Case C-96/03: Reference for a preliminary ruling by the College van Beroep voor het Bedrĳfsleven by judgment of that Court of 7 January 2003 in the proceedings between A. Tempelman and Directeur van de Rĳksdienst voor de keuring van Vee en Vlees
Date: 2003-06-21
Institutions: Court of Justice
Subjects: EU law - national law, animal disease, interpretation of the law, slaughter of animals

C 146/14

EN

Official Journal of the European Union

21.6.2003

order the Community to pay compensation to be
determined on an equitable basis by the Court of
Justice, plus annual interest of 8 % from the date of
the application at first instance to the date of full
and final payment;

3.

order the respondent to pay the costs of both sets of
proceedings, in accordance with Article 69(2) of the Rules
of Procedure.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those in
Case C-41/03 P, it being understood that the present case
relates to Regulation (EC) No 2081/2000.

( 1) Commission Regulation (EC) No 2081/2000 of 29 September
2000 providing for the continued application of safeguard
measures for imports from the overseas countries and territories
of sugar sector products with EC/OCT cumulation of origin
(OJ 2000 L 246, p. 64).

Pleas in law and main arguments

is not

— Incorrect implementation of Article 5 of the Directive.
The Law transposing Article 5 of Directive 93/13/EEC
into Spanish law fails to mention that the rule that the
interpretation that is the most favourable to the consumer
to apply in the context of the
is to prevail
procedures laid down in Article 7(2) of the Directive
(prohibitory actions). Thus a situation is created in which
consumers run the risk that the interpretation rule may
go counter to their interests, inasmuch as it will be an
obstacle to the removal from contracts with consumers,
by means of a prohibitory action, unclear terms which,
according to a ‘normal’ interpretation, are unfair;

— incorrect implementation of Article 6(2) of the Directive:
by referring to the provision ‘in Article 5 of the 1980
Rome Convention on the Law applicable to Contractual
Obligations’, the Spanish Law limits the protection offered
by the Directive to consumers, by introducing a twofold
restriction. Thus, the Directive provides for the protection
of all consumers in all contracts concluded with a seller
or supplier, whereas the Spanish Law provides such
protection only for certain types of contract and only
where certain conditions are satisfied, a twofold restric-
tion prohibited by the Directive.

(1) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in

consumer contracts (OJ L 95 of 21.4.1993, p. 29).

Action brought on 17 February 2003 by the Commission
of the European Communities against the Kingdom of
Spain

(Case C-70/03)

(2003/C 146/23)

Reference for a preliminary ruling by the College van
Beroep voor het Bedrijfsleven by judgment of that Court
of 7 January 2003 in the proceedings between A. Tempel-
man and Directeur van de Rijksdienst voor de keuring
van Vee en Vlees

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 17 Febru-
ary 2003 by the Commission of the European Communities,
represented by Isabel Martínez del Peral and Miguel França, of
its Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that, by failing to transpose fully into its national
law Articles 5 and 6(2) of Directive 93/12/EEC (1) of
5 April 1993 on unfair terms in consumer contracts, the
Kingdom of Spain has failed to fulfil its obligations under
the Treaty and under that directive;

2. Order the Kingdom of Spain to pay the costs.

(Case C-96/03)

(2003/C 146/24)

Justice of the
Reference has been made to the Court of
European Communities by judgment of the College van Beroep
voor het Bedrijfsleven (Administrative Court for Trade and
Industry) of 7 January 2003, received at the Court Registry on
4 March 2003, for a preliminary ruling in the proceedings
between A. Tempelman and Directeur van de Rijksdienst voor
de keuring van Vee en Vlees on the following questions:

1. May a Member State derive from Community law the
power to decide to kill animals which are suspected of
being infected or contaminated with the foot-and-mouth
virus?

21.6.2003

EN

Official Journal of the European Union

C 146/15

2. Does Directive 85/511/EEC (1), as amended by Directive
90/423/EEC (2), afford the Member States scope to (order
or) take supplementary national measures to control foot-
and-mouth disease?

3. What limits does Community law place on a Member
State with regard to taking supplementary national
measures other than those provided for in Directive 85/
511/EEC, as amended by Directive 90/423/EEC?

( 1) OJ L 315 [1985], p. 11.
( 2) OJ L 224 [1990], p. 13.

Action brought on 28 February 2003 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

(Case C-98/03)

(2003/C 146/26)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 28 February 2003 by the Commission of the European
Communities, represented by Ulrich Wölker, Legal Adviser of
the Commission of the European Communities, with an
address for service in Luxembourg.

Reference for a preliminary ruling by the College van
Beroep voor het Bedrijfsleven by judgment of that Court
of 7 January 2003 in the proceedings between Mr and
Mrs T.H.J.M. van Schaijk and Directeur van de Rijksdienst
voor de keuring van Vee en Vlees

The applicant claims that the Court should:

1. Declare that

(Case C-97/03)

(2003/C 146/25)

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 7 January 2003, received at the Court Registry on
4 March 2003, for a preliminary ruling in the proceedings
between Mr and Mrs T.H.J.M. van Schaijk and Directeur van
de Rijksdienst voor de keuring van Vee en Vlees on the
following questions:

1. May a Member State derive from Community law the
power to decide to kill animals which are suspected of
being infected or contaminated with the foot-and-mouth
virus?

2. Does Directive 85/511/EEC (1), as amended by Directive
90/423/EEC (2), afford the Member States scope to (order
or) take supplementary national measures to control foot-
and-mouth disease?

3. What limits does Community law place on a Member
State with regard to taking supplementary national
measures other than those provided for in Directive 85/
511/EEC, as amended by Directive 90/423/EEC?

( 1) OJ L 315 [1985], p. 11.
( 2) OJ L 224 [1990], p. 13.

— by not providing for the duty to carry out an
assessment of the implications in the case of certain
projects outside special areas of conservation, as
referred to in Article 4(1) of Council Directive 92/
43/EEC (1) of 21 May 1992 on the conservation of
natural habitats and of wild fauna and flora, which
pursuant to Article 6(3) and (4) of the directive are
to be subject to such an assessment irrespective of
whether those projects are likely to have a significant
effect on an area of special conservation;

— by authorising emissions in a special area of conser-
irrespective of whether they are likely to

vation,
have a significant effect on that area;

— by derogating from the scope of the provisions
concerning the protection of species in the case of
certain non-deliberate effects on protected animals;

— by failing to ensure compliance with the criteria for
derogation set out in Article 16 of the directive in
the case of certain activities which are supposed to
be compatible with conservation of an area;

— by retaining provisions on the application of pestic-
ides which do not take sufficient account of the
protection of species;

— by failing to notify fishery catch legislation and/or
to ensure that such legislation contains adequate
bans on fishing,

the Federal Republic of Germany has failed to fulfil its
obligations under the directive.