CELEX: C2000/079/13
Language: en
Date: 2000-03-18 00:00:00
Title: Case C-483/99: Action brought on 21 December 1999 by the Commission of the European Communities against the French Republic

C 79/6                   EN                 Official Journal of the European Communities                                        18.3.2000
          (g) a contractual restriction has or has not been            the Court Registry on 20 December 1999, for a preliminary
              imposed by the proprietor and made legally bind-         ruling in the case of Georg and Helga Heininger against
              ing upon the first purchaser prohibiting sale for        Bayerische Hypo- und Vereinsbank AG on the following
              the purposes of resale to anyone other than the          questions:
              ultimate consumer.
                                                                       1. Does Council Directive 85/577/EEC of 20 December 1985
     B. does the issue of whether or not there was consent by               to protect the consumer in respect of contracts negotiated
          the proprietor to the placing of those goods on the               away from business premises (OJ 1985 L 372, p. 31 —
          market within the EEA. within the meaning of the                  ‘directive on doorstep-selling’ also cover mortgages on
          Directive, depend on some further or other factor or              land (S.3(2)(2) of the Verbraucherkreditgesetz — consumer
          factors, and if so which?                                         credit law) and, as regards the right of cancellation provided
                                                                            for in Article 5, does it take precedence over Council
(1) First Council Directive 89/104/EEC of 21 December 1988 to               Directive 87/102/EEC of 22 December 1986 for the
    approximate the laws of the Member States relating to trade             approximation of the laws, regulations and administrative
    marks (OJ L 40 of 11. 2.1 989, p. 1).                                   provisions of the Member States concerning consumer
                                                                            credit (OJ 1987 L 42, p. 48 ‘consumer-credit directive’)?
                                                                       2. If the Court answers Question 1 in the affirmative,
                                                                            Is the national legislature precluded by the directive on
                                                                            doorstep-selling from applying the time-limit placed in
Reference for a preliminary ruling by the High Court of                     S. 7(2)(3) of the consumer credit law on the right of
Justice (England & Wales), Chancery Division (Patent                        cancellation also in cases where the subject-matter of a
Court), by order of that court of 22 July 1999, in the case                 doorstep transaction was the grant of a mortgage loan
of 1) Levi Strauss & Co. (a US corporation existing under                   within the meaning of S. 3(2)(2) of the consumer credit
the laws of the State of Delaware) and 2) Levi Strauss                      law and where the disclosure of information, as provided
                 (UK) Ltd against Costco UK Ltd                             for in Article 4 of the directive, was not made?
                           (Case C-416/99)
                            (2000/C 79/11)
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division (Patent Court),           Action brought on 21 December 1999 by the Commission
of 22 July 1999, which was received at the Court Registry on           of the European Communities against the French Republic
29 October 1999, for a preliminary ruling in the case of 1)
Levi Strauss & Co. (a US corporation existing under the laws                                     (Case C-483/99)
of the State of Delaware) and 2) Levi Strauss (UK) Ltd against
Costco UK Ltd on questions which are identical to those in
                                                                                                  (2000/C 79/13)
Case   C-415/99 (1),   1) Levi Strauss & Co. (a US corporation
existing under the laws of the State of Delaware) and 2) Levi          An action against the French Republic was brought before the
Strauss (UK) Ltd against 1) Tesco Stores Ltd and 2) Tesco plc.         Court of Justice on 21 December 1999 by the Commission of
                                                                       the European Communities, represented by Maria Patakia, of
                                                                       its Legal Service, acting as Agent, with an address for service
(1) See p. 5 of this Official journal.
                                                                       in Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                       Wagner Centre, Kirchberg.
                                                                       The applicant claims that the Court should:
                                                                       (1) declare that, by maintaining in force Articles 2(1) and
Reference for a preliminary ruling by the Bundesgerichts-                   (2)(iii) of Decree 93-1298 of 13 December 1993, accord-
hof by order of that court of 30 November 1999 in the                       ing to which the following rights attach to the ‘golden
case of Georg and Helga Heininger against Bayerische                        share’ held by the French State in the State company
                   Hypo- und Vereinsbank AG                                 Elf-Aquitaine:
                           (Case C-481/99)                                  (a) any shareholding which exceeds the ceilings applying
                                                                                 to the direct or indirect holding by a natural or legal
                            (2000/C 79/12)                                       person, acting alone or in conjunction with others, of
                                                                                 one tenth, one fifth or one third of the capital of, or
Reference has been made to the Court of Justice of the                           voting rights in, the company must first be approved
European Communities by order of the Bundesgerichtshof                           by the Minister for Economic Affairs (Article 2(1) of
(Federal Supreme Court) of 30 November 1999, received at                         the Decree);
 ---pagebreak--- 18.3.2000              EN                     Official Journal of the European Communities                                                C 79/7
    (b) a decision to transfer or use as security the assets listed      Reference for a preliminary ruling by the Tribunale di
         in the annex to the Decree may be opposed — the                 Brescia, Seconda Sezione Stralcio (District Court, Brescia,
         assets in the present case being the majority of the            Second Chamber [Liquidations]) by order of 28 October
         capital of four subsidiaries of the parent company,             1999 in Case C-485/99, by orders of 30 October 1999 in
         namely Elf-Aquitaine Production, Elf-Antar France,              Cases C-486/99, C-487/99, C-488/99 and C-492/99, and by
         Elf-Gabon SA and Elf-Congo SA (Article 2(3) of the              orders of 10 November 1999 in Cases C-489/99, C-490/99
         Decree),                                                        and C-491/99, Gottinghen SpA and Others v Ministero
                                                                                                     delle Finanze
         and by failing to lay down sufficiently precise and
         objective criteria for approval of, or opposition to, the
                                                                                           (Cases C-485/99 to C-492/99)
         operations referred to above, the French Republic has
         failed to comply with its obligations under Articles 43
         to 48 EC and Article 56 EC (formerly Articles 52 to 58                                     (2000/C 79/14)
         and 73b of the EC Treaty);
(2) order the French Republic to pay the costs.                          Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Tribunale di Brescia,
                                                                         Seconda Sezione Stralcio (District Court, Brescia, Second
                                                                         Chamber [Liquidations]), by order of 28 October 1999 in Case
Pleas in law and main arguments                                          C-485/99 (Gottinghen SpA, Tenuta Mombello Srl and Artea
                                                                         Srl v Ministero delle Finanze), by orders of 30 October 1999
Direct investment constitutes a form of movement of capital.             in Cases C-486/99 (Flos SpA, Flos Consulting Srl, Collebeato
In parallel with this, the acquisition by an investor from               Center, Light Shop Srl, Light Shop 2 Srl and Light Contract Srl
another Member State of the European Union of a controlling              v Ministero delle Finanze), C-487/99 (Petra Srl v Ministero
interest in a State undertaking is also covered by the provisions        delle Finanze), C-488/99 (Supercar Srl v Ministero delle
of the EC Treaty concerning the right of establishment.                  Finanze) and C-492/99 (Impresa Colleoni Giacomo Figli Srl v
National rules laying down general authorisation and veto                Ministero delle Finanze), and by orders of 10 November 1999
procedures may create, even where they are applicable without            in Cases C-489/99 (Immobiliare Flavia Srl in liquidation v
distinction, obstacles to the right of establishment and to the          Ministero delle Finanze), C-490/99 (Azzini SpA v Ministero
free movement of capital, inasmuch as they may impede, or                delle Finanze) and C-491/99 (Falegnameria Carminati di
render less attractive, the exercise of the fundamental freedoms         Franco e Domenico Carminati Snc [formerly Carminati Agosti-
guaranteed by the EC Treaty. Consequently, the French rules              no Srl] v Ministero delle Finanze), received at the Court
referred to in the form of order sought cannot be held to                Registry on 21 December 1999, for a preliminary ruling on
be compatible with Articles 56 EC and 43 EC (formerly                    the following questions:
Articles 73b and 52 of the EC Treaty) unless they fall within
the exceptions referred to in Articles 46, 58 and 296 EC or              1. Is Article 11(1) of Italian Law No 448 of 23 December
are justified by overriding public-interest considerations and                1998 (G.U.R.I. No 302 of 29 December 1998, ordinary
coupled with criteria which are objective and permanent and                   supplement) compatible with Community law, in particu-
which have been publicly promulgated, in such a way as to                     lar with Articles 10 and 12 of Council Directive
restrict to an absolute minimum the discretion exercisable by                 69/335/EEC (1), inasmuch as it provides that the adminis-
the national authorities.                                                     trative charge is payable at a flat annual rate for registration
                                                                              of ‘other company documents’ for each of the years from
The clarification provided by the French Government concern-                  1985 to 1992, equal to the sum of the sum of ITL 750 000
ing the case-law of the Cour Constitutionelle (Constitutional                 for public limited companies and partnerships limited by
Court) on the limits to the discretionary power enjoyed by                    shares and ITL 400 000 for private limited companies?
the Minister for Economic Affairs is vague as regards the
interpretation applicable to the concept of the national interest        2. Is Article 11(3) of Law No 448/98 compatible with Com-
as opposed to the interests of foreign investors; consequently,               munity law, inasmuch as it provides that interest on the
it does not dispel the Commission’s concerns regarding the                    sums to be reimbursed in so far as they exceed the
compatibility of the rules in question with Community law.                    sum provided for by Article 11(1) should be calculated
As to the French authorities’ concern to prevent companies                    according to the legal rate in force at the date on which
from third countries from gaining control of the companies in                 that Law entered into force (2.5 % per annum) and not
question, the Commission points out the possibilities offered                 according to the rate provided for by Article 5 with
by Article 57 EC as regards the maintenance of the restrictions               respect to Article 1 of Law No 29 of 26 January 1961, as
existing in 1993 in respect of the movement of capital to or                  subsequently amended?
from third countries involving direct investment; France has
not, however, made use of that option. Lastly, the fact that the
French Government has made only limited use of the rules in
issue cannot justify the introduction of rules which are not in          (1) Council Directive 69/335/EEC of 17 July 1969 concerning
                                                                             indirect taxes on the raising of capital (OJ, English Special Edition
conformity with Community law, even where those rules are                    1969 (11), p. 412).
applicable only to limited cases.