Case C-446/05: 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 Stomatologistes de Belgique U.P:R. and Jean Totolidis v Ioannis Doulamis
Date: 2006-02-25
Institutions: Court of Justice
Subjects: Belgium, EU law - national law, advertising, competition law, dental medicine, interpretation of the law

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: