CELEX: C2004/035/04
Language: en
Date: 2004-02-07 00:00:00
Title: Case C-470/03: Reference for a preliminary ruling by the Tampereen käräjäoikeus by order of that Court of 7 November 2003 in the case of A.G.M.-COS.MET s.r.l. against Finnish State and Tarmo Lehtinen

C 35/2                  EN                         Official Journal of the European Union                                         7.2.2004
2.    It is incumbent on the national court, if examination of the         Is Article 6(2) of Decision No 1/80 of 19 September 1980 of
      existing compensation system discloses a defect in transposition     the Association Council, set up by the Agreement establishing
      of Directive 84/5 and if that defect has adversely affected Mr       an Association between the European Economic Community
      Evans, to determine whether the breach of that obligation of         and Turkey, on the development of the Association (herein-
      transposition is sufficiently serious.                               after, ‘Decision No 1/80’) to be interpreted as meaning that a
                                                                           Turkish national forfeits the rights acquired under Article 6(1)
                                                                           of Decision No 1/80 if he is held in custody under the
(1) OJ C 118 of 21.4.2001.                                                 enforcement of a prison sentence for a period of three years?
Application for authorisation to serve a garnishee order
on the Commission of the European Communities, lodged
       on 21 November 2003 by Icon Institute GmbH
                          (Case C-1/03 SA)
                                                                           Reference for a preliminary ruling by the Tampereen
                            (2004/C 35/02)                                 käräjäoikeus by order of that Court of 7 November 2003
                                                                           in the case of A.G.M.-COS.MET s.r.l. against Finnish State
                                                                                                 and Tarmo Lehtinen
An application for authorisation to serve a garnishee order on
the Commission of the European Communities was brought
before the Court of Justice of the European Communities on                                         (Case C-470/03)
21 November 2003 by Icon Institute GmbH, represented by
R. Nathan, with an address for service in Luxembourg. The
applicant claims that the Court should:
                                                                                                    (2004/C 35/04)
Lift the Commission’s immunity so that a garnishee order
relating to the funds it holds on behalf of a judgment debtor,
in this case CESD-Communautaire a.s.b.l., may take effect,
since there is no argument in law or in fact to prevent the
Commission, the garnishee, from properly releasing to the
applicant the funds it holds provisionally.                                Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Tampereen kärä-
                                                                           jäoikeus (Tampere District Court) of 7 November 2003,
                                                                           received at the Court Registry on 11 November 2003, for a
                                                                           preliminary ruling in the case of A.G.M.-COS.MET s.r.l. against
                                                                           Finnish State and Tarmo Lehtinen on the following questions:
Reference for a preliminary ruling by the Verwaltungsge-                   (1) Is there a measure having equivalent effect to quantitative
richtshof by order of that Court of 4 september 2003 in                          restrictions within the meaning of Article 28 EC, or a
    the complaint proceedings brought by Ergül Dogan                             measure which should be abstained from under the
                                                                                 second paragraph of Article 10 EC, if an expert official
                           (Case C-383/03)                                       belonging to the State’s health and safety at work
                                                                                 organisation who does not have decision-making power,
                                                                                 after a market supervision case has been raised but before
                            (2004/C 35/03)                                       the decision in the case, expresses his opinion on the
                                                                                 main news programme of a national TV channel and in
                                                                                 daily newspapers with wide circulation and also in
                                                                                 commercial and labour market associations, in such a
Reference has been made to the Court of Justice of the                           way that his statements, direct or repeated by others, on
European Communities by order of the Verwaltungsgerichtsh-                       the hazard to health and even to life of the machinery
of (Administrative Court, Austria) of 4 September 2003,                          manufactured and marketed by a specified manufacturer
received at the Court Registry on 12 September 2003, for a                       which is the subject of the market supervision case may
preliminary ruling in the complaint proceedings brought by                       give the machinery negative publicity and affect its
Ergül Dogan on the following question:                                           marketing?
 ---pagebreak--- 7.2.2004               EN                          Official Journal of the European Union                                               C 35/3
(2) Is machinery directive 98/37/EC (1) to be interpreted as                     (c)   Can Article 10 EC and in particular its second
     meaning that a car lift is contrary to the essential safety                       paragraph create rights for individuals in the circum-
     requirements it lays down if it is not constructed in                             stances described in point 1?
     accordance with standard SFS-EN 1493, in such a way
     that in designing the structure account is not taken of the
     placing of the vehicle on the lift in either driving direction
     and the load calculations of each lifting arm are not done                  (d) Can an official himself, in addition to the State, be
     for the least favourable loading situation?                                       similarly liable under EC law, in the circumstances
                                                                                       mentioned in point 1, for compensation for his
                                                                                       actions, if they are contrary to EC law?
(3) a)     If the question in point 1 is answered in the
           affirmative, are the official’s actions described in that             (e)   Is the obtaining of compensation based on EC law
           question disproportionate having regard to the                              impossible in practice or excessively difficult if in
           legitimate aim based on the protection of human                             accordance with national provisions compensation
           health and life and hence contrary to the EC Treaty,                        for economic damage other than damage to persons
           even if Question 2 were also to be answered in the                          and things may be obtained only if the damage has
           affirmative, having regard to the nature of the                             been caused by an act defined as criminal or in the
           actions and in particular the fact that possible                            exercise of public authority or if in other cases there
           hazards could have been made known and the                                  are especially serious grounds for the awarding of
           occurrence of hazards prevented by methods other                            damages?
           than those described in point 1, that the actions
           were taken even before the competent authority had
           made a decision in the market supervision case, and
           that the actions were likely in particular by being             (6) a)      If compensation is awarded under national law
           directed to a specified product to damage the                               because of a breach of requirements or omission
           marketing of that product?                                                  concerning the free movement of goods, does EC
                                                                                       law require that the compensation to be awarded
                                                                                       is an effective and deterrent sanction, and is it
                                                                                       incompatible with the requirements of EC law
     (b) If the question of proportionality in point 3 is for                          concerning liability that under national law an
           the national court to decide, is the main weight to                         official who has committed an infringement or
           be attached to the possible non-compliance with the                         omission is liable for reasonable but necessarily
           European or national safety requirements or to                              full compensation and is not liable at all for
           the circumstances of the publication of the non-                            compensation if he is culpable of only slight negli-
           compliance with the requirements?                                           gence, or that an official and the State which is liable
                                                                                       for the official’s fault or omission may be ordered to
                                                                                       pay compensation for economic damage other than
                                                                                       damage to persons or things only if the damage has
(4) May the actions of an official described in point 1 be                             been caused by an act defined as criminal or in the
     justified in the conditions described in point 3(a) on the                        exercise of public authority or if in other cases there
     basis of freedom of speech within the meaning of                                  are especially serious grounds for the awarding of
     Article 10 of the European Convention on Human Rights,                            compensation?
     even though they are contrary to Articles 28 EC and 30
     EC or to Article 10 EC?
                                                                                 (b) If any of the limitations of liability mentioned in
                                                                                       point 6(a) is incompatible with EC law, is the
(5) a)     If the actions of an official described in point 1 are                      limitation of compensation under national law to be
           contrary to Articles 28 EC and 30 EC or to Article 10                       disapplied with respect to the official in question
           EC, is the breach so manifest and serious that, if the                      even though the official’s liability would be more
           other conditions of liability are satisfied, the State is                   severe or more extensive than under national law?
           obliged under EC law to compensate the damage
           which may have occurred thereby for the marketing
           of the machinery?
                                                                           (1) Directive 98/37/EC of the European Parliament and of the Council
                                                                               of 22 June 1998 on the approximation of the laws of the Member
                                                                               States relating to machinery (OJ L 207 of 23.07.1998, p. 1).
     (b) Is the breach described in point 5(a) manifest and
           serious even in a case where the authority/official
           with decision-making competence cannot be blamed
           for any fault or omission and the authority/official
           has not in any connection approved the measures
           or helped to bring about their actual consequences?