Case C-264/03: Action brought on 17 June 2003 by the Commission of the European Communities against the French Republic
Date: 2003-08-23
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, civil engineering, freedom to provide services, town-planning profession

23.8.2003

EN

Official Journal of the European Union

C 200/15

On a proper construction of Regulation EEC No 3950/92 (1) of
28 December 1992 (in particular Articles 1, 2 and 9(g) thereof)
and Regulation EEC No 536/93 (2) of 9 March 1993 (in parti-
cular Articles 1, 2 and 3 thereof), is the transfer of a quantity of
milk by the producer to a third party, while retaining the right
of property in it, in performance of a contract for the proces-
sing of the milk and in order to manufacture cheese, butter and
whey, for consideration, to be classified as ‘delivery’ or ‘direct
sale’ for the purposes of determining milk quotas and whether
the additional levy is to be applied?

(1) OJ L 405 of 31.12.1992, p. 1.
(2) OJ L 57 of 10.03.1993, p. 12.

Action brought on 17 June 2003 by the Commission of
the European Communities against the French Republic

(Case C-263/03)

(2003/C 200/26)

imports, since it allows the authorities an excessive degree of
latitude and does not require them to take a decision within a
brief and precisely determined period. In the case of parallel
imports of medicines, that barrier goes well beyond what is
necessary for the protection of public health.

Action brought on 17 June 2003 by the Commission of
the European Communities against the French Republic

(Case C-264/03)

(2003/C 200/27)

An action against the French Republic was brought before the
the European Communities on 17 June
Justice of
Court of
2003 by the Commission of
the European Communities,
represented by B. Stromsky, K. Wiedner and F. Simonetti,
acting as Agents, with an address for service in Luxembourg.

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

An action against the French Republic was brought before the
the European Communities on 17 June
Justice of
Court of
2003 by the Commission of
the European Communities,
represented by B. Stromsky, acting as Agent, with an address
for service in Luxembourg.

1.

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

1.

in so far as the French legislation in force
declare that,
subjects imports of medicines from other Member States
of the European Community, when they are identical to
medicines already authorised in France (parallel imports),
to unreasonable conditions,
in particular as regards the
discretionary power granted to the authorities and the
absence of a prescribed period within which they must
take a decision, the French Republic has failed to fulfil its
obligations under Article 28 of the Treaty establishing the
European Community;

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

The situation called in question essentially results from the
absence of a specific procedure for authorising parallel imports
of medicines in French territory. The general procedure for the
prior authorisation of the import of medicines which is there-
fore applicable constitutes a barrier to imports and a measure
restriction on
having equivalent

to a quantitative

effect

in Article 4 of

the Law of
declare that, by reserving,
12 July 1985, delegated management contracts to an
legal entities governed by French law,
exhaustive list of
its obligations
the French Republic has failed to fulfil
under Directive
particular
in
Articles 8 and 9 thereof, and under Article 49 of the
Treaty establishing the European Community;

92/50/EEC (1),

and

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

Reserving delegated management contracts
to certain legal
entities governed by French law constitutes a breach of Direc-
the
tive 92/50/EEC and a restriction on the principle of
freedom to provide services laid down in Article 49 of the
Treaty which is not justified under the exception provided for
in Article 45 of the Treaty.

contracts

The management contract is a public service contract within
the meaning of Article 1(a) of Directive 92/50. Moreover,
management
fall within Category No 12 of
Annex IA, apart
from contracts exclusively or principally
concerning representative tasks, so that the French legislation
fails to comply with Article 8 of the Directive. Management
contracts which relate exclusively or principally to representa-
tive tasks come under Annex IB of the Directive, so that the
French legislation fails to comply with Article 9 of the Direc-
tive as well.

C 200/16

EN

Official Journal of the European Union

23.8.2003

Secondly, reserving delegated management contracts solely to
the legal entities listed in Article 4 of the Law of 12 July 1985
on the supervision of public work and its relation with the
supervision of private work, as amended, constitutes a restric-
tion on the principle of the freedom to provide services. Such a
restriction cannot be justified either by Article 45, inasmuch as
the tasks entrusted are not connected, even occasionally, with
the exercise of official authority, or by Article 46, since grounds
of public policy, public security or public health are not applic-
able in the present case.

with the Czech and Slovak Federative Republic, Rumania
and Poland concerning inland navigation, which affect the
Community rules adopted by the Community in Council
Regulation (EEC) No 3921/91 of 16 December 1991
laying down the conditions under which non-resident
carriers may transport goods or passengers by inland
waterway within a Member State. Article 7 of
those
agreements provides, subject to special authorisation, for
access to cabotage in Luxembourg by carriers from the
non-member countries concerned.

(1) Council Directive 92/50/EEC of 18 June 1992 relating to the
service
for

award of public

coordination of procedures
the
contracts (OJ L 209, 24.07.1992, p. 1).

Action brought on 18 June 2003 by the Commission of
the European Communities against the Grand Duchy of
Luxembourg

(Case C-266/03)

(2003/C 200/28)

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 18 June 2003 by the Commission of the European
Communities, represented by C. Schmidt and W. Wils, acting
as Agents, with an address for service in Luxembourg.

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

1. Declare that, under the first paragraph of Article 226 of
the Treaty establishing the European Community,
the
Grand Duchy of Luxembourg, by individually negotiating,
concluding, ratifying, arranging for the entry into force
and refusing to renounce the bilateral agreements with the
Czech and Slovak Federative Republic, Rumania and
Poland concerning inland navigation, has failed to fulfil
its obligations under Article 10 EC and Council Regula-
tion (EEC) No 3921/91 of 16 December 1991 laying
down the conditions under which non-resident carriers
may transport goods or passengers by inland waterway
within a Member State (1) and Council Regulation (EC)
No 1356/96 of 8 July 1996 on common rules applicable
to the transport of goods or passengers by inland
waterway between Member States with a view to estab-
lishing freedom to provide such transport services (2).

2. Order the Grand Duchy of Luxembourg to pay the costs.

10

EC by

— The Grand Duchy of Luxembourg has not observed its
negotiating,
obligations
under Article
the entry into
concluding, ratifying and arranging for
the bilateral agreements in question after the
force of
grant of a negotiating mandate by the Council
to the
Commission to negotiate an agreement between the EEC,
on the one hand, and Poland and the States parties to the
Danube Convention (Hungary, Czechoslovakia, Rumania,
the former Yugoslavia and
Bulgaria,
Austria), on the other.

the former USSR,

— The bilateral agreements concluded by the Grand Duchy
of Luxembourg are incompatible with Council Regulation
(EC) No 1356/96 of 8 July 1996 on common rules
applicable to the transport of goods or passengers by
inland waterway between Member States with a view to
establishing freedom to provide such transport services.
The Polish, Rumanian, Czech and Slovak shippers and
navigation companies capable of being authorised under
the bilateral agreements in question to effect transports
between Luxembourg and the other Member States do
not satisfy the conditions laid down in that regulation.

(1) OJ 1991 L 373, p. 1.
(2) OJ 1996 L 175, p. 7.

Reference for a preliminary ruling by the Cour d'appel of
the Grand Duchy of Luxembourg by judgment of that
Court in the civil proceedings between 1. Administration
de l'Enregistrement et des Domaines, and 2. État du
Grand-Duché de Luxembourg and Vermietungsgesellschaft
Objekt Kirchberg

(Case C-269/03)

(2003/C 200/29)

Pleas in law and main arguments

— The Grand Duchy of Luxembourg has

infringed the
exclusive Community competence as defined in the
ERTA case (Case 22/70 Commission v Council
[1971]
ECR 263) by negotiating, concluding, ratifying and arran-
ging for the entry into force of the bilateral agreements

the Court Registry on 20 June 2003,

Reference has been made to the Court of
Justice of
the
European Communities by judgment of
the Cour d'appel
(Court of Appeal) of
the Grand Duchy of Luxembourg,
for a
received at
preliminary ruling in the civil proceedings between 1. Adminis-
tration de l'Enregistrement et des Domaines (Registration and
Land Authority), and 2. État du Grand-Duché de Luxembourg
and Vermietungsgesellschaft Objekt Kirchberg on the following
question: