Case C-442/03 P: Appeal brought on 20 October 2003 by P&O European Ferries (Vizcaya) SA against the judgment delivered on 5 August 2003 by the First Chamber (Extended Composition) of the Court of First Instance of the European Communities in joined cases T-116/01 between P&O European Ferries (Vizcaya) SA, supported by Diputación Foral de Vizcaya, and the Commission of the European Communities and T-118/01 between Diputación Foral de Vizcaya, supported by P&O European Ferries (Vizcaya) SA, and the Commission of the European Communities
Date: 2004-01-10
Institutions: Court of Justice
Subjects: European Commission, Spain, State aid, action for annulment (EU), control of State aid, ferryboat, maritime transport

C 7/18

EN

Official Journal of the European Union

10.1.2004

Council Directive 78/687/EEC of 25 July 1978 concerning the
coordination of provisions laid down by law, regulation or adminis-
trative action in respect of the activities of dental practitioners, as
amended by the Act concerning the conditions of accession of the
Republic of Austria, the Republic of Finland and the Kingdom of
Sweden and the adjustments to the Treaties on which the European
Union is founded, properly construed, precludes a national rule
containing a general authorisation for doctors who have not completed
the training required by Article 1 of that directive to carry out the
activities of a dental practitioner, irrespective of the title under which
those activities are carried out.

(1) OJ C 109 of 4.5.2002.

ORDER OF THE COURT OF THE JUSTICE

of 11 July 2003

in Case C-161/03 (reference for a preliminary ruling by
the Commission de conciliation et d’expertise douanière):
Administration des douanes v Centrale d’achat française
pour l’outre-mer SA (CAFOM), Samsung Electronics
France (1)

(Reference for a preliminary ruling — Court’s lack of
jurisdiction)

(2004/C 7/30)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-161/03: reference to the Court under Article 234 EC
by the Commission de conciliation et d’expertise douanière
(France) for a preliminary ruling in the proceedings between
Administration des douanes and Centrale d’achat française
pour l’outre-mer SA (CAFOM), Samsung Electronics France —
on the interpretation of Article 27 of Protocol No 4 annexed
to the Europe Agreement between the European Communities
and their Member States, of the one part, and the Republic of
Hungary, of the other part, concluded and approved in the
name of the European Communities by Decision 93/743/
Euratom, ECSC, EC of the Council and the Commission of
13 December 1993 (OJ 1993 L 348, p. 1) — the Court,
composed of: G.C. Rodríguez Iglesias, President, J.-P. Puisso-
chet, M. Wathelet, R. Schintgen and C.W.A. Timmermans,
Presidents
(Rapporteur),
D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken,
N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas,
Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar,
made an order on 11 July 2003 of which the operative part is
as follows:

of Chambers, C. Gulmann

The Court of Justice of the European Communities clearly has no
jurisdiction to reply to the questions referred by the Commission de
conciliation et d’expertise douanière in its decision of 18 March
2003.

(1) OJ C 135 of 7.6.2003.

Appeal brought on 20 October 2003 by P&O European
Ferries (Vizcaya) SA against the judgment delivered
on 5 August 2003 by the First Chamber (Extended
Composition) of the Court of First Instance of the
European Communities in joined cases T-116/01 between
P&O European Ferries (Vizcaya) SA, supported by Dipu-
tación Foral de Vizcaya, and the Commission of the
European Communities and T-118/01 between Diputa-
ción Foral de Vizcaya, supported by P&O European
Ferries (Vizcaya) SA, and the Commission of the European
Communities

(Case C-442/03 P)

(2004/C 7/31)

An appeal against the judgment delivered on 5 August 2003
by the First Chamber (Extended Composition) of the Court of
First Instance of the European Communities in joined cases
T-116/01 (1) between P&O European Ferries (Vizcaya) SA,
supported by Diputación Foral de Vizcaya, and the Com-
the European Communities and T-118/01 (2)
mission of
between Diputación Foral de Vizcaya, supported by P&O
European Ferries (Vizcaya) SA, and the Commission of the
European Communities, was brought before the Court of
Justice of the European Communities on 20 October 2003 by
P&O European Ferries (Vizcaya) SA, established in Bilbao
(Spain), represented by Sir Jeremy Lever QC and M. Pickford,
Barristers, and J. Ellison, Solicitor.

The Appellant claims that the Court should:

1. make an order setting aside the Court of First Instance’s
judgment of 5 August 2003 and remitting the questions
set out at paragraph 13 of the appeal for determination
by the Court of First Instance;

2. make an order that the Commission pay the Appellant’s

costs of this appeal; and

3. make an order setting aside the order of the Court of First
Instance of 5 August 2003 that the Appellant pay the
Commission’s costs, and reserving reconsideration of
those costs for the Court of First Instance when the case
is remitted to it.

10.1.2004

EN

Official Journal of the European Union

C 7/19

Pleas in law and main arguments

The Appellant’s application to the Court of First Instance was
dismissed on the basis that aid granted to the Appellant in
1995 was a continuation of aid which had previously been
granted to the Appellant in 1992 unlawfully (without prior
notification to the Commission);
the 1995 aid was
effectively tainted by the unlawfulness of the earlier aid; and
that the unlawfulness was not cured by the provision in 1995
of the information about the 1995 agreement The Appellant
submits that the Court of First Instance was wrong in law to
dismiss its application for the following reasons:

that

The Court of First Instance misconstrued Article 88(3) EC,
failing to give effect to the principle that the obligation to
inform the Commission of plans to alter aid is a discrete
obligation no less than is the obligation to inform the
Commission of plans to grant (new) aid. Even where aid was
originally granted unlawfully, altered aid granted under an
agreement that replaces the original agreement will be granted
lawfully if the Commission is informed of the plans to grant
the altered aid and takes a favourable decision with regard to
it before the altered aid is granted.

The Court of First Instance erroneously supported its con-
clusion summarised at paragraph 1 above by finding that the
substance of the aid did not differ between the 1992 and 1995
agreements, and that the 1995 aid was therefore tainted by the
unlawfulness of the 1992 aid.

The Court of First Instance failed to recognise that the letter of
27 March 1995 providing information to the Commission
about the 1995 agreement was capable in law of having, and
the 1992
did have, a two-fold character:
agreement as having been replaced and it
informed the
Commission of the finalised plan to grant new aid by way of
replacement of the 1992 aid; the Court of First Instance erred
in law in supposing that the first aspect of the letter excluded
the second.

it disposed of

The Court of First Instance relied on alleged procedural failings
in the provision of
information by way of the letter of
27 March 1995. The Court of First Instance erred in so doing
since: (a) contrary to the Court of First Instance’s judgment,
there is no requirement laid down by Article 88(3), and there
was none in law at the time of the notification, that the
relevant information must be supplied by the Member State in
question; (b) the Court of First Instance relied on the fact that
the form and content of the notification did not satisfy the
formal criteria laid down by the Commission in communi-
cations to Member States, overlooking the fact that communi-
cations from the Commission to Member States cannot create
legal requirements that are binding on individuals; and, in any

event, (c) in the circumstances, the Commission was stopped
from denying that the notification was lawful by reason of
some formal defect and the Court of First Instance erred in law
in failing to hold that that was so.

The Court of First Instance erroneously relied on (a) the
reference (‘NN’) used by the Commission in relation to the
1995 aid and (b) the fact that the Commission did not reject
the letter of 27 March 1995 (which, by circular reasoning, the
Court of First Instance said that it would have done, if it had
understood the letter to be a notification) as showing that the
1995 aid had not been duly notified to the Commission.
Neither of those facts was capable in law of depriving the letter
of 27 March 1995 of its character as a notification of the plan
to grant the 1995 aid.

(1) OJ C 212, 28.07.2001, p. 26.
(2) OJ C 227, 11.08.2001, p. 29.

Action brought on 22 October 2003 by the Commission
of the European Communities against the Italian Republic

(Case C-447/03)

(2004/C 7/32)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 22 October
2003 by the Commission of the European Communities,
represented by Minas Kostantinidis and Roberto Amorosi,
acting as Agents.

The applicant claims that the Court should:

— declare that, by failing to bring into force the necessary
measures to ensure that waste, stored and deposited in
dumps on Enichem’s former Manfredonia site (province
of Foggia) and in the Pariti I dump (province of Manfre-
donia) is recovered or disposed of without endangering
human health and without using processes or methods
which could harm the environment, and by failing to
bring into force the necessary measures to ensure that the
holder of the waste stored and deposited in dumps on
Enichem’s Manfredonia site and the holder of urban waste
in the Pariti I and Conte di Troia dumps has it handled by
a private or public waste collector or by an undertaking