Source: EURLEX
Language: en
Format: md

C 173/28 EN Official Journal of the European Communities 16.6.2001

**Reference for a preliminary ruling by the Court of Appeal** 2. Does ‘the total amount to be paid by the traveller’
**(England & Wales) (Civil Division), by order of that court** within Article 26.2 include the additional sum
**of 13 March 2001, in the case of Commissioners of** referred to in (c) above?
**Customs and Excise against First Choice Holidays plc**

**(Case C-149/01)** ( [1] ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ L 145, 13.06.77, p. 1).
(2001/C 173/47)

Reference has been made to the Court of Justice of the
European Communities by an order of the Court of Appeal
(England & Wales) (Civil Division) of 13 March 2001, which
was received at the Court Registry on 26 March 2001, for a
preliminary ruling in the case of Commissioners of Customs
and Excise against First Choice Holidays, on the following
questions:
**Action brought on 9 April 2001 by the Commission of**
**the European Communities against the French Republic**
Where a tour operator within the meaning of Article 26 of
Council Directive 77/388/EEC( [1] )
**(Case C-150/01)**

(a) supplies package holidays to customers through the
disclosed agency of a travel agent; (2001/C 173/48)

(b) permits the agent to arrange the supply of package An action against the French Republic was brought before the
holidays at a discount from the price published in the Court of Justice of the European Communities on 9 April
tour operator’s brochure (the customer being liable to 2001 by the Commission of the European Communities,
pay only the discounted price for the holiday); represented by M. Patakia and B. Mongin, acting as Agents,
with an address for service in Luxembourg.

(c) requires the agent who arranges the supply of a package
holiday at a discount not only to pass on to the tour The Commission claims that the Court should:
operator the price actually charged to the customer but
also to pay to the tour operator an additional sum equal
to the discount given to the customer (who is unaware of 1. declare that, by retaining legislation which requires
the financial arrangements between the tour operator and intellectual property advisers established in other Member
the agent), so that the agent accounts to the tour operator States to appear on the register of French intellectual
for the full brochure price of the holiday; property advisers, and thus to possess the French qualification and to be ordinarily resident or have a place of
business in France, in order to supply services in France,
(d) agrees to pay the agent a commission based on the the French Republic has failed to fulfil its obligations
brochure price of the holiday, which in practice is paid under Articles 49 to 55 of the EC Treaty and Council
by set-off against the sums due from the agent as Directive 89/48/EEC of 21 December 1988 on a general
mentioned in (c) above; system for the recognition of higher-education diplomas
awarded on completion of professional education and
training of at least three years’ duration( [1] );
(e) does not know whether or not the agent has arranged the
sale of a particular holiday at a discounted price, or the
amount of the discount; 2. order the French Republic to pay the costs.

(f) as between itself and the agent, accounts for the sale of
the holiday on the basis that it has been paid the full _Pleas in law and main arguments_
brochure price of the holiday;

—
By making an ‘intellectual property adviser’ who provides
1. Having established the above facts, how should the services subject to the same obligations as an ‘intellectual
additional sum (referred to in (c) above) paid by the property adviser’ established in France, the French legistravel agent to the tour operator be characterised for lation infringes Article 49 EC. While the pursuit, even as
the purposes of Article 26.2? a provider of services, of an activity which is not

16.6.2001 EN Official Journal of the European Communities C 173/29

harmonised at Community level may be subject to The appellant claims that the Court should:
provisions justified in the general interest such as rules
concerning organisation of the profession, qualification — set aside the order of the Court of First Instance of the
and professional conduct, the Commission considers that European Communities of 30 January 2001;
the French legislation lays down disproportionate and

—
excessively restrictive conditions for the exercise in France order the European Commission to pay all the costs, with
of the profession in question by intellectual property all the legal consequences which that entails.
advisers lawfully established in another Member State and
supplying services in France on an isolated occasion.
Other measures — less restrictive than mandatory entry _Pleas in law and main arguments_
on a register preceded by an examination — could be
envisaged, for example: —
Error of law: given the structure of the appellant company’s production chain, which is unique in the south1. a requirement to practice under the home-country west, the Court of First Instance should have specifically
title; examined whether, as at the date of its adoption, the
contested regulation particularly affected the appellant.

2. a requirement that the person practising the pro- —
Distortion of the appellant’s claims.
fession produces his qualification;

—
Absence of a sufficient statement of reasons for the ruling
3. a declaration system (such as that provided for in on the plea alleging disregard of the right to seek effective
Article 22 of Council Directive 85/384/EEC on the relief by bringing proceedings: the contested order does
mutual recognition of architects’ qualifications)( [2] ). not deal with the appellant’s argument that the Commission’s interpretation of Article 7 of Regulation
— Infringement of Article 49 EC by imposing residence or No 2081/92( [1] ), to the effect that that article restricts the
a place of business in France as a condition for the supply right to object to the procedure at Member State level,
of services there on an isolated occasion. disregards the right to seek effective relief by bringing
proceedings.

—
Misinterpretation of Article 7 of Regulation No 2081/92:
( [1] ) OJ L 19, 24.1.1989, p. 16. disregard by the Community legal order of the guaranteed
( [2] ) Council Directive 85/384/EEC on the mutual recognition of right to seek effective relief by bringing proceedings,
diplomas, certificates and other evidence of formal qualifications which constitutes a general legal principle: the effect of a
in architecture, including measures to facilitate the effective failure to act on the part of a Member State must be such
exercise of the right of establishment and freedom to provide
as to permit an undertaking which otherwise fulfils the
services (OJ No L 223, 21.8.1985, p. 15).
admissibility requirements laid down by Article 7(4) to
raise an objection with the Commission.

( [1] ) Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of
geographical indications and designations of origin for agricultural
products and foodstuffs (OJ L 208 of 24.7.1992, p. 1).

**Appeal brought on 9 April 2001 by S.C.E.A. La Conqueste**
**against the order made on 30 January 2001 by the Fifth**
**Chamber of the Court of First Instance of the European**
**Communities in Case T-215/00 between S.C.E.A. La Con-**
**queste and the Commission of the European Communities**
**Reference for a preliminary ruling by the Sozialgericht**
**Leipzig by order of that court of 30 March 2001 in the**
**(Case C-151/01 P)** **case of Karen Mau against Bundesanstalt für Arbeit**

(2001/C 173/49) **(Case C-160/01)**

(2001/C 173/50)
An appeal against the order made on 30 January 2001 by the
Fifth Chamber of the Court of First Instance of the European
Communities in Case T-215/00 between S.C.E.A. La Conqueste Reference has been made to the Court of Justice of the
and the Commission of the European Communities was European Communities by order of the Sozialgericht Leipzig
brought before the Court of Justice of the European Communi- (Social Court, Leipzig) of 30 March 2001, received at the Court
ties on 9 April 2001 by S.C.E.A. La Conqueste, represented by Registry on 12 April 2001, for a preliminary ruling in the case
A. Lyon-Caen, F. Fabiani and F. Thiriez, avocats, with an of Karen Mau against the Bundesanstalt für Arbeit (Federal
address for service in Paris. Labour Office) on the following questions: