CELEX: C2001/028/18
Language: en
Date: 2001-01-27 00:00:00
Title: Case C-388/00: Reference for a preliminary ruling by the Giudice di Pace di Genova by order of that court of 16 October 2000 in the case of Radiosistemi Srl against Prefetto di Genova

C 28/10                  EN                     Official Journal of the European Communities                                    27.1.2001
                 JUDGMENT OF THE COURT                                     Reference for a preliminary ruling by the Giudice di Pace
                                                                           di Genova by order of that court of 16 October 2000 in
                           (Fifth Chamber)                                   the case of Radiosistemi Srl against Prefetto di Genova
                       of 16 November 2000                                                         (Case C-388/00)
in Case C-280/98 P: Moritz J. Weig GmbH & Co. KG v                                                  (2001/C 28/18)
       Commission of the European Communities (1)
(Appeal — Competition — Article 85(1) of the EC Treaty                     Reference has been made to the Court of Justice of the
(now Article 81(1) EC) — Fines — Determination of the                      European Communities by order of the Giudice di Pace
amount — Statement of reasons — Mitigating circum-                         (District Court), Genoa, of 23 October 2000, received at the
                                stances)                                   Court Registry on 16 October 2000, for a preliminary ruling
                                                                           in the case of Radiosistemi Srl against Prefetto di Genova on
                            (2001/C 28/17)                                 the following questions:
                                                                           (1) Does Community law, in the light also of its fundamental
                   (Language of the case: German)                               principles for which there is no primary textual source,
                                                                                preclude legislation and/or national administrative prac-
                                                                                tice which — in the context of a system where matters
(Provisional translation; the definitive translation will be published          concerning conformity assessment procedures for the
                    in the European Court Reports)                              purposes of placing radio equipment on the market and
                                                                                putting such equipment into service have been delegated
In Case C-280/98 P: Moritz J. Weig GmbH & Co. KG,                               to the administrative authorities, to be decided merely at
established in Mayen, Germany, represented by T. Jestaedt, of                   their discretion — precludes economic operators from
the Brussels Bar and V. von Bomhard, Rechtsanwalt, Hamburg,                     importing, marketing or holding in stock, with a view to
with an address for service in Luxembourg at the Chambers of                    selling, radio equipment that has not undergone national
P. Dupont, 8-10 Rue Mathias Hardt, appeal against the                           type-approval, and which does not admit other forms of
judgment of the Court of First Instance of the European                         evidence, equally reliable but less burdensome to obtain,
Communities (Third Chamber, Extended Composition) of                            to prove that such equipment is in conformity with
14 May 1998 in Case T-317/94 Weig v Commission [1998]                           requirements concerning the proper use of the radio
ECR II-1235, seeking to have that judgment set aside, the other                 frequencies authorised under national law?
party to the proceedings being, Commission of the European
Communities (Agent: R. Lyal assisted by D. Schroeder) — the                (2) Does Directive 1999/5/EC (1) of the European Parliament
Court (Fifth Chamber), composed of: A. La Pergola, President                    and of the Council of 9 March 1999 confer on individuals
of the Chamber, M. Wathelet (Rapporteur), D.A.O. Edward,                        rights upon which they may rely before the national
P. Jann and L. Sevón, Judges; J. Mischo, Advocate General;                     courts, where the Directive itself has not been formally
R. Grass, Registrar, has given a judgment on 16 November                        transposed into national law and the deadline for such
2000, in which it:                                                              transposition has already expired? If that question is
                                                                                answered in the affirmative, is it compatible with
1.    Annuls paragraph 3 of the operative part of the judgment of               Article 7(2)) of Directive 1999/5/EC to maintain in force
      the Court of First Instance of 14 May 1998 in Case T-317/94               legislation and/or administrative practice which, after
      Weig v Commission;                                                        8 April 2000, prohibits the marketing and/or the putting
                                                                                into service of radio equipment which does not bear
2.    Fixes at EUR 1 900 000 the amount of the fine to be imposed               the national type-approval stamp, where it has been
      on Moritz J. Weig GmbH & Co. KG by Article 3 of Commission                confirmed that such equipment makes efficient and
      Decision 94/601/EC of 13 July 1994 relating to a proceeding               proper use of the radio frequencies authorised under
      under Article 85 of the EC Treaty (IV/C/33.833 — Car-                     national law, or where it is easy to verify that this is the
      tonboard);                                                                case?
3.    Dismisses the remainder of the appeal;                               (3) On a proper construction of Article 1 of Decision
                                                                                No 3052/95/EC (2) of the European Parliament and of the
4.    Orders Moritz J. Weig GmbH & Co. KG to bear its own costs                 Council of 13 December 1995, how is the term ‘the
      and to pay two-thirds of the costs of the Commission of the               measure’ to be interpreted and does that term cover the
      European Community before the Court of Justice;                           situation where the administrative authorities, having
                                                                                seized a particular model or a particular type of product
5.    Orders the Commission of the European Communities to bear                 which is lawfully marketed in another Member State,
      one-third of its own costs before the Court of Justice.                   continue to withhold that model or product after it has
                                                                                been ascertained by the public authorities responsible for
(1) OJ C 299 of 26.9.1998.                                                      technical checks that the good in question is in conform-
                                                                                ity with both national and Community legislation, that is
                                                                                to say, after the evidential purposes justifying the initial
                                                                                seizure have been served?
 ---pagebreak--- 27.1.2001             EN                     Official Journal of the European Communities                                          C 28/11
(4) Are penalties such as those provided for under Article 399          Pleas in law and main arguments
     of the Codice Postale Italiano (Italian Postal Regulations
     set out in Presidential Decree No 156 of 1973) compatible
     with Community law, in the light of the principles of              The Commission claims that even though there existed,
     non-discrimination and proportionality?                            within the area in question, waste-water treatment plants by
                                                                        31 December 1998, Italy should have adopted measures to
                                                                        identify the discharges for the purposes of applying Article
(1) OJ L 91 of 7.4.1999, p. 10.                                         5(5) of the directive by adapting, if necessary, the relevant
(2) OJ L 321 of 30.12.1995, p. 1.                                       plants. Italy cannot justify its delay in fulfilling its obligations
                                                                        under the directive by arguing that the main factors on the
                                                                        basis of which the present situation was to be characterised,
                                                                        for the purposes of the applicability of its obligations under
                                                                        Articles 5(2) and 5(5), have not yet been examined and
                                                                        assessed, since those obligations had been entrusted to local
                                                                        bodies (the Regions). As the Court of Justice has consistently
                                                                        held, Member States cannot rely on provisions of their own
                                                                        internal legal order in order to justify failure to respect the
                                                                        obligations and time-limits laid down by a directive.
Action brought on 26 October 2000 by the Commission
of the European Communities against the Italian Republic                As regards the exemption under Article 5(4) of the directive, it
                                                                        is clear that it cannot apply unless it can be shown that the
                                                                        minimum percentage of reduction of the overall load entering
                                                                        all urban waste water treatment plants in that area is of a
                         (Case C-396/00)
                                                                        certain value, which is impossible for the time being because
                                                                        there is no treatment plant in existence.
                          (2001/C 28/19)
                                                                        By declaring a state of emergency, the Italian authorities have
                                                                        shown themselves to be seriously willing to resolve the
                                                                        situation even if the Commission is concerned that, despite
An action against the Italian Republic was brought before the           having indicated the expected dates of completion of the
Court of Justice of the European Communities on 26 October              works, by letter of 9 July and of 27 October 1999, in reply to
2000 by the Commission of the European Communities,                     the letter of formal notice, the latest letter of 6 April 2000
represented by Gregorio Valero Jordana, of its Legal Service,           makes no further mention in that respect. In any event, so far
and by Roberto Amorosi, judge on secondment to the Legal                as concerns the present case, nothing of the foregoing changes
Service, acting as Agents, with an address for service in               the fact that Italy is in breach of Community law.
Luxembourg at the office of Carlos Gómez de la Cruz, of its
Legal Service, Wagner Centre, Kirchberg.
                                                                        (1) OJ 1991 L 135, p. 40.
                                                                        (2) OJ 1991 L 375, p. 1.
The applicant claims that the Court should:
—    Declare that, by failing to adopt the provisions necessary
     to ensure that, by 31 December 1998, discharges of
     urban waste water from Milan collected in a basin
     draining into the ‘Po delta’ and ‘northwestern Adriatic
     coastal areas’, as defined by the Decree Law No 152 of
     the Italian Republic of 11 May 1999 (Provisions on the
     prevention of pollution of water and implementation of             Action brought on 30 October 2000 by Kingdom of Spain
     Council Directive 91/271/EEC (1) concerning urban                      against Commission of the European Communities
     waste-water treatment and Council Directive
     91/676/EEC (2) of 12 December 1991 concerning the
     protection of waters against pollution caused by nitrates                                    (Case C-398/00)
     from agricultural sources), pursuant to Article 5 of
     concerning urban waste-water treatment, were subject to                                       (2001/C 28/20)
     more stringent treatment than the secondary treatment
     or equivalent described by Article 4 of that directive, the
     Italian Republic has failed to fulfil its obligations under        An action against the Commission of the European Communi-
     Article 5(2) of the aforementioned directive, as laid down         ties was brought before the Court of Justice of the European
     in Article 5(5);                                                   Communities on 30 October 2000 by the Kingdom of Spain,
                                                                        represented by Santiago Ortiz Vaamonde, Abogado del Estado,
                                                                        acting as Agent, with an address for service in Luxembourg at
—    Order the Italian Republic to pay the costs.                       the Spanish Embassy, 4-6 boulevard E. Servais.