CELEX: C1997/040/13
Language: en
Date: 1997-02-08 00:00:00
Title: Appeal brought on 17 September 1996 by Giorgio Bernardi against the judgment delivered on 11 July 1996 by the Third Chamber of the Court of First Instance of the European Communities in Case T-146/95 between European Parliament and Giorgio Bernardi (Case C-303/96 P)

No C 40/6               ( EN ]                Official Journal of the European Communities                                       8 . 2 . 97
                   JUDGMENT OF THE COURT                                       observance of the maximum limit of 'small numbers '
                           (Third Chamber )                                    referred to in that provision.
                         of 12 December 1 996                            (') O I No C 64, 2 . 3 . 1996 .
in Case C-10/96 ( reference for a preliminary ruling made
by the Belgian Conseil d'État): Ligue Royale Belge pour la
Protection des Oiseaux ASBL and Société d'Études
Ornithologiques AVES ASBL v. Région Wallone;
intervener: Fédération Royale Ornithologique Belge
                                 ASBL (')                                                    ORDER OF THE COURT
 (Council Directive 79/409/EEC on the conservation of                                              (Fourth Chamber)
       wild birds — Prohibition of capture — Derogations)                                       of 12 December 1996
                              ( 97/C 40/ 11 )                            in Case C-49/96 P Nicolaos Progoulis v. Commission of
                                                                                           the European Communities (')
                    (Language of the case: French)                                    (Official — Appeal clearly inadmissible)
                                                                                                       ( 97/C 40/12 )
    (Provisional translation; the definitive translation will be                           (Language of the case: French)
              published in the European Court Reports)
                                                                            (Provisional translation; the definitive translation will be
 In Case C-10/96 : reference to the Court under Article 177                          published in the European Court Reports)
 of the EC Treaty by the Belgian Conseil d'État for a
 preliminary ruling in the proceedings pending before that                In Case C-49/96 P: Nicolaos Progoulis ( represented by
 court between Ligue Royale Beige pour la Protection des                  Konstantinos Adamantopoulos and Vassilios Akritidis) —
 Oiseaux          ASBL,      along     with    Societe     d'Études       appeal against the order of the Court of First Instance
 Ornithologiques AVES ASBL, and Region Wallone;                           ( Fifth Chamber ) of 15 December 1995 in Case T-l 31 /95
 intervener : Federation Royale Ornithologique Beige ASBL                 Progoulis v. Commission ( 1995 ) ECR-SC 11-907, seeking
 — on the interpretation ' of Articles 5 , 9 and 18 of Council            to have that order set aside , the other party to the
 Directive 79/409/EEC of 2 April 1 979 on the conservation                proceedings being the Commission of the European
  of wild birds ( OJ No L 103 , 25 . 4 . 1979, p. 1 ) — the               Communities ( Agent: Ana Maria Alves Vieira, assisted by
  Court (Third Chamber ), composed of: J. C. Moitinho de                  Bertrand Wägenbaur ) — the Court ( Fourth Chamber ),
  Almeida , President of the Chamber, C. Gulmann                          composed of J. L. Murray ( Rapporteur ), President of the
  ( Rapporteur ) and J. -P. Puissochet, Judges; N. Fennelly,               Chamber, C. N. Kakouris and H. Ragnemalm, Judges ;
  Advocate-General ; H. von Holstein , Deputy Registrar, for               C. O. Lenz, Advocate-General ; R. Grass, Registrar, made
  the Registrar, has given a judgment on 12 December 1996 ,               an order on 12 December 1996 , in which it :
  the operative part of which is as follows :
                                                                           1 . dismisses the appeal as clearly inadmissible;
   1 . Council Directive 79/409/EEC of 2 April 1979 on the
        conservation of wild birds , and in particular Article 9           2 . orders the appellant to pay the costs.
        ( 1 ) (c) thereof, must be interpreted as meaning that a
        Member State may not, on a decreasing basis and for                (') OJ No C 108 , 13 . 4 . 1996 .
        a limited period, authorize the capture of certain
        protected species in order to enable bird fanciers to
        stock their aviaries, where breeding and reproduction
        of those species in captivity arc possible but are not
        yet practicable on a large scale by reason of the fact
        that many fanciers would be compelled to alter their                Appeal brought on 17 September 1996 by Giorgio
        installations and change their habits.                              Bernardi against the judgment delivered on 11 July 1996
                                                                            by the Third Chamber of the Court of First Instance of
    2.   National authorities are authorized under Directive
                                                                            the European Communities in Case T-146/95 between
                                                                                     European Parliament and Giorgio Bernardi
         79/409/EEC, and in particular under Article 9 (1 ) (c)
         thereof, to permit the capture of protected species with                                   ( Case C-303 /96 P )
         a view to obviating, in bird breeding for recreational                                           ( 97/C 40/ 13 )
         purposes, the problems of consanguinity which would
         result from too many endogenous crossings, on
         condition that there is no other satisfactory solution, it         An appeal against the judgment delivered on 11 July 1996
         being understood that the number of specimens which                 by the Third Chamber of the Court of First Instance of the
         may be captured must be fixed at the level of what                  European Communities in Case T-146/95 between
         proves to be objectively necessary to provide a                     European Parliament and Giorgio Bernardi was brought
         solution for those problems, subject always to                      before the Court of Justice of the European Communities
 ---pagebreak--- 8 . 2 . 97             I r,N                   Official Journal of the European Communities                                     No C 40 7
on 17 September 1996 by Giorgio Bernardi , represented                    2 . If the reply to Question 1 is in the negative, if, that is,
by Giancarlo Lattanzi, of the Massa-Carrara Bar, with an                       the Court of Justice reserves such competence for
address for service in Luxembourg at 22 Rue Godchaux.                          itself, for reasons relating, for instance, to the uniform
                                                                               application of Community provisions, may the specific
The appellant claims that the Court should :                                   circumstances as formulated by the defendant­
                                                                               respondent State as an objection, which constituted
— find and declare the present appeal (') admissible and                       the issue of proof in Judgment No 5943/ 1994 of this
      well-founded,
                                                                               Court, and which were set out succinctly in the
— set aside the judgment appealed against,                                     previous paragraph of this Judgment, or certain of
                                                                               them and if so which, prevent an action founded on
— dispose of the case and allow the claims made therein,                       infringement of Article 25 ( 1 ) of the Second Council
                                                                               Directive 77/91 /EEC (') from succeeding ?
— refer the case back, as appropriate .
                                                                          (') OJ No L26 , 30 . 1 . 1977, p . 1 .
Pleas in law and main arguments adduced in support:
— lack of jurisdiction of the Court of First Instance to
       consider the action on the basis of Article 173 of the
       EC Treaty: In the present case, the action concerns the            Reference for a preliminary ruling by the High Court of
       procedure for appointing the European Ombudsman,                   Justice, Queen's Bench Division, by order of that Court of
       and is therefore a new subject matter, hence the                   10 October 1996, in the case of the Queen against
       application either of Article 43 of the ECSC Treaty                Medicines Control Agency, Ex parte: Generics ( UK )
       ( according to which 'the Court shall have jurisdiction                          Limited, E. R. Squibb & Sons, Intervener
       in any other case provided for by a provision
                                                                                                      Case C-368/96
       supplementing this Treaty'), or of a general principle
       of jurisdiction 'according to subject matter' ( since the                                       ( 97/C 40/ 15 )
       oath was taken by the European Ombudsman before
       the Court of Justice ),                                            Reference has been made to the Court of Justice of the
— ( In the alternative ) breach of Community law.                         European Communities by an order of the High Court of
                                                                          Justice, Queen 's Bench Division, of 10 October 1996 ,
                                                                          which was received at the Court Registry on 22 November
(') Appeal directed against the judgment published in OJ No
     C 247, 24 . 8 . 1996 , p. 15 .
                                                                          1996 , for a preliminary ruling in the case of the Queen
                                                                          against Medicines Control Agency, Ex parte : Generics
                                                                          ( UK ) Limited, E. R. Squibb & Sons, Intervener, on the
                                                                          following questions:
Reference for a preliminary ruling by the First Chamber of                1 . ( a ) What is meant by 'essentially similar' for the
the Efetio Athinon ( Court of Appeal, Athens ), by a                                   purposes of Article 4.8 ( a ) ( iii ) of Council
judgment of that court of 6 June 1996 in the case of                                   Directive 65/65/EEC (^ of 26 January 1965 on the
Alexandros Kefalas            and Others v.     Greek State     and                    approximation of provisions laid down by law,
Organismos Ikonomikis Anasinkrotisis Epikhirseon AE                                    regulation or administrative action relating to
and Others — Interveners: Athinaiki Khartopiia AE and                                  proprietary medicinal products ( as amended )? In
                                    Others                                             particular, when seeking to establish for that
                                                                                       purpose that a medicinal product (product B ) is
                            ( Case C-367/96 )                                          essentially similar to a medicinal product which
                               ( 97/C 40/ 14 )                                         has been authorized within the Community for
                                                                                       6/ 10 years in accordance with the Community
Reference has been made to the Court of Justice of the                                 provisions in force ( product A ), by reference to
European Communities by a judgment of the First                                        which physical or other characteristics or
Chamber of the Court of Appeal, Athens, of 6 June 1996 ,                               attributes of the medicinal products in question
                                                                                       should this be determined ?
which was received at the Court Registry on 21 November
 1996 , for a preliminary ruling in the case of Alexandros                      ( b) Does the competent authority of a Member State
Kefalas and Others v. Greek State and Organismos                                       have a margin of discretion in determining the
 Ikonomikis Anasinkrotisis Epikhiriseon AE — Interveners :                             criteria in accordance with which the question of
 Athinaiki Khartopiia AE and Others — on the following                                 whether product B is essentially similar to
 questions:                                                                            product A is to be judged, and if so to what
                                                                                       extent ?
 1 . Is the national court recognized as having the
        possibility of applying a provision of national law ( in           2 . May product B be authorized in accordance with
        this case Article 281 of the Greek Civil Code ) in order                Article 4.8 ( a ) ( iii ) of Directive 65/65/EEC ( as
        to assess whether a right granted by the Community                      amended ) in respect of:
        provisions at issue is being exercised by the party
        possessing the right in abuse of rights, or are there                    ( a ) all indications for which product A is currently
        other Community law principles, and if so which , to                           authorized in the relevant Member State at the
         be found in legislation or settled case-law, on which                          date of the application made in relation to
        the national court may, if need be, base itself?                               product B; or