Judgment of the Court (Fifth Chamber) of 7 January 2004 in Case C-500/01: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Market for telecommunications services — Tariff rebalancing — Access to the local loop — Directive 90/388/EEC — Article 4(c))
Date: 2004-02-21
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, competition law, liberalisation of the market, telecommunications

C 47/6

EN

Official Journal of the European Union

21.2.2004

prohibition on the sale by mail order of medicinal products
which are not subject to prescription in the Member State
concerned.

(c) Questions 1(a) and 1(b) do not need to be assessed
differently where medicinal products are imported into a
Member State in which they are authorised, having been
previously obtained by a pharmacy in another Member
State from a wholesaler in the importing Member State.

2. Article 88(1) of Directive 2001/83/EC of

the European
Parliament and of the Council of 6 November 2001 on the
Community code relating to medicinal products for human use
precludes a national prohibition on advertising the sale by mail
order of medicinal products which may be supplied only in
pharmacies in the Member State concerned, such as the
prohibition laid down in Paragraph 8(1) of the Heilmittelwer-
begesetz (Law on the advertising of medicinal products), in so
far as the prohibition covers medicinal products which are not
subject to prescription.

(1) OJ C 348 of 8.12.2001.

Heerlen, on the interpretation of Articles 48 and 52 of the EEC
Treaty (subsequently Articles 48 and 52 of the EC Treaty, now,
after amendment, Articles 39 EC and 43 EC), Article 67 of the
EEC Treaty (subsequently Article 67 of the EC Treaty, repealed
by the Treaty of Amsterdam), Articles 6 and 8a of the EC
Treaty (now, after amendment, Articles 12 EC and 18 EC) and
the provisions of Council Directive 90/364/EEC of 28 June
1990 on the right of residence (OJ 1990 L 180, p. 26) and
Council Directive 88/361/EEC of 24 June 1988 for the
implementation of Article 67 of the Treaty (OJ 1988 L 178,
p. 5), the Court
Jann,
acting as the President of the Fifth Chamber, D.A.O. Edward
(Rapporteur) and A. La Pergola, Judges; J. Mischo, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 11 December 2003, in which it has
ruled:

(Fifth Chamber), composed of: P.

Community law precludes national legislation concerning the assess-
ment of tax due on the inheritance of immovable property situated in
the Member State concerned according to which, in order to assess
the property’s value, the fact that the person holding legal title was
under an unconditional obligation to transfer it to another person
who has financial ownership of that property may be taken into
account if, at the time of his death, the former resided in that Member
State, but may not be taken into account if he resided in another
Member State.

JUDGMENT OF THE COURT

(1) OJ C 331 of 24.11.2001.

(Fifth Chamber)

of 11 December 2003

in Case C-364/01 (Reference for a preliminary ruling
from the Gerechtshof te ’s-Hertogenbosch): The heirs of
H. Barbier v Inspecteur van de Belastingdienst Particulier-
en/Ondernemingen buitenland te Heerlen (1)

(Interpretation of Articles 48 and 52 of the EEC Treaty
(subsequently Articles 48 and 52 of the EC Treaty, now,
after amendment, Articles 39 EC and 43 EC), Article 67 of
the EEC Treaty (subsequently Article 67 of the EC Treaty,
repealed by the Treaty of Amsterdam), Articles 6 and 8a of
the EC Treaty (now, after amendment, Articles 12 EC and
18 EC) — Directives 88/361/EEC and 90/364/EEC —
Inheritance tax — Requirement of cross-border economic
activity — Prohibition of discrimination on the basis of
Member State of residence)

(2004/C 47/09)

(Language of the case: Dutch)

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

In Case C-364/01: Reference to the Court under Article 234
EC by the Gerechtshof te ’s-Hertogenbosch (Netherlands) for a
preliminary ruling in the proceedings pending before that
court between the heirs of H. Barbier and Inspecteur van
de Belastingdienst Particulieren/Ondernemingen buitenland te

JUDGMENT OF THE COURT

(Fifth Chamber)

of 7 January 2004

in Case C-500/01: Commission of the European Communi-
ties v Kingdom of Spain (1)

(Failure of a Member State to fulfil its obligations — Market
for telecommunications services — Tariff rebalancing —
loop — Directive 90/388/EEC —
Access to the local
Article 4(c))

(2004/C 47/10)

(Language of the case: Spanish)

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

In Case C-500/01, Commission of the European Communities
(Agent: S. Rating) v Kingdom of Spain (Agent: S. Ortiz

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Official Journal of the European Union

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Vaamonde): Application for a declaration that, by failing to
adopt the laws, regulations and administrative provisions
necessary to comply with Article 4(c) of Commission Directive
90/388/EEC of 28 June 1990 on competition in the markets
for telecommunications services (OJ 1990 L 192, p. 10) as
amended by Commission Directive 96/19/EC of 13 March
1996 (OJ 1996 L 74, p. 13), the Kingdom of Spain has failed
to fulfil
its obligations under those directives and the EC
Treaty, the Court (Fifth Chamber), composed of: P. Jann, acting
the Fifth Chamber, D.A.O. Edward
for the President of
(Rapporteur) and A. La Pergola, Judges; P. Léger, Advocate
General; R. Grass, Registrar, has given a judgment on 7 January
2004, in which it:

1. Declares that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Article 4(c)
of Commission Directive 90/388/EEC of 28 June 1990 on
competition in the markets for telecommunications services, as
amended by Commission Directive 96/19/EC of 13 March
1996, the Kingdom of Spain has failed to fulfil its obligations
under that directive;

by failing to adopt the laws, regulations and administrative
provisions necessary to comply with Directive 98/84/EC of
the European Parliament and of the Council of 20 November
1998 on the legal protection of services based on, or consisting
of, conditional access (OJ 1998 L 320, p. 54), or, at the very
least, by failing to notify the Commission of the adoption of
those measures, the Kingdom of Spain has failed to fulfil its
obligations under that directive, the Court (Fifth Chamber),
composed of: P. Jann, acting for the President of the Fifth
Chamber, D.A.O. Edward (Rapporteur) and S. von Bahr,
Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar,
has given a judgment on 7 January 2004, in which it:

1. Declares that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
98/84/EC of the European Parliament and of the Council of
20 November 1998 on the legal protection of services based
on, or consisting of, conditional access, the Kingdom of Spain
has failed to fulfil its obligations under that Directive;

2. Orders the Kingdom of Spain to pay the costs.

2. Orders the Kingdom of Spain to pay the costs.

(1) OJ C 109 of 4.5.2002.

(1) OJ C 56 of 2.3.2002.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 7 January 2004

in Case C-58/02: Commission of the European Communi-
ties v Kingdom of Spain (1)

(Failure of a Member State to fulfil obligations — Directive
98/84/EC — Information society — Radio broadcasting —
Services based on conditional access — Services consisting
of conditional access — Protected services — Legal protection
— Devices giving unauthorised access)

JUDGMENT OF THE COURT

(Fifth Chamber)

of 7 January 2004

in Case C-60/02 (Reference for a preliminary ruling from
the Landesgericht Eisenstadt): X (1)

(Counterfeit and pirated goods — No criminal penalty for
the transit of counterfeit goods — Compatibility with
Regulation (EC) No 3295/94)

(2004/C 47/12)

(Language of the case: German)

(2004/C 47/11)

(Language of the case: Spanish)

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

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

In Case C-58/02, Commission of the European Communities
(Agents: G. Valero Jordana and M. Shotter v Kingdom of Spain
(Agent: S. Ortiz Vaamonde): Application for a declaration that,

In Case C-60/02: Reference to the Court under Article 234 EC
by the Landesgericht Eisenstadt (Austria) for a preliminary
ruling in the criminal proceedings before that court against X,
on the interpretation of Council Regulation (EC) No 3295/94
of 22 December 1994 laying down measures concerning the
entry into the Community and the export and re-export
from the Community of goods infringing certain intellectual
property rights (OJ 1994 L 341, p. 8), as amended by Council