CELEX: C1995/351/11
Language: en
Date: 1995-12-30 00:00:00
Title: Action brought on 7 November 1995 by the French Republic against the European Parliament (Case C-345/95)

30 . 12 . 95           EN                   Official Journal of the European Communities                                   No C 351 /7
so far as it unconditionally prohibits as from 1 June 1995 the               — which, since they are imposed exclusively on the
use of HCFCs in the fire-fighting sector, is valid .'                             vessel ( which is merely passively loaded and
                                                                                  unloaded ), affect a subject other than those whose
(') OJ No L 333 , 22 . 12 . 1994 , p . 1 .                                        responsibility it is to carry out the necessary
                                                                                  technical operations ( in this case SpA Porto Petroli
                                                                                  di Genova and the laders/receivers of the product ),
                                                                                  resulting in an inevitable discrepancy between the
                                                                                  responsibility for any pollution and the bearing of
                                                                                  the cost of the anti-pollution service,
Reference for a preliminary ruling from the Tribunale di
Genova, Sesta Sezione Civile, by order of that court of                      — which, given the nature of the product and/or its
12 October 1995 in the case of Diego Call & Figli srl v.                          existence, represent an unnecessary service for
             Servizi Ecologici Porto di Genova SpA                                vessels equipped with their own anti-pollution
                                                                                  devices and systems adapted to the type of product
                         ( Case C-343/95 )
                                                                                  to be loaded or unloaded,
                           ( 95/C 351 / 10
                                                                             — which impose on the vessel a charge, and an
Reference has been made to the Court of Justice of the                            associated extra cost, in addition to those provided
European Communities by an order of the Tribunale di                              for by the landing contract between the carrier and
Genova, Sesta Sezione Civile ( District Court, Genoa, Sixth                       the company operating the wharves, and have no
Civil Chamber ) of 12 October 1995 , which was received at                        practical connection with the subject-matter of the
the Court Registry on 30 October 1995 , for a preliminary                         contract .
ruling in the case of Diego Call &c Figli Sri v. Servizi Ecologici
Porto di Genova SpA on the following questions :                       ( C ) If, in the situations set out in questions ( A ) and ( B ),
                                                                             there are one or more practices amounting to abuse of a
( A ) Can there be said to exist a 'dominant position within                 dominant position by an undertaking for the purposes
      the common market or in a substantial part of it' where                of Article 86 of the Treaty , does this lead to a potential
      a limited company, set up by a national port authority,                adverse effect on trade between Member States of the
      is given responsibility for and does actually carry out,               Union ?
      pursuant to an administrative concession from that
      authority, the task of providing, with exclusive rights
      within a harbour sector specializing in loading and
      unloading petroleum products, an ' anti-pollution
      protection ' service, and where that company collects
      the relevant fee, which is set unilaterally by the port
      authority on the basis of the vessel 's tonnage and the          Action brought on 7 November 1995 by the French
      quantity of the product loaded or unloaded, from users                     Republic against the European Parliament
      of that service , that is to say vessels which dock at the                               ( Case C-345/95 )
      wharves to carry out those operations ?
                                                                                                 ( 95/C 351 / 11 )
( B ) Having regard to the situation set out in question ( A )
      and if there is a dominant position within the common            An action against the European Parliament was brought
      market or a substantial part of it, is there an abuse of         before the Court of Justice of the European Communities on
      the aforesaid 'dominant position' within the meaning             7 November 1995 by the French Republic, represented by
      of Article 86 of the EC Treaty, in particular of                 Marc Perrin de Brichambaut and Denys Wibaux, acting as
      subparagraphs ( a ), ( c ) and ( d ) and are there related       Agents, with an address for service in Luxembourg at the
      'practices ', when an undertaking holding the exclusive          French Embassy, 9 Boulevard du Prince Henri .
      concession for a service ( even though on the basis of a
      decision of the authority granting the concession )              The applicant claims that the Court should :
      charges fees :
                                                                       — declare null and void the Decision of the European
      — which are compulsory and independent of the                         Parliament of 20 September 1995 fixing the timetable of
           provision of an efficient surveillance and/or                    work for 1996 ,
           intervention service, merely because a vessel berths
           in a mooring in the Porto Petroli and loads/unloads         — order the defendant to pay the costs .
           goods, whether petroleum products or chemicals
           and petrochemicals, according to the contractual
           terms imposed,                                              Pleas in law and main arguments adduced in support:
      — the amount of which depends solely on the tonnage              — breach of the Decision taken by common agreement
           of the vessel, the amount of the product and also , in           between the Representatives of the Governments of the
           the event of any actual intervention, the duration               Member States on the location of the seats of the
           thereof, but not on the product's nature, quality or             institutions and of certain bodies and departments of the
           capacity to pollute,                                             European Communities, adopted in Edinburgh on
 ---pagebreak--- No C 351 /8              EN                     Official Journal of the European Communities                                       30 . 12 . 95
     12 December 1992 ( ): that Decision forms part of the                 2 . If question 1 is answered in the affirmative :
     primary law binding upon the Member States and on the
     institutions created by the Treaties . It constitutes a legal               ( a ) what period of accommodation can regularly by
     rule relating to the application of the Treaties,                                 regarded as short-term ?
     compliance with which is to be ensured by the Court. By
     deciding to hold eleven periods of plenary sessions in                            Is it no longer 'provision of accommodation in the
     Strasbourg and, in parallel, to fix at eight the number of                        hotel sector' if the operator keeps the rooms ready
     additional sessions in Brussels, the Parliament has failed                        for long-term accommodation and this finds
     to comply to the letter with the Edinburgh decision,                              expression in the conclusion of a long-term letting
     which imposed on it a binding obligation to hold 12                               agreement ( longer than six months )?
     plenary sessions in Strasbourg, the seat of the institution .
     Moreover, the contested decision does not respect the
     inherent balance of that decision and renders it                            ( h ) Is a tax exemption under Article 13 ( B ) ( b ) ( 1 ) for a
                                                                                       proportion of the time possible if it transpires that
     nugatory ,                                                                        all the accommodation can be let on a short or
                                                                                       long-term basis according to choice ?
— lack of competence : the European Parliament is obliged ,
     in the exercise of its powers to regulate its internal
     organization, to respect the competence of the Member                 3 . If question 1 is answered in the negative :
     States to fix the location of the seats of the institutions .
     To allow the European Parliament to hold additional
                                                                                 On the basis of what temporal , spatial and
     plenary sessions in Strasbourg without first holding the                    conceptual criteria must the phrase 'provision of
     1 2 monthly sessions in Strasbourg would effectively call                   accommodation ... in the hotel sector or in sectors with
     in question the reality of the seat of the institution,                     a similar function ' be defined and which of them must
                                                                                 necessarily be present ?
— breach of essential procedural requirements : the
     President of the European Parliament did not have the
     capacity to accept an amendment which is contrary to                  (') OJ No L 145 , p . 1 .
     the Decision adopted in Edinburgh .
      ( In the alternative :) A statement of reasons should have
     been given for the contested Decision , despite the
     absence of any express provision to that effect in the
     Treaties .
                                                                           Reference for a preliminary ruling by the Supremo Tribunal
(■) OJ No C 341 , 23 . 12 . 1992 , p . 1 .                                 Administrativo ( Second Chamber — Fiscal Matters ) by
                                                                           judgment of that court of 11 October 1995 in the case of
                                                                           Fazenda Publica against UCAL ( Uniao das Cooperativas
                                                                                       Abastecedoras de Leite de Lisboa, UCRL )
                                                                                                     ( Case C-347/95 )
                                                                                                       ( 95./C 351 / 13 )
Reference for a preliminary ruling from the Finanzgericht
Miinchen by order of that court of 20 September 1995 in the                Reference has been made to the Court of Justice of the
         case of Elisabeth Blasi v. Finanzamt Miinchen I
                                                                           European Communities by judgment of the Supremo
                           ( Case C-346/95 )                               Tribunal Administrativo ( Supreme Administrative Court )
                              ( 95/C 351 / 12 )                             ( Second Chamber — Fiscal Matters ) of 11 October 1995 ,
                                                                           which was received at the Court Registry on 1 3 November
                                                                            1 995 , for a preliminary ruling in the case of Fazenda Publica
Reference has been made to the Court of Justice of the                      against UCAL (Uniao das Cooperativas Abastecedoras de
European Communities by an order of the Third Senate of                     Leite de Lisboa , UCRL ) on the following questions :
the Finanzgericht Miinchen ( Munich Finance Court ) of
20 September 1995 , which was received at the Court
Registry on 9 November 1995 , for a preliminary ruling in                   1 . are the 'charges ' described, which have the
the case of Elisabeth Blasi v. Finanzamt Miinchen I on the                         characteristics of taxes described above ('), contrary to
 following questions :                                                             Article 95 of the Treaty of Rome ?
 1 . Is Article 13 ( B ) ( b ) ( 1 ) of Council Directive 77/388/EEC        2 . Are they to be regarded as charges having an effect
        of 1 7 May 1 977 on the harmonization of the laws of the                   equivalent to a customs duty on imports, prohibited by
        Member States relating to turnover taxes ( Sixth VAT                       Articles 9 and 12 of that Treaty ?
        Directive ) (') to be interpreted as meaning that the
        provision of accommodation ... in the hotel sector or in
        sectors with a similar function consists solely in the               3 . Are they to be regarded as turnover tax within the
        short-term accommodation of guests ?                                       meaning fo Article 33 of the Sixth Directive ( 2 ), without