Case C-237/03: Reference for a preliminary ruling from the Tribunal d'Instance de Roubaix by judgment of that court of 15 May 2003 in the case of Banque Sofinco SA against Daniel and Carole Djemoui
Date: 2003-08-02
Institutions: Court of Justice
Subjects: consumer credit, consumer protection, contract, interpretation of the law

C 184/22

EN

Official Journal of the European Union

2.8.2003

Is it contrary to Articles 12, 43 et seq. and 49 et seq. of the EC
Treaty, and Article 3(2) of Council Directive 92/50/EEC (1) of
18 June 1992 relating to the coordination of procedures for the
award of public service contracts, to include in the general
specifications and special administrative clauses and technical
specifications governing public competitions relating to home
respiratory treatments and other assisted breathing techniques:

1)

the requirement that, in order to qualify to tender, under-
takings must already have offices open to the public in
the province or capital of
the province in which the
service is to be provided;

2)

award criteria which favour:

a)

b)

c)

from undertakings

tenders
established within a
1 000 Km radius of the capital in which the service
is to be provided;

undertakings which already have offices open to the
public in certain towns in that province; or

undertakings which have been providing the service
previously?

(1) OJ L 209 of 18.06.1992, p. 1.

Appeal brought on 2 June 2003 by the Commission of the
European Communities against the judgment delivered on
19 March 2003 by the Third Chamber of the Court of
First Instance of the European Communities in case T-213/
00 (1) between CMA CGM and thirteen other liner ship-
the European
ping companies and the Commission of

Communities

(Case C-236/03 P)

(2003/C 184/39)

An appeal against the judgment delivered on 19 March 2003
by the Third Chamber of the Court of First Instance of the
European Communities in case T-213/00 between CMA CGM
and thirteen other liner shipping companies and the Commis-
the European Communities was brought before the
sion of
Court of Justice of the European Communities on 2 June 2003
by the Commission of the European Communities, represented
by P. Oliver, acting as agent, with an address for service in
Luxembourg.

The Appellant claims that the Court should:

— annul point 1 of

the Court of First
the judgment of
Instance of 19 March 2003 in Case T-213/00 (CMA
CGM v. Commission);

— reject the Respondents' Application in its entirety;

— order the Respondents to pay the Commission's costs.

Pleas in law and main arguments

The Commission submits
the CFI'S ruling contains
that
numerous contradictions and inconsistencies, not to say distor-
the contested judgment would
tions and that, accordingly,
render the division of offenders into groups, which is a key
element of the Guidelines, unworkable. The Commission main-
tains that
followed an approach which is both entirely
reasonable and wholly consonant with the principle of non-
discrimination.

it

In the Commission's submission, the CFI has erred in finding
that the Decision contained inadequate reasoning and has,
in
any event, exceeded the bounds of its jurisdiction.

According to the Commission the contested ruling would
severely fetter the Commission's discretion when setting fines,
to imposing on the
and would be virtually tantamount
Commission a duty to apply a mathematical or ‘scientifically’
verifiable
the
Commission's discretion, and thus its power and duty to
pursue infringements of Articles 81 and 82 of the Treaty.

formula. This would seriously undermine

Finally the Commission contests the CFI's finding that
the
imposition of fines was time-barred and maintains that such
finding is unsustained by any reasoning in the judgment.

(1) OJ C 124, 24.05.2003, p. 18.

Reference for a preliminary ruling from the Tribunal
d'Instance de Roubaix by judgment of
that court of
15 May 2003 in the case of Banque Sofinco SA against
Daniel and Carole Djemoui

(Case C-237/03)

(2003/C 184/40)

the
Reference has been made to the Court of
European Communities by judgment of the Tribunal d'instance
(District Court), Roubaix of 15 May 2003 received at
the
Court Registry on 4 June 2003, for a preliminary ruling in
the case of Banque Sofinco SA against Daniel and Carole
Djemoui on the following questions:

Justice of

1. Must Council Directives 87/102/EC (1) of 22 December
1986 and 90/88/EC (2) of 22 February 1990 be inter-
the
preted as requiring the national court
interpretation of national
law obliging consumer credit
institutions to inform the borrower/consumer in writing
of the current annual percentage rate of charge, before
each renewal of a credit agreement renewable in instal-
ments in which the interest is stipulated to be variable?

to favour

2.8.2003

EN

Official Journal of the European Union

C 184/23

those directives be interpreted as

requiring the
Must
national court to favour the interpretation of national law
obliging consumer credit institutions to bring to the atten-
tion of the consumer the clause concerning the variation
in that annual percentage rate of charge before each
renewal of the agreement?

by G. Valero Jordana and B. Stromsky, acting as Agents, with
an address for service in Luxembourg.

The Commission of the European Communities claims that the
Court should:

2. Must those directives be interpreted as designed solely to
to organise the

the consumer or, beyond that,

protect
single market in consumer credit?

Does the requirement of an interpretation in conformity
with the aims — at the very least those of protecting the
consumer — of those directives mean that the court may
raise of its own motion defects in credit agreements, such
as the failure to include a written statement of the annual
percentage rate of charge or the clause providing for its
variation?

3. Must those directives be interpreted as meaning that the
court is required to favour the interpretation of national
law authorising it to uphold pleas of irregularity vitiating
the conclusion or renewal of a consumer credit agree-
raised by the
those described above,
such as
ment,
the court's own motion, without any
consumer or of
time-limit,
in a dispute arising out of an action for
payment brought by the credit institution?

If not, must those directives be interpreted as meaning
that the court is required to favour the interpretation of
national law authorising it to set aside a national provi-
sion prohibiting the consumer or the court of its own
motion from raising a plea of irregularity affecting the
conclusion or renewal of a consumer credit agreement, at
the end of a time-limit derogating from the ordinary law,
inasmuch as it constitutes an exceptional restriction of the
consumer's right to bring an action and compromises the
effectiveness of consumer protection?

the laws,

regulations and administrative provisions of

(1) Directive 87/102/EEC of 22 December 1986 for the approximation
of
the
Member States concerning consumer credit (OJ 1987 L 42, p. 48).
(2) Council Directive 90/88/EEC of 22 February 1990 amending Direc-
tive 87/102/EEC for the approximation of the laws, regulations and
administrative provisions of
concerning
consumer credit (OJ 1990 L 61, p. 14).

the Member

States

the Protection of

the provisions of Annex III

— find that, by failing to take all appropriate measures to
prevent, abate and combat the substantial and prolonged
pollution of the Étang de Berre and by failing to take due
to the Athens
account of
Protocol of 17 May 1980 for
the
Mediterranean Sea against Pollution from Land-Based
Sources (1) by amending the authorisation for discharges
of the substances referred to in Annex II to the Protocol
in consequence of its conclusion, the French Republic has
failed to fulfil its obligations under Article 6(1) and (3) of
the Protocol and Articles 4(1) and 8 of
the Barcelona
Convention of 16 February 1976 for the Protection of the
Mediterranean Sea
approved on
behalf of the Community by Council Decisions 77/585/
and 83/101/EEC (4) on 25 July 1977 and
EEC (3)
28 February 1983,
(formerly
the Treaty establishing the European
Article 228) of
Community;

and Article 300(7)

against Pollution (2),

— order the French Republic to pay the costs.

Pleas in law and main arguments

Under Article 3(c) of the Athens Protocol, the area to which
the Protocol applies includes saltwater marshes communicating
with the sea, of which the Étang de Berre is one. It therefore
follows from Article 6(1) of
the French
that
Republic must
and indirect discharges of
reduce direct
substances into that lake when those discharges give rise to
those
harmful
discharges. That involves an obligation as to the result to be
achieved.

and must prevent

the Protocol

combat

effects,

and

Action brought on 4 June 2003 by the Commission of the
European Communities against the French Republic

(Case C-239/03)

(2003/C 184/41)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 4 June 2003
by the Commission of the European Communities, represented

that

to arrive at

result. However,

The abatement of direct and indirect discharges of substances
into the Étang de Berre must be stringent. That stringency
requires a sizeable and lasting reduction in the quantity of
substances discharged, with a major and lasting positive effect
on the environment, and also applies to the method which the
State uses
the French
Republic has not abated the pollution from land-based sources
in the Étang de Berre in accordance with its obligations under
Article 6(1) of the Protocol, in conjunction with Articles 4(1)
and 8 of the Barcelona Convention of 16 February 1976 for
the Protection of the Mediterranean Sea against Pollution. Since
1983, as the result of the operation of the hydroelectric power
station at Saint-Chamas, the lake has suffered substantial and
prolonged point-source land-based pollution, with considerable
negative effects on flora, fauna and amenities. While it is true
that there has been abatement of the pollution, the reduction
in discharges has been belated, erratic and, above all, extremely
limited. Finally, the measures taken by the public authorities
for the purpose of long-term pollution abatement in the Étang
de Berre have been limited in scope.