Source: EURLEX
Language: en
Format: md

12 . 11 . 94 Official Journal of the European Communities No C 316 / 13

Action brought on 26 September 1994 by the Portuguese

Republic against the Council of the European Union

( Case C-268 / 94 )

( 94 / C 316 / 22 )

An action against the Council of the European Union was
brought before the Court of Justice of the European
Communities on 26 September 1994 by the Portuguese
Republic, represented by Joao Mota de Campos and by Luis
Fernandes and Maria Luisa Duarte, acting as Agents, with
an address for service in Luxembourg at the Portuguese
Embassy, 33 allee Scheffer .

The applicant claims that the Court should :

— declare the Council Decision 94 / 578 / EC of 18 July

1994 concerning the conclusion of the Cooperation
Agreement between the European Community and the
Republic of India on Partnership and Development (*) to
be void, without prejudice, however, to the declaration
of annulment fully safeguarding, in accordance with
Article 174 of the EC Treaty, the effects in the
Community legal order of the Agreement concluded,

— order the Council of the European Union to pay the

costs .

Pleas in law and main arguments adduced in support :

The legal basis relied upon in the contested decision are
inadequate . Some of the fields covered by the Cooperation
Agreement between the European Community and the
Republic of India do not come within the traditional
framework of cooperation relations, and clearly exceed the
scope of the Community 's competences defined by the legal
basis relied upon ( Articles 113, 130 and 228 ( 3 ) of the EC
Treaty ). Thus :

— the action of the European Community in the sphere of

human rights and respect for democratic principles,
because it is characterized as an essential element on

which cooperation is contingent, depends on specific
powers which can only be conferred on the basis of
Article 235 of the EC Treaty,

— the cooperation provided for in the Agreement in the

fields of energy, tourism and culture also require
recourse to Article 235 of the EC Treaty as a basis for
approval of an international agreement which concerns
those matters,

— cooperation in the field of intellectual property, in

accordance with the principle of parallel competences,
covers matters, such as safeguards in judicial and
criminal matters, which still fall within the competences
of the Member States,

— cooperation on drugs trafficking does not fall within the

competences of the Community . Since this matter comes

under Title VI of the Treaty on European Union ( see
Article K.1.4 and 9 ), it is one which falls within the
competence of the Member States and is subject to an
intergovernmental decision procedure . The conclusion
of international agreements in this sphere requires action
on the part of all the Member States .

The provisions of Title XVII of Part III of the EC Treaty on
development cooperation have limited scope as legal basis
for cooperation agreements . This follows from :

— the ' complementary ' nature of Community policy in

relation to the policies of the Member States on
development cooperation ( Article 130u ),

— the fact that Member States retain their own

competences to conclude cooperation agreements
' within their respective spheres of competence '

( Article 130y ),

— the fact that the competence of the European
Community to conclude cooperation agreements is
defined in accordance with the principle of parallel
competences, so that Article 130y of the EC Treaty does
not constitute an adequate legal basis for international
relations in fields which do not fall within Community
competence in internal rules ( Declaration No 10 of the
Final Act of the Treaty on European Union ).

(!) OJ No L 223, 27 . 8 . 1994, p . 23 .

Action brought on 26 September 1994 by the Commission
of the European Communities against the Italian
Republic

( Case C-270 / 94 )

( 94 / C 316 / 23 )

An action against the Italian Republic was brought before
the Court of Justice of the European Communities on
26 September 1994 by the Commission of the European
Communities, represented by Antonio Aresu, of its Legal
Service, acting as Agent, with an address for service in
Luxembourg at the office of Georgios Kremlis, Wagner
Centre, Kirchberg .

The applicant claims that the Court should :

1 . declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations or
administrative provisions necessary to comply with
Council Directive 90 / 487 / EEC ( 2 ) of 17 September

1990 amending Directive 79 / 196 / EEC ( 2 ) on the
approximation of the laws of the Member States
concerning electrical equipment for use in potentially

No C 316 / 14 Official Journal of the European Communities 12 . 11 . 94

explosive atmospheres employing certain types of
protection the Italian Republic has failed to fulfil its
obligations under that Directive ;

2 . order the Italian Republic to pay the costs .

The pleas in law and main arguments are analogous to those
in Case C-256 / 94 ( 3 ); the time limit for transposition
expired on 1 July 1992 .

(!) OJ No L 270, 2 . 10 . 1990, p . 23 .

Article 235 . The Commission had made a proposal to
that effect at a time when Title XII ( Trans-European
networks ) was not yet in existence . The contested
Decision is one of the measures whose purpose is the
completion of the internal market ( first recital in the
preamble ). One of its sources is Article 34 of Council
Regulation ( EEC ) No 3330 / 91 on the statistics relating
to the trading of goods between Member States ( 2 ),
which was itself based on Article 100a of the EC

Treaty .

f 1 ) OJ No L 183, 19 . 7 . 1994, p . 42 .

( 2 ) OJ No L 43, 20 . 2 . 1979, p . 20 .

, . ., p . . ( 2 ) OJ No L 316, 16 . 11 . 1991, p . 1 .

( 3 ) OJ No C 304, 29 . 10 . 1994 .

Reference for a preliminary ruling by the Tribunal
Correctionnel, Arlon, by judgment of that court of

1 September 1994 in the case of Ministere Public against

Action brought on 27 September 1994 by the European Michel Guiot ; party liable ' at civil law : Climatec SA

Parliament against the Council of the European Union

Case C-2 72 / 94 )
( Case C-271 / 94 )

( 94 / C 316 / 25
( 94 / C 316 / 24 )

An action against the Council of the European Union was
brought before the Court of Justice of the European
Communities on 27 September 1994 by the European
Parliament, represented by G. Garzon Clariana, assisted by
J. Schoo and J.-L . Rufas Quintana, acting as Agents, with

an address for service in Luxembourg at the
Secretariat-General of the European Parliament, Tower
Building, Kirchberg .

The applicant claims that the Court should :

— annul, pursuant to Article 173 of the EC Treaty, the

Council Decision 94 / 445 / EC of 11 July 1994 on
inter-administration telematic networks for statistics

relating to the trading of goods between Member States

( Edicom ) ( l ),

— order the defendant to pay the costs .

Pleas in law and main arguments adduced in support :

Infringement of the EC Treaty and of essential procedural
requirements in so far as the contested Decision is based
exclusively on Article 235 of the EC Treaty, in disregard of
the articles specific to the field concerned ( Article 139d ( 3 )
of the EC Treaty ) and, in the alternative, Article 100a of the
EC Treaty ):

— Title XII of the EC Treaty ( Article 129d et seq .) and

Article 1 of the contested Decision pursue the same
objective with regard to the interoperability of networks
and the harmonization of standards and

communications procedures . Furthermore, the fifth
recital in the preamble to the Decision mentions the IDA
programme which is itself based on Article 129d of the
EC Treaty .

— In the alternative, it is Article 100a of the EC Treaty

which would constitute a more specific legal basis than

Reference has been made to the Court of Justice of the
European Communities by judgment of the Tribunal
Correctionnel ( Criminal Court ), Arlon ( Belgium ) of
1 September 1994, which was received at the Court Registry
on 29 September 1 994, for a preliminary ruling in the case of
Ministere Public ( Public Prosecutor ) against Michel Guiot ;
party liable at civil law : Climatec SA, on the following
questions :

— Must Articles 7, 7a, 59 and 60 of the Treaty on European

Union be interpreted as meaning that the fact that a
Member State makes it obligatory, by means of a
collective agreement rendered mandatory by royal
decree for all undertakings operating or coming to
operate within its territory by virtue of their right freely
to provide services, for employers to pay contributions
in respect of timbres de fidelite and timbres-intemperies
( fidelity and bad-weather stamps ) which duplicate the
obligations to contribute in the countries of origin of
those undertakings, where they cover the same risks and
have in practice a similar, if not identical, purpose,
constitutes an infringement of the abovementioned
articles inasmuch as it is a de facto discriminatory
measure is involved which thereby creates a serious
hindrance to the achievement of freedom to provide
services within the large internal market without
frontiers as a result of the fact that that obligation gives
rise to additional costs for Community undertakings,
thus making them less competitive in the territory of the
Member State in question ?

— More specifically, is the obligation for a construction

undertaking established in another Member State and
providing services in the construction sector in Belgium
to pay timbres de fidelite and timbres-intemperies by
virtue of the collective labour agreement of 28 April

1988, made obligatory by the Royal Decree of 15 June
1988, compatible with Article 59 of the EC Treaty
( restrictions on freedom to provide cross-frontier
services )?