Case C-447/05: Reference for a preliminary ruling from the Cour d'appel de Paris by judgment of that court of  18 November 2005  in Thomson Multimedia Sales Europe SA v Administration des Douanes et Droits Indirects
Date: 2006-02-25
Institutions: Court of Justice
Subjects: customs regulations, customs territory (EU), interpretation of the law, originating product, television equipment

C 48/16

EN

Official Journal of the European Union

25.2.2006

— Declare that Commission decision invalid, or in the alterna-
tive, refer the case back to the Court of First Instance for
judgment;

— Order the Commission to bear the costs of the appeal.

Reference for a preliminary ruling from the Tribunal de
Première Instance de Bruxelles by judgment of that court
of 7 December 2005 in Crown Prosecutor — Parties
claiming damages: L'Union des Dentistes et Stomatolo-
gistes de Belgique U.P:R. and Jean Totolidis v Ioannis
Doulamis

Pleas in law and main arguments

Land Oberösterreich pleads that the Court of First Instance
both infringed Community law and committed a procedural
irregularity.

In relation to the examination of the plea in law alleging 'infrin-
gement of the Treaty' the contested judgment dealt only with
the factual elements relating to the 'specific problem';
the
remaining factual elements of Article 95(5) EC were not exam-
ined at all. However, the Court of First Instance also did not —
in spite of extensive submissions made by the appellant which
were supported by concrete figures — deal with the question
of the specific problem in the detailed manner deserved given
its importance to the outcome of the case. The Court of First
Instance failed to take into account the fact that the specific
problem in the unenforceability of
traditional co-existence
measures exists as a result of the distinctive small-scale struc-
ture of agriculture in Oberösterreich which has an unusually
high proportion of biologically farmed areas. Failure to carry
out an adequate assessment with the relevant
information
supplied constitutes, in the appellant's opinion, an infringement
of the Court of First Instance's duty to give the reasons upon
which its judgments are based, which in turn amounts to a
procedural irregularity.

The Commission adopted its decision without giving Land
Oberösterreich or the Republic of Austria the opportunity to
comment on the single item of procedural evidence, namely
the opinion of the European Food Safety Authority. In the
contested judgment the Court of First Instance concluded that
the Court of Justice's considerations in relation to Article 95(4)
EC, by which it denied the validity of the basic principle of the
adversarial procedure for the procedure under Article 95(4) EC,
are simply transferable to the procedure under Article 95(5)
EC. The appellant disagrees with that view of the law. The fact
must not be overlooked that the judgments of the Court of
Justice cited in the contested judgment were made on the basis
of Article 100a of the EC Treaty, which was then in force and
which did not yet differentiate between the retention of
existing, and the introduction of new, provisions of
the
Member States. Land Oberösterreich also claims that the right
to be heard is a fundamental principle of legal procedure the
validity of which should not be restricted unnecessarily, even
on grounds of procedural economy. The contested Commission
decision ought to have been annulled for that reason alone.

(1) OJ 2005 C 296 of 26.11.2005.
(2) OJ 2003 L 230, p. 34.

(Case C-446/05)

(2006/C 48/30)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Tribunal de Première
Instance de Bruxelles (Court of First Instance Brussels) of 7
the Court Registry on 14
December 2005,
December 2005, for a preliminary ruling in the proceedings
between the Crown Prosecutor — Parties claiming damages:
L'Union des Dentistes et Stomatologistes de Belgique U.P.R.
(The Belgian Association of Dentists and Stomatologists) and
Jean Totolidis and Ioannis Doulamis on the following question:

received at

Must Article 81 EC, read in conjunction with Article 3(1)(g) EC
and the second paragraph of Article 10 EC, be interpreted as
precluding a national law — in the present case the Law of 15
April 1958 on advertising in dental care matters — which
prohibits (any person or) dental care providers, in the context
of professional services or a dental surgery, from engaging in
advertising of any kind, whether directly or indirectly, in the
dental care sector?

Reference for a preliminary ruling from the Cour d'appel
de Paris by judgment of that court of 18 November 2005
in Thomson Multimedia Sales Europe SA v Administration
des Douanes et Droits Indirects

(Case C-447/05)

(2006/C 48/31)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Cour d'appel de Paris
(Paris Court of Appeal) of 18 November 2005, received at the
Court Registry on 16 December 2005, for a preliminary ruling
in the proceedings between Thomson Multimedia Sales Europe
SA and Administration des Douanes et Droits Indirects on the
following question:

25.2.2006

EN

Official Journal of the European Union

C 48/17

‘Is Annex 11 to Commission Regulation (EEC) No 2454/93 of
2 July 1993 (1)
invalid as being contrary to Article 24 of
Council Regulation No 2913/92 of 12 October 1992 estab-
lishing the Community Customs Code (2)
in that it has the
result that a television receiver manufactured in Poland in the
circumstances described in the proceedings is held to be of
Korean origin?’

(1) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
down provisions for the implementation of Council Regulation
(EEC) No 2913/92 establishing the Community Customs Code (OJ L
253, p. 1).
(2) OJ L 302, p. 1.

Action brought on 19 December 2005 by the Commission
of the European Communities against the Grand Duchy of
Luxembourg

(Case C-452/05)

(2006/C 48/33)

(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 19 December 2005 by the Commission of the Euro-
pean Communities, represented by S. Pardo Quintillán and F.
Simonetti, acting as Agents, with an address for service in
Luxembourg.

The Commission claims that the Court should:

1. declare that, as it is not able to ensure that the minimum
percentage of reduction of the overall load entering all treat-
ment plants is at least 75 % for total phosphorus and at
least 75 % for total nitrogen, the Grand Duchy of Luxem-
bourg has failed to fulfil
its obligations by reason of a
misapplication of Article 5(4) of Council Directive
91/271/EEC of 21 May 1991 concerning urban waste-water
treatment (1);

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

Reference for a preliminary ruling from the Cour d'appel
de Paris by judgment of that court of 18 November 2005
in Vestel France SA v Administration des Douanes et
Droits Indirects

(Case C-448/05)

(2006/C 48/32)

(Language of the case: French)

Pleas in law and main arguments

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Cour d'appel de Paris
(Paris Court of Appeal) of 18 November 2005, received at the
Court Registry on 16 December 2005, for a preliminary ruling
in the proceedings between Vestel France SA and Administra-
tion des Douanes et Droits Indirects on the following question:

‘Is Annex 11 to Commission Regulation (EEC) No 2454/93 of
2 July 1993 (1)
invalid as being contrary to Article 24 of
Council Regulation No 2913/92 of 12 October 1992 estab-
lishing the Community Customs Code (2)
in that it has the
result that a television receiver manufactured in Turkey in the
circumstances described in the proceedings is held to be of
Chinese origin?’

(1) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
down provisions for the implementation of Council Regulation
(EEC) No 2913/92 establishing the Community Customs Code (OJ L
253, p. 1).
(2) OJ L 302, p. 1.

instead of applying more
Luxembourg stated in 1999 that,
stringent treatment to all the treatment plants within its terri-
tory, it was choosing to rely on Article 5(4), which amounts to
making an overall assessment of
the level of reduction in
nitrogen and phosphorus as regards all the agglomerations in
Luxembourg.

However, according to the most recent information received
from Luxembourg concerning the overall percentage of reduc-
tion of the load entering all treatment plants, the conditions for
application of Article 5(4) have not been fulfilled.

the Commission is obliged to conclude that the
Therefore,
the
Luxembourg authorities have failed to establish that
minimum percentage of
load of
nitrogen and phosphorus is at least 75 % as regards each of the
two parameters; consequently, the conditions for application of
Article 5(4) have not been satisfied.

reduction of

the overall

(1) OJ 1991 L 135, p. 40.