CELEX: C2001/161/13
Language: en
Date: 2001-06-02 00:00:00
Title: Case C-124/01: Action brought on 16 March 2001 by the Commission of the European Communities against the Italian Republic

2.6.2001                 EN                    Official Journal of the European Communities                                            C 161/7
The appellant claims that the Court should:                                     the export licences acquired. If the Court had made its
                                                                                doubts on this point known, the plaintiff would have
                                                                                been able to give a breakdown of the figures at the
—     partially annul the contested judgment; and                               hearing; the Court was therefore not entitled to reject the
                                                                                claim in its entirety on that ground.
—     adjudicate accordingly on the claim at first instance (1)
                                                                          (1) Not yet published in the ECR.
Pleas in law and main arguments
—     The Court of First Instance wrongly proceeded on the
      basis that the plaintiff passed the cost of the export
      licences on to its customers and therefore suffered no
      loss. The plaintiff made no declaration on the point
      because the question of any possible unjustified loss did
      not in any event fall within the scope of its evidentiary
      burden.                                                             Action brought on 16 March 2001 by the Commission of
                                                                            the European Communities against the Italian Republic
      If the plaintiff did pass on the cost of obtaining the export
      licences to its customers, it did so because the market
                                                                                                     (Case C-124/01)
      would bear those prices. Without the requirement to
      produce export licences from Costa Rica, the plaintiff
      would have obtained the same sale price but made a                                             (2001/C 161/13)
      greater profit. The loss arose with the payment for the
      illegal export licences, which thereby concluded legal
      relations between the party causing the loss and the party          An action against the Italian Republic was brought before the
      suffering it. Whether and to what extent the party                  Court of Justice of the European Communities on 16 March
      suffering the loss succeeds, on account of its skill and the        2001 by the Commission of the European Communities,
      market situation, in opening up new sources of income               represented by Antonio Aresu, acting as Agent.
      for itself with which to compensate for its expenditure
      on the export licences, is an entirely different question to
      be determined in accordance with new (and appropriate)              The applicant claims that the Court should:
      causal links. That is how this legal question was deter-
      mined by the higher German courts. The relevant con-
      sideration is the recognition that the party causing the            —     declare that, by failing to adopt the laws, regulations
      loss may not unfairly escape responsibility.                              and administrative provisions necessary to comply with
                                                                                Directive 94/47/EC of the European Parliament and the
                                                                                Council of 26 October 1994(1) on the protection of
—     The subsidiary reasoning of the Court of First Instance                   purchasers in respect of certain aspects of contracts
      concerning the balancing of advantages between the                        relating to the purchase of the right to use immovable
      various operators also fails to support the contested                     properties on a timeshare basis, the Italian Republic has
      judgment. The principle of balancing advantages applies                   failed to fulfil its obligations under that directive;
      only if the advantage which arises (raising of quotas,
      reduction in customs duties) stems from the same
      legal infringement as the loss (expenditure incurred in             —     order the Italian Republic to pay the costs.
      obtaining export licences). Raising of quotas and customs
      duties, by contrast, do not constitute a legal infringement.
      How exactly this compensation for loss is to be quantified
      in the plaintiffs assessment of its loss is a matter which          Pleas in law and main arguments
      the plaintiff is unable to discover from the contested
      judgment.
—     The contested judgment suffers from an insufficient                 a)     Failure to comply with Article                          9 of
      statement of reasons, because it is not clear whether the                  Directive 94/47/EC
      Court is unprepared in principle to allow certification of
      the loss by sworn auditors as evidence.
                                                                          The Italian authorities indicated that they were to amend
                                                                          Article 11 of Decree No 427/98 in order fully to transpose
—     The Court of First Instance wrongly doubts the probative            Article 9 of the directive. However, no definite timetable has
      value of the customs payments, tested by auditors, which            yet been communicated concerning that amendment, from
      the plaintiff made for actual imports corresponding to              which it must be presumed that the infringement is continuing.
 ---pagebreak--- C 161/8                EN                   Official Journal of the European Communities                                        2.6.2001
b)     Failure to comply with Article 10 of                            3.     Is the Chamber obliged, pursuant to the case-law of the
       Directive 94/47/EC                                                    Court of Justice, to refrain from applying the provision
                                                                             concerning the prescriptive period?
Article 12 of Decree No 427/98 does not lay down any
penalties or specify any other type of consequence resulting           (1) OJ L 283, 28.10.1980, p. 3.
from a vendor’s failure to comply with its obligation to provide
any person requesting the same with a document setting out
at least brief and accurate information on the particulars
mentioned in points (a) to (g), (i) and (1) of the annex to the
directive. In particular, the decree does not provide for any
fine or similar sanction in the event of omission of the
particulars mentioned in points (a), (b), (c), (i) and (1) of the
annex to the directive.
                                                                       Action brought on 20 March 2001 by the Commission of
Furthermore, the information in question must be given in the            the European Communities against the Italian Republic
document mentioned not only to ensure effective protection
of purchasers, but also to avoid distortions of competition
between vendors at the level of the internal market.                                             (Case C-128/01)
For those reasons, the Commission submits that Article 10 of                                     (2001/C 161/15)
the directive has not been fully and properly transposed by the
Italian Republic.                                                      An action against the Italian Republic was brought before the
                                                                       Court of Justice of the European Communities on 20 March
                                                                       2001 by the Commission of the European Communities,
(1) OJ L 280, 1994, p. 83.                                             represented by Luca Visaggio, acting as Agent.
                                                                       The applicant claims that the Court should:
                                                                       —     declare that, by failing to adopt the laws, regulations
                                                                             and administrative provisions necessary to comply with
                                                                             Council Directive 96/51/EC of 23 July 1996 (1) amending
                                                                             Directive 70/524/EEC concerning additives in feeding-
Reference for a preliminary ruling from the Sozialgericht                    stuffs, or by failing to communicate such provisions, the
Leipzig, by order of that court of 21 February 2001 in the                   Italian Republic has failed to fulfil its obligations under
   case of Peter Pflücke against Bundesanstalt für Arbeit                    that directive and the Treaty;
                                                                       —     order the Italian Republic to pay the costs.
                         (Case C-125/01)
                         (2001/C 161/14)                               Pleas in law and main arguments
Reference has been made to the Court of Justice of the                 According to Article 249 EC, directives are binding upon the
European Communities by order of the Sozialgericht Leipzig             Member States as to the result to be achieved. Article 10 EC
(Leipzig Social Court) of 21 February 2001, received at the            provides that the Member States are to take all appropriate
Court Registry on 19 March 2001, for a preliminary ruling in           measures, whether general or particular, to ensure fulfilment
the case of Peter Pflücke against Bundesanstalt für Arbeit on          of the obligations arising out of the Treaty or resulting from
the following questions:                                               action taken by the institutions of the Community, and to
                                                                       facilitate the achievement of the Community’s tasks.
1.    Is a prescriptive period for bringing claims for payment
      by the guarantee institution of outstanding wage claims
      compatible with Article 9 of Council Directive                   The Commission submits that, because the Italian Republic
      80/98/EEC (1) of 20 October 1980 on the approximation            failed to adopt, or to communicate, the provisions necessary
      of the laws of the Member States relating to the protection      to conform to the directive mentioned, it has failed to fulfil its
      of employees in the event of the insolvency of their             obligations under the directive and the Treaty.
      employer?
2.    Does the Court of Justice share the Chamber’s view that          (1) OJ L 235, 1996, p. 39.
      such a prescriptive period does not constitute a legal
      provision which is more favourable to employees within
      the meaning of Article 9 of Directive 80/987/EEC?