in Capoterra (CA), Italy, represented by Massimo Merola
and Piero A.M. Ferrari, Lawyers.

The applicant claims that the Court should:

— annul the judgment of the Court of First Instance delivered

on 26 September 2002 in Case T-199/99;

— annul Commission Decision C(1999) 1502 of 4 June
1990 or, in the alternative, refer the case back to the
Court of First Instance in accordance with Article 54 of
the EC Statute of the Court of Justice;

— in any event, order the Commission to pay the costs of

both sets of proceedings.

Pleas in law and main arguments

The applicant takes issue with the improper use of a statement
made by the Customs Service as evidence, sufficient in itself,

of certain alleged irregularities in its conduct. According to the
applicant, the Customs Service merely has jurisdiction to
record in its statements facts gathered during the course of its
investigations. It is not competent to evaluate those facts and
the Commission ought to have conducted its own investigation
of the matter. The applicant says that, in finding the Customs
Service’s statement to be sufficient proof, the Court of First
Instance erred in law and its judgment is thereby vitiated.

The applicant maintains that the judgment is also vitiated by
the fact that the Court failed to give consideration to the
subjective element as a decisive factor in determining whether
a decision to withdraw a certain grant was permissible. The
Court should have distinguished between the possible case of a
culpable, but not fraudulent, breach of the financial conditions,
such as would justify no more than the reduction or suspension
of the grant, and a fraudulent breach of the financial conditions,
entitling the Commission to withdraw the grant in its entirety.

Lastly, the applicant maintains that the Court’s finding that
there is no possibility of a breach of the principle of ne bis in
idem is questionable, given that the sanction imposed by means
of the injunction issued in Italy came after the Community
decision. According to the applicant, when the Commission
decided to withdraw the grant which was due it knew or ought
to have known that an administrative sanction would be
handed down in Italy.

Reference for a preliminary ruling by the Tribunal du
Travail de Bruxelles by judgment of that Court of 21 No-
vember 2002 in the proceedings between Michel Trojani
and Le Centre Public d’Aide Sociale de Bruxelles

(Case C-456/02)

(2003/C 44/26)

Reference has been made to the Court of
Justice of the
European Communities by judgment of the Tribunal du Travail
de Bruxelles (Labour Court, Brussels) of 21 November 2002,
received at the Court Registry on 18 December 2002, for a
preliminary ruling in the proceedings between Michel Trojani
and Le Centre Public d’Aide Sociale de Bruxelles on the
following questions: