CELEX: C2004/071/17
Language: en
Date: 2004-03-20 00:00:00
Title: Case C-26/04: Action brought on 27 January 2004 by the Commission of the European Communities against the Kingdom of Spain

20.3.2004              EN                         Official Journal of the European Union                                            C 71/11
2.   Is Article 32 of Protocol 4 mentioned above to be                    Reference for a preliminary ruling from the Dioikitiko
     construed as meaning that the customs authorities of the             Protodikeio Athinon by order of 30 September 2003 in
     importing Member State are required to take into account                  the case of SPHAKIANAKIS AEBE v Greek State
     the decisions of the courts of the exporting State over-
     turning the outcome of investigations ordered and carried
     out by the Hungarian authorities after the export oper-                                       (Case C-24/04)
     ation, regard being had to the fact that
                                                                                                   (2004/C 71/16)
     (a)   the authorities of the importing State were duly
           informed both of the fact that proceedings were
           pending before the Hungarian courts and of the
           outcome of the relevant procedures and                         By order of 30 September 2003, which was received at the
                                                                          registry of the Court of Justice of the European Communities
                                                                          on 26 January 2004, the Dioikitiko Protodikeio Athinon seeks
     (b) those authorities never asked for any investigation              from the Court, in the context of the dispute pending before
           to be carried out;                                             it between SPHAKIANAKIS AEBE and the Greek State, a
                                                                          preliminary ruling on the following questions:
3.   If the answer to the above questions is affirmative are the
     abovementioned provisions of Community law to be                     The questions in the present case are identical to the questions
     construed as not permitting the adoption of administrat-             in Case C-23/04.
     ive acts imposing additional duties charges and taxes
     issued by the national authorities of the importing State
     after notification by the Hungarian authorities of the
     outcome of the investigation conducted by them but
     before publication of the court decisions overturning the
     results of the investigation for the purpose of elucidating
     the due result of the prohibition of the imposition of
     duties by the association agreement between the EU and               Action brought on 27 January 2004 by the Commission
     Hungary, in light also of the fact finally that the EUR.1            of the European Communities against the Kingdom of
     certificates issued were correct;                                                                   Spain
4.   In that connection are the above questions affected by                                        (Case C-26/04)
     the fact that neither the Greek nor the Hungarian
     authorities sought convocation of the association com-
     mittee mentioned in Article 33 of Protocol 4 for the                                          (2004/C 71/17)
     purpose of reaching a determination in that connection,
     a situation which demonstrates that neither of the two
     authorities considered that adoption of the decisions of
     the Hungarian courts constituted a dispute between them              An action against the Kingdom of Spain was brought before
     which ought to have been brought before that committee               the Court of Justice of the European Communities on 27 Janu-
     for a determination?                                                 ary 2004 by the Commission of the European Communities,
                                                                          represented by Gregorio Valero Jordana, of the Commission’s
                                                                          Legal Service, with an address for service in Luxembourg.
5.   In the alternative, if the answer to the foregoing questions
     is in the negative, if therefore the Greek customs auth-
     orities did not infringe the abovementioned provisions of            The applicant claims that the Court should:
     Community law by the imposition of additional duty,
     VAT and a penalty is it then possible to take the view that          —     declare that, by failing to officially designate the beaches
     the ex post determination of duties as against the importer                ‘A Videira’, ‘Niño de Corvo’ and ‘Canabal’ in Moaña, Ría
     is not permitted under Article 220(2) of the Common                        de Vigo, Comunidad Autónoma de Galicia, the Kingdom
     customs code on the ground of error by the customs                         of Spain has failed to fulfil its obligations under
     authorities of either the importing or exporting State,                    Article 4(1) of Council Directive 76/160/EEC (1) of
     regard being had in particular to the fact that the customs                8 December 1975 concerning the quality of bathing
     authorities of the exporting State had available to then all               water;
     the factual elements in connection with the manufacture
     of the vehicles intended for export as the basis for issue
                                                                          —     declare that, by failing to adopt a pollution-reduction
     of the EUR.1 certificate, with the result that the authorities
                                                                                programme for the Ría de Vigo, the Kingdom of Spain
     of the importing State might be in a position to ascertain
                                                                                has failed to fulfil its obligations under Article 5 of
     ex officio the duty lawfully payable?
                                                                                Council Directive 79/923/EEC (2) of 30 October 1979 on
                                                                                the quality required of shellfish waters;
                                                                          —     order the Kingdom of Spain to pay the costs.
 ---pagebreak--- C 71/12                EN                          Official Journal of the European Union                                         20.3.2004
Pleas in law and main arguments                                            Action brought on 28 January 2004 by the Commission
                                                                           of the European Communities against the Republic of
                                                                                                        Austria
The Spanish authorities have not officially designated as
bathing areas, the beaches Viela/A Videira, Niño do Corvo and
Canabal in the municipality of Moaña (Pontevedra), in spite of
                                                                                                    (Case C-29/04)
the frequent presence of bathers on those beaches. In the
absence of a ban on bathing, the presence of bathers requires
the designation of those beaches as bathing waters, for the
purpose of Directive 76/160. In the absence of such a                                               (2004/C 71/19)
designation, those three beaches have not been subject to the
surveillance required by the Directive.
The waters of the Ría de Vigo do not conform to the guideline              An action against the Republic of Austria was brought
values, laid down by Directive 79/923, for faecal coliforms, in            before the Court of Justice of the European Communities
spite of the fact that nearly all of those waters have been                on 28 January 2004 by the Commission of the European
designated by the Spanish authorities as shellfish waters.                 Communities, represented by Klaus Wiedner, acting as Agent,
Accordingly, Article 5 of that directive requires the establish-           with an address for service in Luxembourg.
ment of a programme to reduce pollution in order to ensure
that the designated waters conform to the values fixed in the
Annex to Directive 79/923. However, the pollution-reduction
programme for the Ría de Vigo has not been notified to the                 The applicant claims that the Court should:
Commission.
                                                                           1.    declare that the Republic of Austria has failed to fulfil its
(1) OJ 1976 L 31, p. 1; Spanish Special Edition 15/01, p. 133.                   obligations under Council Directive 92/50/EEC of 18 June
(2) OJ 1979 L 281, p. 47; Spanish Special Edition 15/02, p. 156.                 1992 relating to the coordination of procedures for the
                                                                                 award of public service contracts (1), in that award of the
                                                                                 refuse disposal contract entered into by the town of
                                                                                 Mödling failed to comply with the procedures and
                                                                                 advertising rules laid down in Article 8, in conjunction
                                                                                 with Article 11(1) and Article 15(2), of that directive;
Reference for a preliminary ruling by the Tribunal De
                                                                           2.    order the Republic of Austria to pay the costs.
Grand Instance de Paris (Third Chamber, Second Division)
by order of that Court of 5 December 2003 in the case of
Société TOD’S SpA (formerly named EMA Srl) and SARL
TOD’S France formerly named DEVA France against S.A.
    Heyraud; Voluntary intervener: Sté Technisynthese
                                                                           Pleas in law and main arguments
                          (Case C-28/04)
                          (2004/C 71/18)                                   On 21 May 1999, the municipality of Mödling decided to use
                                                                           its own vehicle to carry out its statutory duties relating to
                                                                           refuse disposal. A company, AbfallGmbH, was incorporated
                                                                           for this purpose. The whole of the company’s share capital
Reference has been made to the Court of Justice of the                     was held by one member, namely the municipality of Mödling.
European Communities by order of the Tribunal De Grand                     The contract for disposal, under which the municipality of
Instance de Paris (Paris Regional Court) of 5 December 2003,               Mödling transferred exclusive responsibility for the collection
received at the Court Registry on 28 January 2004, for a                   and treatment of waste to AbfallGmbH, was entered into on
preliminary ruling in the case of Société TOD’S SpA (formerly              15 September 1999. The contract was entered into for an
named EMA Srl) and SARL TOD’S France formerly named                        unlimited period and came into force with retrospective effect
DEVA France against S.A. Heyraud; Voluntary intervener: Sté                on 1 July 1999. Two weeks after the conclusion of the contract
Technisynthese, on the following question:                                 for refuse disposal, the town council of the municipality of
                                                                           Mödling decided that the municipality of Mödling, as sole
                                                                           member of AbfallGmbH, should transfer 49 % of its shares to
Does Article 12 of the EC Treaty, which lays down the general              a private undertaking.
principle of non-discrimination on grounds of nationality,
mean that the right of an author to claim in a Member State
the copyright protection afforded by the law of that State may
not be subject to a distinction based on the country of origin             The Republic of Austria is of the opinion that the provisions
of the work?                                                               of Directive 92/50/EEC do not apply to the award of the waste
                                                                           disposal contract to AbfallGmbH, as it involved a so-called ‘in-
                                                                           house’ transaction.