CELEX: C1998/299/33
Language: en
Date: 1998-09-26 00:00:00
Title: Appeal brought on 29 July 1998 by Metsä-Serla OYJ, UPM-Kymmene OYJ (formerly United Paper Mills Ltd), Tamrock OY (formerly Tampella Corporation) and Kyro OYJ ABP (formerly OY Kyro AB) against the judgment delivered on 14 May 1998 by the Third Chamber (extended composition) of the Court of First Instance of the European Communities in Joined Cases T-339/94, T-340/94, T-341/94 and T-342/94 Metsä-Serla OYJ and Others against the Commission of the European Communities (Case C-294/98 P)

26.9.98               EN                Official Journal of the European Communities                                  C 299/21
directives for their implementation. In the present case,          the European Communities was brought before the Court
when the time limits expired, the Italian Republic had not         of Justice of the European Communities on 29 July 1998
adopted the measures necessary to comply with the                  by Metsä-Serla OYJ and Others, represented by Hans
Directives named in the Commission's application.                  Hellmann, Am Morsdorfer Hof 16, D-50933 Cologne,
                                                                   and Hans-Joachim Hellmann LL.M., Schilling, Zutt &
(1) OJ L 148, 30.6.1995, p. 52.                                    Anschütz, Otto-Beck Straûe 42, D-68165 Mannheim,
(2) OJ L 49, 28.2.1996, p. 29.                                     Rechtsanwälte, with an address for service in Luxembourg
                                                                   at the Chambers of Loesch & Wolter, 11 rue Goethe, B.P.
                                                                   1107, L-1011 Luxembourg.
                                                                   The appellants claim that the Court should:
Reference for a preliminary ruling by the Juzgado de               1. declare void, in so far as it concerns the appellants, the
Primera Instancia e Instrucción No 5, Oviedo, by order of              Commission Decision of 13 July 1994 relating to a
that Court of 1 June 1998 in the Case of Entidad de                    proceeding under Article 85 of the EC Treaty (IV/C
Gestión de Derechos de los Productores Audiovisuales                   33.833 Ð Cartonboard), notified to the appellants on
      (EGEDA) v. Hostelería Asturiana, SA (HOASA)                      8 August 1994 and published in the Official Journal
                       (Case C-293/98)                                 of the European Communities of 19 September 1994;
                         (98/C 299/32)
                                                                   2. order the Commission to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by an order of the Juzgado de                 Pleas in law and main arguments adduced in support:
Primera Instancia e Instrucción (Court of First Instance)
No 5, Oviedo, of 1 June 1998, which was received at the            Infringement of Community law: there is no legal basis for
Court Registry on 29 July 1998, for a preliminary ruling           an order that the appellants should bear joint and several
in the Case of Entidad de Gestión de Derechos de los               liability for the fine imposed on Finnboard. Article 15(2)
Productores Audiovisuales (EGEDA) v. Hostelería                    of Council Regulation No 17 does not impose liability for
Asturiana, SA (HOASA), on the following question.                  infringements of third parties. Neither the Commission
                                                                   nor the Court of First Instance found that the appellants
Must Article 1(2)(a) and (3) of Directive 93/83/EEC (1) be         had themselves infringed Article 85(1) of the EC Treaty.
interpreted as meaning that the reception by a hotel               The Court's view that an undertaking may be held jointly
establishment of satellite or terrestrial television signals       and severally liable for payment of a fine where the
and their retransmission by cable to the various rooms of          Commission finds in the same instrument that the
the hotel is an act of communication to the public' or            infringement could have been established also in the case
reception by the public'?                                         of that undertaking infringes the principle of nulla poena
                                                                   sine lege, or the prohibition which follows by analogy
                                                                   from that principle, and the principle of the presumption
(1) OJ L 248, 6.10.1993, p. 15.                                    of innocence; it is incompatible with the principles of the
                                                                   rule of law and contravenes the appellants' fundamental
                                                                   rights of defence.
                                                                   The Court of First Instance wrongly relies on the case-law
                                                                   of the Court of Justice on the determination of fines in
Appeal brought on 29 July 1998 by Metsä-Serla OYJ,                 regard to undertakings which form an economic unit.
UPM-Kymmene OYJ (formerly United Paper Mills Ltd),                 Joint and several liability cannot be derived from the
Tamrock OY (formerly Tampella Corporation) and Kyro                principles of economic unity. Moreover, the preconditions
OYJ ABP (formerly OY Kyro AB) against the judgment                 for a finding that there was economic unity do not exist.
delivered on 14 May 1998 by the Third Chamber
(extended composition) of the Court of First Instance of
the European Communities in Joined Cases T-339/94,
T-340/94, T-341/94 and T-342/94 Metsä-Serla OYJ and
Others against the Commission of the European
                          Communities
                      (Case C-294/98 P)                            Action brought on 29 July 1998 by the Commission of the
                                                                       European Communities against the French Republic
                         (98/C 299/33)
                                                                                          (Case C-296/98)
                                                                                           (98/C 299/34)
An appeal against the judgment delivered on 14 May
1998 by the Third Chamber (extended composition) of the
Court of First Instance of the European Communities in             An action against the French Republic was brought before
Joined Cases T-339/94, T-340/94, T-341/94 and T-342/94             the Court of Justice of the European Communities on
Metsä-Serla OYJ and Others against the Commission of               29 July 1998 by the Commission of the European