Case C-381/08: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 22 August 2008 — Car Trim GmbH v KeySafety Systems SRL
Date: 2008-08-22
Institutions: Court of Justice
Subjects: carriage of goods, interpretation of the law, trade regulations

22.11.2008

EN

Official Journal of the European Union

C 301/15

2. Does the Community directive on compensation for environ-
mental damage (Directive 2004/35/EC of 21 April 2004
and, in particular, Article 7 and Annex II thereto) preclude
national legislation which allows the authorities to impose
such requirements ex officio, that is, without having assessed
the site-specific conditions and the implementation costs in
respect of the reasonably foreseeable benefits, the possible or
probable collateral damage and adverse effects on public
health and safety, and the necessary time scales for imple-
mentation?

3. Does the Community directive on compensation for environ-
mental damage (Directive 2004/35/EC of 21 April 2004
and, in particular, Article 7 and Annex II thereto) preclude
national legislation which allows the authorities to impose
such requirements ex officio as conditions for an authorisa-
tion for the lawful use of the areas not directly affected by
the decontamination in so far as they have already been
decontaminated or in any event were not polluted, included
within the limits of the Priolo site of national interest?

2. Does the Community directive on compensation for environ-
mental damage (Directive 2004/35/EC of 21 April 2004
and, in particular, Article 7 and Annex II thereto) preclude
national legislation which allows the authorities to impose
such requirements ex officio, that is, without having assessed
the site-specific conditions and the implementation costs in
respect of the reasonably foreseeable benefits, the possible or
probable collateral damage and adverse effects on public
health and safety, and the necessary time scales for imple-
mentation?

3. Does the Community directive on compensation for environ-
mental damage (Directive 2004/35/EC of 21 April 2004
and, in particular, Article 7 and Annex II thereto) preclude
national legislation which allows the authorities to impose
such requirements ex officio as conditions for an authorisa-
tion for the lawful use of the areas not directly affected by
the decontamination in so far as they have already been
decontaminated or in any event were not polluted, included
within the limits of the Priolo site of national interest?

(1) OJ 2004 L 143, p. 56.

(1) OJ 2004 L 143, p. 56.

Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale per la Sicilia (Italy) lodged on
21 August 2008 — ENI SpA v Ministero Ambiente e Tutela
del Territorio e del Mare and Others

Reference for a preliminary ruling from the Bundes-
gerichtshof (Germany) lodged on 22 August 2008 — Car
Trim GmbH v KeySafety Systems SRL

(Case C-380/08)

(2008/C 301/28)

Language of the case: Italian

(Case C-381/08)

(2008/C 301/29)

Language of the case: German

Referring court

Tribunale Amministrativo Regionale per la Sicilia

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: ENI SpA

Defendants: Ministero Ambiente e Tutela del Territorio e del
Mare and Others

Questions referred

1. Does the Community directive on compensation for environ-
mental damage (Directive 2004/35/EC (1) of 21 April 2004
and, in particular, Article 7 and Annex II thereto) preclude
national legislation which allows the authorities to require, as
‘reasonable methods of remedying environmental damage’,
works on the environmental matrices (here, consisting of the
construction of a physical barrier for the groundwater along
from and supplementary to
the entire seafront) different
those selected in advance following special preliminary
discussions with the parties, already approved, implemented
or in the course of being implemented?

Parties to the main proceedings

Applicant: Car Trim GmbH

Defendant: KeySafety Systems SRL

Questions referred

1. Is Article 5(1)(b) of Council Regulation (EC) No 44/2001 on
jurisdiction and the recognition and enforcement of judg-
ments in civil and commercial matters (1) to be interpreted
as meaning that contracts for the delivery of goods to be
produced or manufactured are, notwithstanding specific obli-
gations on the part of the customer with regard to the provi-
sion,
the components to be
produced, including a guarantee of the quality of production,
reliability of delivery and smooth administrative handling of
the order, to be classified as a sale of goods (first indent), and
not as provision of services (second indent)? What criteria
are decisive for the distinction?

fabrication and delivery of

C 301/16

EN

Official Journal of the European Union

22.11.2008

2. If a sale of goods is to be presumed: in the case of contracts
involving carriage of goods,
is the place where under the
contract the goods sold were delivered or should have been
delivered to be determined according to the place of physical
transfer to the purchaser, or according to the place at which
the goods were handed over to the first carrier for transmis-
sion to the purchaser?

(1) OJ L 12, 16.1.2001, p. 1.

the order of 26 August 2005, as last amended by the order of
17 December 2007, constitutes a breach of Article 3(1)(8) and
of Article 18(2) of Directive 2000/13,
in conjunction, until
30 June 2008, with Article 5(3)(e) and Article 5(4) of Regu-
lation No 1906/90 and, from 1 July 2008, with Article 5(4)(e)
and Article 5(5) of Regulation No 543/2008. According to the
Italian Government,
introduced as a
measure intended to ensure the traceability of meat following
the confirmation of outbreaks of bird flu in third countries.

that obligation was

Action brought on 25 August 2008 — Commission of the
European Communities v Italian Republic

(Case C-383/08)

(2008/C 301/30)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: L. Pignataro, Agent)

Defendant: Italian Republic

Form of order sought

— Declare that, by adopting the provisions of the ministerial
order of 26 August 2005, as last amended by the order of
17 December 2007, which makes it compulsory to indicate
the country of origin of the poultrymeat listed in Article 3(1)
of that order, the Italian Republic has failed to fulfil its obli-
gations under Article 3(1)(8) and Article 18(2) of Directive
2000/13/EC (1) on the labelling, presentation and adver-
tising of foodstuffs, in conjunction, until 30 June 2008, with
Article 5(3)(e)
and Article 5(4) of Regulation (EEC)
No 1906/90 (2) on certain marketing standards for poultry
and, from 1 July 2008, with Article 5(4)(e) and Article 5(5)
of Commission Regulation (EC) No 543/2008 (3).

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission considers that the obligation to indicate the
origin of poultrymeat from other Member States laid down by

The Commission considers that the obligation in question is
contrary to Article 3(1)(8) of Directive 2000/13. It is clear from
that article that, for foodstuffs in general, particulars of the
place of origin or provenance must appear on the labelling only
where, in the absence of such an indication the consumer might
be misled as to the true origin or provenance of the foodstuff.
The Community legislature does not, therefore, consider that
the indication of origin is a necessary piece of information for
consumers in general or in absolute terms, but only where
failure to give such an indication might mislead them.

It is for the Italian Government to establish that the obligation
to indicate the origin of poultry from other Member States
which is laid down by the order in question really is important
for poultrymeat and that failure to give such an indication
entails a risk of error on the part of the consumer. In fact, the
Commission submits, the Italian Government has not adduced
any evidence capable of proving that
the Italian consumer
would be misled as regards the origin or the provenance of
poultrymeat in the absence of any indication of origin.

The circumstances surrounding the bird flu crisis do not explain
why the failure to indicate origin might mislead the consumer
and lead him to believe that poultrymeat has a particular origin.
The mere fact that the average consumer attaches importance to
the origin of the product does not mean that, in the absence of
indications of origin, he will be misled as to the real origin of
the product. That would imply that a consumer automatically
attributes a specific origin to poultrymeat, which remains to be
proven by the Italian Government. It should also be observed
that matters of animal health cannot be assessed by the
consumer who does not have the necessary knowledge to assess
the risk on the basis of an indication of origin.

Moreover, the above provisions of the order are not justified by
the public health considerations within the meaning of
Article 18(2) of that directive which are relied on by the Italian
Government to justify the additional labelling requirement. In
order to combat bird flu, the Community has adopted a wide
range of veterinary measures intended to ensure that only
healthy poultrymeat can enter the Community and be marketed
there.