CELEX: C1998/378/17
Language: en
Date: 1998-12-05 00:00:00
Title: Reference for a preliminary ruling by the Finanzgericht Düsseldorf by order of that court of 5 October 1998 in the case of Brinkmann Tabakfabriken GmbH against Hauptzollamt Bielefeld (Case C-365/98)

5.12.98               EN                  Official Journal of the European Communities                                      C 378/9
Action brought on 8 October 1998 by the Italian Republic                       distribution of traffic should be considered
   against the Commission of the European Communities                          contrary to Community law if they do not respect
                       (Case C-361/98)                                         the principle of proportionality; and therefore
                         (98/C 378/16)
                                                                          (b) in assessing in terms of proportionality the decrees
                                                                               of the Minister of Transport relating to the Milan
An action against the Commission of the European                               airport system, which constitute the grounds for the
Communities was brought before the Court of Justice of                         prohibition imposed on the Italian Government.
the European Communities on 8 October 1998 by the
Italian Republic, represented by Ivo M. Braguglia and Pier
Giorgio Ferri, Avvocati dello Stato, with an address for             3. In the alternative and in the event that the Court does
service in Luxembourg at the Italian Embassy, 5 Rue                       not uphold the complaints made in the foregoing
Marie-AdeÂlaïde.                                                          pleas, it is strongly disputed that the abovementioned
                                                                          national provisions, in imposing restrictions on the
                                                                          freedom to provide services, have contravened the
The applicant claims that the Court should:                               principle of proportionality, as the Commission claims
                                                                          as a matter of principle applicable in this case.
Ð annul the contested decision of the Commission of
     16 September 1998;
                                                                     4. Paragraphs 29 to 46 of the contested decision concern
                                                                          the assessment of the Italian decrees from the point
Ð order the defendant to pay the costs.                                   of view of non-discrimination. The Commission's
                                                                          reasoning in alleging that the criteria laid down by the
                                                                          Italian provisions to identify the traffic to be relocated
Pleas in law and main arguments adduced in support:
                                                                          from Linate to Malpensa airport are in breach of the
                                                                          prohibition under Article 8(1) appears flawed for the
1. In the view of the Italian Government, the                             following reasons.
     Commission's position on the extent of its power of
     decision finds no support in the legislative provision
                                                                          (a) The Commission held that the criterion based on
     which convers its competence (Article 8(3)) (1); the
                                                                               volume of traffic, even if it led to the selection of
     wording of Article 8(3) identifies the extent of its
                                                                               the Milan-Rome-Milan route as the only traffic
     supervisory power sufficiently clearly in terms of the
                                                                               retained at Linate airport, cannot be held to be
     need for a national measure to conform with the
                                                                               directly discriminatory in as much as that route is
     provisions of Article 8(1).
                                                                               open to all Community air carriers.
     The Commission interprets the provision conferring
                                                                          (b) The second and more serious flaw in the
     the power of decision widely, applying it to cases and
                                                                               Commission's reasoning is that it assessed the
     situations other than those contemplated therein.
                                                                               effects of relocating traffic at Malpensa airport in
                                                                               the light of the existing rather than the future
     Such an interpretation appears contrary to the                            situation: that is to say looking at the airport of
     principles of the Treaty as regards the institutional                     Malpensa as it was rather than as it will be after
     order of the Community and, in particular, to the                         the opening of the new facilities scheduled for
     principle of the strict legality of the Commission's                      25 October 1998.
     power of decision under Article 155 of the Treaty.
                                                                     (1) Council Regulation (EEC) No 2408/92 (OJ L 240, 24.8.1992,
     The power conferred by Article 8(3) amounts to                      p. 8).
     accepting a breach of Community law at the expense
     of a State; the prohibition of discrimination in
     Article 8(1) is a legal rule in the application of which
     there is no discretion.
2. The second plea of the application alleges that the               Reference for a preliminary ruling by the Finanzgericht
     contested decision is not well-founded in law in as             Düsseldorf by order of that court of 5 October 1998 in
     much as it determines that the Italian decrees under            the case of Brinkmann Tabakfabriken GmbH against
     consideration contravene Community law in not                                        Hauptzollamt Bielefeld
     observing the principle of proportionality.
                                                                                              (Case C-365/98)
     In the view of the Italian Government the decision is                                     (98/C 378/17)
     flawed:
     (a) in terms of its legal premisses on the basis of             Reference has been made to the Court of Justice of the
         which it is claimed that the national provisions on         European Communities by order of the Finanzgericht
 ---pagebreak--- C 378/10              EN                Official Journal of the European Communities                                      5.12.98
(Finance Court) Düsseldorf (Fourth Senate) of 5 October            Action brought on 16 October 1998 by Commission of
1998, received at the Court Registry on 12 October 1998,               the European Communities against French Republic
for a preliminary ruling in the case of Brinkmann
Tabakfabriken GmbH v. Hauptzollamt Bielefeld on the                                       (Case C-373/98)
following questions:                                                                        (98/C 378/19)
Does paragraph 4.1.2 of the Tabaksteuergesetz (Law on
Tobacco Tax) in the version current as at 21.12.1992
(Bundesgesetzblatt 1992, Part I, p. 2150) constitute an            An action against the French Republic was brought before
incorrect implementation of Article 3(1) of Council                the Court of Justice of the European Communities on
Directive 92/80/EEC of 19 October 1992 on the                      16 October 1998 by the Commission of the European
approximation of taxes on manufactured tobacco other               Communities, represented by Paolo Stancanelli, of its
than cigarettes (OJ L 316, 31.10.1992, p. 10)?;                    Legal Service, and Olivier Couvert-CasteÂra, a national
                                                                   civil servant on secondment to the Legal Service, acting as
                                                                   Agents, with an address for service in Luxembourg at the
If the Court of Justice answers that question in the               office of Carlos Gómez de la Cruz, of its Legal Service,
affirmative:                                                       Wagner Centre, Kirchberg.
Does Article 3(1) of that directive confer upon a person
chargeable to tobacco tax a direct right to be taxed in            The applicant claims that the Court should:
accordance with the directive, with the result that the
national courts are to set aside the minimum rate of tax
which is applied to cigars/cigarillos in Germany contrary
to the wording of the directive?'                                  1. declare that by failing to take all the necessary
                                                                        measures to comply with the judgment of the Court of
                                                                        27 April 1988 in Case 252/85 (1), the French Republic
                                                                        has failed to fulfil its obligations under Article 171(1)
                                                                        of the EC Treaty;
Reference for a preliminary ruling by the Cour d'Appel,
                                                                   2. order the French Republic to pay a periodic penalty
Lyon (Seventh Chamber) by judgment of that court of
                                                                        payment of ECU 105 500 per day in respect of each
16 September 1998 in the case of MinisteÁre Public against
                                                                        day as from the notification of the abovementioned
    Yannick Geffroy Ð Civilly liable: SNC Casino France
                                                                        judgment until it complies with the obligations
                       (Case C-366/98)                                  referred to at paragraph 1;
                         (98/C 378/18)
                                                                   3. order the French Republic to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by judgment of the Cour d'Appel
(Court of Appeal), Lyon (Seventh Chamber), of
16 September 1998, received at the Court Registry on               Pleas in law and main arguments adduced in support:
14 October 1998, for the preliminary ruling in the case of
MinisteÁre Public (Public Prosecutor's Office) v. Yannick
Geffroy Ð Civilly responsible: SNC Casino France, on the
                                                                   Ð The Commission finds that in so far as it is aware:
following question:
Do the combined provisions of Article 30 of the EC                      Ð the list of protected bird species the taking or
Treaty and Article 14 of Council Directive 79/112/EEC of                    keeping of whose eggs or the destruction or
18 December 1978. On the approximation of the laws of                       removal of whose nests must be prohibited still
the Member States relating to the labelling, presentation                   does not include all those mentioned in Council
and advertising of foodstuffs for sale to the ultimate                      Directive 79/409/EEC (2);
consumer (1) preclude the application of national
legislation such as that contained in Decree No 84-1147
of 7 December 1984, applying the Law of 1 August 1905                   Ð the bird species the keeping of which is prohibited
which was applicable at the time, as amended by Article                     under French legislation have still not been defined
L. 213-1 et seq. of the Code de la Consommation                             in a manner which corresponds exactly with the
(Consumer Code)?                                                            requirements of the directive.
(1) OJ L 33, 8.2.1979, p. 1.
                                                                   Ð In fixing the amount of the periodic penalty payment
                                                                        which it proposes to impose, the Commission has