Case C-180/05: Action brought on 22 April 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2005-07-09
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, application of EU law, copyright, intellectual property

C 171/6

EN

Official Journal of the European Union

9.7.2005

1. Declares that, by failing to adopt, within the period prescribed, all
the laws, regulations and administrative provisions necessary to
comply with Council Directive 2000/43/EC of 29 June 2000
implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin, the Republic of Austria has
failed to fulfil its obligations under that directive.

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

(1) OJ C 239 of 25.09.2004.

Action brought on 14 April 2005 by the Commission of
the Kingdom of
the European Communities against

Sweden

(Case C-167/05)

(2005/C 171/11)

(Language of the case: Swedish)

An action against the Kingdom of Sweden was brought before
the Court of Justice of the European Communities on 14 April
2005 by the Commission of the European Communities, repre-
sented by L. Ström van Lier and K. Gross, with an address for
service in Luxembourg.

The Commission claims that the Court should:

1. declare that, by applying internal

taxes by which beer
mainly produced in Sweden is protected indirectly to
against wine mainly imported from other Member States,
the Kingdom of Sweden has failed to fulfil its obligations
under the second paragraph of Article 90 EC;

2. order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

Alcoholic beverages are sold to the individual consumer in
Sweden via a State-owned retail trade monopoly, Systembolaget
AB. Strong beer,
in other words beer containing more than
3.5 % alcohol by volume, and wines are sold through System-

bolaget AB. Lighter wines in the middle price range are
regarded as being interchangeable with strong beer.

Beer is subject to an alcohol tax which is on average and as a
percentage is significantly lower than the equivalent tax on
wine. No ground has been put forward which justifies that
difference in that selective purchase tax. The difference in the
tax affects the price of the respective products. The difference
in price is increased by the application of VAT at the rate of
25 % to the products.

The effect of the tax on the price of the respective products is
likely to distort competition between goods and the internal
selective purchase taxes are such as to strengthen domestic
patterns of consumption, reduce potential consumption of
wine and thus they are likely to afford indirect protection to
beer to the detriment of wine.

Action brought on 22 April 2005 by the Commission of
the European Communities against the Grand Duchy of
Luxembourg

(Case C-180/05)

(2005/C 171/12)

(Language of the case: French)

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 22 April 2005 by the Commission of the European
Communities, represented by Wouter Wils, acting as Agent,
with an address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that, by failing to apply the provisions on public
lending right provided for in Council Directive 92/100/EEC
of 19 November 1992 on rental right and lending right and
on certain rights related to copyright in the field of intellec-
tual property (1), the Grand Duchy of Luxembourg has failed
to fulfil its obligations under Articles 1 and 5 of the direc-
tive;

9.7.2005

EN

Official Journal of the European Union

C 171/7

2. order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

As long as the Grand Ducal regulation implementing Article
65 of the Law of 18 April 2001 on copyright has not been
adopted and has not come into force, the remuneration for
public lending, required by Article 5(1) of Directive 92/100 as
a condition for permitting derogation from the exclusive right
laid down in Article 1 of Directive 92/100, is not paid. Articles
1 and 5 of Directive 92/100 have therefore not been correctly
applied.

the provisions of

with the provisions of Directive 2000/53/EC, since Article 3(1)
of the directive — in conjunction with Article 2(1) — applies
to all vehicles designated as category M1 or N1 and also to
the
In contrast,
special-purpose vehicles.
German End-of-life Vehicle Regulations apply to special-
purpose vehicles only up to a maximum permissible weight of
3.5 tons. Article 3(4) of the directive exempts special-purpose
vehicles from the reuse and recovery provisions, but not from
the prohibited substances. Accordingly, it is clear from the rele-
vant provisions that it is the characteristics of the end product
which determine the area of application: thus,
if a special-
purpose vehicle, after adaptation, has the characteristics asso-
ciated with category M1 it falls unconditionally within the area
of application of Directive 2000/53. Therefore, the restriction
by reference to total weight infringes the directive.

(1) OJ 1992 L 346, p. 61

Action brought on 22 April 2005 by the Commission of
the European Communities against the Federal Republic of
Germany

The third sentence of Paragraph 1(3) of the German End-of-life
Vehicle Regulations exempts ‘instruments, components and
other equipment required for special purpose of the vehicles’
from the prohibited substances. This exception is not provided
for in the directive, since its relevant provisions apply to all
materials and components principally included for use in vehi-
cles covered by the directive, including materials and compo-
nents which are required for the special purpose.

(Case C-181/05)

(2005/C 171/13)

(Language of the case: German)

An action against
the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 22 April 2005 by the Commission of the European
Communities, represented by U. Wölker and M. Konstantinidis,
with an address for service in Luxembourg.

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

— declare that by not correctly implementing the necessary
provisions in German law, the Federal Republic of Germany
has failed to fulfil its obligations under Articles 3(4), 5(4)
and 4(2)(a) of Directive 2000/53/EC of the European Parlia-
ment and of the Council of 18 September 2000 on end-of
life vehicles; (1)

— order the Federal Republic of Germany to pay the costs of

the proceedings.

Pleas in law and main arguments

The first sentence of Paragraph 1(3) of the Federal Republic of
Germany's End-of-life Vehicle Regulations does not comply

In accordance with Paragraph 3(4) of the End-of-life Vehicle
Regulations the principle that end-of life vehicles be collected
free of charge does not apply if the end-of-life vehicle is not
registered or was not last registered in compliance with the
provisions of the German registration procedure, if the end-of-
life vehicle has been registered in accordance with the provi-
sions of the German registration procedure for less than one
month prior to its retirement, if the vehicle registration book
was not surrendered or if the end-of-life vehicle is a category
M1 or N1 vehicle which was not produced and approved in
series and in a single-stage process. These exceptions are not
provided for in the directive.

Paragraph 8(2) of the End-of-life Vehicle Regulations restricts
the prohibition of certain substances under Article 4(2)(a) of
the directive to vehicles put on the market after 1 July 2003
and to materials and components for those vehicles. Since,
however, the prohibition of certain substances under the direc-
tive covers all materials and components put on the market
after 1 July 2003, the End-of-life Vehicle Regulation's provision
is not in compliance with the directive. The fact that, with deci-
sions 2002/525 and 5006/63, exceptions for spare parts addi-
tional to those currently listed in Annex II to the directive were
foreseen cannot justify an alternative interpretation of Article
4(2)(a) of the directive, as the necessity of those exceptions
the directive. The
became apparent only after adoption of