CELEX: C2003/275/45
Language: en
Date: 2003-11-15 00:00:00
Title: Case C-372/03: Action brought on 2 September 2003 by the Commission of the European Communities against the Federal Republic of Germany

C 275/30              EN                         Official Journal of the European Union                                        15.11.2003
      VI. If in regard to the questions posed in section III the         The applicant claims that the Court should
           Court confirms the judgment in van Bennekom and
           there is no incompatibility in this case with the
           requirements of health protection, how can the                1.    declare that by failing to adopt within the period laid
           request for marketing authorisation be successfully                 down all the laws and administrative provisions required
           pursued? Can a decision of general application under                to transpose Council Directive 91/439/EEC of 29 July
           Paragraph 47a of the LMBG be refused, without                       1991 on driving licences (1) the Federal Republic of
           Community law being infringed, on the basis that                    Germany has failed to fulfil its obligations under the EC
           in the German classification system a product is                    Treaty and that Directive;
           medicinal, whereas it can be marketed as a foodstuff
           in the Member State where it was manufactured? Is
           it compatible with Community law, and in particular           2.    Order the defendant to pay the costs.
           Articles 28 and 30 EC, not to apply the rule in
           Paragraph 47a of the LMBG to such medicinal
           products analogously? If not, can the German State,
           without thereby infringing Community law, evade
           an obligation which a German court intends to
           impose on it to adopt a decision of general appli-            Pleas in law and main arguments
           cation under Paragraph 47a of the LMBG (applied
           analogously) if it, or the authority responsible for          The Commission takes the view that German law is inconsist-
           food but not medicines, objects that because in               ent with Directive 91/439/EEC on the following points:
           the German classification system the product is
           medicinal no decision of general application under
           Paragraph 47a of the LMBG (analogously) may be                —     Minimum age for direct access to heavy motor-cycles in
           adopted,                                                            category A
           a)    because the body competent to adopt decisions                 Paragraph 6.2, second sentence, of the regulation on
                 of general application under Paragraph 47a of                 granting persons permission to drive on the road (1998
                 the LMBG is not competent for medicines also,                 regulation on permission to drive, hereinafter ‘the FeV’)
                                                                               provides for a minimum age of 25 for direct access to
           b)    because the product is not authorised as a                    heavy motor-cycles in category A. Article 6(1)(b), first
                 medicine?                                                     indent, last paragraph, of the Directive, however, provides
                                                                               for a minimum age of 21 years for direct access.
      VII. If the Court declines itself to reply to the questions
           posed in section A, may the national court then
           direct questions on the classification of products or         —     Permission to drive motor vehicles in category DE with
           indeed scientific or methodological questions to the                permission to drive vehicles in categories C1E and D
           European Food Authority and to what extent are
           any guidelines provided by that authority binding                   Under paragraph 6.3.6 of the FeV, it is permissible to
           on the national court?                                              drive vehicles in category DE with a driving permit for
                                                                               categories C1E and D, whereas Article 5(2)(b) of the
                                                                               Directive expressly permits only the driving of motor
                                                                               vehicles in category D with a driving permit covering
                                                                               categories CE and D
                                                                         —     Permission to drive motor vehicles in category D for
Action brought on 2 September 2003 by the Commission
                                                                               holders of driving permits in categories C1, C1E, C or CE
of the European Communities against the Federal Repub-
                         lic of Germany                                        in certain cases
                                                                               Paragraph 6.4 of the FeV entitles holders of driving
                        (Case C-372/03)                                        permits in categories C1, C1E, C and CE in their Member
                                                                               State of origin to drive motor vehicles in category D
                        (2003/C 275/45)                                        (motorised omnibuses) without passengers if the journey
                                                                               is made merely for the purposes of examining the
                                                                               technical state of the vehicle or of transfering the vehicle
                                                                               to another location. However the Directive does not draw
An action against the Federal Republic of Germany was                          any distinction between the carriage of passengers and
brought before the Court of Justice of the European Communi-                   driving an empty bus. The Directive does not make
ties on 2 September 2003 by the Commission of the European                     provision for the driving of motor vehicles in category D
Communities, represented by Gerald Braun and Wouter Wils,                      without the corresponding driving licence, although such
members of the Legal Service of the Commission of the                          vehicles may be so driven for the purposes of examining
European Communities, with an address for service in Luxem-                    the technical state of the vehicle after repairs have been
bourg.                                                                         carried out on grounds of practical convenience. A more
 ---pagebreak--- 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.