Case C-126/03: Action brought on 20 March 2003 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2003-05-24
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, capital city, infringement of EU law, subcontracting, transport of dangerous goods, waste incineration

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

24.5.2003

EN

Official Journal of the European Union

C 124/9

The obligation to end breaches of the Community law on the
award of contracts even by terminating contracts that have
already been concluded can also not be placed in question by
Article 2(6) of Directive 89/665 (2), which deals with ex post
facto review of potential breaches of the Community law on
tendering. A Treaty infringement can be treated as terminated
only once the Member State concerned recognises the illegal
nature of its action and the breach has been completely
brought to an end.

electricity occasioned, as stated in the reasoning, by the
altered legislative framework and to finance general
revenue charges of the electricity system.

(1) Directive 96/92/EC of the European Parliament and of the Council
of 19 December 1996 concerning common rules for the internal
market in electricity (OJ L 27 of 30.1.1997, p. 20).

( 1) OJ 1992 L 209, p. 1.
( 2) OJ 1989 L 395, p. 33.

Reference for a preliminary ruling by the Consiglio di
Stato by order of that Court of 14 January 2003 in the
appeal brought by AEM SpA (C-128/03) and by AEM
Torino SpA (C-129/03) against l’Autorità per l’energia
elettrica e per il gas; Third party: ENEL Produzione SpA

(Case C-128/03 and C-129/03)

(2003/C 124/15)

Reference has been made to the Court of Justice of the
European Communities by order of the Consiglio di Stato
(Council of State) of 14 January 2003, received at the Court
Registry on 24 March 2003, for a preliminary ruling in the
appeal brought by AEM SpA (C-128/03) and by AEM Torino
SpA (C-129/03) against l’Autorità per l’energia elettrica e per
il gas; Third party: ENEL Produzione SpA on the following
questions:

(a) Can an administrative measure which, on the terms and
imposes on
for the purposes stated in the reasoning,
certain undertakings using the electricity transmission
network an increased charge for access and use in order
to finance general revenue charges of
the electricity
system be regarded as a State aid for the purposes of
Article 87 et seq. EC

(b) Must the principles established in Directive 96/92 (1)
concerning the liberalisation of the internal electricity
market and in particular Article 7 and 8 thereof concern-
ing operation of the electricity transmission network be
interpreted as precluding the possibility for the Member
State to adopt measures imposing for a transitional period
on certain undertakings for access to and use of the
transmission network an increased charge in order to
offset the overvaluation of hydroelectric and geothermal

Action brought on 24 March 2003 by the Commission of
the European Communities against the Italian Republic

(Case C-130/03)

(2003/C 124/16)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 24 March
2003 by the Commission of the European Communities,
represented by Niels Bertil Rasmussen and Luigi Cimaglia,
acting as Agents.

The applicant claims that the Court should:

— Declare that, by failing to designate Community trade
mark courts and tribunals of first and second instance, or
in any event by failing to forward to the Commission,
within the prescribed period, a list of such courts and
tribunals indicating their names and territorial jurisdic-
tion, the Italian Republic has failed to fulfil its obligations
under Article 91 of Council Regulation (EC) No 40/94 (1)
of 20 December 1993 on the Community trade mark;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

Under the second paragraph of Article 249 of the Treaty
establishing the European Community, regulations are binding
in their entirety and directly applicable in all Member States.

In the present case, Article 91 of Regulation (EC) No 40/94
imposes an obligation on Member States to designate,
in
accordance with their own national legal systems, national
courts and tribunals of first and second instance with jurisdic-
tion in matters of infringement and validity of Community
trade marks, and to forward to the Commission a list
of designated Community trade mark courts and tribunals
indicating their names and territorial jurisdiction. The final
date for compliance with these obligations was 15 March
1997.