CELEX: C1995/054/18
Language: en
Date: 1995-03-04 00:00:00
Title: Action brought on 13 January 1995 by the Commission of the European Communities against the Kingdom of Belgium (Case C-11/95)

No C 54/10         I EN I                Official Journal of the European Communities                                      4 . 3 . 95
The applicant asks the Court to annul Commission                     The Appellant claims that the Court should:
Regulation (EEC) No 2791/94 of 16 November 1994 on the
exceptional allocation of a quantity additional to the tariff         1 . annul the order; and
 quota for imports of bananas in 1994 as a result of tropical
 storm Debbie ( l ) and order the Commission to pay the              2 . declare the action admissible or, in the alternative, join
costs .                                                                   the question of admissibility to the substance and refer
                                                                          the case back to the Court of First Instance, continuing
                                                                          proceedings from the stage at which they were stayed,-
Pleas in law and main arguments                                           for a decision on the admissiblity of the applications to
                                                                          intervene .
Insufficient legal basis: Article 30 of Council Regulation
 (EEC) No 404/93 on the common organization of the
market in bananas permits the adoption of specific                   Pleas in law and main arguments
transitional measures solely in order to assist the transition
                                                                     The true nature of Council Directive 93/118/EC of
to the single market from the arrangements existing prior to
its entry into force; it cannot serve as the legal basis for the     22 December 1993 amending Directive 85/73/EEC on the
contested Regulation. In the first place, tropical storm             financing of health inspections and controls of fresh meat
Debbie has nothing to do with problems relating to the               and poultrymeat (*), hereinafter referred to as 'the contested
transition. Secondly, it was certainly not the Council's             directive', is that of a decision. The margin of discretion
intention to create by means of Article 30 the possibility of        enjoyed by the Member States under the contested
adopting measures which coincide with previously existing            Directive, in so far as it amends Directive 85/73/EEC, is
national measures. The purpose of the latter was principally,        merely token and virtually without effect. A correct and
and sometimes exclusively, to protect national markets. The          comprehensive reading of the directive reveals that the use of
introduction of the single market is intended to remove such         the verb 'may' is merely rhetorical. The contested directive is
                                                                     of direct and individual concern to the members of Asocarne
protective measures. The Commission cannot, therefore,
use Article 30 as a basis for establishing measures similar to       who have a veterinary registration number and were liable
those which existed prior to the single market.                      for fees before its entry into force, so that Asocarne has
                                                                     standing to bring this action inasmuch as the contested
                                                                     directive is of direct and individual concern to its
The allocation of the additional quantity is incompatible            members .
with Article 19 ( 1 ) of Regulation (EEC ) No 404/93 :
Article 1 ( 1 ) of the contested regulation allocates the
additional quantity solely among operators affected by the           Contrary to the view of the Court of First Instance, in the
storm, although Article 19 ( 1 ) of Regulation ( EEC )              case of directives, the judicial protection of individuals is not
No 404/93 makes no provision for derogating from the                 duly and sufficiently assured by the national courts. The
method of allocation it lays down.                                   administration of justice is necessarily subject to delay.
                                                                    Moreover, some Spanish courts have demonstrated a certain
                                                                    reluctance to make references for preliminary rulings under
(!) OJ No L 296 , 17. 11 . 1990, p . 33 .                           Article 177 of the EEC Treaty.
                                                                     (M OJ No L 340, 31 . 12 . 1993, p. 15 .
Appeal brought on 4 January 1995 by Asociacion Espanola
de Empresas de la Carne (Asocarne) against the order made
on 20 October 1994 by the First Chamber of the Court of             Action brought on 13 January 1995 by the Commission of
First Instance of the European Communities in Case                  the European Communities against the Kingdom of
T-99/94 between Asociacion Espanola de Empresas de la                                            Belgium
   Carne (Asocarne) and Council of the European Union                                        (Case C-ll/95 )
                       (Case C-10/95 P)                                                       ( 95/C 54/18 )
                          (95/C 54/17)
                                                                    An action against the Kingdom of Belgium was brought
                                                                    before the Court of Justice of the European Communities,
An appeal against the order made on 20 October 1994 by
the First Chamber of the Court of First Instance of the             represented by Pieter Van Nuffel, of its Legal Service, acting
                                                                    as Agent, with an address for service in Luxembourg at the
European Communities in Case T-99/94 between
                                                                    office of Georgios Kremlis, Wagner Centre, Kirchberg.
Asociacion Espanola de Empresas de la Carne (Asocarne)
and Council of the European Union was brought before the
Court ofJustice of the European Communities on 4 January            The Appellant claims that the Court should:
1995 by Asociacion Espanola de Empresas de la Carne
(Asocarne), represented by Paloma Llaneza Gonzalez, of the          1 . declare that,
Madrid Bar, with an address for service in Luxembourg at
the Chambers of Loesch & Wolter, 11 Rue Goethe, BP                        — by maintaining in respect of the French community
1107, Luxembourg L-1011 .                                                     in the French-speaking region a system of prior
 ---pagebreak--- 4. 3 . 95           | EN                  Official Journal of the European Communities                                 No C 54/11
         authorization for retransmission by cable of                concerning the purchase and production of audiovisual
         television broadcasts from other Member States,             programmes), in itself constitutes a serious obstacle to the
                                                                     retransmission of broadcasts from other Member States
                                                                     which is thereby made harder, more difficult, even
    — by maintaining in respect of the French community              impossible (where authorization is refused or
         in the French-speaking region a system of express           withdrawn).
         prior authorization, to which conditions are
         attached, for retransmission by cable of television
         broadcasts from other Member States containing              It is not for the authorities of a Member State to ensure that
         commercial advertising or a television sales                the individual rights of authors, performing artists and so on
         programme especially intended for viewers in the            are in fact respected.
         French community,
                                                                     Nor is it for the authorities of the State in which
    — by maintaining in respect of the Dutch-speaking                retransmission by means of televisual distribution takes
         community in the Flanders region a system of prior          place to ascertain whether the law applicable in the Member
         authorization for retransmission by cable of                State from which the broadcasts emanate has been complied
         television broadcasts from other Member States,             with. The Directive lays down efficient methods of
                                                                     protecting minors, namely provisional suspension
                                                                     (Article 2 (2), second to fourth sentences). With regard to
    — by failing to adopt in respect of the bilingual                possible infringements of the Directive's other provisions,
         Metropolitan Brussels Region the laws, regulations          the receiving Member State has the opportunity of drawing
         and administrative provisions necessary to comply           the infringing circumstances to the attention of the
         with Article 2 (2 ) of Directive 89/552/EEC,                originating Member State (Articles 169 and 170 of the EC
                                                                     Treaty).
    — by failing to adopt in respect of the
         German-speaking community the laws, regulations             With respect to the argument based on Article 128 of the
         and administrative provisions necessary to comply           Treaty, the Community took cultural factors into
         with Article 2 (2 ) of Directive 89/552/EEC,                consideration even before the Treaty on the Union, when the
                                                                     Council adopted Directive 89/552/EEC, and nothing in
                                                                     Article 128 of the Treaty authorizes Member States to evade
    — by failing to adopt in respect of the French-speaking          their Community obligations.
         community the laws, regulations and administrative
         provisions necessary to comply fully with Articles 14
         and 15 of Directive 89/552/EEC,                              ( Claim 1 , second indent)
     the Kingdom of Belgium has failed to fulfil its                 As the system is even more restrictive than that hitherto
     obligations under Council Directive 89/552/EEC of               intended to be achieved, in particular with respect to the fact
     3 October 1989 ( x ) on the coordination of certain             that broadcasters are asked to support the French
     provisions laid down by law, regulation or                      community's television stations and printed press, it is all the
     administrative action in Member States, concerning the          more contrary to Article 2 (2 ) of Directive 89/552/EEC . A
     pursuit of television broadcasting activities, in particular    Member State may not assume in a general way, in a piece of
     Aricles 2 , 14 and 15 thereof.                                  legislation, that every broadcaster putting out advertising or
                                                                     a television sales programme especially intended for viewers
                                                                     in that country is in the position concerned in so-called 'Van
2. Order the Kingdom of Belgium to pay the costs.                    Binsbergen' case-law: all the conditions required by that
                                                                     case-law still have to be met in the case in point.
                                                                     Accordingly, a Member State may not decide that a whole
Pleas in law and main arguments                                      class of broadcasters falls outside the scope of Article 2 ( 2 ) of
                                                                     the directive.
( Claim 1 , first indent)
                                                                      ( Claim 1 , third indent)
While it is true that it is only provision of the Belgian
television distribution services that is subject to                  The system in question is comparable to that referred to in
authorization, cable distribution of television programmes           the first indent of the pleadings.
by broadcasters established in other Member States must
itself be regarded as a transfrontier service and as included in      ( Claim 1 , sixth indent)
the definition of retransmission within the meaning of
Article 2 (2 ) of the Directive. The requirement of prior
authorization by the Executive of the French community,              The Commission observes that there are no provisions
granted after an agreement governed by private law has been          prohibiting advertising of medical treatment (incomplete
concluded with the abovementioned Executive which can                transposition into national law of Article 14 of the
impose conditions not laid down in legislation (particularly         Directive ) or requiring compliance with the criteria laid
 ---pagebreak--- No C 54/12           ΓΕΝ                    Official Journal of the European Communities                                      4 . 3 . 95
down in Article 15 of the Directive with regard to alcoholic                — Council Directive 92/40/EEC of 19 May 1992 ( l )
beverages of less than 10 degrees strength.                                     introducing Community measures for the control of
                                                                                avian influenza, and
(!) OJ No L 298 , 7. 10. 1989, p. 23 .
                                                                            — Council Directive 92/48/EEC of 16 June 1992 laying
                                                                                down the minimum hygiene rules applicable to
                                                                                fishery products caught on board certain vessels in
                                                                                accordance with Article 3 ( 1 ) (a ) (i ) of Directive
                                                                                91/493/EEC (2),
Reference for a preliminary ruling from the Arbeitsgericht
Bonn by order of that court of 30 November 1994 in the                      and/or failing to communicate them to the Commission,
case of Ayse Siizen v. Zehnacker Gebaudereinigung GmbH                      the Kingdom of Belgium has failed to fulfil its
      Krankenhausservice, joined party: Lefarth GmbH                        obligations under the penultimate articles of the said
                            Case C-13/95 )                                  directives and under the EC Treaty;
                             ( 95/C 54/19 )
                                                                       2. order the Kingdom of Belgium to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by an order of the Arbeitsgericht                 Pleas in law and main arguments
Bonn (Bonn Labour Court) of 30 November 1994, which
was received at the Court Registry on 1 8 January 1 995, for a         The mandatory nature of the provisions of the third
preliminary ruling in the case of Ayse Siizen v. Zehnacker             paragraph of Article 189 and of the first paragraph of
Gebaudereinigung GmbH Krankenhausservice, joined                       Article 5 of the EEC Treaty is such as to oblige Member
party: Lefarth GmbH, on the following questions:                       States to whom directives are addressed to adopt the
                                                                       measures necessary for the implementation of such
1 . On the basis of the judgments of the Court of Justice of           directives within the time-limit prescribed therein. The
     14 April 1994 in Case C-392/92 ( J ) and 19 May 1992 in           time-limit in question expired on 1 January 1993 but the
     CaseC-29/91 (2), is Directive 77/1 87/EEC ( 3 ) applicable        Kingdom of Belgium has not adopted the necessary
                                                                       measures .
     if an undertaking terminates a contract with an outside
     undertaking in order then to transfer it to another
     outside undertaking?                                              (!) OJ No L 167, 22 . 6.1992, p. 1 .
                                                                       (2 ) OJ No L 187, 7. 7. 1992, p. 41 .
2. Is there a legal transfer within the meaning of the
     directive in the case of the operation described in
     Question 1 even if no tangible or intangible business
     assets are retransferred ?
(M OJ No C 132, 5 . 3 . 1977, p. 4.                                    Reference for a preliminary ruling from the Tribunal de
(2 ) OJ No C 153 , 14 . 5 . 1994, p. 4 .                               Grande Instance de Morlaix by judgment of that court of
(3 ) OJ No L 61 , 18 . 6 . 1992, p. 26 .                               14 December 1994 in the case of E.A.R.L. de Kerlast v. 1 .
                                                                       Union Regionale de Cooperatives Agricoles (UNICOPA)
                                                                                       and 2. Cooperative du Trieux
                                                                                               (Case C-15/95 )
                                                                                                  95/C 54/21
Action brought on 17 January 1995 by the Commission of
the European Communities against the Kingdom of
                                Belgium                                Reference has been made to the Court of Justice of the
                                                                       European Communities by a judgment of the Tribunal de
                           (Case C-14/95 )                             Grande Instance (Regional Court), Morlaix, of
                            ( 95/C 54/20 )                             14 December 1994, which was received at the Court
                                                                       Registry on 18 January 1995, for a preliminary ruling in the
An action against the Kingdom of Belgium was brought                   case of E.A.R.L. de Kerlast against 1 . Union Regionale de
before the Court ofJustice of the European Communities on              Cooperatives Agricoles (UNICOPA) and 2. Cooperative du
17 January 1995 by the Commission of the European                      Trieux on the following questions:
Communities, represented by Gerard Rozet, Legal Adviser,
acting as Agent, with an address for service in Luxembourg             1 . On a proper construction of Article 7 of Council
at the office of Georgios Kremlis, of the Legal Service,                    Regulation ( EEC) No 857/84 (*) are producers
Wagner Centre, Kirchberg.                                                   precluded from entering into joint ventures — which are
                                                                            without legal personality of their own, are not effective
The applicant claims that the Court should:                                 against third parties and are unpublicized — in so far as
                                                                            they constitute a disguised form of quota-leasing, or are
1 . declare that, by not adopting the laws, regulations and                 such ventures authorized as a necessary structural
     administrative provisions necessary in order to comply                 adjustment within the meaning of Article 1 of Council
     with                                                                   Regulation (EEC) No 856/84 (2)?