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: 2003-06-21
Institutions: Court of Justice
Subjects: biotope, environmental protection, interpretation of the law, project evaluation, protected species, transport policy

21.6.2003

EN

Official Journal of the European Union

C 146/19

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

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’;

(Case C-116/03 P)

(2003/C 146/31)

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

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.

the good faith of the appellant;

2.

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 146/32)

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;

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:

C 146/20

EN

Official Journal of the European Union

21.6.2003

Is Article 4(5) of Directive No 92/43 (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, alternatively, in
addition to determination of the ordinary commencement date
of conservation measures, must a distinction be drawn between
declaratory listing and determinative 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.

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

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?

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?

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 charac-
terization of
those products, as referred to in
Article 2(4) of Directive 92/46/EEC?

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

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 146/33)

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
20 March 2003,
for a preliminary ruling 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 (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 constituents of a product which also
contains other non-milk constituents and where the
milk constituent cannot be separated from the non-
milk constituents?

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 146/34)

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.