CELEX: C1997/228/28
Language: en
Date: 1997-07-26 00:00:00
Title: Action brought on 18 June 1997 by the Commission of the European Communities against the Portuguese Republic (Case C-227/97)

26 . 7 . 97               EN                     Official Journal of the European Communities                                     No C 228/ 13
        awarded under the procedure therein mentioned or                    Reference for a preliminary ruling by the Arrondissements­
        are the provisions of the Directive relevant to the                 rechtbank, Maastricht, by judgment of that court of
        services mentioned in Annex I ( A ) capable of                      13 June 1997 in the criminal proceedings against Johannes
        fulfilling the preconditions laid down in the                                               Martinus Lemmens
        abovementioned case ?                                                                         ( Case C-226/97)
                                                                                                          ( 97/C 228/27)
6.      Is there under Article 5 or other provisions of the
        EEC Treaty, or under Directive 92/50/EEC, an                        Reference has been made to the Court of Justice of the
        obligation on the State to interfere in existing legal              European Communities by judgment of the Arrondisse­
        situations concluded for an indefinite period or for                mentsrechtbank ( District Court), Maastricht, of 13 June
        several years but which were not entered into in                    1997, which was received at the Court Registry on 18 June
        accordance with the abovementioned Directive .                      1997, for a preliminary ruling in the criminal proceedings
                                                                            against Johannes Martinus Lemmens on the following
(') OJ No L 209 , 24 . 7. 1992, p . 1 .                                     questions :
( 2 ) OJ No L 395 , 30 . 12 . 1989 , p . 33 .
(■') Case 41 /74 [ 1974 ] ECR 1337.                                         1 . Can a defendant in criminal proceedings instituted for
                                                                                 an offence contrary to Article 8 (2 ) ( a ) of the Wegen­
                                                                                 verkeerswet ( Road Traffic Law) 1994 successfully rely
                                                                                 on the application of the Regeling Ademanalyse
                                                                                 ( Regulation on breath analysis ) ( Ned.Stcrt 1987, 187),
                                                                                 as amended, laying down further rules concerning the
                                                                                 requirements for breath-analysis apparatus and the
Reference for a preliminary ruling from the Verwaltungs­                         tests which such apparatus must undergo, being set
gerichtshof, by order of that court of 26 May 1997, in the                       aside
               case of Erich Ciola v. Land Vorarlberg
                           ( Case C-224/97 )                                     — where, for the purposes of the investigation
                                                                                      referred to in Article 8 ( 2 ) ( a ) of the Wegenverkeer­
                             ( 97/C 228/26 )                                          swet 1994, that Regulation is based, pursuant to
                                                                                      Article 65 of the Invoeringswet Wegenverkeerswet
                                                                                      ( Law implementing the Road Traffic Law) 1994,
Reference has been made to the Court of Justice of the                                on Article 163 of the Wegenverkeerswet viewed in
European Communities by order of the Verwaltungsge­                                   conjunction with Article 5 of the Besluit Alcoho­
richtshof (Administrative Court of Appeal ) of 26 May                                 londerzoeken ( Decree on the conduct of tests to
 1997, received at the Court Registry on 16 June 1997, for                            determine alcohol level ) ( Stb . 1987, 432 ), as
a preliminary ruling in the case of Erich Ciola v. Land Vor­                          amended,
arlberg on the following questions :                                             — in view of the failure to notify the Regulation to
                                                                                      the European Commission, as required by Article 8
                                                                                      of Directive 83/189/EEC O ?
 1 . Are the provisions concerning the freedom to provide
       services to be interpreted as precluding a Member
                                                                             2 . Should a court in criminal proceedings of the kind
       State from prohibiting the operator of a yachting
       harbour, on pain of criminal prosecution, from hiring
                                                                                 referred to above disapply that Regulation of its own
                                                                                 motion on account of the failure to notify it as
       out more than a specific quota of moorings to boat
       owners who are resident in another Member State ?                         required ?
                                                                             (') OJ No L 109 , 26 . 4 . 1983 , p . 8 .
 2 . Does Community law, in particular the provisions
       concerning the freedom to provide services in
       conjunction with Article 5 of the EC Treaty and
       Article 2 of the Act concerning the conditions of
       accession of the Republic of Austria, the Republic of                 Action brought on 18 June 1997 by the Commission
       Finland and the Kingdom of Sweden and the                             of the European Communities against the Portuguese
       adjustments to the Treaties on which the European                                                       Republic
       Union is founded ( OJ No C 241 , 29 . 8 . 1994, p. 21 ;
       OJ No L 1 , 1 . 1 . 1995, p. 1 ), give the provider of the                                       ( Case C-227/97)
       services referred to in question 1 above, who is                                                    ( 97/C 228/28 )
       resident in Austria, the right to assert that the
       prohibition issued in the terms set out in question 1 in
       an administrative decision ( Bescheid) adopted in 1990                An action against the Portuguese Republic was brought
       in regard to a specific person should not be applied in               before the Court of Justice of the European Communities
       decisions    of the      Austrian      courts and    authorities      on 18 June 1997 by the Commission of the European
       adopted after 1 January 1995 ?                                        Communities, represented by Francisco de Sousa Fialho,
                                                                             of its Legal Service, acting as Agent, with an address for
                                                                             service in Luxembourg at the office of Carlos Gomez de la
                                                                             Cruz, Wagner Centre, Kirchberg.
 ---pagebreak--- No C 228/14           EN                   Official Journal of the European Communities                                 26 . 7. 97
The applicant claims that the Court should:                                Portuguese Republic failed to fulfil its obligations
                                                                           under those provisions,
— declare that, by failing to adopt within the prescribed
     period the laws, regulations or administrative
     provisions necessary to comply with Council Directive            — order the Portuguese Republic to pay the costs .
     91 /676/EEC of 12 December 1991 concerning the
     protection of waters against pollution caused by                 Pleas in law and main arguments adduced in support:
     nitrates from agricultural sources ('), and, in
     particular, by not having designated vulnerable zones
     as provided for in Article 3 ( 2 ) thereof, or establishing      The mandatory nature of the provisions of the third
     or submitting a code or codes of good agricultural               paragraph of Article 189 of the EC Treaty requires
     practice as provided for in Article 4 thereof, the               Member States to adopt the measures necessary to
     Portuguese Republic has failed to fulfil its obligations         transpose directives addressed to them into their domestic
     under the third paragraph of Article 189 of the EC               law before the expiry of the period prescribed for doing
     Treaty and Article 3 ( 2 ), Article 4 and Article 12 of          so. That period expired on 19 December 1993 without
     Directive 91 /676/EEC,                                           Portugal having brought into force the necessary
                                                                      provisions.
— declare, in the alternative, that, by failing forthwith
     to inform the Commission of such measures, the                   (') OJ No L 375 , 31 . 12 . 1991 , p . 1 .
                                                     COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                               JUDGMENT OF THE COURT OF FIRST INSTANCE
                        (First Chamber)                                                        of 12 June 1997
                        of 12 June 1997                               in Case T-104/96: Ludwig Kramer v. Commission of the
in Case T-237/95 : Fernando Carbajo Ferrero v. European                                 European Communities ( J )
                         Parliament Í 1 )                             (Officials — Determination of the level of a post —
                                                                      Manifest error of assessment — Error of law — Misuse of
(Officials — Internal competition — Appointment to a
                   post as Head of Division)                                  powers — Article 7 of the Staff Regulations)
                         ( 97/C 228/29 )                                                         ( 97/C 228/30 )
                (Language of the case: French)                                       (Language of the case: French)
In Case T-237/95 : Fernando Carbajo Ferrero, an official              In Case T-104/96 : Ludwig Kramer, an official of the
of the European Parliament, residing in Madrid,                       Commission of the European Communities, residing
represented by Georges Vandersanden and Laure Levi ,                  in Tervuren ( Belgium ), represented by Georges
both of the Brussels bar, with an address for service in              Vandersanden, of the Brussels Bar, with an address for
Luxembourg at the Chambers of Fiduciaire Myson Sari ,                 service in Luxembourg at the offices of Fiduciaire Myson
30 Rue de Cessange, against the European Parliament                   Sari, 30 Rue de Cessange, against Commission of the
( Agents: Norbert Lorenz and Alex Bonn) — application                 European Communities (Agents: Julian Currall and Denis
for the annulment of, first, the decision of the European             Waelbroeck ) — application for annulment of the Notice of
Parliament to appoint Mr X to the post of Head of                     Vacancy for the post of Head of Unit XI.B. 3 , classified at
Division of the European Parliament's office in Madrid                Grade A 5/A 4 ( COM/111/95 ), and consequently
following Internal Competition No A/88 and, secondly, its             annulment of the appointment of Mr K. to that post —
decision not to appoint the applicant to that post — the              the Court of First Instance ( Fourth Chamber ), composed
Court of First Instance ( First Chamber), composed of A.              of: K. Lenaerts, President, P. Lindh and J. D. Cooke,
Saggio, President, V. Tiili and R. M. Moura Ramos,                    Judges; A. Mair, Administrator, for the Registrar, has
Judges; J. Palacio Gonzalez, Administrator, for the                   given a judgment on 12 June 1997, the operative part of
Registrar, has given a judgment on 12 June 1997 in which              which is as follows :
it :
                                                                      1 . The application is dismissed.
1 . dismisses the application;
2 . orders each party to bear its own costs.                          2 . The parties shall bear their own costs.
(') OJ No C 46, 17. 2 . 1996 .                                        H OJ No C 247, 24 . 8 . 1996 .