Case C-117/03: Reference for a preliminary ruling by the Consiglio di Stato in sede giurisdizionale, Sezione Sesta by order of that Court of 17 December 2002 in the case of Società Italiana Dragaggi s.p.a. against Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma del Friuli Venezia Giulia
Date: 2003-05-24
Institutions: Court of Justice
Subjects: biotope, environmental protection, interpretation of the law, protected species

24.5.2003

EN

Official Journal of the European Union

C 124/7

Appeal brought on 14 March 2003 by Augusto Fichtner,
a former official of the Commission of the European
Communities, against the judgment of 16 January 2003 of
the Fourth Chamber of the Court of First Instance in Case
T-75/00 Augusto Fichtner v Commission

(Case C-116/03 P)

(2003/C 124/11)

An appeal against the judgment of 16 January 2003 of the
Fourth Chamber of the Court of First Instance in Case T-75/
00 Augusto Fichtner v Commission was brought before the
Court of Justice of the European Communities on 14 March
2003 by Augusto Fichtner, represented by Michele Tamburini
and Franco Colussi, lawyers.

The appellant claims that the Court should:

— set aside the contested judgment;

— uphold the claims submitted at first instance and, accord-

ingly;

— annul

the contested decision of

the appointing

authority of 30 September 1999, which is at issue;

— order the Commission to pay him the outstanding
remuneration and allowances as revalued and with
interest to run from the date on which the decision
took effect until actual payment is made;

— order the Commission to make good the material
and non-material damage suffered by the appellant,
such compensation being assessed at EUR 50 000 or
any other amount which the Court might deem
appropriate and equitable or as may be subsequently
decided;

— order the Commission to pay the costs.

Pleas in law and main arguments

The judgment of the Court of First Instance is contrary to
Community law, in particular to:

1) Article 86(1) of the Staff Regulations, inasmuch as:

a)

the appellant did not fail to fulfil his obligations
under the third paragraph of Article 12 of the Staff
Regulations, having proved that he did request
permission to pursue an outside activity;

b)

even if it should be deemed that the appellant did,
however, fail to fulfil said obligation, such breach
could not be held to have been committed ‘intention-
ally or through negligence’;

2.

the principle of proportionality (by the administration)
by:

a) misuse of its powers: the Commission, by adopting
the contested decision, pursued an objective other
that for which the relevant power had been con-
ferred on it (safeguarding the internal rules of the
civil service) and, in any event, in order to achieve
purposes other than those declared;

b) manifest error of assessment of the facts: the Com-

mission failed to take into account:

1)

2)

the good faith of the appellant;

that he could not have been refused the per-
mission in question since the outside activity
did not impair the official’s independence nor
was detrimental to the work of the Communi-
ties.

Reference for a preliminary ruling by the Consiglio di
Stato in sede giurisdizionale, Sezione Sesta by order of
that Court of 17 December 2002 in the case of Società
Italiana Dragaggi s.p.a. against Ministero delle Infrastruttu-
re e dei Trasporti and Regione Autonoma del Friuli
Venezia Giulia

(Case C-117/03)

(2003/C 124/12)

Reference has been made to the Court of
Justice of the
European Communities by order of the Consiglio di Stato in
sede giurisdizionale, Sezione Sesta (Judicial Committee of the
Council of State, Sixth Chamber) of 17 December 2002,
received at the Court Registry on 18 March 2003, for a
preliminary ruling in the case of Società Italiana Dragaggi s.p.a.
against Ministero delle Infrastrutture e dei Trasporti and
Regione Autonoma del Friuli Venezia Giulia on the following
question:

Is Article 4(5) of Directive No 92/43/EEC (1) of 21 May 1992
to be interpreted as meaning that the measures under Article 6
and,
in particular, under Article 6(3) of that directive are
mandatory for the Member States only after final approval at
Community level of the list of sites under Article 21 or,
in addition to determination of the ordinary
alternatively,
commencement date of conservation measures, must a distinc-
tion be drawn between declaratory listing and determinative

C 124/8

EN

Official Journal of the European Union

24.5.2003

listing (including in the first category the listing of priority
sites) with the result that, in order to ensure the effectiveness
of the directive, where a Member State identifies a site of
Community importance sustaining priority natural habitat
types or species, there must be considered to be an obligation
to carry out an assessment of plans and projects with a
significant effect on the site even before the Commission draws
up the draft list of sites or adopts the final version of that list
pursuant to Article 21 of the directive and, in fact, with effect
from the drawing up of the national list?

2(b) In the event that Article 2(4) of Directive 92/46/EEC also
refers to semifinished products, according to which
criteria must it be determined whether milk or a milk
product forms an essential part of a product, either in
terms of quantity or for characterization of those prod-
ucts, as referred to in Article 2(4) of Directive 92/46/EEC?

(1) OJ L 268 [1992], p. 1.

( 1) OJ L 206 of 22.7.1992, p. 7.

Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by judgment of that Court
of 11 March 2003 in the case of (1) Artrada (Freezone)
NV, (2) Videmecum BV and (3) Jac. Meisner Internationaal
Expeditiebedrijf BV against Rijksdienst voor de Keuring
van Vee en Vlees

(Case C-124/03)

(2003/C 124/13)

Reference has been made to the Court of Justice of the
European Communities by judgment of the College van Beroep
voor het bedrijfsleven (Administrative Court for Trade and
Industry) of 11 March 2003, received at the Court Registry on
for a preliminary ruling in the case of
20 March 2003,
(1) Artrada (Freezone) NV, (2) Videmecum BV and (3) Jac.
Meisner Internationaal Expeditiebedrijf BV against Rijksdienst
voor de Keuring van Vee en Vlees (Netherlands Livestock and
Meat Inspectorate) on the following questions:

1(a) Must the term ‘milk for the manufacture of milk-based
products’ in Article 2(2) of Directive 92/46/EEC (1) be
interpreted as meaning that it (also) includes milk con-
stituents of a product which also contains other non-milk
constituents and where the milk constituent cannot be
separated from the non-milk constituents?

1(b) If

the answer to question 1(a)

is affirmative: must
Article 22 of Directive 92/46/EEC be interpreted as
meaning that in the case of imports from non-Member
States that directive is applicable only to the milk
constituent of a product and thus not to the product of
which it is a constituent?

2(a) Does the concept of ‘milk-based products’ in Article 2(4)
of Directive 92/46/EEC concern only finished products
or also semifinished products which must undergo further
processing before they can be offered for sale to the
consumer?

Action brought on 20 March 2003 by the Commission of
the European Communities against the Federal Republic
of Germany

(Case C-126/03)

(2003/C 124/14)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 20 March 2003 by the Commission of the European
Communities, represented by Klaus Wiedner, of the Com-
mission’s Legal Service, acting as Agent, with an address for
service in Luxembourg.

The Commission claims that the Court should:

— Declare that, by reason of the fact that the contract for
waste transport concluded by the City of Munich was
awarded without compliance with the notification
requirements laid down in Article 8, in conjunction with
Articles 15(2) and 16(1), of Directive 92/50 (1), the
Federal Republic of Germany has failed to fulfil
its
obligations under that directive; and

— Order the Federal Republic of Germany to pay the costs

of the proceedings.

Pleas in law and main arguments

If — as is the case with the Municipality of the City of Munich
— the conditions for the existence of a body governed by
public law are met, there is no need under the directive to
draw a distinction, in the case of every requested provision of
services, as to whether such services are provided in the general
interest and are commercial in nature. It is for that reason
in the present case, the City of Munich, in
irrelevant that,
connection with the provision of a service for a third party,
burns waste in its own incineration plant and does not effect
the transport
itself but relies on a private
undertaking to do so. If a public body tenders successfully for
a contract but is obliged to subcontract out certain services in
order to ensure provision of the overall service, that public
body must apply the procedures set out in Directive 92/50.

to that plant