Case C-53/05: Action brought on 9 February 2005 by the Commission of the European Communities against the Portuguese Republic
Date: 2005-04-02
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, copyright, heritage protection, intellectual property, provision of documents, work of art

2.4.2005

EN

Official Journal of the European Union

C 82/17

— holding that the aid granted to Ferriere Nord did not consti-
tute a measure implementing a system already approved in
1992;

3 – order Cantina sociale di Dolianova and the other appli-
cants at first instance to pay the costs at first instance and
on appeal.

— interpreting point 82 of the 2001 guidelines cited above so
as to give them unlawful retroactive application, instead of
treating that point as void ab initio;

Pleas in law and main arguments

— finding that the investment for which Ferriere Nord was

granted aid had no environmental purpose;

— failing to apply the burden of proof which requires that the
Commission, not the undertaking,
isolate from the total
cost of the investment the cost corresponding to environ-
mental protection.

(1) OJ L 310 of 28.11.2001, p. 22.
(2) OJ C 72 of 10.03.1994, p. 3.

Appeal brought on 9 February 2005 (fax of 7 February
2005) by the Commission of the European Communities
for the partial annulment of the judgment delivered on 23
November 2004 by the Second Chamber of the Court of
First Instance of the European Communities in Case T-
166/98 between Cantina sociale di Dolianova and Others
and the Commission of the European Communities

(Case C-51/05 P)

(2005/C 82/35)

(Language of the case: Italian)

The Commission confines the present appeal to paragraphs
129 to 150 of the judgment of the Court of First Instance
concerning the determination of the starting date of the five-
year limitation period prescribed by Article 46 of the Statute of
the Court of Justice. In the Commission's view, the assessment
reached on the matter in the contested judgment – which
found that time started to run for the purposes of that limita-
tion period when the applicants realised that they would not
receive payment of Community aid on the basis of the security
lodged at the time by the DAI in favour of AIMA – is the result
of a clear error of law.

In determining the starting date of the limitation period of the
action brought by the applicant cooperatives, the Court of First
Instance failed wholly to take account of the fact that, from
1983, Regulation (EEC) No 2499/82 (1) had objectively caused
damage to those cooperatives, concentrating instead on the
latter's perception of that damage. The Court found that it did
not suffice that the applicants knew that they had suffered
damage as a result of
the application of Regulation No
2499/82;
it also found to be necessary a wholly subjective
element, namely the applicants' awareness that they could not
obtain a remedy without bringing an action for damages
against the Commission.

Such a finding is contrary to settled Community case-law and
to the principle of legal certainty.

(1) OJ 1982 L 267 of 16.09.1982, p. 16 (no longer in force).

An appeal against the judgment delivered on 23 November
2004 by the Second Chamber of the Court of First Instance of
the European Communities in Case T-166/98 between Cantina
sociale di Dolianova and Others and the Commission of the
European Communities was brought before the Court of Justice
of the European Communities on 9 February 2005 by the
Commission of the European Communities represented by C.
Cattabriga and L. Visaggio, acting as Agents.

The appellant claims that the Court should:

1 – annul the judgment of the Court of First Instance of the
European Communities in Case T-166/98 Cantina sociale di
Dolianova and Others v Commission of the European Commu-
nities in so far as it accedes to the claim for damages
against the Commission and, conseqeuently

2 – deliver final

judgment in the matter by dismissing that

action as inadmissible;

Action brought on 9 February 2005 by the Commission of
the Portuguese
the European Communities

against

Republic

(Case C-53/05)

(2005/C 82/36)

(Language of the case: Portuguese)

Justice of

An action against the Portuguese Republic was brought before
the European Communities on 9
the Court of
February 2005 by the Commission of the European Commu-
nities, represented by P. Andrade and W.Wils, acting as Agents,
with an address for service in Luxembourg.

C 82/18

EN

Official Journal of the European Union

2.4.2005

The Commission of the European Communities claims that the
Court should:

— declare that the Portuguese Republic, by having exempted
all categories of establishments from the obligation to pay
remuneration to authors on public lending, has failed to
fulfil its obligations under Article 5,
in conjunction with
Article 1, of Council Directive 92/100/EEC (1) of 19
November 1992 on rental right and lending right and on
certain rights related to copyright in the field of intellectual
property;

1. declare that, by failing to bring into force the laws, regula-
tions and administrative provisions necessary to comply
with Directive 2002/84/EC of the European Parliament and
of the Council of 5 November 2002 amending the Direc-
tives on maritime safety and the prevention of pollution
from ships, (1) or at least by not communicating them to the
Commission, the Republic of Finland has failed to fulfil its
obligations under that directive;

2. order the Republic of Finland to pay the costs.

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The prescribed period for implementing the directive expired
on 23 November 2003.

Before the adoption of Directive 92/100, Portuguese law did
not recognise an author's right to remuneration on the lending
of a work in relation to which the distribution right was
exhausted. Currently Portuguese law recognises the right to
remuneration but, by exempting all categories of public-lending
establishments from the obligation to pay such remuneration,
for the purposes of Directive 92/100, it has rendered that right
ineffective and has failed to fulfil its obligations under Articles
1 and 5 of the directive.

(1) OJ 1992 L 346, p. 61.

(1) OJ L 324 of 29.11.2002, p. 53.

Action brought on 9 February 2005 by the Commission of
the European Communities against the French Republic

(Case C-57/05)

(2005/C 82/38)

Action brought on 9 February 2005 by the Commission of
the Republic of
the European Communities against

(Language of the case: French)

Finland

(Case C-55/05)

(2005/C 82/37)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 9 February
2005 by the Commission of the European Communities, repre-
sented by J.-P. Keppenne, acting as Agent, with an address for
service in Luxembourg.

(Language of the case: Finnish)

The Commission of the European Communities claims that the
Court should:

Justice of

An action against the Republic of Finland was brought before
the Court of
the European Communities on 9
February 2005 by the Commission of the European Commu-
nities, represented by M. Huttunen and K. Simonsson, acting as
Agents, with an address for service in Luxembourg.

1. declare that by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2002/46/EC of the European Parliament and of the
Council of 10 June 2002 on the approximation of the laws
of the Member States relating to food supplements (1) or, in
any event, by not informing the Commission thereof, the
French Republic has failed to fulfil its obligations under that
directive;

The Commission claims that the Court should:

2. order the French Republic to pay the costs.