Case C-518/04: Action brought on 21 December 2004 by the Commission of the European Communities against the Hellenic Republic
Date: 2005-03-05
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, environmental law, environmental protection, protection of animal life

5.3.2005

EN

Official Journal of the European Union

C 57/15

Is Article 56(1) of the EC Treaty (at the material time: Article
73b(1) of the EC Treaty) to be interpreted as precluding a
restriction resulting from a provision in the income tax legisla-
tion of a Member State (in this case, Belgium) by which both
dividends from shares in a company established in that State
and dividends from shares in companies not established in that
State are subject, in the hands of the share owner, to a uniform
rate but where, in regard to share dividends from companies
that are not established in that Member State, no deduction of
taxation at source levied in that other Member State is allowed?

Reference for a preliminary ruling by the Gerechtshof te
Amsterdam, by decision of that court of 30 November
2004, in the case of Uroplasty B.V. against Inspecteur van
de Belastingdienst/Douane District Rotterdam

3. If not, classification under which other heading results from

the interpretation of the CCT?

Action brought on 21 December 2004 by the Commission
the Hellenic
of

against

the European Communities
Republic

(Case C-518/04)

(2005/C 57/30)

(Language of the case: Greek)

(Case C-514/04)

(2005/C 57/29)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 21 December
2004 by the Commission of the European Communities, repre-
sented by Michel van Beek, Legal Adviser in its Legal Service,
and Minas Konstantinidis, member of its Legal Service.

(Language of the case: Dutch)

The Commission claims that the Court should:

Reference has been made to the Court of Justice of the Euro-
te
pean Communities by judgment of
Amsterdam, (Amsterdam Regional Court of Appeal) (Nether-
lands) of 30 November 2004, received at the Court Registry on
15 December 2004, for a preliminary ruling in the case of
Uroplasty B.V. against Inspecteur van de Belastingdienst/
Douane District Rotterdam on the following questions:

the Gerechtshof

1.

(a) Must heading 9021 of

the CCT be interpreted as
meaning that a product consisting of sterile, white flakes
and
of
intended solely for use as a medical/surgical
implant,
can be classified under that heading?

polydimethylsiloxane,

developed

specially

— declare that, by failing to take the necessary measures for
the establishment and application of an effective system of
strict protection for the viper Vipera schweizeri on the island
of Milos in order to avoid any deliberate disturbance of the
species, particularly during the period of breeding, rearing
and hibernation, and any deterioration or destruction of
breeding sites or resting places, the Hellenic Republic has
failed to fulfil its obligations under Article 12(1)(b) and (d)
of Directive 92/43/EEC (1) on the conservation of natural
habitats and of wild fauna and flora;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

(b) If so, under which subheading of heading 9021 of the

CCT must the product be classified?

2. If heading 9021 is not possible in this case, is the product
eligible for classification under heading 3926 of the CCT?

The aim of Council Directive 92/43/EEC of 21 May 1992 on
the conservation of natural habitats and of wild fauna and flora
is to contribute towards the protection of biodiversity through
the conservation of natural habitats and of wild fauna and flora
in the European territory of the Member States to which the
Treaty applies.

C 57/16

EN

Official Journal of the European Union

5.3.2005

The Commission's action relates to the failure on the part of
the Greek Government to establish and apply a system of strict
protection for the species of reptile Vipera schweizeri (viper) on
the island of Milos.

— set aside the judgment of the Court of First Instance of 30
September 2004 in Case T-313/02, against which the
appeal has been brought;

The Commission requests the Court to declare that, by failing
to take the necessary measures for the establishment and appli-
cation of an effective system of strict protection for the viper
Vipera schweizeri on the island of Milos in order to avoid any
deliberate disturbance of the species, particularly during the
period of breeding, rearing and hibernation, and any deteriora-
the
tion or destruction of breeding sites or resting places,
Hellenic Republic has failed to fulfil
its obligations under
Article 12(1)(b) and (d) of Directive 92/43/EEC on the conser-
vation of natural habitats and of wild fauna and flora.

(1) OJ No L 206, 22.7.1992, p. 7.

Appeal brought on 22 December 2004 by D. Meca-Medina
and I. Majcen against
the judgment delivered on 30
September 2004 by the Court of First Instance of the
European Communities (Fourth Chamber) in Case T-313/
02 between D. Meca-Medina and I. Majcen, and the
Commission of the European Communities, supported by
the Republic of Finland

(Case C-519/04 P)

(2005/C 57/31)

(Language of the case: French)

An appeal against the judgment delivered on 30 September
2004 by the Court of First Instance of the European Commu-
nities (Fourth Chamber) in Case T-313/02 between D. Meca-
Medina and I. Majcen, and the Commission of the European
Communities, supported by the Republic of Finland, was
brought before the Court of Justice of the European Commu-
nities on 22 December 2004 (fax: 20.12.2004) by D. Meca-
Medina and I. Majcen, represented by J.- L. Dupont and M.- A.
Lucas, lawyers.

The appellants claim that the Court should:

— grant the form of order sought by the appellants in the

Court of First Instance;

— order the Commission to pay the costs of the proceedings

at both instances.

Pleas on appeal and main arguments

The judgement of the Court of First Instance infringes Articles
49 EC, 81 EC and 82 EC, as interpreted by the Court of Justice.

Firstly, the Court of First Instance was wrong to hold that those
provisions apply only to rules laid down in the field of sport
which concern the economic aspect of sport, to the exclusion
of purely sporting rules. The Court of Justice has not laid down
such a general exclusion of purely sporting rules from the
scope of the provisions of the Treaty, that exclusion being
limited to the rules relating to the composition and training of
national teams.

The Court of First Instance was also wrong to hold that that
the anti-doping legislation is based on purely sporting consid-
erations when it accepted that such legislation may pursue an
economic objective. The Court of First Instance thereby made
materially inaccurate factual findings, contradicted itself in the
grounds, which are moreover inadequate, and erred in its legal
characterisation of the facts.

Furthermore, by holding that that the legislation at issue falls
outside the scope of Articles 81 EC and 82 EC, the Court of
First Instance infringed those articles.

Finally, the Court of First Instance committed a breach of the
procedural rules and more specifically the rights of the defence,
by holding that the Commission's analysis of the legislation at
issue in its decision rejecting the complaint is superfluous,
when it is apparent from that decision that the Commission
had regarded that legislation as falling within the scope of the
provisions of the EC Treaty. The Court of First Instance thereby
infringed the rights of the defence of the appellants, who were
not able to present their point of view on that question.