CELEX: C2003/200/27
Language: en
Date: 2003-08-23 00:00:00
Title: Case C-264/03: Action brought on 17 June 2003 by the Commission of the European Communities against the French Republic

23.8.2003             EN                           Official Journal of the European Union                                        C 200/15
On a proper construction of Regulation EEC No 3950/92 (1) of               imports, since it allows the authorities an excessive degree of
28 December 1992 (in particular Articles 1, 2 and 9(g) thereof)            latitude and does not require them to take a decision within a
and Regulation EEC No 536/93 (2) of 9 March 1993 (in parti-                brief and precisely determined period. In the case of parallel
cular Articles 1, 2 and 3 thereof), is the transfer of a quantity of       imports of medicines, that barrier goes well beyond what is
milk by the producer to a third party, while retaining the right           necessary for the protection of public health.
of property in it, in performance of a contract for the proces-
sing of the milk and in order to manufacture cheese, butter and
whey, for consideration, to be classified as ‘delivery’ or ‘direct
sale’ for the purposes of determining milk quotas and whether
the additional levy is to be applied?
(1) OJ L 405 of 31.12.1992, p. 1.
(2) OJ L 57 of 10.03.1993, p. 12.
                                                                           Action brought on 17 June 2003 by the Commission of
                                                                             the European Communities against the French Republic
                                                                                                    (Case C-264/03)
                                                                                                    (2003/C 200/27)
Action brought on 17 June 2003 by the Commission of
  the European Communities against the French Republic
                                                                           An action against the French Republic was brought before the
                                                                           Court of Justice of the European Communities on 17 June
                         (Case C-263/03)                                   2003 by the Commission of the European Communities,
                                                                           represented by B. Stromsky, K. Wiedner and F. Simonetti,
                                                                           acting as Agents, with an address for service in Luxembourg.
                         (2003/C 200/26)
                                                                           The Commission of the European Communities claims that the
                                                                           Court should:
An action against the French Republic was brought before the
Court of Justice of the European Communities on 17 June
2003 by the Commission of the European Communities,                        1.    declare that, by reserving, in Article 4 of the Law of
represented by B. Stromsky, acting as Agent, with an address                     12 July 1985, delegated management contracts to an
for service in Luxembourg.                                                       exhaustive list of legal entities governed by French law,
                                                                                 the French Republic has failed to fulfil its obligations
                                                                                 under Directive 92/50/EEC (1), and in particular
The Commission of the European Communities claims that the                       Articles 8 and 9 thereof, and under Article 49 of the
Court should:                                                                    Treaty establishing the European Community;
1.    declare that, in so far as the French legislation in force           2.    order the French Republic to pay the costs.
      subjects imports of medicines from other Member States
      of the European Community, when they are identical to
      medicines already authorised in France (parallel imports),
      to unreasonable conditions, in particular as regards the
      discretionary power granted to the authorities and the               Pleas in law and main arguments
      absence of a prescribed period within which they must
      take a decision, the French Republic has failed to fulfil its
      obligations under Article 28 of the Treaty establishing the          Reserving delegated management contracts to certain legal
      European Community;                                                  entities governed by French law constitutes a breach of Direc-
                                                                           tive 92/50/EEC and a restriction on the principle of the
2.    order the French Republic to pay the costs.                          freedom to provide services laid down in Article 49 of the
                                                                           Treaty which is not justified under the exception provided for
                                                                           in Article 45 of the Treaty.
                                                                           The management contract is a public service contract within
Pleas in law and main arguments                                            the meaning of Article 1(a) of Directive 92/50. Moreover,
                                                                           management contracts fall within Category No 12 of
                                                                           Annex IA, apart from contracts exclusively or principally
The situation called in question essentially results from the              concerning representative tasks, so that the French legislation
absence of a specific procedure for authorising parallel imports           fails to comply with Article 8 of the Directive. Management
of medicines in French territory. The general procedure for the            contracts which relate exclusively or principally to representa-
prior authorisation of the import of medicines which is there-             tive tasks come under Annex IB of the Directive, so that the
fore applicable constitutes a barrier to imports and a measure             French legislation fails to comply with Article 9 of the Direc-
having equivalent effect to a quantitative restriction on                  tive as well.
 ---pagebreak--- C 200/16                EN                         Official Journal of the European Union                                        23.8.2003
Secondly, reserving delegated management contracts solely to                     with the Czech and Slovak Federative Republic, Rumania
the legal entities listed in Article 4 of the Law of 12 July 1985                and Poland concerning inland navigation, which affect the
on the supervision of public work and its relation with the                      Community rules adopted by the Community in Council
supervision of private work, as amended, constitutes a restric-                  Regulation (EEC) No 3921/91 of 16 December 1991
tion on the principle of the freedom to provide services. Such a                 laying down the conditions under which non-resident
restriction cannot be justified either by Article 45, inasmuch as                carriers may transport goods or passengers by inland
the tasks entrusted are not connected, even occasionally, with                   waterway within a Member State. Article 7 of those
the exercise of official authority, or by Article 46, since grounds              agreements provides, subject to special authorisation, for
of public policy, public security or public health are not applic-               access to cabotage in Luxembourg by carriers from the
able in the present case.                                                        non-member countries concerned.
(1) Council Directive 92/50/EEC of 18 June 1992 relating to the
                                                                           —     The Grand Duchy of Luxembourg has not observed its
    coordination of procedures for the award of public service                   obligations under Article 10 EC by negotiating,
    contracts (OJ L 209, 24.07.1992, p. 1).                                      concluding, ratifying and arranging for the entry into
                                                                                 force of the bilateral agreements in question after the
                                                                                 grant of a negotiating mandate by the Council to the
                                                                                 Commission to negotiate an agreement between the EEC,
                                                                                 on the one hand, and Poland and the States parties to the
                                                                                 Danube Convention (Hungary, Czechoslovakia, Rumania,
                                                                                 Bulgaria, the former USSR, the former Yugoslavia and
Action brought on 18 June 2003 by the Commission of                              Austria), on the other.
the European Communities against the Grand Duchy of
                             Luxembourg                                    —     The bilateral agreements concluded by the Grand Duchy
                                                                                 of Luxembourg are incompatible with Council Regulation
                           (Case C-266/03)                                       (EC) No 1356/96 of 8 July 1996 on common rules
                                                                                 applicable to the transport of goods or passengers by
                                                                                 inland waterway between Member States with a view to
                           (2003/C 200/28)
                                                                                 establishing freedom to provide such transport services.
                                                                                 The Polish, Rumanian, Czech and Slovak shippers and
                                                                                 navigation companies capable of being authorised under
An action against the Grand Duchy of Luxembourg was                              the bilateral agreements in question to effect transports
brought before the Court of Justice of the European Commu-                       between Luxembourg and the other Member States do
nities on 18 June 2003 by the Commission of the European                         not satisfy the conditions laid down in that regulation.
Communities, represented by C. Schmidt and W. Wils, acting
as Agents, with an address for service in Luxembourg.
                                                                           (1) OJ 1991 L 373, p. 1.
                                                                           (2) OJ 1996 L 175, p. 7.
The Commission of the European Communities claims that the
Court should:
1.    Declare that, under the first paragraph of Article 226 of
      the Treaty establishing the European Community, the
      Grand Duchy of Luxembourg, by individually negotiating,
      concluding, ratifying, arranging for the entry into force
      and refusing to renounce the bilateral agreements with the
      Czech and Slovak Federative Republic, Rumania and                    Reference for a preliminary ruling by the Cour d'appel of
      Poland concerning inland navigation, has failed to fulfil            the Grand Duchy of Luxembourg by judgment of that
      its obligations under Article 10 EC and Council Regula-              Court in the civil proceedings between 1. Administration
      tion (EEC) No 3921/91 of 16 December 1991 laying                     de l'Enregistrement et des Domaines, and 2. État du
      down the conditions under which non-resident carriers                Grand-Duché de Luxembourg and Vermietungsgesellschaft
      may transport goods or passengers by inland waterway                                          Objekt Kirchberg
      within a Member State (1) and Council Regulation (EC)
      No 1356/96 of 8 July 1996 on common rules applicable
      to the transport of goods or passengers by inland                                             (Case C-269/03)
      waterway between Member States with a view to estab-
      lishing freedom to provide such transport services (2).
                                                                                                    (2003/C 200/29)
2.    Order the Grand Duchy of Luxembourg to pay the costs.
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by judgment of the Cour d'appel
Pleas in law and main arguments                                            (Court of Appeal) of the Grand Duchy of Luxembourg,
                                                                           received at the Court Registry on 20 June 2003, for a
—     The Grand Duchy of Luxembourg has infringed the                      preliminary ruling in the civil proceedings between 1. Adminis-
      exclusive Community competence as defined in the                     tration de l'Enregistrement et des Domaines (Registration and
      ERTA case (Case 22/70 Commission v Council [1971]                    Land Authority), and 2. État du Grand-Duché de Luxembourg
      ECR 263) by negotiating, concluding, ratifying and arran-            and Vermietungsgesellschaft Objekt Kirchberg on the following
      ging for the entry into force of the bilateral agreements            question: