CELEX: C2003/275/46
Language: en
Date: 2003-11-15 00:00:00
Title: Case C-380/03: Action brought on 10 September 2003 (by fax on 9 September 2003) by the Federal Republic of Germany against the European Parliament and the Council of the European Union

15.11.2003            EN                         Official Journal of the European Union                                        C 275/31
     wide-ranging authority to transfer vehicles in category D           of the European Communities on 10 September 2003 (by fax
     with a category C driving licence is clearly contrary to the        on 9 September 2003) by the Federal Republic of Germany
     wording of Article 3(1), fifth indent, of the Directive.            represented by Wolf-Dieter Plessing and Moritz Lumma of
                                                                         the Federal Ministry for Finances and Jochim Sedemund,
—    Minimum age for access to categories C1 and C1E                     Rechtsanwalt, with an address for service at the Federal
                                                                         Ministry of Finances, Berlin.
     The FeV makes provision in paragraph 10.2.1 for access
     to categories C1 and C1E at the age of 17, in so far as the
     relevant persons are training to become professional
     drivers. That rule is contrary to the provisions of                 The applicant claims that the Court should:
     Article 6(1)(b), third indent, of the Directive, in conjunc-
     tion, as regards to access to vehicles in categories C1
     and C1E of over 7.5 tonnes, with Article 5(1)(b), second            1.     annul Articles 3 and 4 of Directive 2003/33/EC of the
     indent, of Regulation EC 3820/85.                                          European Parliament and of the Council of 26 May 2003
                                                                                on the approximation of the laws, regulations and
—    Registration of driving licences issued in other Member                    administrative provisions of the Member States relating to
     States                                                                     the advertising and sponsorship of tobacco products (1);
     The systematic registration procedure contained in para-
     graph 29.1 of FeV and the provision for a penalty
                                                                         2.     order the defendant to pay the costs.
     contained in paragraph 75.11 of the FeV infringe the
     principle of mutual recognition laid down in Article 1(2)
     of the Directive.
—    Exchange of driving licences issued in other Member
     States
                                                                         Pleas in law and main arguments
     The exchange of driving licences for the purposes of
     registering what may be a shorter national period of
     validity in paragraph 29.3 of the FeV contravenes appli-
     cable Community law. Although an exchange of driving                By its action the Federal Government claims that the Parliament
     licence as provided for in paragraph 42 of the FeV in the           and the Council, by adopting the contested provisions in the
     event that it is not possible to enter limitations or               Directive, went beyond the boundaries of the jurisdiction of
     conditions because of the nature of the driving licence             the Community legislature laid down by the Court of Justice
     does amount to an exchange for the reasons laid down in             in its judgment in Case C-376/98 [2000] ECR I-8419 and failed
     Article 8(2) of the Directive (which also includes the entry        to have regard to the factual requirements for Community
     of medical limitations), the entry of other administrative          jurisdiction to exist established by the Court of Justice.
     observations (for example the applicability of the con-             The contested provisions almost exclusively govern factual
     ditions on probationary permission to drive) is not                 situations with no cross-border effect. Accordingly, there
     covered by Article 8(2) of the Directive, which is why              are neither actual impediments to trade or any discernible
     neither such entries nor exchanges are compatible with              distortion of competition which, under the judgment of the
     Community law.                                                      Court of Justice in Case C-376/98, are a necessary factual
                                                                         precondition in order for the Community to have jurisdiction
                                                                         under Article 95 EC. For that reason Article 95 does not
(1) OJ 1991 L 237, p. 1.                                                 provide a basis for jurisdiction on the part of the Community
                                                                         legislature to adopt the contested provisions. Since, given that
                                                                         there are no impediments to trade or discernible distortion of
                                                                         competition, the contested provisions do not in fact pursue
                                                                         the goal of improving the internal market but rather the
                                                                         protection of health, there is also an infringement of the
                                                                         prohibition on harmonisation in Article 152(4)(c) EC.
Action brought on 10 September 2003 (by fax on 9 Sep-
tember 2003) by the Federal Republic of Germany against
the European Parliament and the Council of the European
                              Union                                      In addition the Federal Government claims in the alternative
                                                                         that no statement of reasons was given. The Community
                                                                         legislature failed to provide an adequate statement of reasons
                         (Case C-380/03)                                 establishing that the factual requirements in Article 95 EC
                                                                         which confer jurisdiction were met, in particular in regard to
                         (2003/C 275/46)                                 the presence of impediments to trade, and failed to refer even
                                                                         once in the statement of reasons to the existence of any
                                                                         discernible distortion of competition with regard to press
                                                                         products and broadcasts, with the result that to that extent the
An action against the European Parliament and the Council of             Directive in any event infringes the obligation to give reasons
the European Union was brought before the Court of Justice               in Article 253 EC.
 ---pagebreak--- C 275/32               EN                        Official Journal of the European Union                                          15.11.2003
Furthermore, the substantive amendments made by the                      Reference for a preliminary ruling by the Bundesfinanzh-
Council following the Opinion of the Parliament give rise to a           of by order of that Court of 30 July 2003 in the case of
claim that the Parliament’s rights under the co-decision                 Hauptzollamt Hamburg-Jonas against Käserei Champig-
procedure under Article 251 EC were infringed.                                           non Hofmeister GmbH & Co. KG
Finally the Federal Government claims in the alternative that                                       (Case C-385/03)
the principle of proportionality has been infringed since the
total bans provided for in Articles 3 and 4 on advertising in
the press and/or printed publications as well as on the radio                                      (2003/C 275/48)
and the internet deliberately and specifically target local or
regional situations with no cross-border element almost
exclusively, with the result that the extensive prohibitions,
within the meaning of Article 14(1) EC on the improvement                Reference has been made to the Court of Justice of the
of the internal market, are not necessary and are therefore              European Communities by order of the Bundesfinanzhof
disproportionate. The infringement of the principle of pro-              (Federal Finance Court) of 30 July 2003, received at the Court
portionality is all the more serious because the prohibitions            Registry on 12 September 2003, for a preliminary ruling in
have a significant adverse effect on the basic right of freedom          the case of Hauptzollamt Hamburg-Jonas against Käserei
of thought and press freedom, owing to the excessively                   Champignon Hofmeister GmbH & Co. KG on the following
broad and unspecific definition of the terms ‘advertising’ in            question:
Article 2(b) and ‘the press and other printed publications’ in
Articles 1(a) and 3 of the Directive.
                                                                         Must the first and second subparagraphs of Article 11(1) of
(1) OJ L 152, p. 16.
                                                                         Regulation (EEC) No 3665/87 (1), as amended by Regulation
                                                                         (EC) No 2945/94 (2), be interpreted — also in the light of
                                                                         the principle of proportionality — as meaning that false
                                                                         information relating to individual items listed in the export
                                                                         declaration, which could result in the exporter receiving a
                                                                         higher export refund than that to which it is entitled, is by
                                                                         itself sufficient to give rise to a punitive reduction in the export
                                                                         refund in the amount set out in those provisions, even though
Reference for a preliminary ruling by the Supreme Court,                 the exporter expressly stated in connection with the separate
Ireland, by order of that court dated 2 April 2003, in the               application for payment which must be submitted under
          case of Ryanair Ltd against Aer Rianta cpt                     national law that it would not be applying for an export refund
                                                                         in respect of the relevant items in the export declaration?
                         (Case C-382/03)
                                                                         (1) OJ L 351 of 14.12.1987, p. 1.
                         (2003/C 275/47)                                 (2) OJ L 310 of 3.12.1994, p. 57.
Reference has been made to the Court of Justice of the
European Communities by an order of the Supreme Court,
Ireland, dated 2 April 2003, which was received at the Court
Registry on 10 September 2003, for a preliminary ruling in
the case of Ryanair Ltd and Aer Rianta cpt on the following
questions:                                                               Action brought on 5 September 2003 by the Kingdom of
                                                                         the Netherlands against the Commission of the European
A.    Is an airport check-in desk an ‘airport installation’ within                                   Communities
      the meaning of Article 16 (3) of the Directive (1)?
B.    If the answer to A is in the affirmative, is a rent charged                                   (Case C-388/03)
      for the exclusive right to occupy a particular check-in
      desk for a period of one year or greater a fee for access to                                 (2003/C 275/49)
      airport installations within the meaning of Article 16 (3)
      of the Directive?
(1) Council Directive 96/67/EC of 15 October 1996 on access to           An action against the Commission was brought before the
    the groundhandling market at Community airports OJ L 272,            Court of Justice of the European Communities on 5 September
    25.10.1996, p. 36-45.                                                2003 by the Kingdom of the Netherlands, represented by
                                                                         H.G. Sevenster, Head of the European Law Division of the
                                                                         Ministry of Foreign Affairs in The Hague.