Case C-109/05: Action brought on 3 March 2005 by the Commission of the European Communities against the Republic of Austria
Date: 2005-05-28
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, metal waste, motor car, waste management

C 132/12

EN

Official Journal of the European Union

28.5.2005

JUDGMENT OF THE COURT

(Third Chamber)

of 14 April 2005

in Case C-243/04 P: Zoé Gaki-Kakouri v Court of Justice of
the European Communities (1)

(Appeal — System of payment for members and former
members of the Court — Rights of a woman divorced from a
former member of the Court who is deceased)

(2005/C 132/22)

(Language of the case: French)

In Case C-243/04 P: appeal under Article 56 of the Statute of
the Court of Justice, lodged on 9 June 2004, by Zoé Gaki-
Kakouri, residing in Athens (Greece), (lawyer: H. Tagaras), the
other party to the proceedings being the Court of Justice of
the European Communities (Agent: M. Schauss) — the Court
(Third Chamber), composed of A. Rosas (Rapporteur), President
of the Chamber, A. Borg Barthet, A. La Pergola, S. von Bahr
and J. Malenovský, Judges; L.A. Geelhoed, Advocate General; R.
Grass, Registrar, gave a judgment on 14 April 2005, in which
it:

1. Dismisses the appeal.

2. Orders Mrs Gaki-Kakouri to pay the costs.

(1) OJ C 190, 24.07.2004.

Can a claimant rely on Article 6(1) of Regulation (EC) No
44/2001 (1) when bringing a claim against a person domiciled
in the forum state and against a person resident in another
Member State, but where the claim against the person domi-
ciled in the forum state is already inadmissible by the time the
claim is brought, because bankruptcy proceedings have been
commenced against him, which, under national law, results in
a procedural bar?

(1) Council Regulation (EC) No 44/2001 of 22.12.2000 (OJ 2001 L 12,

p. 1).

Action brought on 3 March 2005 by the Commission of
the Republic of
the European Communities against

Austria

(Case C-109/05)

(2005/C 132/24)

(Language of the case: German)

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 3 March
2005 by the Commission of the European Communities, repre-
sented by Minas Konstantinidis and Bernard Schima, with an
address for service in Luxembourg.

The Commission claims that the Court should:

Reference for a preliminary ruling from the Oberster
Gerichtshof by order of that court of 2 February 2005 in
Reisch Montage AG v Kiesel Baumaschinen Handels
GmbH

1. declare that by restricting, in Paragraph 5(1) of the Verord-
nung über die Abfallvermeidung, Sammlung und Behan-
dlung von Altfahrzeugen (Regulation on waste prevention,
collection and treatment of end-of life vehicles), the obliga-
tion to take end-of-life vehicles back free of charge to:

(Case C-103/05)

(2005/C 132/23)

(1) end-of-life vehicles of those makes which have been put
into circulation by the existing manufacturers and
importers, and

(Language of the case: German)

(2) vehicles registered in Austria,

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Oberster Gerichtshof
(Germany) of 2 February 2005, received at the Court Registry
on 28 February 2005, for a preliminary ruling in the proceed-
ings between Reisch Montage AG and Kiesel Baumaschinen
Handels GmbH on the following question:

the Republic of Austria has failed to fulfil
its obligations
under Article 5 of Directive 2000/53/EC of the European
Parliament and of the Council of 18 September 2000 on
end-of life vehicles; (1)

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

28.5.2005

EN

Official Journal of the European Union

C 132/13

Pleas in law and main arguments

The provision of the Austrian regulation on end-of-life vehicles
stating that manufacturers or importers have to take back end-
of-life vehicles of those makes which they have put into circula-
tion,
in so far as those vehicles were registered in Austria,
infringes Article 5 of Directive 2000/53/EC of the European
Parliament and of the Council of 18 September 2000.

The directive obliges the Member States to set up return
systems in such a way that all end-of-life vehicles are taken
back irrespective of their make and establishes an obligation to
take back end-of-life vehicles free of charge. These objectives
are not achieved by the Austrian legislation since it has a dual
restriction: the obligation to take vehicles back is limited to
makes which the relevant manufacturer or importer has put
into circulation, and it
is limited to vehicles registered in
Austria.

The Commission is unable to subscribe to the view of the
Republic of Austria that the distinction drawn on the basis of
registration in Austria is objectively justified because that is the
only way of avoiding a disproportionately heavy burden being
placed on individual manufacturers by the obligation to take
vehicles back. It states, on the contrary, that if it should turn
out in practice that a disproportionate burden is placed on indi-
vidual manufacturers or
the collectors in a
Member State because end-of-life vehicles registered abroad are
taken back free of charge, account is to be taken of that within
the framework of the procedure under the fourth subparagraph
of Article 5(4). This provision states that the Commission is to
monitor regularly implementation of the obligation to take
vehicles back in order to ensure that it does not result in
market distortions.

importers or

(1) OJ L 269, 21.10.2000, p. 34.

Chamber) (Italy) of 22 October 2004, received at the Court
Registry on 14 March 2005, for a preliminary ruling in the
proceedings between Ministero dell'Industria, Commercio ed
Artigianato and Spa Lucchini Siderurgica on the following
questions:

1. In the light of the principle of the primacy of immediately
applicable Community law,
in the form in this case of
general ECSC Decision No 3484 of 1985, the Commission
decision of 20 June 1990, notified on 20 July 1990, and
Commission decision No 5259 of 16 September 1996,
requiring the recovery of aid — which all formed the basis
for the recovery measure challenged in the present proceed-
ings (namely Decree No 20357 of 20 September 1996 over-
turning Decrees Nos 17975 of 8 March 1996 and 18337 of
3 April 1996) — is it legally possible and compulsory for
the national administrative authority to recover aid from a
private recipient even though a final civil
judgment has
been delivered confirming the unconditional obligation to
pay the aid in question?

2. Or, in view of the generally accepted principle that decisions
on the recovery of aid are governed by Community law but
the implementation thereof and the associated recovery
procedure, in the absence of Community provisions on the
matter, is governed by national law (regarding which prin-
ciple see the judgment of the Court of Justice in Joined
Cases 205 to 215/82 Deutsche Milchkontor v Germany), is
the recovery procedure rendered legally impossible by virtue
of a specific judicial decision that has become res judicata
(Article 2909 of the Civil Code), thereby being conclusive as
between the private individual and the administration, and
requires the administration to comply with it?

Action brought on 21 March 2005 by Commission of the
European Communities against United Kingdom of Great
Britain and Northern Ireland

Reference for a preliminary ruling from the Consiglio di
that court of 22
Stato (Sixth Chamber) by order of
October 2004 in the case of Ministero dell'Industria,
Commercio ed Artigianato v Spa Lucchini Siderurgica

(Case C-119/05)

(2005/C 132/25)

(Language of the case: Italian)

(Case C-126/05)

(2005/C 132/26)

(Language of the case: English)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Consiglio di Stato (Sixth

An action against United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of the
European Communities on 21 March 2005 by Commission of
the European Communities, represented by N. Yerrell, acting as
agent, with an address for service in Luxembourg.