CELEX: C2004/085/16
Language: en
Date: 2004-04-03 00:00:00
Title: Case C-288/03 P: Appeal brought on 3 July 2003 by B. Zaoui, L. Zaoui and D. Stain, née Zaoui, against the order made on 23 April 2003 by the Court of First Instance of the European Communities (First Chamber) in Case T-73/03 between B. Zaoui and Others and the Commission of the European Communities

3.4.2004                EN                           Official Journal of the European Union                                          C 85/11
prescribed period, the reports in respect of the Bruxelles-                  The appellants claim that the Court should:
Capitale Region required under Council Directive 76/464/EEC
of 4 May 1976 on pollution caused by certain dangerous
                                                                             —     reverse the order of the Court of First Instance of the
substances discharged into the aquatic environment of the
                                                                                   European Communities made on 23 April 2003;
Community (OJ 1976 L 129, p. 3), Council Directive 78/659/
EEC of 18 July 1978 on the quality of fresh waters needing
protection or improvement in order to support fish life (OJ                  —     declare the respondent liable for the harm suffered by the
1978 L 222, p. 1) and Council Directive 80/68/EEC of                               appellants as a result of the attack on 27 March 2002 at
17 December 1979 on the protection of groundwater against                          the Park Hotel, Netanya (Israel);
pollution caused by certain dangerous substances (OJ 1980
L 20, p. 43) as amended by Council Directive 91/692/EEC of
                                                                             —     order the respondent, in respect of the harm suffered by
23 December 1991 standardising and rationalising reports on
                                                                                   the appellants to pay the following amounts:
the implementation of certain Directives relating to the
environment (OJ 1991 L 377, p. 48), the Kingdom of Belgium
has failed to fulfil its obligations under the said directives, the                —     to Lucien Zaoui, EUR 1 million in compensation for
Court (Third Chamber), composed of: C. Gulmann, acting for                               non-material damage;
the President of the Third Chamber, J. P. Puissochet (Rappor-
teur) and F. Macken, Judges; C. Stix-Hackl, Advocate General;
                                                                                   —     to B. Zaoui, EUR 1.5 million, in compensation for
R. Grass, Registrar, has given a judgment on 12 February
                                                                                         non-material damage;
2004, in which it:
                                                                                   —     to D. Stain, née Zaoui:
1.    Declares that, by failing to communicate to the Commission,
      within the prescribed period, the report in respect of the
      Bruxelles-Capitale Region required under Article 2(1) of                           —    EUR 1 million in respect of physical injury;
      Council Directive 91/692/EEC of 23 December 1991 stan-
      dardising and rationalising reports on the implementation of                       —    EUR 2 million in respect of non-material
      certain Directives relating to the environment, the Kingdom of                          damage;
      Belgium has failed to fulfil its obligations under that directive;
                                                                                         —    an amount to be settled in the course of
2.    Orders the Kingdom of Belgium to pay the costs.                                         proceedings for material damage
(1) OJ C 7 of 11.1.2003.                                                     —     order the respondent to pay all the costs.
                                                                             Pleas in law and main arguments
                                                                             The unlawful conduct of the Commission, namely the grant of
Appeal brought on 3 July 2003 by B. Zaoui, L. Zaoui and                      funds to the Palestinian Authority, in total contradiction with
D. Stain, née Zaoui, against the order made on 23 April                      the fundamental values of the Community, has directly
2003 by the Court of First Instance of the European                          contributed to the harm suffered by the appellants as a result
Communities (First Chamber) in Case T-73/03 between                          of the attack carried out by a Palestinian terrorist in Netanya
B. Zaoui and Others and the Commission of the European                       (Israel), for which they now seek compensation.
                            Communities
                         (Case C-288/03 P)                                   The application of Article 111 of the Rules of Procedure of the
                                                                             Court of First Instance was manifestly unlawful, since it was
                                                                             by error of law and by distorting the clear sense of the pleas
                           (2004/C 85/16)                                    put forward by the appellants that the Court of First Instance
                                                                             held that the existence of a causal link was not established in
                                                                             this case and that the application was manifestly lacking any
                                                                             foundation in law:
An appeal against the order made on 23 April 2003 by the
Court of First Instance of the European Communities (First                   —     the Court of First Instance dismissed the application
Chamber) in Case T-73/03 between B. Zaoui and Others and                           brought at first instance by the appellants as manifestly
the Commission of the European Communities was brought                             lacking any foundation in law, holding that one of the
before the Court of Justice of the European Communities on                         conditions necessary for the Commission to incur non-
3 July 2003 by B. Zaoui, L. Zaoui and D. Stain, née Zaoui,                         contractual liability, within the meaning of the second
represented by J. A. Buchinger, advocat.                                           paragraph of Article 288 EC, was not established in this
 ---pagebreak--- C 85/12               EN                        Official Journal of the European Union                                          3.4.2004
     case, namely the existence of a causal link between the            2.    Does Article 3(1) of the Successiewet constitute a pro-
     alleged conduct and the harm pleaded. As the Court of                    hibited means of arbitrary discrimination or a disguised
     First Instance observed, it is not disputed that there must              restriction on the free movement of capital within the
     be a direct link of cause and effect between the wrongful                meaning of Article 58(3) EC where applicable to a capital
     act of the institution concerned and the harm pleaded, a                 movement between a Member State and a non-member
     causal link in respect of which applicants bear the burden               country, having regard also to the Declaration on
     of proof. In addition, that causal link relates to the                   Article 73d of the Treaty establishing the European
     decisive cause of the harm. None the less, the Court of                  Community adopted on the occasion of the signature of
     First Instance confused decisive cause and exclusive cause.              the ‘Final Act and Declarations of the Intergovernmental
     It has never been claimed that the Commission’s conduct                  Conferences on the European Union’ of 7 February 1992.
     was the exclusive cause of the attack of 27 March 2002.
     On the other hand, it was amply demonstrated in the
     application that the Commission’s conduct was a decisive           (1) Law on Succession.
     cause. In attempting to show that the alleged conduct
     was not the exclusive cause of the harm pleaded the
     Court of First Instance committed a manifest error of law
     by which it deprived the appellants of a hearing which
     they could legitimately expect.
—    the Court of First Instance distorted the clear sense of the
     pleas put forward by the appellants in claiming, on the            Action brought on 19 December 2003 by the Commission
     one hand, that the appellants agreed that the attack had                   of the European Communities against Ireland
     not been financed by the funds in question and, on the
     other, that they had neither proved nor claimed that                                        (Case C-532/03)
     Palestinian education was exclusively dependent on the
     funds in question, merely stating that the European
     Community is the Palestinians’ largest provider of funds.                                    (2004/C 85/18)
                                                                        An action against Ireland was brought before the Court of
                                                                        Justice of the European Communities on 19 December 2003
                                                                        by the Commission of the European Communities, represented
                                                                        by K. Wiedner, acting as agent, assisted by J. E. Flynn QC, with
                                                                        an address for service in Luxembourg.
Reference for a preliminary ruling by the Gerechthof                    The Applicant claims that the Court should:
Herzogenbusch by order of that Court of 5 November
2003 in the case of M.E.A. van Hilten-van der Heijden                   1.    declare that, in permitting emergency ambulance services
against Inspecteur van de Belastingdienst/Particulieren/                      to be provided by Dublin City Council without the
           Ondernemingen Buitenland te Heerlen                                Eastern Regional Health Authority undertaking any prior
                                                                              advertising, Ireland has failed to comply with its obli-
                                                                              gations under the Treaty; and
                        (Case C-513/03)
                                                                        2.    order Ireland to pay the Commission’s costs.
                         (2004/C 85/17)
                                                                        Pleas in law and main arguments
Reference has been made to the Court of Justice of the                  The Commission takes the view that, in the circumstances of
European Communities by order of the Gerechthof Herzogen-               the case, the maintaining of the arrangement for provision of
busch of 5 November 2003, received at the Court Registry on             ambulance services between Dublin City Council and the
8 December 2003, for a preliminary ruling in the case of                Eastern Regional Health Authority without undertaking any
M.E.A. van Hilten-van der Heijden against Inspecteur van                prior advertising is a breach of the free movement rules of the
de Belastingdienst/Particulieren/Ondernemingen Buitneland te            Treaty (notably Articles 43 and 49) and thereby of the general
Heerlen on the following questions:                                     principles of Community law (notably those of transparency
                                                                        and equality or non-discrimination) which are to be respected
                                                                        in situations to which Community law applies.
1.   Does Article 3(1) of the Netherlands Successiewet (1)
     constitute a permitted restriction within the meaning of
     Article 57(1) EC?