Case C-402/03: Reference for a preliminary ruling by the Vestre Landsret by order of that Court of 26 September 2003 in the case of Skov Æg against Bilka Lavprisvarehus A/S and Bilka Lavprisvarehus A/S against Jette Mikkelsen and Michael Due Nielsen
Date: 2003-12-13
Institutions: Court of Justice
Subjects: action for annulment (EU), consumer protection, defective product, producer's liability, product safety, supplier

C 304/10

EN

Official Journal of the European Union

13.12.2003

The applicant claims that the Court should:

— annul Commission Regulation (EC) No 1145/2003 (1) of
27 June 2003, published in the Official Journal of the
European Union L 160 of 28 June 2003, p. 48, amending
Regulation (EC) No 1685/2000 (2) as regards the rules of
eligibility for co-financing by the Structural Funds for
procedural irregularities, as set out at points 52 to 59 of
Section I of the application;

— in the alternative, annul Article 2(a) in so far as it refers
to Rule 1, points 1.2, 2.1 and 2.3 and Rule 1, points 1.2,
2.1 and 2.3 of the annex on the basis of the pleas on the
merits as set out at points 60 to 93 of Section II and
points 94 to 102 of Section III of the application;

— annul all related and ancillary measures;

— order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments

The applicant submits that Regulation (EC) No 1145/2003
should be annulled on the following grounds:

A. Grounds relating to the infringement of the ‘committee
laid down by Council Regulation (EC)

procedure’
No 1260/1999 ‘the general regulation’:

— infringement of essential procedural requirement
(Article 230 EC); infringement of Article 47(3) of
the general regulation (committees); failure to satisfy
the requirements for the adoption of the regulation.

— infringement of the principle of non-retroactivity

and inadequate statement of reasons;

— infringement of the principle of legitimate expec-

tations; inconsistency.

C. Misuse of powers

(1) OJ 2003 L 160 of 28.06.2003, p. 3.
(2) OJ 2000 L 242 of 27.09.2000, p. 39.
(3) OJ 1999 L 161 of 26.06.1999, p. 1.

Reference for a preliminary ruling by the Vestre Landsret
by order of that Court of 26 September 2003 in the case
of Skov Æg against Bilka Lavprisvarehus A/S and Bilka
Lavprisvarehus A/S against Jette Mikkelsen and Michael
Due Nielsen

(Case C-402/03)

(2003/C 304/15)

Reference has been made to the Court of Justice of the
European Communities by order of
the Vestre Landsret
(Western Regional Court) of 26 September 2003, received at
the Court Registry on 29 September 2003, for a preliminary
ruling in the case of Skov Æg against Bilka Lavprisvarehus A/
S and Bilka Lavprisvarehus A/S against Jette Mikkelsen and
Michael Due Nielsen on the following questions:

Q u e s t i o n 1

Does Council Directive 85/374/EEC of 25 July 1985 on the
approximation of the laws, regulations and administrative
the Member States concerning liability for
provisions of
defective products (1) preclude a statutory system under which
an intermediary bears unlimited responsibility for the pro-
ducer’s liability under the Directive?

B.

Pleas on the merits

Q u e s t i o n 2

— infringement of essential procedural requirements:

insufficient and inconsistent statement of reasons;

— infringement of Article 9(j) of Regulation (EC) No

1260/1999 (3): definition of operation;

Does the abovementioned Council Directive preclude a system
under which the intermediary bears, in accordance with case-
law, unlimited responsibility for the producer’s fault-based
liability established in case-law in respect of
liability for
defective products resulting in personal injury or damage to
consumers’ property?

— further infringement of Article 9 and of Articles 8

and 32 of Regulation (EC) No 1260/1999;

Q u e s t i o n 3

With reference to:

— infringement of the principle of sound financial

management;

1.

The Council of Ministers minutes in BEUC-News, Legal
Supplement 12 November/December 1985, pages 20
and 21, paragraph 2 of which states:

13.12.2003

EN

Official Journal of the European Union

C 304/11

Statements on Articles 3 and 12: With regard to the
interpretation of Articles 2 and 10, the Council and the
Commission are in agreement that there is nothing to
prevent individual Member States from laying down in
legislation rules regarding liability for
their national
intermediaries, since intermediary liability is not covered
by the Directive. There is further agreement that under
the Directive the Member States may determine rules on
the final mutual apportionment of liability among several
liable producers (see Article 3) and intermediaries; and

2. Article 13 of the Directive, which provides that:

‘This Directive shall not affect any rights which an injured
person may have according to the rules of the law of
contractual or non-contractual liability or a special liab-
ility system existing at the moment when this Directive is
notified’,

does the Directive preclude a Member State from laying down
legal rules on intermediary liability for defective products
where the intermediary is, as occurred in [Paragraph 3(1)] of
the Danish law on liability for defective products, defined as
any person who, in the course of his business, puts a product
into circulation without being deemed to be the producer
under the definition thereof in Article 3 of the Directive on
liability for defective products?

Q u e s t i o n 4

Does the Directive (Council Directive 85/374/EEC of 25 July
1985 on the approximation of the laws, regulations and
administrative provisions of the Member States concerning
liability for defective products) preclude a Member State from
laying down a legal rule relating to liability for defective
products, under which the intermediary — without himself
being the producer or treated as a producer under Article 3 of
the Directive — is responsible for:

— the producer’s liability for defective products under the

Directive,

— the producer’s fault based-liability established in case-law
in respect of liability for defective products resulting in
personal injury or damage to consumers’ property,

where the legal rule in question requires that:

(a)

(b)

the intermediary be defined as any person who, in the
course of his business, puts a product into circulation
without being deemed to be the producer ([Paragraph
3(3)] of the Danish law on liability for defective products);

the producer can be held liable and the intermediary
therefore does not bear responsibility where the producer
is not held liable (Paragraph 10 of the Danish law on
liability for defective products);

(c)

the intermediary has a right of contribution or recourse
against the producer (Paragraph 11(3) of the Danish law
on liability for defective products)?

Q u e s t i o n 5

Does the Directive (Council Directive 85/374/EEC of 25 July
1985 on the approximation of the laws, regulations and
administrative provisions of the Member States concerning
liability for defective products) preclude a Member State from
maintaining a non-statutory, but case-law-based, rule, which
existed before the Directive on liability for defective products,
relating to liability for defective products under which the
intermediary — without himself being the producer or treated
as a producer under Article 3 of the Directive — is responsible
for:

— the producer’s liability for defective products under the

Directive on liability for defective products,

— the producer’s fault-based liability established in case-law
in respect of liability for defective products resulting in
personal injury or damage to consumers’ property,

where the case-law-based rule concerned requires that:

(a)

(b)

(c)

the intermediary be defined as any person who, in the
course of his business, puts a product into circulation
without being deemed to be the producer
([Para-
graph 3(3)] of the Danish law on liability for defective
products);

the producer can be held liable and the intermediary
therefore does not bear responsibility where the producer
is not held liable (Paragraph 10 of the Danish law on
liability for defective products);

the intermediary has a right of contribution or recourse
against the producer (Paragraph 11(3) of the Danish law
on liability for defective products)?

(1) OJ L 210 of 7.8.1985, p. 29.

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 22 July 2003 in the case of
Egon Schempp against Finanzamt München V

(Case C-403/03)

(2003/C 304/16)

Reference has been made to the Court of Justice of the
the Bundesfinanzhof
European Communities by order of
(Federal Finance Court) of 22 July 2003, received at the Court
Registry on 29 September 2003, for a preliminary ruling in
the case of Egon Schempp against Finanzamt München V on
the following questions: