CELEX: C1998/278/34
Language: en
Date: 1998-09-05 00:00:00
Title: Action brought on 7 July 1998 by the Commission of the European Communities against the French Republic (Case C-239/98)

C 278/20              EN                Official Journal of the European Communities                                      5.9.98
Ð the above view of the Court is based exclusively on                  legislature failed to exercise its discretion when setting
    grounds that are either irrelevant, represent incorrect            the amount of the compensation.
    views of the law or distort the facts emerging from the
    judgment and the documents before the Court,
                                                                   (1) OJ C 184, 13.6.1998, p. 9.
    contrary to law,
Ð (alternatively) the Court did not attempt to clarify the
    uncertainty which itself found regarding the actual
    situation, since it did not appraise, discuss or, to an
    extent, even mention the relevant evidence submitted
    by the plaintiff.                                              Action brought on 7 July 1998 by the Commission of the
                                                                       European Communities against the French Republic
                                                                                           (Case C-239/98)
(As to the existence of a direct and foreseeable causal link)
                                                                                            (98/C 278/34)
Ð The Court's view that the facts found by it should not
    be characterised as a direct [and foreseeable] causal         An action against the French Republic was brought before
    link between the alleged damage and the adoption of            the Court of Justice of the European Communities on 7 July
    Regulation (EEC) No 2340/90' constitutes an error of           1998 by the Commission of the European Communities,
    law. If a correct characterisation were made, the              represented by Christina Tufvesson, Legal Adviser, and
    existence of such a causal link would follow from the          Bernard Mongin, of its Legal Service, acting as Agents,
    facts found by the Court,                                      with an address for service in Luxembourg at the office of
                                                                   Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Ð the grounds given by the Court for the above view are
    either irrelevant, based on an incorrect view of the law       The Commission of the European Communities claims
    or should not be applied because they are based on a           that the Court should:
    finding of facts which constitutes an error of law,
                                                                   Ð declare that, by failing to adopt (or implement) and
Ð (alternatively) the Court did not attempt to clarify the             communicate all of the laws, regulations and
    uncertainty which itself found regarding the actual                administrative measures necessary in order to comply
    situation, since it did not appraise, discuss or, to an            fully with Council Directive 92/49/EEC of 18 June
    extent, even mention the relevant evidence submitted               1992 on the coordination of laws, regulations and
    by the plaintiff.                                                  administrative provisions relating to direct insurance
                                                                       other than life assurance and amending Directives 73/
                                                                       239/EEC and 88/357/EEC (third non-life insurance
                                                                       Directive) (1) and with Council Directive 92/96/EEC
(As to the existence of unusual and special damage)                    of 10 November 1992 on the coordination of laws,
                                                                       regulations and administrative provisions relating
                                                                       to direct life assurance and amending Directives 79/
Ð If a correct characterisation were made, the existence               267/EEC and 90/619/EEC (third life assurance
    of unusual and special damage would follow from the                Directive) (2), and, in particular, by omitting to
    Court's findings of fact.                                          transpose those directives as regards mutuelles reÂgies
                                                                       par le code de la mutualiteÂ', the French Republic has
                                                                       failed to fulfil its obligations under the EC Treaty and
(As to the alternative claim for compensation for damage               under those Directives,
resulting from an unlawful act)
                                                                   Ð order the French Republic to pay the costs.
Ð The Court's view that the claim made in the
    application cannot be based on the applicant's
    alternative ground regarding the amount of the                 Pleas in law and main arguments adduced in support:
    damage, because a claim for compensation for a
    lawful act does not exist on the merits, is based on an
    error of law. The plaintiff, which did not make an             The transposition by France of Directives 92/49/EEC
    alternative plea in law but which, as is clear from the        and 92/96/EEC is incomplete, since it does not extend
    documents before the Court, merely submitted an                to mutuelles reÂgies par le code de la mutualiteÂ' in
    alternative ground for its plea, has, contrary to the          accordance with Article 8 of Directives 73/239/EEC (3) and
    Court's view, on the merits at least a claim for               79/267/EEC (4). Mere communication of a draft law which
    damages for a lawful act and can therefore claim               has not yet been adopted and is still being discussed
    full damages in this case because the Community                with the economic operators concerned cannot constitute
 ---pagebreak--- 5.9.98                 EN               Official Journal of the European Communities                                  C 278/21
communication of transposition measures. The Directives            8 July 1998 by the Commission of the European
should have been transposed by no later than 1 July 1994.          Communities, represented by Maria Patakia and Bernard
                                                                   Mongin, of its Legal Service, acting as Agents, with an
                                                                   address for service in Luxembourg at the office of Carlos
(1 ) OJ L 228, 11.2.1992, p. 1.
                                                                   Gómez de la Cruz, Wagner Centre, Kirchberg.
(2)  OJ L 360, 9.12.1992, p. 1.
(3)  OJ L 228, 16.8.1973, p. 3.
(4)  OJ L 63, 13.3.1979, p. 1.
                                                                   The Commission of the European Communities claims
                                                                   that the Court should:
                                                                   Ð declare that, by prohibiting the issue by banks
                                                                       established outside France of certificates of deposit
References for preliminary rulings by Juzgado de Primera               and issues of Euro-bonds in French francs for an
Instancia No 35, Barcelona, by orders of that court of                 initial term of less than one year, as well as issues of
31 March 1998 (first two cases) and of 1 April 1998 in                 national bonds for an initial term of less than three
the cases of OceÂano Grupo Editorial SA and Others and                 months, the French Republic has failed to fulfil its
               R. Murciano Quintero and Others                         obligations under Article 73b of the EC Treaty,
             (Joined Cases C-240/98 to C-244/98)                       Article 59 of the EC Treaty and Council Directive 89/
                                                                       646/EEC (1),
                          (98/C 278/35)
                                                                   Ð order the French Republic to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by orders of Juzgado de Primera
Instancia (Court of First Instance) No 35, Barcelona, of
                                                                   Pleas in law and main arguments adduced in support:
31 March 1998 (in the first two cases) and 1 April 1998,
which were received at the Court Registry on 8 July 1998,
for a preliminary ruling in the cases of OceÂano Grupo
Editorial SA and Others and R. Murciano Quintero (Case             Ð Infringement of Article 73b of the EC Treaty: the
C-240/98), Salvat Editores SA and J. M. SaÂnchez Alcón                 rules governing the Euro-franc market, adopted on
Prades (C-241/98), Salvat Editores SA and J. L. Copano                 19 November 1996 by the Issues Board, continue to
Badillo (C-242/98), Salvat Editores SA and M. Berroane                 provide that the term for which securities are issued in
(C-243/98), and Salvat Editores SA and E. VinÄas Feliu                 the context of an issue on the Euro-franc market may
(C-244/98), on the following question:                                 not be less than one year. The rule prohibiting banks
                                                                       established outside France from issuing certificates of
                                                                       deposit and short-term securities in francs constitutes a
Whether the scope of the consumer protection provided by               restriction on the free movement of capital, contrary
Council Directive 93/13/EEC (1) on unfair terms in                     to Article 73b of the EC Treaty,
consumer contracts is such that the national court may
consider of its own motion whether a term is unfair when
making its preliminary assessment as to whether leave              Ð Infringement of Article 59 and of Directive 89/646/
should be granted for a claim to proceed before the                    EEC: since the issue by banks of certificates of deposit
ordinary courts.                                                       or of bonds constitutes a service within the meaning of
                                                                       Article 60 of the EC Treaty, Article 59 precludes the
(1) OJ L 95, 21.4.1993, p. 29.                                         application of national rules of any kind which, in the
                                                                       absence of any objective justification, restrict the
                                                                       possible exercise by a supplier of services of his
                                                                       freedom to provide such a service. By prohibiting
                                                                       banks which are not established in France from issuing
                                                                       securities in the same way as domestic banks, which
                                                                       may freely do so, the measures complained of also
                                                                       constitute restrictions on freedom to provide banking
Action brought on 8 July 1998 by the Commission of the                 services, contrary to Article 59 of the EC Treaty and
     European Communities against the French Republic                  Article 18(1) of Directive 89/646/EEC, which confers
                                                                       on all banks within the Community freedom to
                        (Case C-245/98)
                                                                       provide cross-border banking services.
                          (98/C 278/36)
                                                                   (1) OJ L 386, 30.12.1989, p. 1.
An action against the French Republic was brought before
the Court of Justice of the European Communities on