Case C-288/03 P: Appeal brought on 3 July 2003 by B. Zaoui, L. Zaoui and D. Stain, née Zaoui, against the order made on 23 April 2003 by the Court of First Instance of the European Communities (First Chamber) in Case T-73/03 between B. Zaoui and Others and the Commission of the European Communities
Date: 2004-04-03
Institutions: Court of Justice
Subjects: European Commission, Israel, Palestine question, appeal, financing, terrorism

3.4.2004

EN

Official Journal of the European Union

C 85/11

prescribed period, the reports in respect of the Bruxelles-
Capitale Region required under Council Directive 76/464/EEC
of 4 May 1976 on pollution caused by certain dangerous
substances discharged into the aquatic environment of the
Community (OJ 1976 L 129, p. 3), Council Directive 78/659/
EEC of 18 July 1978 on the quality of fresh waters needing
protection or improvement in order to support fish life (OJ
1978 L 222, p. 1) and Council Directive 80/68/EEC of
17 December 1979 on the protection of groundwater against
pollution caused by certain dangerous substances (OJ 1980
L 20, p. 43) as amended by Council Directive 91/692/EEC of
23 December 1991 standardising and rationalising reports on
the implementation of certain Directives relating to the
environment (OJ 1991 L 377, p. 48), the Kingdom of Belgium
has failed to fulfil its obligations under the said directives, the
Court (Third Chamber), composed of: C. Gulmann, acting for
the President of the Third Chamber, J. P. Puissochet (Rappor-
teur) and F. Macken, Judges; C. Stix-Hackl, Advocate General;
R. Grass, Registrar, has given a judgment on 12 February
2004, in which it:

1. Declares that, by failing to communicate to the Commission,
the
within the prescribed period,
Bruxelles-Capitale Region required under Article 2(1) of
Council Directive 91/692/EEC of 23 December 1991 stan-
dardising and rationalising reports on the implementation of
certain Directives relating to the environment, the Kingdom of
Belgium has failed to fulfil its obligations under that directive;

in respect of

the report

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

The appellants claim that the Court should:

— reverse the order of the Court of First Instance of the

European Communities made on 23 April 2003;

— declare the respondent liable for the harm suffered by the
appellants as a result of the attack on 27 March 2002 at
the Park Hotel, Netanya (Israel);

— order the respondent, in respect of the harm suffered by

the appellants to pay the following amounts:

— to Lucien Zaoui, EUR 1 million in compensation for

non-material damage;

— to B. Zaoui, EUR 1.5 million, in compensation for

non-material damage;

— to D. Stain, née Zaoui:

— EUR 1 million in respect of physical injury;

— EUR 2 million in respect of non-material

damage;

— an amount to be settled in the course of

proceedings for material damage

(1) OJ C 7 of 11.1.2003.

— order the respondent to pay all the costs.

Pleas in law and main arguments

Appeal brought on 3 July 2003 by B. Zaoui, L. Zaoui and
D. Stain, née Zaoui, against the order made on 23 April
2003 by the Court of First Instance of the European
Communities (First Chamber) in Case T-73/03 between
B. Zaoui and Others and the Commission of the European
Communities

The unlawful conduct of the Commission, namely the grant of
funds to the Palestinian Authority, in total contradiction with
the fundamental values of
the Community, has directly
contributed to the harm suffered by the appellants as a result
of the attack carried out by a Palestinian terrorist in Netanya
(Israel), for which they now seek compensation.

(Case C-288/03 P)

(2004/C 85/16)

An appeal against the order made on 23 April 2003 by the
Court of First Instance of the European Communities (First
Chamber) in Case T-73/03 between B. Zaoui and Others and
the Commission of the European Communities was brought
before the Court of Justice of the European Communities on
3 July 2003 by B. Zaoui, L. Zaoui and D. Stain, née Zaoui,
represented by J. A. Buchinger, advocat.

The application of Article 111 of the Rules of Procedure of the
Court of First Instance was manifestly unlawful, since it was
by error of law and by distorting the clear sense of the pleas
put forward by the appellants that the Court of First Instance
held that the existence of a causal link was not established in
this case and that the application was manifestly lacking any
foundation in law:

— the Court of First Instance dismissed the application
brought at first instance by the appellants as manifestly
lacking any foundation in law, holding that one of the
conditions necessary for the Commission to incur non-
contractual liability, within the meaning of the second
paragraph of Article 288 EC, was not established in this

C 85/12

EN

Official Journal of the European Union

3.4.2004

case, namely the existence of a causal link between the
alleged conduct and the harm pleaded. As the Court of
First Instance observed, it is not disputed that there must
be a direct link of cause and effect between the wrongful
act of the institution concerned and the harm pleaded, a
causal link in respect of which applicants bear the burden
of proof. In addition, that causal
link relates to the
decisive cause of the harm. None the less, the Court of
First Instance confused decisive cause and exclusive cause.
It has never been claimed that the Commission’s conduct
was the exclusive cause of the attack of 27 March 2002.
On the other hand, it was amply demonstrated in the
application that the Commission’s conduct was a decisive
cause. In attempting to show that the alleged conduct
was not the exclusive cause of the harm pleaded the
Court of First Instance committed a manifest error of law
by which it deprived the appellants of a hearing which
they could legitimately expect.

— the Court of First Instance distorted the clear sense of the
pleas put forward by the appellants in claiming, on the
one hand, that the appellants agreed that the attack had
not been financed by the funds in question and, on the
other, that they had neither proved nor claimed that
Palestinian education was exclusively dependent on the
funds in question, merely stating that the European
Community is the Palestinians’ largest provider of funds.

Reference for a preliminary ruling by the Gerechthof
Herzogenbusch by order of that Court of 5 November
2003 in the case of M.E.A. van Hilten-van der Heijden
against Inspecteur van de Belastingdienst/Particulieren/
Ondernemingen Buitenland te Heerlen

(Case C-513/03)

(2004/C 85/17)

Reference has been made to the Court of Justice of the
European Communities by order of the Gerechthof Herzogen-
busch of 5 November 2003, received at the Court Registry on
8 December 2003, for a preliminary ruling in the case of
M.E.A. van Hilten-van der Heijden against Inspecteur van
de Belastingdienst/Particulieren/Ondernemingen Buitneland te
Heerlen on the following questions:

1. Does Article 3(1) of the Netherlands Successiewet (1)
constitute a permitted restriction within the meaning of
Article 57(1) EC?

2. Does Article 3(1) of the Successiewet constitute a pro-
hibited means of arbitrary discrimination or a disguised
restriction on the free movement of capital within the
meaning of Article 58(3) EC where applicable to a capital
movement between a Member State and a non-member
country, having regard also to the Declaration on
Article 73d of the Treaty establishing the European
Community adopted on the occasion of the signature of
the ‘Final Act and Declarations of the Intergovernmental
Conferences on the European Union’ of 7 February 1992.

(1) Law on Succession.

Action brought on 19 December 2003 by the Commission
of the European Communities against Ireland

(Case C-532/03)

(2004/C 85/18)

An action against Ireland was brought before the Court of
Justice of the European Communities on 19 December 2003
by the Commission of the European Communities, represented
by K. Wiedner, acting as agent, assisted by J. E. Flynn QC, with
an address for service in Luxembourg.

The Applicant claims that the Court should:

1.

declare that, in permitting emergency ambulance services
to be provided by Dublin City Council without the
Eastern Regional Health Authority undertaking any prior
advertising, Ireland has failed to comply with its obli-
gations under the Treaty; and

2.

order Ireland to pay the Commission’s costs.

Pleas in law and main arguments

The Commission takes the view that, in the circumstances of
the case, the maintaining of the arrangement for provision of
ambulance services between Dublin City Council and the
Eastern Regional Health Authority without undertaking any
prior advertising is a breach of the free movement rules of the
Treaty (notably Articles 43 and 49) and thereby of the general
principles of Community law (notably those of transparency
and equality or non-discrimination) which are to be respected
in situations to which Community law applies.