CELEX: C2003/184/38
Language: en
Date: 2003-08-02 00:00:00
Title: Case C-234/03: Reference for a preliminary ruling by the Audiencia Nacional by order of that Court of 16 April 2003 in the case of Contse S.A., Vivisol SRL and Oxigen Salud S.A. against INSALUD (now INGESA)

2.8.2003              EN                        Official Journal of the European Union                                          C 184/21
Pleas in law and new arguments                                          vehicle registered abroad. They require payment of the car tax
                                                                        chargeable in Finland before the vehicle may be used. Car tax
In general terms, for the provisions of an international treaty         is to be levied on vehicles which are used in traffic in Finland,
to be able to continue to have effect after its natural expiry a        even to a small extent, unless a specific exception is laid down
decision in that behalf must be taken in concertation by the            by law.
signatory States and only by them.
No joint position was adopted by the signatory States of the            Under the Finnish provisions, car tax is to be paid on a vehicle
ECSC Treaty, prior to the expiry thereof, with a view to                before it is used on Finnish territory. If the vehicle is never-
extending its validity in its entirety and to providing for a           theless used without paying tax in cases in which tax should
general transitional regime to ensure the continuance in effect         have been regarded as paid, the authorities levy tax on the
of all its provisions. Instead the signatory States allowed the         vehicle.
ECSC Treaty to be extinguished, merely regulating the transfer
of ECSC provisions to the EC regime in regard to certain
sectors. In particular, no joint provision was made in regard           The Finnish legislation, contrary to Article 39 EC, prevents the
to a transitional regime in competition matters under the ECSC          realisation of freedom of movement of workers, because
Treaty. In the case of investigations under way at the time of          employees living in Finland cannot use a car provided by their
expiry of the ECSC Treaty such expiry could not be claimed to           employer and registered in another Member State for their
be ‘non-retroactive’ since that would entail the continuance in         work in Finland, if tax is not paid on the car in Finland. As
effect of its provisions, no right, obligation or legal situation       a result of the Finnish legislation, employees resident in Finland
arising during the currency of the Treaty itself.                       cannot accept an offer of work from a neighbouring State of
                                                                        the European Union where the use in both countries of a car
From the applicant's point of view, absorption of the ECSC              provided by the employer is part of the work.
rules within the EC rules may occur only by way of an
instrument manifesting the common will in that regard of the
signatory states.                                                       Companies operating in another Member State cannot engage
                                                                        employees living in Finland because they cannot use a car
                                                                        registered in another country in Finland if Finnish tax has not
                                                                        been paid on the car. The practice discriminates in particular
                                                                        against cross-frontier workers living in Finland, who cannot
                                                                        use a car provided by the employer for daily work journeys
                                                                        between the home and the workplace. The use of a car
                                                                        provided by the employer is often a regular part of the
Action brought on 28 May 2003 by the Commission of                      remuneration. A Member State breaches the duty of coopera-
the European Communities against the Republic of                        tion under Article 10 EC if the national measures of the
                             Finland                                    Member State prevent freedom of movement in such a way
                                                                        that workers living in another Member State cannot pursue
                         (Case C-232/03)                                their occupation in the other Member State.
                         (2003/C 184/37)
An action against the Republic of Finland was brought before
the Court of Justice of the European Communities on 28 May
2003 by the Commission of the European Communities,
represented by D. Martin and I. Koskinen, acting as Agents,
with an address for service in Luxembourg.
                                                                        Reference for a preliminary ruling by the Audiencia
The Commission claims that the Court should:                            Nacional by order of that Court of 16 April 2003 in the
                                                                        case of Contse S.A., Vivisol SRL and Oxigen Salud S.A.
1.    Declare that, by preventing cross-frontier workers from                          against INSALUD (now INGESA)
      benefiting from certain benefits provided to them by their
      employers on the sole ground that the workers in ques-
      tion live in the Republic of Finland, into which the                                       (Case C-234/03)
      vehicles owned by their employers have been imported,
      the Republic of Finland has failed to fulfil its obligations
      under Articles 10 EC and 39 EC;                                                            (2003/C 184/38)
2.    Order Finland to pay the costs.
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Audiencia Nacional
Pleas in law and main arguments                                         (National High Court) of 16 April 2003, received at the Court
                                                                        Registry on 2 June 2003, for a preliminary ruling in the case
Provisions of Finnish legislation limit the possibility for a           of Contse S.A., Vivisol SRL and Oxigen Salud S.A. against
person permanently resident in Finland to use in Finland a              INSALUD (now INGESA) on the following questions:
 ---pagebreak--- 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?