Case C-210/06: Reference for a preliminary ruling from the Szegedi Ítélőtábla (Court of Appeal Szeged) lodged on  5 May 2006  — CARTESIO Oktató és Szolgáltató Betéti Társaság
Date: 2006-07-15
Institutions: Court of Justice
Subjects: EU law - national law, company law, head office, interpretation of the law, jurisdiction, registration of a company, transfer of businesses

15.7.2006

EN

Official Journal of the European Union

C 165/17

Form of order sought

Pleas in law and main arguments

— Declare that, by requiring that a parallel

imported plant
protection product and a reference product have a common
origin, the French Republic has failed to fulfil its obligations
under Article 28 EC;

— order the French Republic to pay the costs.

Article 307 of the EC Treaty requires the Member States to
take all appropriate steps to eliminate the incompatibilities
established with the EC Treaty of the agreements concluded by
them prior to 1 January 1958 or before accession to the Euro-
pean Community.

Pleas in law and main arguments

In France, the grant and continuation of an import authorisa-
tion in respect of parallel imports of plant protection products
from another Member State where they are lawfully placed on
the market are subject to the requirement that parallel imported
plant protection products and reference products have a
common origin.

This constitutes a restriction on the free movement of plant
protection products that is incompatible with Article 28 EC, is
not justified on grounds of the protection of public health,
animal health or the environment and is disproportionate in
relation to the goal to be achieved.

The Commission considers that
the provisions on the free
transfer of investment related payments in the bilateral invest-
ment agreements which the Republic of Austria concluded
with Korea, Cape Verde, China, Malaysia, the Russian Federa-
tion and Turkey before its accession to the European Com-
munity are incompatible with the EC Treaty. This is because
they do not allow the Republic of Austria to apply restrictions
on capital or payments which the Council of the European
Union may adopt on the basis of Articles 57(2), 59 and 60(1)
of the EC Treaty.

The Austrian Government's argument that the way in which it
votes in the Council is not predetermined by the agreements is
irrelevant. The only relevant issue is whether the Republic of
Austria can carry out — in conformity with its obligations
under international law — the restrictive measures in a particu-
lar case. The provisions of the Austrian investment agreements
in dispute show that this is not the case. Likewise, the argu-
ment
from
adopting a decision by a qualified majority is not decisive for
the same reason.

that Austria alone cannot prevent

the Council

Action brought on 5 May 2006 — Commission of the
European Communities v Republic of Austria

(Case C-205/06)

(2006/C 165/30)

Language of the case: German

Since,
in the present case, an incompatibility with the EC
Treaty exists, Austria is under an obligation to take appropriate
steps to eliminate it. If no other means are available, however,
Austria could — according to the case-law of the Court of
Justice — be obliged to abrogate the agreement at issue.

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and B. Martenczuk, acting as Agents)

Reference for a preliminary ruling from the Szegedi
Ítélőtábla (Court of Appeal Szeged) lodged on 5 May 2006
— CARTESIO Oktató és Szolgáltató Betéti Társaság

Defendant: Republic of Austria

Form of order sought

(Case C-210/06)

(2006/C 165/31)

Language of the case: Hungarian

— declare that, by not taking suitable measures to eliminate
incompatibilities in relation to the provisions concerning
transfers in the bilateral investment agreements with Korea,
Cape Verde, China, Malaysia, the Russian Federation and
Turkey, the Republic of Austria has failed to fulfil its obliga-
tions under second paragraph of Article 307 of the EC
Treaty;

Referring court

— order the Republic of Austria to pay the costs.

Szegedi Ítélőtábla (Court of Appeal Szeged)

C 165/18

EN

Official Journal of the European Union

15.7.2006

Parties to the main proceedings

Applicant: CARTESIO Oktató és Szolgáltató Betéti Társaság

tices which differentiate between commercial companies
with respect to the exercise of their rights, according to
the Member State in which their registered office is situ-
ated, is incompatible with Community law?

Question(s) referred

1.

2.

3.

Is a court of second instance which has to give a decision
on an appeal against a decision of a commercial court
in proceedings to amend a registration,
(cégbíróság)
entitled to make a reference for a preliminary ruling
under Article 234 of the Treaty of Rome, where neither
the action before the commercial court nor the appeal
procedure is inter parties?

In so far as an appeal court is included in the concept of
‘court or tribunal which is entitled to make a reference
for a preliminary ruling’ under Article 234 of the Treaty
of Rome, must that court be regarded as a court against
whose decisions there is no judicial remedy, which has
an obligation, under Article 234 of the Treaty of Rome,
to submit questions on the interpretation of community
law to the Court of Justice of the European Commu-
nities?

Does a national measure which,
in accordance with
national law, confers a right to bring an appeal against
an order for a preliminary reference, limit the power of
the Hungarian courts to refer questions for a preliminary
ruling or could it limit that power — derived directly
from Article 234 of the Treaty of Rome — if, in appeal
proceedings the national superior court may amend the
order, render the request for a preliminary ruling inop-
erative and order the court which issued the order for
reference to resume the national proceedings which had
been suspended?

4. A. If a company, constituted in Hungary under Hungarian
company law and entered in the Hungarian commercial
register, wishes to transfer its registered office to another
Member State of the European Union, is the regulation
of this field within the scope of Community law or, in
the absence of the harmonisation of laws, is national law
exclusively applicable?

B. May a Hungarian company request transfer of its regis-
tered office to another Member State of the European
Union relying directly on community law (Articles 43
and 48 of the Treaty of Rome)? If the answer is affirma-
tive, may the transfer of the registered office be made
subject to any kind of condition or authorisation by the
Member State of origin or the host Member State?

C. May Articles 43 and 48 of the Treaty of Rome be inter-
preted as meaning that a national rules or national prac-

Appeal brought on 9 May 2006 by Herta Adam against the
judgment delivered on 22 February 2006 by the Court of
in Case T-342/04 Herta
First Instance (First Chamber)

Adam v Commission of the European Communities

(Case C-211/06P)

(2006/C 165/32)

Language of the case: French

Parties

Appellant:Herta Adam (represented by: S. Orlandi, A. Coolen, J.-
N Louis, E. Marchal, lawyers)

Other party to the proceedings: Commission of the European
Communities

Form of order sought

— Set aside the judgment of the Court of First Instance (First
Chamber) of 22 February 2006 in Case T-342 Herta Adam
v Commission of the European Communities in its entirety;

— Annul the Commission's decision of 22 September 2003
refusing the applicant the benefit of the expatriation allow-
ance provided for by Article 4 of Annex VII to the Staff
Regulations of officials of the European Communities;

— Order the defendant to pay the costs of appeal and at first

instance.

Pleas in law and main arguments

The appeal is based on the allegation that the Court of First
Instance erred in law in interpreting the concept of ‘circum-
stances arising from work done for another State’ set out in the
second indent of Article 4(1)(a) of Annex VII of the Staff Regu-
lations.