CELEX: C1999/071/12
Language: en
Date: 1999-03-13 00:00:00
Title: Reference for a preliminary ruling by the Oberlandesgericht Köln by order of 2 December 1998 in the case of Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v Adolf Darbo AG (Case C-465/98)

13.3.1999              EN                Official Journal of the European Communities                                     C 71/7
(b) Does Article 73b of the EC Treaty apply retroactively          Justice of the European Communities on 18 December
     to mortgages which were registered in German marks             1998 by the Commission of the European Communities,
     prior to the accession of Austria to the European              represented by Frank Benyon, Legal Adviser, acting as
     Community, and thus incurably void at the time of              Agent, with an address for service in Luxembourg at the
     registration, in such a way as to remedy them ex post          office of Carlos Gómez de la Cruz, member of the Legal
     facto?'                                                        Service of the Commission, Centre Wagner.
     Alternatively,
                                                                    The Applicant claims that the Court should:
     Have the Community rules concerning the free
     movement of capital, in particular Article 73b of the
     EC Treaty, had the effect, by virtue of the accession
     application made by Austria on 17 July 1989 and the            1) declare that by concluding and applying an Air
     Opinion of 31 July 1991, of rendering the registration             Services Agreement signed on 23 July 1977 with the
     of a foreign-currency mortgage in Austria on                       United States of America which provides for the
     16 December 1991 permissible?'                                     revocation, suspension or limitation of traffic rights in
                                                                        cases where air carriers designated by the United
                                                                        Kingdom are not owned by the United Kingdom or
                                                                        nationals of the United Kingdom, the United Kingdom
                                                                        is in breach of Article 52 of the Treaty;
Reference for a preliminary ruling by the Oberlandes-
gericht Köln by order of 2 December 1998 in the case of
Verein gegen Unwesen in Handel und Gewerbe Köln e.V.                2) order the United Kingdom to pay the costs.
                       v Adolf Darbo AG
                        (Case C-465/98)
                         (1999/C 71/12)                             Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the
European Communities by order of 2 December 1998                    A Member State must allow nationals of any other
from the Oberlandesgericht Köln (Higher Regional Court,             Member State to set up businesses and pursue the same on
Cologne), which was received at the Court Registry on               national conditions: anything less would render the right
18 December 1998, for a preliminary ruling in the case of           of establishment pointless, an empty shell. Article 52 is
Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v              not concerned with how and whether the right to supply
Adolf Darbo AG on the following question:                           services to another Member State may be exercised or
                                                                    restricted (which is governed at Community level by a
                                                                    separate Treaty article, Article 59) but, simply with the
Is it contrary to Article 2(1)(a)(i) of Directive 79/112/EEC
                                                                    right to be treated as a national of the Member State for
(OJ L 33, 8.2.1979, p. 1) (the directive on labelling') for
                                                                    the purposes of its business where an undertaking is
jam manufactured in a Member State (Austria) and sold
                                                                    established in that same Member State.
there and in another Member State (the Federal Republic
of Germany) under the description naturrein' (naturally
pure') to contain the gelling agent pectin and less than
0.01 mg/kg lead (atomic absorption spectrometry analysis
Ð AAS), 0.008 mg/kg cadmium (AAS), and pesticides                   Article 52 by its very nature does not refer to treatment
(0.016 mg/kg procymidone and 0.005 mg/kg vinclozolin)?              under Community law (for example the rights granted
                                                                    under Regulation (EEC) No 2408/92 (1)) as the United
                                                                    Kingdom alleges, but to those granted nationally, in the
                                                                    present case, the rights which the United Kingdom
                                                                    correctly notes derive from bilateral Member State
                                                                    agreements with third countries'. By concluding a
                                                                    so-called open sky' agreement, the United Kingdom
Action brought on 18 December 1998 by the Commission                authorities have granted a right to benefit from the traffic
of the European Communities against the United                      rights granted under the agreement to designated airlines
       Kingdom of Great Britain and Northern Ireland                if under United Kingdom control since there is no
                        (Case C-466/98)                             possibility for the United States to refuse the same, but
                                                                    they have granted only a possibility, wholly unguaranteed,
                         (1999/C 71/13)                             to benefit therefrom where the designated carrier is
                                                                    controlled by nationals of other Member States. This is a
                                                                    failure by the United Kingdom to grant equal treatment to
An action against the United Kingdom of Great Britain               nationals of other Member States irrespective of whether
and Northern Ireland was brought before the Court of                and how the United States of America excercises its rights.