CELEX: C1997/094/14
Language: en
Date: 1997-03-22 00:00:00
Title: Reference for a preliminary ruling from the Rechtbank van Koophandel by judgment of that court of 10 January 1997 in the case of Colim NV against Bigg's Continent Noord NV (Case C-33/97)

No C 94/6            1 EN |                   Official Journal of the European Communities                                   22 . 3 . 97
regulations or administrative provisions necessary to                    national court must not take account of those internal
comply fully with Council Directive 90/434/EEC of 23 July                provisions, even when classifying the legal relationship on
1990 on the common system of taxation applicable to                      the basis of which a national of a Member State calls on
mergers, divisions, transfers of assets and exchanges of                 the finance administration to refund sums that were paid
shares concerning companies of different Member                          in contravention of the said Article 10 of Directive 69/
States ('), the Hellenic Republic has failed to fulfil its               335/EEC .
obligations under the EC Treaty.
                                                                         (') OJ No L 249 , 3 . 10 . 1969 , p . 25 .
Pleas in law and main arguments adduced in support:
Under Article 12 ( 1 ) of the Directive, the Member States
were to comply with the provisions of the Directive not
later than 1 January 1992 and to inform the Commission
thereof. The Greek authorities acknowledge that they have                References for a preliminary ruling by the Tribunal
not yet adopted the necessary provisions by reason of                    Superior de Justicia de Catalunya by orders of that court
internal difficulties in the Greek legal system and the                  of 3 and 9 December 1996 in the cases of ( i ) Fuerzas
failure so far to adopt, at Community level, the Tenth                   Eléctricas de Catalunya SA (Fecsa) and (ii ) Autopistas
Directive on cross-border company mergers and the                        Concesionaria Española SA against Tribunal Económico­
Regulation on the statute for a European company.                        Administrativo Regional de Catalunya and Departament
                                                                             d'Economia i Finances de la Generalitat de Catalunya
The Commission observes that those reasons cannot                                       ( Cases C-31/97 and C-32/97)
exempt the Hellenic Republic from its obligation to                                                   ( 97/C 94/ 13 )
implement the Directive .
                                                                         Reference has been made to the Court of Justice of the
(') OJNoL225 , 20 . 8 . 1990 , p . 1 .
                                                                         European Communities by orders of the Tribunal Superior
                                                                         de Justicia de Catalunya ( High Court of Justice,
                                                                         Catalunya ) of 3 and 9 December 1996 , which was
                                                                         received at the Court Registry on 23 January 1997, for a
                                                                         preliminary ruling in the cases of ( i ) ( Case C-31 /97)
                                                                         Fuerzas Eléctricas de Catalunya SA ( Fecsa ) and ( ii ) ( Case
References for preliminary rulings by the Pretura di Roma                C-32/97) Autopistas Concesionaria Española SA against
by orders of that court of 17 December 1996 in the cases                 Tribunal Economico-Administrativo Regional de Catalun­
of Ministero delle Finanze v. 1 . IN.CO.GE.'90 srl; 2 . Idel­
                                                                         ya and Departament d'Economia i Finances de la Genera­
gard srl; 3 . IRIS '90 srl; 4. Camed srl; 5 . PPA — Pomezia              litat de Catalunya on the following question:
Progetti Appalti srl; 6. Edilcam srl; 7. Impresa A. Cecchini
EC srl; 8 . EMO srl; 9. Emoda srl; 10. Sappesi srl; 11 .                 Having regard to Articles 11 ( b ) and 12 of Council
ING. Luigi Martini srl; 12 . Giacomo srl and 13 . Mafar srl              Directive 69/335/EEC ( 1 ) of 17 July 1969, is the purported
                  ( Cases C- 10/97 to C-22/97)                           levying by the Spanish Administration of the duty on
                          ( 97/C 94/12 )                                 transfers of assets and documented legal transactions on
                                                                         records of redemption ( repayment of loans ) in conformity
                                                                         with Community law, or on the contrary does it conflict
Reference has been made to the Court of Justice of the                   with Community law with the result that it must be
European Communities by orders of the Pretura di Roma                    disallowed as being incompatible therewith ?
( Magistrate's Court, Rome ) of 17 December 1996 , which
were received at the Court Registry on 16 January 1997,                  (') OJ No L 249, 3 . 10 . 1969 , p. 25 .
for preliminary rulings in the cases of Ministero delle Fi­
nanze v. 1 . IN. CO . GE. ' 90 srl ; 2 . Idelgard srl ; 3 . IRIS ' 90
srl; 4 . Camed srl ; 5 . PPA — Pomezia Progetti Appalti srl;
6 . Edilcam srl ; 7. Impresa A. Cecchini EC srl; 8 . EMO srl ;
9 . Emoda srl; 10 . Sappesi srl; 11 . ING. Luigi Martini srl ;
12 . Giacomo srl and 13 . Mafar srl, on the following                    Reference for a preliminary ruling from the Rechtbank
question :                                                               van Koophandel by judgment of that court of 10 January
                                                                         1997 in the case of Colim NV against Bigg's Continent
Whether the imcompatibility with Article 10 of Council                                                  Noord NV
Directive 69/335/EEC (') of 17 July 1969 , as interpreted                                           ( Case C-33/97)
by the Court of Justice in its judgment of 20 April 1993
( in Joined Cases C-71/91 and C-178/91 Ponenti Carni and                                              ( 97/C 94/14 )
Cispadana Costruzione v. Amministrazione delle Finanze
dello Stato [ 1993 ] ECR I, p. 1915 ), of Article 3 ( XVIII )            Reference has been made to the Court of Justice of the
and (XIX ) of Decree Law No 853 of 19 December 1984,                     European Communities by a judgment of- the Rechtbank
converted into Law No 17 of 17 February 1985 , means,                    van Koophandel ( Commercial Court ) of 10 January 1997,
on the basis of the criteria for integration of national law             which was received at the Court Registry on 27 January
and Community law which that Court has laid down, that                    1997, for a preliminary ruling in the case of Colim NV
the said Article 3 ( XVIII ) and ( XIX ) must be set aside in            against Bigg's Continent Noord NV on the following
their entirety, and in particular whether it means that the              questions :
 ---pagebreak--- 22 . 3 . 97             EN                  Official Journal of the European Communities                                   No C 94/7
1 . Is a legal provision of a Member State whereby:                        adopted a common position (No 56/96 ) with a view to
                                                                           adopting Directive 96/.../EC of the European
     — the particulars required to be mentioned on                         Parliament and of the Council concerning common
           labelling and which are mandatory under national                rules for the internal market in electricity ( OJ No
           legislation;                                                    C 315 , 24 . 10 . 1996 , p. 18 ), mean that the competent
     — instructions for use;                                               authorities of a Member State under Article 9 ( 3 ) of
                                                                           Council Regulation No 17 of 6 February 1962 are
     — guarantee certificates;                                             precluded on the basis of the second paragraph of
                                                                           Article 5 of the Treaty, under which the Member
     must be given at least in the language or languages of                States are to abstain from any measure which could
     the territory where the products are placed on the                    prejudice the attainment of the objectives of the
     market, with the consequence that the packaging of                    Treaty, from applying Article 85 ( 1 ) of the Treaty by
     imported products must be altered, a 'technical                       administrative order to an agreement between an
     regulation' within the meaning of Directive 83/189/                   electricity supply undertaking and a local authority,
     EEC (')?                                                              under which the local authority grants to the
                                                                           electricity supply undertaking, for consideration, the
2 . ( a ) Where specific EC rules exist for products                       exclusive right to use the public roads in its area for
           concerning the particulars which must appear on                 the purpose of installation and operation of the mains
           the product, can a Member State require imported                necessary for the direct supply of electricity to end
           products to carry other information in the                      users and agrees not to undertake the public supply of
           language of the linguistic area in which the                    electricity, or cause it to be undertaken, in the area
           products are sold, or in a language readily                     covered by the concession (a concession agreement)?
           understood by the consumer ?
     ( b ) If the answer to Question ( a ) is in the affirmative,      2 . If Question 1 is answered in the negative:
           may such a requirement be made of all
                                                                           Do the competent authorities of a Member State under
           information on packaging or only of certain
           information and, if so, which ?                                 Article 9 ( 3 ) of Regulation No 17, by applying
                                                                           Article 85 ( 1 ) of the EC Treaty to a concession
     (c ) In respect of products for which there are no                    agreement in the terms described in Question 1
           specific EC rules, may a Member State require all               between an electricity supply undertaking in that State
           or certain ( and if so which ) information on the               and a local authority, when, in other Member States,
           imported products to be given in the language of                such undertakings have sales areas protected by
           the linguistic territory in which the products are              contract or de facto from competition or there are
           sold, or in a language readily understood by the                statutory monopolies over electricity supply, infringe
           consumer ?                                                      the obligation on the Member States which follows
                                                                           from the second paragraph of Article 5 in conjunction
(') OJ No L 109 , 20. 4 . 1983 , p . 8 .                                   with Article 3 ( g) of the EC Treaty to abstain from
                                                                           any measure which may jeopardize the Community
                                                                           objective of establishing a system ensuring that
                                                                           competition in the internal market is not distorted ?
                                                                       3 . If Question 2 is answered in the negative :
Reference for a preliminary ruling by the Kammergericht,
Berlin, by order of that court of 23 December 1996 in                      Is Article 9 ( 3 ) of Regulation No 17, under which the
the cartel administration proceedings between 1 . RWE                      authorities of the Member States remain competent to
Energie Aktiengesellschaft; 2. Stadt Nordhorn and the                      apply Article 85 ( 1 ) of the EC Treaty as long as the
                         Bundeskartellamt                                  Commission has not initiated any procedure, unlawful
                          ( Case C-34/97)                                  on the ground that Article 85 ( 1 ) ( prohibition ) and
                                                                           Article 85 ( 3 ) ( exemption ) form an indivisible whole
                            ( 97/C 94/15 )                                 for applying the law but the national authorities are
                                                                           not granted, in addition to the competence to prohibit,
Reference has been made to the Court of Justice                            the power to exempt, which is instead reserved
of the European Communities by order of the                                exclusively to the Commission ( Article 9 ( 1 ) of
Kammergericht, Berlin, — Kartellsenat ( Cartel Chamber                     Regulation No 17)?
of the Berlin Court of Appeal ) of 23 December 1996 ,
received at the Court Registry on 24 January 1997, for a               4 . If Question 3 is answered in the negative :
preliminary ruling in the cartel administration proceedings
between 1 . RWE Energie Aktiengesellschaft; 2 . Stadt                      ( a ) Are the competent authorities of a Member State
Nordhorn ( Municipality of Nordhorn ) and the                                    under Article 9 ( 3 ) of Regulation No 17 precluded
Bundeskartellamt ( Federal Cartel Office ) on the following                      from applying Article 85 ( 1 ) of the EC Treaty to
questions :                                                                      an agreement if that agreement has been duly
                                                                                 notified to the European Commission for
1 . Does the fact that the European Commission is                                exemption, the Commission has refused to initiate
     seeking to complete the internal market in the                              a procedure and the person who notified the
     electricity sector by legislation, and that as a result the                 agreement challenges that refusal by bringing an
     Council of the European Union has in the interim                            action for a declaration of failure to act, and the