Case C-372/03: Action brought on 2 September 2003 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2003-11-15
Institutions: Court of Justice
Subjects: EC Directive, European Commission, Germany, action for failure to fulfil an obligation, driving licence, national implementing measure

C 275/30

EN

Official Journal of the European Union

15.11.2003

VI.

If in regard to the questions posed in section III the
Court confirms the judgment in van Bennekom and
there is no incompatibility in this case with the
requirements of health protection, how can the
request for marketing authorisation be successfully
pursued? Can a decision of general application under
Paragraph 47a of the LMBG be refused, without
Community law being infringed, on the basis that
in the German classification system a product is
medicinal, whereas it can be marketed as a foodstuff
in the Member State where it was manufactured? Is
it compatible with Community law, and in particular
Articles 28 and 30 EC, not to apply the rule in
Paragraph 47a of the LMBG to such medicinal
products analogously? If not, can the German State,
without thereby infringing Community law, evade
an obligation which a German court intends to
impose on it to adopt a decision of general appli-
cation under Paragraph 47a of the LMBG (applied
analogously) if it, or the authority responsible for
food but not medicines, objects that because in
the German classification system the product is
medicinal no decision of general application under
Paragraph 47a of the LMBG (analogously) may be
adopted,

a)

b)

because the body competent to adopt decisions
of general application under Paragraph 47a of
the LMBG is not competent for medicines also,

because the product is not authorised as a
medicine?

VII.

If the Court declines itself to reply to the questions
posed in section A, may the national court then
direct questions on the classification of products or
indeed scientific or methodological questions to the
European Food Authority and to what extent are
any guidelines provided by that authority binding
on the national court?

The applicant claims that the Court should

1.

declare that by failing to adopt within the period laid
down all the laws and administrative provisions required
to transpose Council Directive 91/439/EEC of 29 July
1991 on driving licences (1)
the Federal Republic of
Germany has failed to fulfil its obligations under the EC
Treaty and that Directive;

2. Order the defendant to pay the costs.

Pleas in law and main arguments

The Commission takes the view that German law is inconsist-
ent with Directive 91/439/EEC on the following points:

— Minimum age for direct access to heavy motor-cycles in

category A

Paragraph 6.2, second sentence, of the regulation on
granting persons permission to drive on the road (1998
regulation on permission to drive, hereinafter ‘the FeV’)
provides for a minimum age of 25 for direct access to
heavy motor-cycles in category A. Article 6(1)(b), first
indent, last paragraph, of the Directive, however, provides
for a minimum age of 21 years for direct access.

— Permission to drive motor vehicles in category DE with
permission to drive vehicles in categories C1E and D

Under paragraph 6.3.6 of the FeV, it is permissible to
drive vehicles in category DE with a driving permit for
categories C1E and D, whereas Article 5(2)(b) of the
Directive expressly permits only the driving of motor
vehicles in category D with a driving permit covering
categories CE and D

Action brought on 2 September 2003 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

— Permission to drive motor vehicles in category D for
holders of driving permits in categories C1, C1E, C or CE
in certain cases

(Case C-372/03)

(2003/C 275/45)

An action against
the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 2 September 2003 by the Commission of the European
Communities, represented by Gerald Braun and Wouter Wils,
members of the Legal Service of the Commission of the
European Communities, with an address for service in Luxem-
bourg.

Paragraph 6.4 of the FeV entitles holders of driving
permits in categories C1, C1E, C and CE in their Member
State of origin to drive motor vehicles in category D
(motorised omnibuses) without passengers if the journey
is made merely for the purposes of examining the
technical state of the vehicle or of transfering the vehicle
to another location. However the Directive does not draw
any distinction between the carriage of passengers and
driving an empty bus. The Directive does not make
provision for the driving of motor vehicles in category D
without the corresponding driving licence, although such
vehicles may be so driven for the purposes of examining
the technical state of the vehicle after repairs have been
carried out on grounds of practical convenience. A more

15.11.2003

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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.