Case C-15/03: Action brought on 14 January 2003 by the Commission of the European Communities against the Republic of Austria
Date: 2003-03-08
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, environmental protection, environmental standard, used oil, waste recycling

8.3.2003

EN

Official Journal of the European Union

C 55/15

Action brought on 10 January 2003 by the Commission
of the European Communities against the Grand-Duchy
of Luxembourg

(Case C-9/03)

(2003/C 55/25)

An action against the Grand-Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 10 January 2003 by the Commission of the European
Communities, represented by D. Martin and M. França, 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 bring into force the laws,
regulations and administrative provisions necessary to
comply with Directive 98/27/EC of the European Parlia-
ment and of the Council of 19 May 1998 on injunctions
for the protection of consumers’ interests (1), the Grand-
Duchy of Luxembourg has failed to fulfil its obligations
under that directive;

— Order the Grand-Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period for transposition laid down in Article 8 of the
directive expired on 1 January 2001.

( 1) OJ 1998 L 166, p. 51.

products for human use and their inclusion in the scope of
national health insurance systems, under which a decision of
the competent national authority refusing permission to
market a medicinal product at the price proposed by the
applicant must contain a statement of reasons ‘based on
objective and verifiable criteria’, mean that the competent
authority under domestic Belgian legislation must lay down in
advance by way of a generally applicable provision the criteria
to be taken into consideration by the authority ruling on the
individual application, or is the decision-making authority
permitted to state in each individual decision the objective and
verifiable criteria on which it based its refusal, in that case, to
grant the application, or is it sufficient for the authority to
provide a formal statement of the reasons for its individual
decision by citing actual evidence from the file and for the
courts then to review whether that evidence constitutes an
objective and verifiable criterion?

(1) OJ L 40 of 11.02.1989, p. 8.

Action brought on 14 January 2003 by the Commission
of the European Communities against the Republic of
Austria

(Case C-15/03)

(2003/C 55/27)

Reference for a preliminary ruling by the Raad van
State, Afdeling Administratie by order of that Court of
9 December 2002 in the case of NV Boss Pharma against
Belgian State, represented by the Minister for Economic
Affairs

(Case C-11/03)

(2003/C 55/26)

Reference has been made to the Court of Justice of the
European Communities by order of the Raad van State,
Afdeling Administratie (Council of State, Administrative Div-
ision) of 9 December 2002, received at the Court Registry on
13 January 2003, for a preliminary ruling in the case of NV
Boss Pharma against Belgian State, represented by the Minister
for Economic Affairs on the following question:

On a proper interpretation, does Article 2(2) of Council
Directive 89/105/EEC (1) of 21 December 1988 relating to the
transparency of measures regulating the prices of medicinal

An action against the Republic of Austria was brought
before the Court of Justice of the European Communities
on 14 January 2003 by the Commission of the European
Communities,
legal
adviser of the European Commission and Minas Konstantinidis,
of its legal service, with an address for service at the office of
Luis Escobar Guerrero, of the Commission’s legal service,
Wagner Centre C 254, Luxembourg-Kirchberg.

represented by Dr Jürgen Grunwald,

The applicant claims that the Court should:

1. Declare that the Republic of Austria has infringed its
obligations under Article 3(1) of Council Directive 75/
439/EEC of 16 June 1975 on the disposal of waste oils (1)
by failing to take the legal and practical measures
necessary to ensure that priority is given to the treatment
by way of regeneration of waste oils, so long as that is
not precluded by technical, financial and organisational
constraints.

2. Order the Republic of Austria to pay the costs.

C 55/16

EN

Official Journal of the European Union

8.3.2003

Pleas in law and main arguments

The Republic of Austria neither transposed the principle of
priority contained in Article 3(1) of Directive 75/439/EEC
in the version contained in Directive 87/101/EEC (2) not
demonstrated that such priority was precluded by technical,
financial or organisational constraints.

Priority in favour of ‘regeneration’ or (in Austrian terminology)
‘recycling’ as opposed to ‘combustion’ or (in Austrian termin-
ology) ‘energy conversion’ cannot be inferred from the Austri-
an legal provisions. Rather those provisions refer to recycling
and energy conversion in the same context without according
priority to one of the two methods of treatment over the
other.

The arguments relied on by the Republic of Austria in order to
substantiate the existence of preclusive technical, financial and
organisational constraints, that is to say that owing to the
small quantity of waste oil regeneration in Austria is unecon-
omical; that for ecological reasons no clear advantages is to be
gained from recycling; that there is no reprocessing plant
in Austria for waste oils, are in the Commission’s view
unconvincing since they merely seek to perpetuate in Austria
the existing status quo and do not indicate that any endeavours
have been made in order to meet the directive’s requirements.

( 1) OJ 1975 L 194, p. 31.
( 2) OJ 1987 L 42, p. 43.

(b) has offered them for sale in the trademark owner’s
own shops or those of a related company within the
common market but a sale of the goods has not
taken place?

2.

If goods have been put on the market under one of the
above alternatives and exhaustion of the trademark right
thereby occurs without there having been a sale of the
goods, can a trademark owner interrupt exhaustion by
returning the goods to a warehouse?

3. Are goods to be regarded as having been put on the
market by virtue of the fact that they have been sold by
the trademark owner to another company in the internal
market, if, upon the sale, the trademark owner imposed a
restriction on the buyer under which he was not entitled
to resell the goods in the common market?

4.

Is the answer to question 3 affected if the trademark
owner, upon selling the consignment to which the goods
belonged, gave the buyer permission to resell a small part
of the goods in the common market but did not specify
the individual goods to which that permission applied?

Reference for a preliminary ruling by the Conseil d’État,
section d’administration (Belgium) by judgment of that
Court of 27 December 2002 in the case of Fabricom SA
against l’État belge

Reference for a preliminary ruling by the Hovrätten över
Skåne och Blekinge by order of that Court of 19 December
2002 in the case of Peak Holding AB against Axolin-
Elinor AB (formerly Handelskompaniet Factory Outlet i
Löddeköpinge AB)

(Case C-21/03)

(2003/C 55/29)

(Case C-16/03)

(2003/C 55/28)

Reference has been made to the Court of Justice of the
European Communities by order of the Hovrätten över Skåne
och Blekinge (Court of Appeal for Skåne and Blekinge) of
19 December 2002, received at the Court Registry on 15 Janu-
ary 2003, for a preliminary ruling in the case of Peak Holding
AB against Axolin-Elinor AB (formerly Handelskompaniet
Factory Outlet i Löddeköpinge AB) on the following questions:

1. Are goods to be regarded as having been put on the
market by virtue of the fact that the trademark owner:

(a) has imported them into the common market and
paid import duty on them, with the intention that
they be sold there?

Reference has been made to the Court of
Justice of the
European Communities by judgment of the Conseil d’État,
section d’administration (Council of State, administrative sec-
tion) (Belgium) of 27 December 2002, received at the Court
Registry on 22 January 2003, for a preliminary ruling in the
case of Fabricom SA against l’État belge (Belgian State) on the
following questions:

1. Do Council Directive 93/38/EEC of 14 June 1993
coordinating the procurement procedures of entities
operating in the water, energy, transport and telecom-
munications sectors (1), and in particular Article 4(2)
thereof, and Directive 98/4/EC (2) of 16 February 1998 of
the European Parliament and of the Council amending
Directive 93/38/EEC, in conjunction with the principle of
proportionality,
trade and industry and
respect for the law of property guaranteed in particular
by the protocol of 20 March 1992 to the Convention for
the Protection of Human rights and Fundamental

freedom of