CELEX: C2001/161/12
Language: en
Date: 2001-06-02 00:00:00
Title: Case C-122/01 P: Appeal brought on 19 March 2001 by T. Port GmbH & Co. KG against the judgment delivered on 1 February 2001 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-1/99 between T. Port GmbH & Co. KG and the Commission of the European Communities

C 161/6                   EN                       Official Journal of the European Communities                                     2.6.2001
—      by maintaining in force Article 15 in Title IV of Law                  1.   Must Directive 75/442/EEC of 15 July 1975 (1) on waste
       No 409 of 24 July 1985, which refers to Article 1 of Law                    (the Framework Directive) be interpreted as permitting a
       No 1398 of 14 December 1964, having the effect that                         process for processing waste in which more than one
       only dentists of Italian nationality may remain registered                  operation is performed, as described above, to be assessed
       as practitioners upon transferring their residence to                       as a whole?
       another Member State,
the Italian Republic has failed to fulfil its obligations under               2.   If so, does the process concerned constitute recovery
Articles 48 and 52 of the EC Treaty (now, after amendment,                         within the meaning of R1, R3 and R5 of Annex 11 B to
Articles 39 EC and 43 EC) — the Court (Sixth Chamber),                             the Framework Directive if it results in the complete use
composed of: C. Gulmann, President of the Chamber, V. Skou-                        of the waste employed therein?
ris, J.-P. Puissochet, R. Schintgen (Rapporteur) and F. Macken,
Judges; P. Léger, Advocate General; R. Grass, Registrar, has                  3.a. If the answer to question 1 is in the negative, is the
given a judgment on 18 January 2001, in which it:                                  extent (expressed as calorific values) to which the waste
                                                                                   contributes to the incineration process or the extent
1.     Declares that:
                                                                                   (expressed as the level of material re-used) to which the
       —     by allowing Legislative Decree No 233 of the Provisional              ash residues from that waste contribute to the production
             Head of State of 13 September 1946 on the reconstitution              process relevant as regards the classification of each
             of the associations of the health-care professions and the            individual operation as recovery or disposal (R1, R3 and
             regulation of the practice of those professions, despite              R5 and D10 respectively)?
             amendment by Article 9 of Law No 362 of 8 November
             1991 on the rules for the re-organisation of the pharma-         3.b. If so, on the basis of which criteria is it necessary to
             ceutical sector, to remain in force in such a way as to leave         assess whether or not the contribution is sufficient for
             dentists practising in Italy still subject to a de facto              classification as recovery? In the absence of Community
             residence requirement,                                                criteria in this respect is it possible to apply national
       —     by maintaining in force Article 15 of Law No 409 of                   criteria?
             24 July 1985 on the profession of dental surgeon and on
             the provisions concerning the right of establishment and the     4.   If one operation must be classified as recovery and
             freedom to provide services of dentists who are nationals of          another operation as disposal, how must the process be
             Member States of the European Communities, which refers               regarded as a whole?
             to Article 1 of Law No 1398 of 14 December 1964
             amending and supplementing Law No 736 of 10 July
             1960 as regards the registration of Italian members of the
                                                                              (1) OJ L 194, 1975, p. 39.
             health-care professions residing abroad, having the effect
             that only dentists of Italian nationality may remain regis-
             tered with their professional association upon transferring
             their residence to another Member State,
       the Italian Republic has failed to fulfil its obligations under
       Articles 48 and 52 of the EC Treaty (now, after amendment,
       Articles 39 EC and 43 EQ;
2.     Orders the Italian Republic to pay the costs.
(1) OJ C 188 of 3.7.1999.                                                     Appeal brought on 19 March 2001 by T. Port GmbH &
                                                                              Co. KG against the judgment delivered on 1 February
                                                                              2001 by the Fifth Chamber of the Court of First Instance
                                                                              of the European Communities in Case T-1/99 between
                                                                              T. Port GmbH & Co. KG and the Commission of the
Reference for a preliminary ruling by the Raad van State                                         European Communities
by order of 13 March 2001 in the case of Verol Recycling
Limburg B.V. and Minister van Volkshuisvesting, Ruimte-
                  lijke Ordening en Milieubeheer                                                      (Case C-122/01 P)
                            (Case C-116/01)
                                                                                                       (2001/C 161/12)
                            (2001/C 161/11)
Reference has been made to the Court of Justice of the                        An appeal against the judgment delivered on 1 February 2001
European Communities by order of 13 March 2001 by the                         by the Fifth Chamber of the Court of First Instance of the
Raad van State (Council of State), which was received at the                  European Communities in Case T-1/99 between T. Port GmbH
Court Registry on 15 March 2001, for a preliminary ruling in                  & Co. KG and the Commission of the European Communities
the case of Verol Recycling Limburg B.V. and Minister van                     was brought before the Court of Justice of the European
Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer on                     Communities on 19 March 2001 by T. Port GmbH & Co. KG,
the following questions:                                                      represented by G. Meier, Rechtsanwalt, Cologne.
 ---pagebreak--- 2.6.2001                 EN                    Official Journal of the European Communities                                            C 161/7
The appellant claims that the Court should:                                     the export licences acquired. If the Court had made its
                                                                                doubts on this point known, the plaintiff would have
                                                                                been able to give a breakdown of the figures at the
—     partially annul the contested judgment; and                               hearing; the Court was therefore not entitled to reject the
                                                                                claim in its entirety on that ground.
—     adjudicate accordingly on the claim at first instance (1)
                                                                          (1) Not yet published in the ECR.
Pleas in law and main arguments
—     The Court of First Instance wrongly proceeded on the
      basis that the plaintiff passed the cost of the export
      licences on to its customers and therefore suffered no
      loss. The plaintiff made no declaration on the point
      because the question of any possible unjustified loss did
      not in any event fall within the scope of its evidentiary
      burden.                                                             Action brought on 16 March 2001 by the Commission of
                                                                            the European Communities against the Italian Republic
      If the plaintiff did pass on the cost of obtaining the export
      licences to its customers, it did so because the market
                                                                                                     (Case C-124/01)
      would bear those prices. Without the requirement to
      produce export licences from Costa Rica, the plaintiff
      would have obtained the same sale price but made a                                             (2001/C 161/13)
      greater profit. The loss arose with the payment for the
      illegal export licences, which thereby concluded legal
      relations between the party causing the loss and the party          An action against the Italian Republic was brought before the
      suffering it. Whether and to what extent the party                  Court of Justice of the European Communities on 16 March
      suffering the loss succeeds, on account of its skill and the        2001 by the Commission of the European Communities,
      market situation, in opening up new sources of income               represented by Antonio Aresu, acting as Agent.
      for itself with which to compensate for its expenditure
      on the export licences, is an entirely different question to
      be determined in accordance with new (and appropriate)              The applicant claims that the Court should:
      causal links. That is how this legal question was deter-
      mined by the higher German courts. The relevant con-
      sideration is the recognition that the party causing the            —     declare that, by failing to adopt the laws, regulations
      loss may not unfairly escape responsibility.                              and administrative provisions necessary to comply with
                                                                                Directive 94/47/EC of the European Parliament and the
                                                                                Council of 26 October 1994(1) on the protection of
—     The subsidiary reasoning of the Court of First Instance                   purchasers in respect of certain aspects of contracts
      concerning the balancing of advantages between the                        relating to the purchase of the right to use immovable
      various operators also fails to support the contested                     properties on a timeshare basis, the Italian Republic has
      judgment. The principle of balancing advantages applies                   failed to fulfil its obligations under that directive;
      only if the advantage which arises (raising of quotas,
      reduction in customs duties) stems from the same
      legal infringement as the loss (expenditure incurred in             —     order the Italian Republic to pay the costs.
      obtaining export licences). Raising of quotas and customs
      duties, by contrast, do not constitute a legal infringement.
      How exactly this compensation for loss is to be quantified
      in the plaintiffs assessment of its loss is a matter which          Pleas in law and main arguments
      the plaintiff is unable to discover from the contested
      judgment.
—     The contested judgment suffers from an insufficient                 a)     Failure to comply with Article                          9 of
      statement of reasons, because it is not clear whether the                  Directive 94/47/EC
      Court is unprepared in principle to allow certification of
      the loss by sworn auditors as evidence.
                                                                          The Italian authorities indicated that they were to amend
                                                                          Article 11 of Decree No 427/98 in order fully to transpose
—     The Court of First Instance wrongly doubts the probative            Article 9 of the directive. However, no definite timetable has
      value of the customs payments, tested by auditors, which            yet been communicated concerning that amendment, from
      the plaintiff made for actual imports corresponding to              which it must be presumed that the infringement is continuing.