Case C-380/03: Action brought on 10 September 2003 (by fax on 9 September 2003) by the Federal Republic of Germany against the European Parliament and the Council of the European Union
Date: 2003-11-15
Institutions: Court of Justice
Subjects: Council of the European Union, European Parliament, Germany, action for annulment (EU), advertising, competition, sponsorship, tobacco

15.11.2003

EN

Official Journal of the European Union

C 275/31

wide-ranging authority to transfer vehicles in category D
with a category C driving licence is clearly contrary to the
wording of Article 3(1), fifth indent, of the Directive.

— Minimum age for access to categories C1 and C1E

The FeV makes provision in paragraph 10.2.1 for access
to categories C1 and C1E at the age of 17, in so far as the
relevant persons are training to become professional
drivers. That rule is contrary to the provisions of
Article 6(1)(b), third indent, of the Directive, in conjunc-
tion, as regards to access to vehicles in categories C1
and C1E of over 7.5 tonnes, with Article 5(1)(b), second
indent, of Regulation EC 3820/85.

— Registration of driving licences issued in other Member

States

The systematic registration procedure contained in para-
graph 29.1 of FeV and the provision for a penalty
contained in paragraph 75.11 of the FeV infringe the
principle of mutual recognition laid down in Article 1(2)
of the Directive.

— Exchange of driving licences issued in other Member

States

The exchange of driving licences for the purposes of
registering what may be a shorter national period of
validity in paragraph 29.3 of the FeV contravenes appli-
cable Community law. Although an exchange of driving
licence as provided for in paragraph 42 of the FeV in the
event
that it is not possible to enter limitations or
conditions because of the nature of the driving licence
does amount to an exchange for the reasons laid down in
Article 8(2) of the Directive (which also includes the entry
of medical limitations), the entry of other administrative
observations (for example the applicability of the con-
ditions on probationary permission to drive)
is not
covered by Article 8(2) of the Directive, which is why
neither such entries nor exchanges are compatible with
Community law.

(1) OJ 1991 L 237, p. 1.

Action brought on 10 September 2003 (by fax on 9 Sep-
tember 2003) by the Federal Republic of Germany against
the European Parliament and the Council of the European
Union

(Case C-380/03)

(2003/C 275/46)

An action against the European Parliament and the Council of
the European Union was brought before the Court of Justice

of the European Communities on 10 September 2003 (by fax
on 9 September 2003) by the Federal Republic of Germany
represented by Wolf-Dieter Plessing and Moritz Lumma of
the Federal Ministry for Finances and Jochim Sedemund,
Rechtsanwalt, with an address for service at
the Federal
Ministry of Finances, Berlin.

The applicant claims that the Court should:

1.

annul Articles 3 and 4 of Directive 2003/33/EC of the
European Parliament and of the Council of 26 May 2003
on the approximation of
regulations and
administrative provisions of the Member States relating to
the advertising and sponsorship of tobacco products (1);

the laws,

2.

order the defendant to pay the costs.

Pleas in law and main arguments

By its action the Federal Government claims that the Parliament
and the Council, by adopting the contested provisions in the
Directive, went beyond the boundaries of the jurisdiction of
the Community legislature laid down by the Court of Justice
in its judgment in Case C-376/98 [2000] ECR I-8419 and failed
to have regard to the factual requirements for Community
jurisdiction to exist established by the Court of
Justice.
The contested provisions almost exclusively govern factual
situations with no cross-border effect. Accordingly,
there
are neither actual impediments to trade or any discernible
distortion of competition which, under the judgment of the
Court of Justice in Case C-376/98, are a necessary factual
precondition in order for the Community to have jurisdiction
under Article 95 EC. For that reason Article 95 does not
provide a basis for jurisdiction on the part of the Community
legislature to adopt the contested provisions. Since, given that
there are no impediments to trade or discernible distortion of
competition, the contested provisions do not in fact pursue
the goal of improving the internal market but rather the
protection of health, there is also an infringement of the
prohibition on harmonisation in Article 152(4)(c) EC.

In addition the Federal Government claims in the alternative
that no statement of reasons was given. The Community
legislature failed to provide an adequate statement of reasons
establishing that the factual requirements in Article 95 EC
which confer jurisdiction were met, in particular in regard to
the presence of impediments to trade, and failed to refer even
once in the statement of reasons to the existence of any
discernible distortion of competition with regard to press
products and broadcasts, with the result that to that extent the
Directive in any event infringes the obligation to give reasons
in Article 253 EC.

C 275/32

EN

Official Journal of the European Union

15.11.2003

Furthermore,
the substantive amendments made by the
Council following the Opinion of the Parliament give rise to a
the Parliament’s rights under the co-decision
claim that
procedure under Article 251 EC were infringed.

Reference for a preliminary ruling by the Bundesfinanzh-
of by order of that Court of 30 July 2003 in the case of
Hauptzollamt Hamburg-Jonas against Käserei Champig-
non Hofmeister GmbH & Co. KG

Finally the Federal Government claims in the alternative that
the principle of proportionality has been infringed since the
total bans provided for in Articles 3 and 4 on advertising in
the press and/or printed publications as well as on the radio
and the internet deliberately and specifically target local or
regional situations with no cross-border element almost
exclusively, with the result that the extensive prohibitions,
within the meaning of Article 14(1) EC on the improvement
of the internal market, are not necessary and are therefore
disproportionate. The infringement of the principle of pro-
portionality is all the more serious because the prohibitions
have a significant adverse effect on the basic right of freedom
of thought and press freedom, owing to the excessively
broad and unspecific definition of the terms ‘advertising’ in
Article 2(b) and ‘the press and other printed publications’ in
Articles 1(a) and 3 of the Directive.

(1) OJ L 152, p. 16.

Reference for a preliminary ruling by the Supreme Court,
Ireland, by order of that court dated 2 April 2003, in the
case of Ryanair Ltd against Aer Rianta cpt

(Case C-385/03)

(2003/C 275/48)

Reference has been made to the Court of
Justice of the
European Communities by order of the Bundesfinanzhof
(Federal Finance Court) of 30 July 2003, received at the Court
Registry on 12 September 2003, for a preliminary ruling in
the case of Hauptzollamt Hamburg-Jonas against Käserei
Champignon Hofmeister GmbH & Co. KG on the following
question:

Must the first and second subparagraphs of Article 11(1) of
Regulation (EEC) No 3665/87 (1), as amended by Regulation
(EC) No 2945/94 (2), be interpreted — also in the light of
the principle of proportionality — as meaning that false
information relating to individual items listed in the export
declaration, which could result in the exporter receiving a
higher export refund than that to which it is entitled, is by
itself sufficient to give rise to a punitive reduction in the export
refund in the amount set out in those provisions, even though
the exporter expressly stated in connection with the separate
application for payment which must be submitted under
national law that it would not be applying for an export refund
in respect of the relevant items in the export declaration?

(Case C-382/03)

(2003/C 275/47)

(1) OJ L 351 of 14.12.1987, p. 1.
(2) OJ L 310 of 3.12.1994, p. 57.

Reference has been made to the Court of Justice of the
European Communities by an order of the Supreme Court,
Ireland, dated 2 April 2003, which was received at the Court
Registry on 10 September 2003, for a preliminary ruling in
the case of Ryanair Ltd and Aer Rianta cpt on the following
questions:

A.

B.

Is an airport check-in desk an ‘airport installation’ within
the meaning of Article 16 (3) of the Directive (1)?

If the answer to A is in the affirmative, is a rent charged
for the exclusive right to occupy a particular check-in
desk for a period of one year or greater a fee for access to
airport installations within the meaning of Article 16 (3)
of the Directive?

(1) Council Directive 96/67/EC of 15 October 1996 on access to
the groundhandling market at Community airports OJ L 272,
25.10.1996, p. 36-45.

Action brought on 5 September 2003 by the Kingdom of
the Netherlands against the Commission of the European
Communities

(Case C-388/03)

(2003/C 275/49)

An action against the Commission was brought before the
Court of Justice of the European Communities on 5 September
2003 by the Kingdom of the Netherlands, represented by
H.G. Sevenster, Head of the European Law Division of the
Ministry of Foreign Affairs in The Hague.