CELEX: C2003/146/34
Language: en
Date: 2003-06-21 00:00:00
Title: Case C-126/03: Action brought on 20 March 2003 by the Commission of the European Communities against the Federal Republic of Germany

C 146/20               EN                         Official Journal of the European Union                                          21.6.2003
Is Article 4(5) of Directive No 92/43 ( 1) of 21 May 1992 to be                 b)    If the answer to question 1(a) is affirmative: must
interpreted as meaning that the measures under Article 6 and,                         Article 22 of Directive 92/46/EEC be interpreted as
in particular, under Article 6(3) of that directive are mandatory                     meaning that in the case of imports from non-
for the Member States only after final approval at Community                          Member States that directive is applicable only to
level of the list of sites under Article 21 or, alternatively, in                     the milk constituent of a product and thus not to
addition to determination of the ordinary commencement date                           the product of which it is a constituent?
of conservation measures, must a distinction be drawn between
declaratory listing and determinative listing (including in the           2.    a)    Does the concept of ’milk-based products’ in
first category the listing of priority sites) with the result that,                   Article 2(4) of Directive 92/46/EEC concern only
in order to ensure the effectiveness of the directive, where a                        finished products or also semifinished products
Member State identifies a site of Community importance                                which must undergo further processing before they
sustaining priority natural habitat types or species, there must                      can be offered for sale to the consumer?
be considered to be an obligation to carry out an assessment
of plans and projects with a significant effect on the site even
before the Commission draws up the draft list of sites or                       b)    In the event that Article 2(4) of Directive 92/46/EEC
adopts the final version of that list pursuant to Article 21 of                       also refers to semifinished products, according to
the directive and, in fact, with effect from the drawing up of                        which criteria must it be determined whether milk
the national list?                                                                    or a milk product forms an essential part of a
                                                                                      product, either in terms of quantity or for charac-
                                                                                      terization of those products, as referred to in
                                                                                      Article 2(4) of Directive 92/46/EEC?
( 1) OJ L 206 of 22.7.1992, p. 7.
                                                                          (1 ) OJ L 268 [1992], p. 1.
Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by judgment of that Court                   Action brought on 20 March 2003 by the Commission of
of 11 March 2003 in the case of (1) Artrada (Freezone)                    the European Communities against the Federal Republic
NV, (2) Videmecum BV and (3) Jac. Meisner Internationaal                                              of Germany
Expeditiebedrijf BV against Rijksdienst voor de Keuring
                        van Vee en Vlees
                                                                                                    (Case C-126/03)
                         (Case C-124/03)                                                            (2003/C 146/34)
                         (2003/C 146/33)
                                                                          An action against the Federal Republic of Germany was
                                                                          brought before the Court of Justice of the European Communi-
                                                                          ties on 20 March 2003 by the Commission of the European
Reference has been made to the Court of Justice of the                    Communities, represented by Klaus Wiedner, of the Com-
European Communities by judgment of the College van Beroep                mission’s Legal Service, acting as Agent, with an address for
voor het bedrijfsleven (Administrative Court for Trade and                service in Luxembourg.
Industry) of 11 March 2003, received at the Court Registry on
20 March 2003, for a preliminary ruling in the case of
(1) Artrada (Freezone) NV, (2) Videmecum BV and (3) Jac.                  The Commission claims that the Court should:
Meisner Internationaal Expeditiebedrijf BV against Rijksdienst
voor de Keuring van Vee en Vlees (Netherlands Livestock and               —     Declare that, by reason of the fact that the contract for
Meat Inspectorate) on the following questions:                                  waste transport concluded by the City of Munich was
                                                                                awarded without compliance with the notification
1.    a)    Must the term ‘milk for the manufacture of milk-                    requirements laid down in Article 8, in conjunction with
            based products’ in Article 2(2) of Directive 92/46/                 Articles 15(2) and 16(1), of Directive 92/50 (1), the
            EEC ( 1) be interpreted as meaning that it (also)                   Federal Republic of Germany has failed to fulfil its
            includes milk constituents of a product which also                  obligations under that directive; and
            contains other non-milk constituents and where the
            milk constituent cannot be separated from the non-            —     Order the Federal Republic of Germany to pay the costs
            milk constituents?                                                  of the proceedings.
 ---pagebreak--- 21.6.2003              EN                       Official Journal of the European Union                                              C 146/21
Pleas in law and main arguments                                         a)     Can an administrative measure which, on the terms and
                                                                               for the purposes stated in the reasoning, imposes on
                                                                               certain undertakings using the electricity transmission
If — as is the case with the Municipality of the City of Munich                network an increased charge for access and use in order
— the conditions for the existence of a body governed by                       to finance general revenue charges of the electricity
                                                                               system be regarded as a State aid for the purposes of
public law are met, there is no need under the directive to
draw a distinction, in the case of every requested provision of                Article 87 et seq. EC
services, as to whether such services are provided in the general
interest and are commercial in nature. It is for that reason            b)     Must the principles established in Directive 96/92 (1)
irrelevant that, in the present case, the City of Munich, in                   concerning the liberalisation of the internal electricity
connection with the provision of a service for a third party,                  market and in particular Article 7 and 8 thereof concern-
burns waste in its own incineration plant and does not effect                  ing operation of the electricity transmission network be
the transport to that plant itself but relies on a private                     interpreted as precluding the possibility for the Member
undertaking to do so. If a public body tenders successfully for                State to adopt measures imposing for a transitional period
a contract but is obliged to subcontract out certain services in               on certain undertakings for access to and use of the
order to ensure provision of the overall service, that public                  transmission network an increased charge in order to
body must apply the procedures set out in Directive 92/50.                     offset the overvaluation of hydroelectric and geothermal
                                                                               electricity occasioned, as stated in the reasoning, by the
                                                                               altered legislative framework and to finance general
The obligation to end breaches of the Community law on the                     revenue charges of the electricity system.
award of contracts even by terminating contracts that have
already been concluded can also not be placed in question by
Article 2(6) of Directive 89/665 (2), which deals with ex post          (1 ) Directive 96/92/EC of the European Parliament and of the Council
facto review of potential breaches of the Community law on                   of 19 December 1996 concerning common rules for the internal
tendering. A Treaty infringement can be treated as terminated                market in electricity (OJ L 27 of 30.1.1997, p. 20).
only once the Member State concerned recognises the illegal
nature of its action and the breach has been completely
brought to an end.
( 1) OJ 1992 L 209, p. 1.
( 2) OJ 1989 L 395, p. 33.
                                                                        Action brought on 24 March 2003 by the Commission of
                                                                          the European Communities against the Italian Republic
                                                                                                    (Case C-130/03)
Reference for a preliminary ruling by the Consiglio di                                              (2003/C 146/36)
Stato by order of that Court of 14 January 2003 in the
appeal brought by AEM SpA (C-128/03) and by AEM
Torino SpA (C-129/03) against l’Autorità per l’energia
  elettrica e per il gas; Third party: ENEL Produzione SpA
                                                                        An action against the Italian Republic was brought before the
                                                                        Court of Justice of the European Communities on 24 March
                 (Case C-128/03 and C-129/03)                           2003 by the Commission of the European Communities,
                                                                        represented by Niels Bertil Rasmussen and Luigi Cimaglia,
                                                                        acting as Agents.
                          (2003/C 146/35)
                                                                        The applicant claims that the Court should:
Reference has been made to the Court of Justice of the                  —      Declare that, by failing to designate Community trade
European Communities by order of the Consiglio di Stato                        mark courts and tribunals of first and second instance, or
(Council of State) of 14 January 2003, received at the Court                   in any event by failing to forward to the Commission,
Registry on 24 March 2003, for a preliminary ruling in the                     within the prescribed period, a list of such courts and
appeal brought by AEM SpA (C-128/03) and by AEM Torino                         tribunals indicating their names and territorial jurisdic-
SpA (C-129/03) against l’Autorità per l’energia elettrica e per                tion, the Italian Republic has failed to fulfil its obligations
il gas; Third party: ENEL Produzione SpA on the following                      under Article 91 of Council Regulation (EC) No 40/94 (1)
questions:                                                                     of 20 December 1993 on the Community trade mark;