CELEX: C1998/340/12
Language: en
Date: 1998-11-07 00:00:00
Title: JUDGMENT OF THE COURT (Sixth Chamber) of 1 October 1998 in Case C-285/96: Commission of the European Communities v. Italian Republic (Failure by a Member State to fulfil its obligations - Non-transposition of Directive 76/464/EEC - Judgment by default)

7.11.98               EN                  Official Journal of the European Communities                                      C 340/7
27 March 1996 on emergency measures to protect against               3. Consideration of question 4 has not disclosed any
bovine spongiform encephalopathy (OJ L 78 of 28.3.1996,                   factor of such a kind as to affect the validity of
p. 47) and of Commission Regulation (EC) No 773/96 of                     Decison 96/239/EC.
26 April 1996 laying down special measures derogating
from Regulations (EEC) No 3665/87, (EEC) No 3719/88
and (EEC) No 1964/82 in the beef and veal sector (OJ                      Commission Regulation (EC) No 773/96 of 26 April
L 104 of 27.4.1996, p. 19) Ð the Court (First Chamber),                   1996 laying down special measures derogating from
composed of: M. Wathelet, President of Chamber, P. Jann                   Regulations (EEC) No 3665/87, (EEC) No 3719/88
and L. Sevón (Rapporteur), Judges; N. Fennelly, Advocate                  and (EEC) No 1964/82 in the beef and veal sector is
General; L. Hewlett, Administrator, for the Registrar, has                not rendered invalid by the fact that it prohibits
given a judgment on 29 September 1998, in which it has                    exporters, in the circumstances described in the answer
ruled:                                                                    to the second question, from retaining all or part of
                                                                          any export refunds paid in advance.
1. Articles 23 and 33 of Commission Regulation (EEC)                 (1) OJ C 295 of 27.9.1997.
    No 3665/87 of 27 November 1987 laying down
    common detailed rules for the application of the
    system of export refunds on agricultural products, in
    the version thereof resulting from Commission
    Regulation (EEC) No 1615/90, must be interpreted as
    meaning that where, as a result of, in particular, force
    majeure, goods do not reach their country of                                    JUDGMENT OF THE COURT
    destination but are repatriated to the Member State of                                  (Sixth Chamber)
    export, the exporter is obliged to repay any export
    refunds paid in advance.                                                               of 1 October 1998
                                                                     in    Case   C-285/96: Commission of the             European
2. Regulation (EEC) No 3665/87 does not contravene                                Communities v. Italian Republic (1)
    the general principles of Community law, in particular           (Failure by a Member State to fulfil its obligations Ð
    the principles of force majeure, the protection of               Non-transposition of Directive 76/464/EEC Ð Judgment
    legitimate expectations, proportionality or equity, by                                      by default)
    prohibiting exporters of beef from the United
    Kingdom from retaining all or part of any export                                          (98/C 340/12)
    refunds paid in advance in circumstances where:
                                                                                     (Language of the case: Italian)
    a) exports of beef from the United Kingdom to third
        countries have been prohibited by Commission
        Decision 96/239/EC of 27 March 1996 on                         (Provisional translation; the definitive translation will be
        emergency measures to protect against bovine                           published in the European Court Reports)
        spongiform encephalopathy;
                                                                     In Case C-285/96: Commission of the European
    b) bans on the importation of beef from the United               Communities (Agents: Götz zur Hausen and Paolo
        Kingdom have also been imposed by a number of                Stancanelli) v. Italian Republic Ð application for a
        third countries;                                             declaration that, by failing to adopt pollution reduction
                                                                     programmes with quality objectives for 99 dangerous
    c) exporters of beef were in the process of carrying             substances set out in List I of the Annex, alternatively by
        goods to third countries on the date on which                failing to communicate to the Commission summaries of
        Decision 96/239/EC was adopted;                              those programmes and the results of their implementation,
                                                                     contrary to Article 7 of Council Directive 76/464/EEC of
                                                                     4 May 1976 on pollution caused by certain dangerous
    d) those exporters were forced to repatriate the beef            substances discharged into the aquatic environment of the
        to the United Kingdom;                                       Community (OJ L 129 of 18.5.1976, p. 23), and by
                                                                     failing to provide the relevant information requested in
    e) the exporters had received, in accordance with                breach of Article 5 of the EC Treaty, the Italian Republic
        Council Regulation (EEC) No 565/80 of 4 March                has failed to fulfil its obligations under the EC Treaty Ð
        1980 on the advance payment of export refunds in             the Court (Sixth Chamber), composed of: H. Ragnemalm,
        respect of agricultural products and Commission              President of the Chamber, R. Schintgen, G. F. Mancini,
        Regulation (EEC) No 3665/87, advance payments                P. J. G. Kapteyn and G. Hirsch (Rapporteur), Judges; J.
        of export refunds in respect of the export                   Mischo, Advocate General; R. Grass, Registrar, has given
        transactions at issue; and                                   a judgment on 1 October 1998, in which it:
    f) the exporters suffered loss as a result of their              1. declares that, by failing to adopt pollution reduction
        inability to sell their beef on the export markets in             programmes with quality objectives for 99 dangerous
        question.                                                         substances set out in List I of the Annex to Council
 ---pagebreak--- C 340/8               EN                 Official Journal of the European Communities                                     7.11.98
    Directive 76/464/EEC of 4 May 1976 on pollution                     merely clarified how product in Regulation (EEC)
    caused by certain dangerous substances discharged                   No 1768/92 was to be understood ab initio?
    into the aquatic environment of the Community, the
    Italian Republic has failed to fulfil its obligations           3. If the answer to Question 2 is that Regulation (EC)
    under that Directive;                                               No 1610/96 amended Regulation (EEC) No 1768/92:
2. declares that, by failing to provide the Commission                  When determining whether the conditions for granting
    with the information requested by it on the level of                a protection certificate under Article 19 of Regulation
    water pollution in Italy in order to enable it to                   (EEC) No 1768/92 are satisfied, is the relevant date
    establish the extent of the obligations flowing from                that on which the application for the protection
    Article 7 of Directive 76/464/EEC, the Italian                      certificate was made or that on which the national
    Republic has failed to fulfil its obligations under                 authority (here, the Austrian Patent Office) issued its
    Article 5 of the EC Treaty;                                         decision?
                                                                    4. If the term product in Article 19 of Regulation (EEC)
3. orders the Italian Republic to pay the costs.                        No 1768/92 is to be given a broad construction,
                                                                        whether ab initio or only since Regulation (EC)
(1) OJ C 294 of 5.10.1996.                                              No 1610/96, but the relevant legal position is that
                                                                        prevailing at the time of the decision on the
                                                                        application for the protection certificate:
                                                                        Does a breach of Article 19 of Regulation (EEC)
                                                                        No 1768/92 constitute a ground for invalidity that is
                                                                        not set out in Article 15 of that Regulation, or is the
Reference for a preliminary ruling by the Oberster                      protection certificate otherwise ineffective?
Gerichtshof by Decision of 12 August 1998 in the case of
The Wellcome Foundation Ltd v. Nycomed Austria GmbH                 (1) OJ L 182 of 2.7.1992, p. 1.
                       (Case C-330/98)                              (2) OJ L 198 of 8.8.1996, p. 30.
                        (98/C 340/13)
Reference has been made to the Court of Justice of the
European Communities by Decision of 12 August 1998
                                                                    Reference for a preliminary ruling by the Tribunale
from the Oberster Gerichtshof (Austrian Supreme Court),
                                                                    Amministrativo Regionale per la Lombardia, by order of
which was received at the Court Registry on 7 September
                                                                    that court of 28 January 1998, in the case of Agenzia R di
1998, for a preliminary ruling in the case of The
                                                                    Recapito Srl v. Poste Italiane Ente Pubblico Economico
Wellcome Foundation Ltd v. Nycomed Austria GmbH on
                                                                                 and Rinaldi Agenzia di Recapito Srl
the following questions:
                                                                                           (Case C-336/98)
1   Is the term product, as used in Ð inter alia Ð                                          (98/C 340/14)
    Article 19 of Council Regulation (EEC) No 1768/92
    of 18 June 1992 concerning the creation of a                    Reference has been made to the Court of Justice of the
    supplementary protection certificate for medicinal              European Communities by an order of the Tribunale
    products (1), to be construed in that article as covering       Amministrativo Regionale per la Lombardia (Lombardy
    only an active ingredient or substance in a specific            Regional Administrative Court) of 28 January 1998,
    chemical compound or Ð in so far as the                         which was received at the Court Registry on 14 September
    pharmacological characteristics are equivalent Ð also           1998, for a preliminary ruling in the case of Agenzia R di
    its derivatives (such as salts)?                                Recapito Srl v. Poste Italiane Ente Pubblico Economico
                                                                    and Rinaldi Agenzia di Recapito Srl, on the following
                                                                    questions:
2. if the answer to Question 1 is that the term product is
    to be broadly construed:
                                                                    1. Whether or not the reservation to the State of the
                                                                        express postal service, by virtue of Presidential Decree
    If such a construction of the term product as used in               No 156/76 (and the consequent restrictive power
    Article 19 of Council Regulation (EEC) No 1768/92                   under public law to grant concessions to third parties
    derives only from the recitals in the preamble to                   for the running of those services) conflicts with
    Regulation (EC) No 1610/96 of the European                          Articles 86 and 90 of the Treaty as regards the services
    Parliament and of the Council of 23 July 1996                       which are regarded as supplementary to the exclusive
    concerning the creation of a supplementary protection               right of the State to collect, carry and deliver mail and
    certificate for plant protection products (2), which may,           which in any event can be dissociated from that right
    mutatis mutandis, be used also for the purpose of                   on the basis of calculation of the added value arising
    construing Regulation (EEC) No 1768/92, was                         from the extra price which the customer is prepared to
    Regulation (EEC) No 1768/92 amended by Regulation                   pay, without, however, there being any impact on
    (EC) No 1610/96, or has Regulation (EC) No 1610/96                  price limits in the reserved sector?