CELEX: C2002/169/31
Language: en
Date: 2002-07-13 00:00:00
Title: Case C-157/02: Reference for a preliminary ruling by the Republic of Austria Oberster Gerichtshof by order of that Court of 22 March 2002 in the case of Rieser Internationale Transporte GmbH against ASFINAG Autobahnen- und Schnellstraßen Finanzierungs-Aktiengesellschaft

13.7.2002               EN                      Official Journal of the European Communities                                      C 169/17
The applicant claims that the Court should:                                Reference for a preliminary ruling by the Republic of
                                                                           Austria Oberster Gerichtshof by order of that Court of
                                                                           22 March 2002 in the case of Rieser Internationale
—     declare that by:
                                                                           Transporte GmbH against ASFINAG Autobahnen- und
                                                                                 Schnellstraßen Finanzierungs-Aktiengesellschaft
      (1) not fully transposing into Austrian law by 1 January
            1995, contrary to Article 166 of the Act of
            Accession of Austria, Sweden and Finland to the
            European Union, Council Directive 89/369/EEC of                                         (Case C-157/02)
            8 June 1989 on the prevention of air pollution from
            new municipal waste incineration plants (1) and
            Council Directive 89/429/EEC of 21 June 1989 on
                                                                                                   (2002/C 169/31)
            the reduction of air pollution from existing munici-
            pal waste-incineration plants (2), in so far as it has
            not transposed those directives as required into
            the Abfallwirtschaftsgesetz (Federal law on waste
            management), the Gewerbeordnung 1994 (Austrian
            Trade Code of 1994) and the laws of the federal
            states, or, in any event, not informing the Com-               Reference has been made to the Court of Justice of the
            mission of any such transposition, and                         European Communities by order of the Republic of Austria
                                                                           Oberster Gerichtshof (Supreme Court) of 22 March 2002,
                                                                           received at the Court Registry on 29 April 2002, for a
      (2) not correctly or not fully transposing Article 4(1) of           preliminary ruling in the case of Rieser Internationale Trans-
            Directive 89/369/EEC into the Luftreinhaltegesetz              porte GmbH against ASFINAG Autobahnen- und Schnellstraß-
            für Kesselanlagen (Law on control of air pollution             en Finanzierungs-Aktiengesellschaft on the following ques-
            from boiler plants) and the Luftreinhalteverordnung            tions:
            für Kesselanlagen (Decree on control of air pollution
            from boiler plants), the Republic of Austria has
            failed to fulfil its obligations under those directives;
                                                                           1.1.    Is the effect of the case-law of the Court of Justice on
—     order the Republic of Austria to pay the costs.                      the ‘functional concept of the State’ that, when concluding
                                                                           contracts with road users, the defendant is required to observe
                                                                           the directly effective provisions of Council Directive 93/89/
                                                                           EEC of 25 October 1993(1) on the application by Member
                                                                           States of taxes on certain vehicles used for the carriage of
Pleas in law and main arguments                                            goods by road and tolls and charges for the use of certain
                                                                           infrastructures and of Directive 1999/62/EC of the European
—     Incomplete transposition of Directives 89/369/EEC and                Parliament and of the Council of 17 June 1999 (2) on the
      89/429/EEC:                                                          charging of heavy goods vehicles for the use of certain
                                                                           infrastructures, such that the defendant cannot charge a higher
                                                                           toll than those provisions allow?
      The Republic of Austria does not dispute that, with the
      exception of the legislative provisions notified to the
      Commission as transposing those directives (the Law and
      Decree on control of air pollution from boiler plants), the          1.2.    If question 1.1 is answered in the affirmative:
      directives have not been transposed into Austrian law
      and, in particular, they have not been transposed into the
      Federal law on management of waste, the Austrian Trade
      Code of 1994, the Umweltverträglichkeitsprüfungsgesetz               1.2.1. Do Article 7(b) and (h) of Directive 93/89 and
      (Law on environmental impact assessments) and the laws               Article 7(4) and (9) of Directive 1999/62 have direct effect
      of the federal states on waste management.                           according to the case-law of the Court of Justice such that if
                                                                           the Directives have not been transposed, or have been
                                                                           transposed incorrectly, into Austrian law they may be relied
—     Incorrect transposition of Article 4(1) of Directive 89/
                                                                           on in calculating a toll that complies with the Directives for
      369/EEC in the Decree on control of air pollution from
                                                                           vehicles with more than three axles used for the carriage of
      boiler plants: that decree does not contain any of the
                                                                           goods on the full itinerary of the Austrian Brenner motorway?
      technical requirements laid down in Article 4(1) of
      Directive 89/369/EEC.
                                                                           1.2.2.     If question 1.2.1 is answered in the affirmative:
(1) OJ L 163, 14.6.1989, p. 32.
(2) OJ L 203, 15.7.1989, p. 50.
                                                                           1.2.2.1. How and by reference to what parameters is the
                                                                           authorised toll for a single journey on the full itinerary to be
                                                                           calculated in the individual case?
 ---pagebreak--- C 169/18                EN                     Official Journal of the European Communities                                     13.7.2002
1.2.2.2. Can Austrian hauliers too rely on the fact that the              Reference for a preliminary ruling by the Republic of
(excessive) rate for the full itinerary discriminates against them        Austria Oberster Gerichtshof by order of that Court of
in comparison with road users who use only partial itineraries            26 March 2002 in the case of Friedrich Skalka against
of that motorway?                                                          Sozialversicherungsanstalt der gewerblichen Wirtschaft
1.3.      If questions 1.1 and 1.2 are answered in the affirmative:                                 (Case C-160/02)
1.3.1. Is the Judgment of the Court of Justice in Case C-21/                                        (2002/C 169/33)
94 (3) European Parliament v Council of the European Union,
in which it was held that all the effects of Directive 93/89 were
to be preserved until the Council had adopted a new directive,
to be interpreted as meaning that the effects are to be preserved         Reference has been made to the Court of Justice of the
until the Member States have transposed the new directive or,             European Communities by order of the Republic of Austria
as the case may be, the time limit for transposition has expired?         Oberster Gerichtshof (Supreme Court) of 26 March 2002,
                                                                          received at the Court Registry on 30 April 2002, for a
                                                                          preliminary ruling in the case of Friedrich Skalka against
1.3.2. If question 1.3.1 is answered in the negative: In the
                                                                          Sozialversicherungsanstalt der gewerblichen Wirtschaft on the
period from 17 June 1999 to 1 July 2000, are the Member
                                                                          following question:
States under an obligation to have regard to the new Directive,
that is to say does it have advance effects which are required
to be observed?                                                           Is Article 10a of Regulation (EEC) No 1408/71 (1) of the
                                                                          Council on the application of social security schemes to
                                                                          employed persons, to self-employed persons and to members
(1) OJ L 279 (1993), p. 32.                                               of their families moving within the Community, as amended
(2) OJ L 187 (1999), p. 42.                                               and updated by Council Regulation (EC) No 118/97 of
(3) [1995], ECR I-1827.                                                   2 December 1996 (2), in conjunction with Annex IIa, to be
                                                                          interpreted as meaning that the compensatory supplement
                                                                          provided for under the Bundesgesetz vom 11. Oktober 1978
                                                                          über die Sozialversicherung der in der gewerblichen Wirtschaft
                                                                          selbständig Erwerbstätigen (Federal Law of 11 October 1978
                                                                          on Social Insurance for Persons engaged in Trade and Com-
                                                                          merce — ‘the GSVG’) falls within its scope and therefore
                                                                          constitutes a special non-contributory benefit within the
Reference for a preliminary ruling by the House of Lords                  meaning of Article 4(2a) of the regulation, so that only the
by order of that court dated 13 December 2001, in the                     coordinating provisions laid down by Article 10a of the
case of Gregory Paul Turner against 1) Felix Fareed Ismail                regulation are applicable to a person, such as the claimant,
           Grovit, 2) Harada Ltd, 3) Changepoint S.A.                     who, after 1 June 1992, fulfilled the conditions for the granting
                                                                          of that benefit?
                          (Case C-159/02)
                                                                          (1) OJ L 149 (1971), p. 2.
                          (2002/C 169/32)                                 (2) OJ L 28 (1997), p. 1.
Reference has been made to the Court of Justice of the
European Communities by an order of the House of Lords
dated 13 December 2001, which was received at the Court
Registry on 29 April 2002, for a preliminary ruling in the case
of Gregory Paul Turner and 1) Felix Fareed Ismail Grovit,                 Action brought on 30 April 2002 by the Commission of
2) Harada Ltd, 3) Changepoint S.A. on the following question:              the European Communities against the French Republic
‘Is it inconsistent with the Convention on Jurisdiction and the                                     (Case C-161/02)
Enforcement of Judgments in Civil and Commercial Matters
signed at Brussels on 27 September 1968 (subsequently                                               (2002/C 169/34)
acceded to by the United Kingdom) to grant restraining orders
against defendants who are threatening to commence or
continue legal proceedings in another Convention country
when those defendants are acting in bad faith with the intent             An action against the French Republic was brought before the
and purpose of frustrating or obstructing proceedings properly            Court of Justice of the European Communities on 30 April
before the English courts?’                                               2002 by the Commission of the European Communities,
                                                                          represented by G. Valero Jordana and J. Adda, acting as Agents,
                                                                          with an address for service in Luxembourg.