CELEX: C2003/184/40
Language: en
Date: 2003-08-02 00:00:00
Title: Case C-237/03: Reference for a preliminary ruling from the Tribunal d'Instance de Roubaix by judgment of that court of 15 May 2003 in the case of Banque Sofinco SA against Daniel and Carole Djemoui

C 184/22               EN                        Official Journal of the European Union                                         2.8.2003
Is it contrary to Articles 12, 43 et seq. and 49 et seq. of the EC       Pleas in law and main arguments
Treaty, and Article 3(2) of Council Directive 92/50/EEC (1) of
18 June 1992 relating to the coordination of procedures for the
award of public service contracts, to include in the general             The Commission submits that the CFI'S ruling contains
specifications and special administrative clauses and technical          numerous contradictions and inconsistencies, not to say distor-
specifications governing public competitions relating to home            tions and that, accordingly, the contested judgment would
respiratory treatments and other assisted breathing techniques:          render the division of offenders into groups, which is a key
                                                                         element of the Guidelines, unworkable. The Commission main-
                                                                         tains that it followed an approach which is both entirely
1)    the requirement that, in order to qualify to tender, under-        reasonable and wholly consonant with the principle of non-
      takings must already have offices open to the public in            discrimination.
      the province or capital of the province in which the
      service is to be provided;
                                                                         In the Commission's submission, the CFI has erred in finding
2)    award criteria which favour:                                       that the Decision contained inadequate reasoning and has, in
                                                                         any event, exceeded the bounds of its jurisdiction.
      a)    tenders from undertakings established within a
            1 000 Km radius of the capital in which the service          According to the Commission the contested ruling would
            is to be provided;                                           severely fetter the Commission's discretion when setting fines,
                                                                         and would be virtually tantamount to imposing on the
      b)    undertakings which already have offices open to the          Commission a duty to apply a mathematical or ‘scientifically’
            public in certain towns in that province; or                 verifiable formula. This would seriously undermine the
                                                                         Commission's discretion, and thus its power and duty to
      c)    undertakings which have been providing the service           pursue infringements of Articles 81 and 82 of the Treaty.
            previously?
                                                                         Finally the Commission contests the CFI's finding that the
(1) OJ L 209 of 18.06.1992, p. 1.                                        imposition of fines was time-barred and maintains that such
                                                                         finding is unsustained by any reasoning in the judgment.
                                                                         (1) OJ C 124, 24.05.2003, p. 18.
Appeal brought on 2 June 2003 by the Commission of the
European Communities against the judgment delivered on
19 March 2003 by the Third Chamber of the Court of
First Instance of the European Communities in case T-213/
00 (1) between CMA CGM and thirteen other liner ship-
ping companies and the Commission of the European
                                                                         Reference for a preliminary ruling from the Tribunal
                            Communities
                                                                         d'Instance de Roubaix by judgment of that court of
                                                                         15 May 2003 in the case of Banque Sofinco SA against
                        (Case C-236/03 P)                                                   Daniel and Carole Djemoui
                          (2003/C 184/39)
                                                                                                  (Case C-237/03)
An appeal against the judgment delivered on 19 March 2003                                         (2003/C 184/40)
by the Third Chamber of the Court of First Instance of the
European Communities in case T-213/00 between CMA CGM
and thirteen other liner shipping companies and the Commis-
sion of the European Communities was brought before the                  Reference has been made to the Court of Justice of the
Court of Justice of the European Communities on 2 June 2003              European Communities by judgment of the Tribunal d'instance
by the Commission of the European Communities, represented               (District Court), Roubaix of 15 May 2003 received at the
by P. Oliver, acting as agent, with an address for service in            Court Registry on 4 June 2003, for a preliminary ruling in
Luxembourg.                                                              the case of Banque Sofinco SA against Daniel and Carole
                                                                         Djemoui on the following questions:
The Appellant claims that the Court should:
                                                                         1.    Must Council Directives 87/102/EC (1) of 22 December
—     annul point 1 of the judgment of the Court of First                      1986 and 90/88/EC (2) of 22 February 1990 be inter-
      Instance of 19 March 2003 in Case T-213/00 (CMA                          preted as requiring the national court to favour the
      CGM v. Commission);                                                      interpretation of national law obliging consumer credit
                                                                               institutions to inform the borrower/consumer in writing
—     reject the Respondents' Application in its entirety;                     of the current annual percentage rate of charge, before
                                                                               each renewal of a credit agreement renewable in instal-
—     order the Respondents to pay the Commission's costs.                     ments in which the interest is stipulated to be variable?
 ---pagebreak--- 2.8.2003                EN                         Official Journal of the European Union                                            C 184/23
       Must those directives be interpreted as requiring the               by G. Valero Jordana and B. Stromsky, acting as Agents, with
       national court to favour the interpretation of national law         an address for service in Luxembourg.
       obliging consumer credit institutions to bring to the atten-
       tion of the consumer the clause concerning the variation
       in that annual percentage rate of charge before each                The Commission of the European Communities claims that the
       renewal of the agreement?                                           Court should:
2.     Must those directives be interpreted as designed solely to
                                                                           —     find that, by failing to take all appropriate measures to
       protect the consumer or, beyond that, to organise the
                                                                                 prevent, abate and combat the substantial and prolonged
       single market in consumer credit?
                                                                                 pollution of the Étang de Berre and by failing to take due
                                                                                 account of the provisions of Annex III to the Athens
       Does the requirement of an interpretation in conformity                   Protocol of 17 May 1980 for the Protection of the
       with the aims — at the very least those of protecting the                 Mediterranean Sea against Pollution from Land-Based
       consumer — of those directives mean that the court may                    Sources (1) by amending the authorisation for discharges
       raise of its own motion defects in credit agreements, such                of the substances referred to in Annex II to the Protocol
       as the failure to include a written statement of the annual               in consequence of its conclusion, the French Republic has
       percentage rate of charge or the clause providing for its                 failed to fulfil its obligations under Article 6(1) and (3) of
       variation?                                                                the Protocol and Articles 4(1) and 8 of the Barcelona
                                                                                 Convention of 16 February 1976 for the Protection of the
3.     Must those directives be interpreted as meaning that the                  Mediterranean Sea against Pollution (2), approved on
       court is required to favour the interpretation of national                behalf of the Community by Council Decisions 77/585/
       law authorising it to uphold pleas of irregularity vitiating              EEC (3) and 83/101/EEC (4) on 25 July 1977 and
       the conclusion or renewal of a consumer credit agree-                     28 February 1983, and Article 300(7) (formerly
       ment, such as those described above, raised by the                        Article 228) of the Treaty establishing the European
       consumer or of the court's own motion, without any                        Community;
       time-limit, in a dispute arising out of an action for
       payment brought by the credit institution?                          —     order the French Republic to pay the costs.
       If not, must those directives be interpreted as meaning
       that the court is required to favour the interpretation of
       national law authorising it to set aside a national provi-
       sion prohibiting the consumer or the court of its own
       motion from raising a plea of irregularity affecting the
       conclusion or renewal of a consumer credit agreement, at            Pleas in law and main arguments
       the end of a time-limit derogating from the ordinary law,
       inasmuch as it constitutes an exceptional restriction of the
       consumer's right to bring an action and compromises the             Under Article 3(c) of the Athens Protocol, the area to which
       effectiveness of consumer protection?                               the Protocol applies includes saltwater marshes communicating
                                                                           with the sea, of which the Étang de Berre is one. It therefore
                                                                           follows from Article 6(1) of the Protocol that the French
(1) Directive 87/102/EEC of 22 December 1986 for the approximation         Republic must reduce direct and indirect discharges of
    of the laws, regulations and administrative provisions of the          substances into that lake when those discharges give rise to
    Member States concerning consumer credit (OJ 1987 L 42, p. 48).        harmful effects, and must prevent and combat those
(2) Council Directive 90/88/EEC of 22 February 1990 amending Direc-        discharges. That involves an obligation as to the result to be
    tive 87/102/EEC for the approximation of the laws, regulations and
                                                                           achieved.
    administrative provisions of the Member States concerning
    consumer credit (OJ 1990 L 61, p. 14).
                                                                           The abatement of direct and indirect discharges of substances
                                                                           into the Étang de Berre must be stringent. That stringency
                                                                           requires a sizeable and lasting reduction in the quantity of
                                                                           substances discharged, with a major and lasting positive effect
                                                                           on the environment, and also applies to the method which the
                                                                           State uses to arrive at that result. However, the French
                                                                           Republic has not abated the pollution from land-based sources
Action brought on 4 June 2003 by the Commission of the                     in the Étang de Berre in accordance with its obligations under
     European Communities against the French Republic                      Article 6(1) of the Protocol, in conjunction with Articles 4(1)
                                                                           and 8 of the Barcelona Convention of 16 February 1976 for
                                                                           the Protection of the Mediterranean Sea against Pollution. Since
                           (Case C-239/03)                                 1983, as the result of the operation of the hydroelectric power
                                                                           station at Saint-Chamas, the lake has suffered substantial and
                           (2003/C 184/41)                                 prolonged point-source land-based pollution, with considerable
                                                                           negative effects on flora, fauna and amenities. While it is true
                                                                           that there has been abatement of the pollution, the reduction
                                                                           in discharges has been belated, erratic and, above all, extremely
An action against the French Republic was brought before the               limited. Finally, the measures taken by the public authorities
Court of Justice of the European Communities on 4 June 2003                for the purpose of long-term pollution abatement in the Étang
by the Commission of the European Communities, represented                 de Berre have been limited in scope.