Case C-72/04: Action brought on 17 February 2004 by the Commission of the European Communities against the Republic of Finland
Date: 2004-04-17
Institutions: Court of Justice
Subjects: Finland, action for failure to fulfil an obligation, confidentiality, cooperation agreement (EU), exchange of information, third country

17.4.2004

EN

Official Journal of the European Union

C 94/23

Pleas in law and main arguments

The contested decision of the European Commission should be
annulled on the following grounds:

The Commission errs by proceeding from the assumption in its
decision of 5 December 2003 that the Agreement on air trans-
port which was signed by the European Community and the
Swiss Confederation on 21 June 1999 simply provides for an
exchange of traffic rights. The Agreement in fact extends the
internal air traffic market to the Swiss Confederation with the
result that the airlines of the Swiss Confederation and the Euro-
pean Union have equal rights of access to the market. That also
means in particular that the Swiss Confederation and Swiss
companies falling within the scope of the Agreement can rely
on the freedom to provide services in the air traffic sector.

The Commission was wrong to deny infringement of
the
freedom to provide services. Contrary to the Commission's
decision, the 213th Regulation for the implementation of the
Air Traffic Regulations of the Federal Republic of Germany
affects the freedom of Swiss International Air Lines (hereinafter
also ‘SWISS’) to provide services, because it hinders the opera-
tion of flights to and from Zurich.

The Commission was wrong to deny that there was discrimina-
tion against Swiss companies was caused by the 213th Regu-
lation. The Swiss airline SWISS is disadvantaged in competition
because it is subject to stricter limitations on the use of its hub
at Zurich than its direct competitor Lufthansa suffers in using
its own hubs at Frankfurt-am-Main and Munich. SWISS is also
affected more severely than the other airlines flying to Zurich,
since it is the ‘home carrier’ and the operator of the Zurich air
traffic hub and as such is particularly vulnerable to limitations
on the operation of Zurich airport. In addition, the German
measures treat the Zurich international airport operated by
UNIQUE Flughafen Zürich AG less favourably than similar
airports in Germany,
to which no even roughly similarly
drastic flight limitations apply or may be applied.

Contrary to the Commission's opinion, those limitations must
be measured against the principle of proportionality. That prin-
ciple is applicable in connection with the Air Transport Agree-
ment. It is infringed by the German 213th Regulation. That
regulation is not based on any compelling ground of general
interest and the limitations it contains are neither necessary nor
appropriate. The Federal Republic has at its disposal, contrary
to the Commission's view, alternative means by which to
achieve its aims.

The Commission was wrong to deny infringement of the duty
of honest cooperation.

Furthermore, in the proceedings the Commission has breached
the right to a fair hearing. The Commission began with precon-
ceived opinions and did not examine the arguments of the
Swiss Confederation in an unprejudiced manner or clarify the
facts of the matter. As a result the requirement for fairness was
breached. The reasons given for the decision do not satisfy the
requirements laid down in the case-law.

(1) OJ 2004 L 4, p. 13.

Reference for a preliminary ruling by the Tribunal
Supremo, Contentious-Administrative Chamber, Third
Division, by order of that Court of 22 December 2003,
in the case of
rectified by order of 22 January 2004,

Administración del Estado against Junta de Galicia

(Case C-71/04)

(2004/C 94/49)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunal Supremo (Supreme
Court), Contentious-Administrative Chamber, Third Division, of
22 December 2003, rectified by order of 22 January 2004,
received at the Court Registry on 16 February 2004, for a preli-
minary ruling in the case of Administración del Estado against
Junta de Galicia on the following question:

Do Article 87(1) and (3)(c) and (d) (previously Article 92(1) and
(3)(c) and (d)) and Article 88(3) (previously Article 93(3)) of the
EC Treaty, in conjunction with Council Directive 90/684/EEC
of 21 December 1990 (1) on aid to shipbuilding, permit the
adoption, without prior notification to the Commission of the
the kind
European Communities, of national
contained in Decree 217/1994 of 23 June 1994 of the Xunta
de Galicia – which establish a ‘new system of aid’ for a specific
shipbuilding and ship conversion sector, being precisely that
sector which, by virtue of the gross tonnage, power and other
characteristics of the vessels concerned, does not fall within the
scope of the said Directive 90/684?

rules – of

(1) OJ L 380 of 31.12.1990, p. 27.

Action brought on 17 February 2004 by the Commission
of the European Communities against the Republic of
Finland

(Case C-72/04)

(2004/C 94/50)

Justice of

An action against the Republic of Finland was brought before
the European Communities on 17
the Court of
February 2004 by the Commission of the European Commu-
nities, represented by G. Zavvos and M. Huttunen, acting as
Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

1. Declare that the Republic of Finland has failed to fulfil its
obligations under Directive 2000/64/EC of the European
the Council of 7 November 2000
Parliament and of
amending Council Directives 85/611/EEC, 92/49/EEC,
92/96/EEC and 93/22/EEC as regards exchange of informa-
tion with third countries (1), since it has not brought into
force the laws, regulations and administrative provisions
necessary to comply with the directive, or at least has not
informed the Commission of them;

C 94/24

EN

Official Journal of the European Union

17.4.2004

2. Order Finland to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive expired
on 17 November 2002.

(1) OJ 2000 L 290, p. 27.

Appeal brought on 16 February 2004 by the Commission
of the European Communities against the judgment deliv-
ered on 3 December 2003 by the Fourth Chamber of the
Court of First Instance of the European Communities in
Case T-208/01 between Volkswagen AG and Commission
of the European Communities

(Case C-74/04 P)

(2004/C 94/51)

An appeal against the judgment delivered on 3 December 2003
by the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-208/01 between Volkswagen
AG and Commission of
the European Communities was
brought before the Court of Justice of the European Commu-
nities on 16 February 2004 by the Commission of the Euro-
pean Communities, represented by Walter Mölls, acting as
Agent, assisted by Dr Heinz-Joachim Freund, Rechtsanwalt,
with an address for service in Luxembourg.

The applicant claims that the Court should:

1. set aside the judgment of the Court of First Instance of 3

December 2003 in Case T-208/01; (1)

2. refer the case back to the Court of First Instance;

3. order the respondent to pay the costs.

Pleas in law and main arguments

By the abovementioned judgment, the Court of First Instance
annulled Commission Decision 2001/711/EC of 29 June 2001
relating to a proceeding under Article 81 of the EC Treaty
(Case COMP/F-2/36.693 — Volkswagen) (2). In that decision,
the Commission had found that between June 1996 and
September 1999 Volkswagen had agreed a fixed resale price
with its German dealers, contrary to Article 81 EC. The deci-
sion imposed upon Volkswagen a fine of EUR 30.96 million.

The Court found that the demands made by Volkswagen AG to
its German dealers did not become part of the dealership agree-
ments since they were unlawful. They were unilateral measures
not covered by Article 81 EC.

In so reasoning the Court has misapplied the concept of agree-
ment as set out in Article 81(1) EC and so breached that provi-
sion.

In the Commission's view the Court is requiring too high a
level of knowledge from the parties to a selective distribution
agreement of its application and development in practice. At
the same time it is confusing those demands with the require-
ments for the agreement to be lawful.

In this connection, the Court is overlooking in particular the
peculiarities of selective distribution systems, which are based
upon a framework agreement which requires to be completed

and put into more concrete terms. The fact that such an agree-
ment is not itself unlawful at a certain time does not preclude
its becoming so at a later date. As regards the dealers in par-
interest is in retaining their position as
ticular, their general
members of the distribution system.
It cannot be assumed that
they systematically — to a certain degree preventatively —
upon the conclusion of the contract reject all later requirements
which may prove to be unlawful. That applies particularly
when, depending on the circumstances,
the dividing line
between lawful and unlawful measures can be difficult to deter-
mine.

The Commission's line of argument is confirmed by the estab-
lished case-law of the Court of Justice, which the Court of First
Instance has misinterpreted. In the present case, in addition, it
can clearly be seen from the actions of the parties (manufac-
turer and dealers) that they regarded the requirements as part
of the dealership contract. Those facts also prove that the
reasoning of the Court of First Instance is incorrect. In so far as
the Court regarded them as irrelevant (in the case of the manu-
facturer) or entirely ignored them (in the case of the dealer),
that is due to the abovementioned error regarding the concept
of agreement.

(1) Not yet published in the European Court Reports.
(2) OJ 2001 L 262, p. 14.

Reference for a preliminary ruling by the Hof van Beroep
te Antwerpen by order of that Court of 11 February 2004
in the case of Ministerie van Financiën against 1...., 2.
Hendrick Hanssens, 3. Rudi Verhoeven, 4. World Wide
Shipping and Forwarding N.V.

(Case C-75/04)

(2004/C 94/52)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Hof van Beroep te
Antwerpen (Court of Appeal) of 11 February 2004, received at
the Court Registry on 17 February 2004, for a preliminary
ruling in the case of Ministerie van Financiën against 1...., 2.
Hendrick Hanssens, 3. Rudi Verhoeven, 4. World Wide Ship-
ping and Forwarding N.V. on the following questions:

1. For the purpose of determining the customs debt in accord-
ance with Article 201 et seq. of the Community Customs
Code (Council Regulation (EEC) No 2913/92 of 12 October
1992 (1)), in the event of non-discharge of T1 documents
issued for purposes of exportation to various countries of a
consignment of non-Community goods (in casu,
textile
goods/T-shirts)
in transit, where the non-discharge is the
result of prior removal from customs supervision, must the
first infringement, that is to say, the removal from transit,
be taken into account, or must, rather, account be taken of
what
infringement,
consisting in the non-discharge of the relevant T1 docu-
ments? In other words, does the customs debt arise as
against a declarant acting in good faith in respect of non-
discharge of T1 documents resulting from prior removal
from transit – in which the declarant was in no way
involved – on the basis of Articles 203(1) and 215(1) of the
Community Customs Code or on the basis of Articles
204(1) and 215(3) of the Community Customs Code?

chronologically the

subsequent

is