Case C-127/04: Referencefor a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division by orderof that court dated 18 November 2003,amended on 27 February 2004, in the case of MasterDeclan O'Byrne against Aventis Pasteur MSD Ltd and Aventis Pasteur SA.
Date: 2004-04-30
Institutions: Court of Justice
Subjects: consumer protection, defective product, interpretation of the law, judicial proceedings, producer's liability

30.4.2004

EN

Official Journal of the European Union

C 106/35

7. Does the concept of production in Article 86 of the EAEC

Treaty also encompass the enrichment of uranium?

8. Are uranium and light-enriched uranium ‘source materials’
within the meaning of the last phrase of Article 197 (1) of
the EAEC Treaty?

9.

(a) Can civil-law title under Paragraph 903 of the Bürger-
liches Gesetzbuch (German Civil Code, hereinafter the
‘BGB’) be acquired and transferred in respect of mate-
rials that have become the property of the Euratom
Community under the first sentence of Article 86 of
the EAEC Treaty?

(b) Does the unlimited right of use and consumption
afforded to holders of rights under Article 87 of the
EAEC Treaty exist as a property or quasi-property
interest sui generis alongside rights in rem under the
Bürgerliches Gesetzbuch of
the Federal Republic of
Germany?

10. Does an undertaking pursue any of its activities in the
territories of the Member States of the Euratom Com-
munity within the meaning of Article 196 (b) of the EAEC
Treaty if it acquires or disposes of enriched uranium stored
there?

11. Does Article 73 of the EAEC Treaty also apply mutatis
mutandis to agreements concerning enriched uranium
stored within the territory of the Euratom Community
where all of the parties are nationals of third States?

1. Are

Council

1269/1999 (1)

Regulations Nos

and
822/2001 (2), which fix Community tariff quotas only in
respect of the importation of barley for the manufacture of
beer aged in tanks containing beechwood, valid in the light
of the prohibition on discrimination between producers laid
down in the second subparagraph of Article 34(2) of the
Treaty?

2. If the abovementioned regulations are invalid, does Article
10(2) of Council Regulation (EEC) No 1766/92 (3) of 30
June 1992 on the common organisation of the market in
cereals,
in conjunction with Commission Regulation (EC)
No 2023/2001 (4) of 15 October 2001 fixing the import
duties in the cereals sector, nevertheless require that import
duty be charged on high-graded barley falling within CN
code 1003 00 which is intended for the production of beer
made from malt?

(1) Council Regulation (EC) No 1269/1999 of 14 June 1999 opening a
Community tariff quota for barley falling within CN code 100300
(OJ L 151 of 18 June 1999, p. 1).

(2) Council Regulation (EC) No 822/2001 of 24 April 2001 opening a
Community tariff quota for barley for malting falling within CN
code 100300 (OJ L 120 of 28 April 2001, p. 1).

(3) Council Regulation (EEC) No 1766/92 of 30 June 1992 on the
common organisation of the market in cereals (OJ L 181 of 1 July
1992, p. 21).

(4) Commission Regulation (EC) No 2023/2001 of 15 October 2001
fixing the import duties in the cereals sector (OJ L 273 of 16
October 2001, p. 18).

a

for

preliminary

Reference
the
College van Beroep voor het bedrijfsleven (Netherlands),
by order of that court of 18 February 2004, in the case of
Heineken Brouwerijen B.V. v Hoofdproductschap Akker-
bouw,

ruling

by

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Queen's Bench Division by
order of that court dated 18 November 2003, amended on
27 February 2004, in the case of Master Declan O'Byrne
against Aventis Pasteur MSD Ltd and Aventis Pasteur SA.

(Case C-126/04)

(2004/C 106/59)

(Case C-127/04)

(2004/C 106/60)

order

Communities

Reference has been made to the Court of Justice of the Euro-
the
by
pean
College van Beroep voor het bedrijfsleven (Administrative
Court for Trade and Industry) (Netherlands), received at the
Court Registry on 8 March 2003, for a preliminary ruling in
the case of Heineken Brouwerijen B.V. against Hoofdpro-
ductschap Akkerbouw (Central Board for Agricultural Products)
on the following questions:

of

Reference has been made to the Court of Justice of the Euro-
pean Communities by an order of the High Court of Justice
(England & Wales), Queen's Bench Division, dated 18
November 2003, amended on 27 February 2004, which was
received at the Court Registry on 8 March 2004, for a preli-
minary ruling in the case of Master Declan O'Byrne against
Aventis Pasteur MSD Ltd and Aventis Pasteur SA on the
following questions:

C 106/36

EN

Official Journal of the European Union

30.4.2004

1. On a true interpretation of Article 11 of the Council Direc-
tive (1), when a product is supplied pursuant to a contract of
sale by a French manufacturer to its wholly owned English
subsidiary, and then by the English company to another
entity, is the product put into circulation:

Reference for a preliminary ruling by the Rechtbank van
Eerste Aanleg te Dendermonde, by decision of that court
of 19 January 2004, in the case of Het Openbaar Ministerie
against (1) Annic Andréa Raemdonck and (2) the company
Raemdonck-Janssens BVBA

(a) when it leaves the French company; or

(b) when it reaches the English company; or

(c) when it leaves the English company; or

(d) when it reaches the entity receiving the product from

the English company?

2. Where proceedings asserting rights conferred on the clai-
mant pursuant to the Council Directive in respect of an
allegedly defective product are
instituted against one
company (A) in the mistaken belief that A was the producer
of the product when in fact the producer of the product
was not A but another company (B), is it permissible for a
Member State under its national
laws to confer a discre-
tionary power on its courts to treat such proceedings as
‘proceedings against the producer’ within the meaning of
Article 11 of the Council Directive?

3. Does Article 11 of the Council Directive, correctly inter-
preted, permit a Member State to confer a discretionary
power on a court to allow B to be substituted for A as a
defendant to proceedings of the kind referred to in Question
2 above (‘the relevant proceedings’) in circumstances where:

(a) the period of 10 years referred to in Article 11 has

expired;

(b) the relevant proceedings were instituted against A

before the 10 year period expired; and

(c) no proceedings were instituted against B before the
expiry of the 10 year period in respect of the product
which caused the damage alleged by the claimant?

(1) Council Directive 85/374/EEC of 25 July 1985 on the approxima-
tion of the laws, regulations and administrative provisions of the
Member States concerning liability for defective products (OJ L 210,
07.08.1985, p. 29).

(Case C-128/04)

(2004/C 106/61)

Reference has been made to the Court of Justice of the Euro-
pean Communities by the Rechtbank van Eerste Aanleg te
Dendermonde (Court of First Instance in Dendermonde) for a
preliminary ruling by decision of 19 January 2004, received at
the Court Registry on 9 March 2004, in the case of Het Open-
baar Ministerie (Public Prosecutor's Office) against (1) Annic
Andréa Raemdonck and (2) the company Raemdonck-Janssens
BVBA on the following question:

Must the terms ‘materials or equipment‘ as contained in Article
13(1)(g) of Council Regulation (EEC) No 3820/85 (1) of 20
December 1985 on the harmonisation of certain social legisla-
tion relating to road transport be construed as covering only
’tools and instruments‘ or do those terms, on the contrary, also
cover the goods required for the performance of construction
work, which may be transported together with or separate
from the tools and instruments, such as building materials or
cables?

(1) OJ 1985 L 370, pp 1-7.

Reference for a preliminary ruling by the Conseil d'Etat
(Belgium) Administrative Division, by judgment of that
court of 25 February 2004 in the case Espace Trianon SA
and Société wallonne de location-financement SA (SOFI-
BAIL) against the Office communautaire et régional de la
formation professionelle et de l'emploi (FOREM)

(Case C-129/04)

(2004/C 106/62)

Reference has been made to the Court of Justice of the Euro-
pean Communities by the Conseil d'Etat (Belgium), Administra-
tive Division, of the 25 February 2004, which was received at
the Court Registry on 9 March 2004, for a preliminary ruling
in the case of Espace Trianon SA and Société wallonne de loca-
tion-financement SA (SOFIBAIL) against the Office communau-
taire et régional de la formation professionelle et de l'emploi
(FOREM).

The Conseil d'Etat (Belgium), Administrative Division, asks the
Court of Justice to give a preliminary ruling on the following
questions: