Case C-283/05: Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 30 June 2005 in ASML Netherlands BV v SEMIS Semiconductor Industry Services GmbH
Date: 2005-09-17
Institutions: Court of Justice
Subjects: appeal, civil law, commercial law, enforcement of ruling, interpretation of the law, judicial proceedings, jurisdiction, rights of the defence

C 229/8

EN

Official Journal of the European Union

17.9.2005

Action brought on 11 July 2005 by the Commission of the
European Communities against the Italian Republic

(Case C-280/05)

(2005/C 229/16)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 11 July 2005
by the Commission of the European Communities, represented
by V. Di Bucci and E. Righini, acting as Agents, with an
address for service in Luxembourg.

The applicant claims that the Court should:

1. declare that, by failing to take, within the prescribed period,
the necessary measures to withdraw the aid scheme consid-
ered unlawful and incompatible with the common market
by Commission Decision 2004/800/EC of 30 March 2004
on the State aid scheme put into effect by Italy providing
for urgent measures to assist employment (notified on 1
April 2004 under document number C(2004) 930; OJ 2004
L 352, p. 10) and to recover from the recipients the aid
granted under that scheme, and in any event by failing to
inform the Commission of
the Italian
Republic has failed to fulfil its obligations under Articles 2,
3 and 4 of that Decision and the EC Treaty;

such measures,

2. order the Italian Republic to pay the costs.

Pleas in law and main arguments

The decision of the Commission requires Italy to withdraw the
aid scheme referred to in Article 1,
to take ‘all necessary
measures to recover from the recipients the aid granted under
the scheme referred to in Article 1 which has been unlawfully
made available to the recipients’ and to cancel ‘all outstanding
payments of aid with effect from the date of this Decision’. It
must, in addition, inform the Commission, within two months
‘the measures taken to
of notification of
comply with it’.

the Decision, of

Given that the decision was notified on 1 April 2004 the
period for compliance expired on 1 June 2004.

So far as concerns the obligation to recover the aid unlawfully
paid, it must be stated that, on expiry of the period prescribed,
the Italian Republic had not yet informed the Commission of
the measures taken to comply with that obligation and that the
requests for information by the Commission remained unan-
swered.

It appears clear that the Italian Republic, by failing to take,
within the prescribed period, the necessary measures to with-

draw the aid scheme considered unlawful and incompatible
with the common market by the decision of the Commission
and to recover from the recipients the aid granted under that
scheme, and in any event by failing to inform the Commission
of such measures, has failed and continues to fail to fulfil its
obligations under the fourth paragraph of Article 249 EC and
Articles 2, 3 and 4 of that decision.

Reference for a preliminary ruling from the Oberster
Gerichtshof by order of that court of 30 June 2005 in
ASML Netherlands BV v SEMIS Semiconductor Industry
Services GmbH

(Case C-283/05)

(2005/C 229/17)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Oberster Gerichtshof of 30
June 2005, received at the Court Registry on 14 July 2005, for
a preliminary ruling in the proceedings between ASML Nether-
lands BV and SEMIS Semiconductor Industry Services GmbH
on the following questions:

1. Is the phrase ‘… unless the defendant failed to commence
proceedings to challenge the judgment when it was possible
for him to do so’ in Article 34(2) of Council Regulation (EC)
No 44/2001 of 22 December 2000 on jurisdiction and the
judgments in civil and
recognition and enforcement of
commercial matters (‘the Regulation’) (1) to be interpreted as
meaning that the ‘possibility’ of such a challenge is in any
event dependent on the due service on the defendant in
accordance with the applicable law on service of an office
judgment delivered in a
copy of an appealable default
Member State?

2. If question 1 is answered in the negative:

Would the service of an office copy of the order on the
application for a declaration of enforceability in Austria of
the default judgement of the regional court in 's-Hertogen-
bosch of 16 July 2004 … and for an execution order
following the foreign order for execution declared enforce-
able necessarily already have put the defendant and judg-

17.9.2005

EN

Official Journal of the European Union

C 229/9

ment debtor (= the defendant in the original proceedings)
on notice not only of the existence of that judgment but
also of the availability of a legal remedy under the legal
order of the State in which the judgment was delivered, so
that it would be aware as a result of the possibility of chal-
lenging the judgment which is a prior condition for the
applicability of
the exception to the bar to recognition
under Article 34(2) of the Regulation?

latter is required only to repay the wrongly granted aid
within the meaning of Article 4(1) of that Regulation?

(1) OJ L 312, p. 1.

(1) OJ 2001 L 12, p. 1.

Action brought on 20 July 2005 by the Commission of the
European Communities against the Italian Republic

Reference for a preliminary ruling from the Verwaltungs-
gerichtshof Baden-Württemberg by order of that court of
30 June 2005 in Reinhold Haug v Land Baden-Württem-
berg

(Case C-293/05)

(2005/C 229/19)

(Language of the case: Italian)

(Case C-286/05)

(2005/C 229/18)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 20 July 2005
by the Commission of the European Communities, represented
by Sara Pardo Quintillan and Donatella Recchia, of its Legal
Service.

(Language of the case: German)

The applicant claims that the Court should:

Reference has been made to the Court of Justice of the Euro-
the Verwaltungsgerichtshof
pean Communities by order of
Baden-Württemberg of 30 June 2005, received at the Court
Registry on 18 July 2005,
for a preliminary ruling in the
proceedings between Reinhold Haug and Land Baden-Württem-
berg on the following question:

1. Does the second sentence of Article 2(2) of Council Regu-
lation (EC, Euratom) No 2988/1995 apply even if in the
context of an irregularity within the meaning of Article 1(2)
that Regulation only the reimbursement of wrongly
of
granted aid is sought
(Article 4(1) of Regulation (EC,
Euratom) No 2988/1995 (1) and, because of a provision of
Community law that later comes into force, the amount of
wrongly granted aid to be reimbursed would be lower than
under the provisions of Community law in force at the time
that the irregularity was committed?

If the answer to the first question should be in the affirma-
tive:

1. declare that, by failing to take measures to ensure that, as
from 31 December 1998, urban waste water from the
agglomeration of several communes of
the Province of
Varese situated in the basin of the River Olona is subject to
more stringent treatment than the secondary treatment or
equivalent treatment provided for in Article 4 of Directive
91/271/EEC, (1) the Italian Republic has failed to fulfil its
obligations under Article 5(2) of that directive, referred to in
Article 5(5) thereof;

2. order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission does not challenge the failure to designate the
basin which drains the southern Lambro-Olona area as a sensi-
tive area,
inasmuch as appropriate infringement proceedings
are pending for that purpose. However, that drainage basin is
part of an area situated within the Po basin, which has been
officially designated a sensitive area.

2. Does the second sentence of Article 2(2) of Council Regu-
lation (EC, Euratom) No 2988/1995 also apply with regard
to the rules governing payment of interest if no administra-
tive penalties within the meaning of Article 5(1) of that
Regulation are imposed on the farmer concerned and the

Accordingly, pursuant
to Article 5(5) of Directive 91/271,
which refers to Article 5(2) thereof, water from the agglomera-
tion in the Province of Varese situated in the basin of the River
Olona should have been subject to more stringent treatment
than secondary treatment since 31 December 1998.