Case C-522/06: Action brought on 22 December 2006 — Commission of the European Communities v Kingdom of Belgium
Date: 2007-02-24
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, chemical product, dangerous substance, pollution control, pollution control measures

C 42/16

EN

Official Journal of the European Union

24.2.2007

The obligation to provide coverage constitutes an obstacle
which is neither justified nor proportionate in relation to the
aim pursued. Indeed, ‘the concept of public policy may be relied upon
in the event of a genuine and sufficiently serious threat to … one of
the fundamental interests of society’ and ‘the public policy exception,
like all derogations from a fundamental principle of the Treaty, must
be interpreted restrictively’ (see Case C-348/96 Criminal proceedings
against Donatella Calfa [1999] ECR I-11, paragraphs 21 and 23).

Furthermore, that restriction appears to be an inappropriate
means of attaining the objective for which it was adopted, in
that such a generalised obligation to provide coverage hampers
the development and operability of specialised services within
insurance undertakings, which would be better able to satisfy
the needs of consumers properly and efficiently simply because
of being so specialised.

Lastly, such a restriction goes beyond what is necessary in order
to achieve the objective of maintaining public order or of
protecting consumers, both in geographical terms — in that the
problems relating to public order concern, according to the
Italian authorities themselves, only ‘specific geographical areas’ of
the national territory — and in terms of content — in that
insurance undertakings operating in Italy are required to offer
coverage to any owner or driver of motor vehicles, regardless of
the risk posed in practice by that owner or driver as regards
liability for damage caused to third parties.

(1) OJ 1992 L 228, p. 1.

— grant the forms of order sought at first instance;

— order the Commission to pay the costs.

Pleas in law and main arguments

The appellant relies on a single plea in support of its appeal,
based on the error allegedly committed by Court of First
Instance in its legal characterisation of the letter deciding to take
no further action on its complaint. First, the decision taken by
the Commission not to take any further action clearly assumes
a final character in the light of the file; secondly, it is unambigu-
ously apparent from the context
in which the Commission
ruled that it had indeed implicitly taken a reasoned decision on
the classification of the State aid which was the subject of the
complaint. Consequently, the Court of First Instance erred in
law in finding that the contested letter could not be subject of
an action and in dismissing the action as inadmissible.

Action brought on 22 December 2006 — Commission of
the European Communities v Kingdom of Belgium

(Case C-522/06)

(2007/C 42/27)

Language of the case: French

Appeal brought on 21 December 2006 by Athinaiki Tech-
niki AE against the order delivered by the Court of First
Instance (Second Chamber) on 26 September 2006 in Case
T-94/05 Athinaiki Techniki AE v Commission

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Alcover San Pedro, B. Stromsky, Agents)

(Case C-521/06 P)

(2007/C 42/26)

Language of the case: French

Defendant: Kingdom of Belgium

Form of order sought

The Court is asked to:

Parties

Appellant: Athinaiki Techniki AE (represented by: S.A. Pappas,
lawyer)

Other parties to the proceedings: Commission of the European
Communities, Athens Resort Casino AE Symmetochon

Form of order sought

The Court is asked to:

and

recycling,

destruction

— Declare that, by failing to define the minimum qualification
requirements for certain members of personnel working in
recovery,
of
reclamation
controlled substances in accordance with Article 16(5) of
Regulation (EC) No 2037/2000 of the European Parliament
and of the Council of 29 June 2000 on substances that
deplete the ozone layer (1) and, in respect of the Walloon
Region, by failing to take all precautionary measures practic-
able to prevent and minimise leakages of controlled
substances and by failing to carry out annual checks to
establish the presence or not of leakages in accordance with
Article 17(1) of that regulation, the Kingdom of Belgium
has failed to fulfil its obligations under Articles 16(5) and
17(1) of that regulation.

— annul the contested order;

— Order the Kingdom of Belgium to pay the costs.

24.2.2007

EN

Official Journal of the European Union

C 42/17

Pleas in law and main arguments

In support of its action, the applicant asserts that the Kingdom
of Belgium, first, has failed to define the minimum qualification
requirements for personnel responsible for recovery, recycling,
reclamation and destruction of controlled substances referred to
in Article 2 of the Regulation and contained in refrigeration,
fire protection
air-conditioning and heat pump equipment,
systems and fire extinguishers — except,
in respect of extin-
guishers containing halons, the Region of Brussels-Capital —
and, secondly, in respect of the Walloon Region, has failed to
take all precautionary measures practicable to prevent and mini-
mise leakages of controlled substances and to carry out annual
checks
to establish the possible presence or not of such
leakages.

(1) OJ 2000 L 244, p. 1.

Action brought on 22 December 2006 — Commission of
the European Communities v Republic of Finland

(Case C-523/06)

(2007/C 42/28)

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Huttunen and K. Simonsson, acting as Agents)

Defendant: Republic of Finland

Form of order sought

— declare that, by failing to draw up and implement waste
reception and handling plans in respect of all ports, the
Republic of Finland has failed to fulfil its obligations under
Articles 5(1) and 16(1) of Directive 2000/59/EC (1) of the
European Parliament and of the Council of 27 November
2000 on port reception facilities for ship-generated waste
and cargo residues;

— order the Republic of Finland to pay the costs.

Pleas in law and main arguments

The period for
28 December 2002.

implementing the Directive

expired on

(1) OJ L 332, p. 81.

Reference for a preliminary ruling from the Rechtbank van
koophandel, Hasselt (Belgium)
lodged on 22 December
2006 — NV De Nationale Loterij v BVBA Customer
Service Agency

(Case C-525/06)

(2007/C 42/29)

Language of the case: Dutch

Referring court

Rechtbank van koophandel, Hasselt

Parties to the main proceedings

Applicant: NV De Nationale Loterij

Defendant: BVBA Customer Service Agency

Questions referred

1. Is Article 49 of the EC Treaty to be interpreted as meaning
that restrictive national provisions, such as Article 37 of the
Law of 19 April 2002, which obstruct the access to the
market of an undertaking wishing to sell for profit group
participation forms in Euro Millions, are still permitted
having regard to the public interest (prevention of squan-
dering through gaming), in the knowledge that:

(a) the Nationale Loterij, which acquired a statutory mono-
poly from the Belgian State and pays a monopoly rent
for it and which has the objective of channelling man's
inherent compulsion to gamble,
regularly advertises
participation in Euro Millions thereby in reality strength-
ening that compulsion;

(b) the regular advertising by Nationale Loterij and its sales
methods have a foreclosure effect, in which the Nationale
(financial
Loterij
reasons)
inherent
compulsion to gamble;

induced to maximise
than channel

turnover
the citizens'

rather

is

(c) less obstructive measures, such as restriction of possible
stakes and winnings, would better achieve the objective
pursued, namely the channelling of the inherent compul-
sion to gamble?

2. Is a restrictive national provision such as Article 37 of the
Law of 19 April 2002, which prevents the access to the
market of an undertaking intending to sell, for profit, group
participation forms in Euro Millions, contrary to the freedom
to provide services (Article 49 of the EC Treaty) where the
defendant itself does not organise a lottery but in fact seeks
to organise, for profit, merely participation as a group in
Euro Millions via the Nationale Loterij's own participation
forms?