CELEX: C2002/097/07
Language: en
Date: 2002-04-20 00:00:00
Title: Case C-37/02 and C-38/02: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale del Veneto — Sezione Terza by orders of 16 January 2002 in the case of Adriano Di Lenardo srl (C-37/02) and Dilexport srl (C-38/02) against Ministero del Commercio con l'Estero — Direzione Generale per la Politica Commerciale e la Gestione del Regime degli Scambi — Divisione II

20.4.2002              EN                   Official Journal of the European Communities                                          C 97/3
Reference for a preliminary ruling by the Bundesverwal-                1a Instancia de Lisboa, — 3o JUIZO — 2a Secção (Fiscal Court
tungsgericht by order of 8 November 2001 in the case of                of First Instance, Lisbon, 3rd Division, 2nd Chamber) of
     Katharina Rinke against Ärtztekammer Hamburg                     27 December 2001, received at the Court Registry on 4 Febru-
                                                                       ary 2002, for a preliminary ruling in the case of Recheio Cash
                                                                       & Carry SA against Fazenda Pública and Registo Nacional de
                          (Case C-25/02)
                                                                       Pessoas Colectivas on the following questions:
                          (2002/C 97/05)                               1.    Is it contrary to Community law for a Member State to
                                                                             fix a limitation period, for actions for repayment of taxes
                                                                             levied in breach of Community law, of 90 days reckoned
                                                                             from the expiry of the period for voluntary payment, so
Reference has been made to the Court of Justice of the                       that the exercise of the right to reimbursement is made
European Communities by order of the Bundesverwaltungsge-                    excessively difficult?
richt (Federal Administrative Court) of 8 November 2001,
received at the Court Registry on 31 January 2002, for a               2.    If so, what is the minimum period that may be considered
preliminary ruling in the case of Katharina Rinke against                    compatible with the rule that exercise of that right must
Ärtztekammer Hamburg (the Hamburg Chamber of Phys-                          not be made excessively difficult?
icians) on the following questions:
                                                                       3.    What are the criteria to be used to fix that period?
1.    Does the requirement laid down in Directives
      86/457/EEC (1) and 93/16/EEC (2), to the effect that
      certain components of the specific training in general
      medical practice — completion of which confers the right
      to use the title ‘general medical practitioner’ — must be
      undertaken full-time, constitute indirect discrimination
      on grounds of sex within the meaning of Directive                Reference for a preliminary ruling by the Tribunale
      76/207/EEC (3)?                                                  Amministrativo Regionale del Veneto — Sezione Terza
                                                                       by orders of 16 January 2002 in the case of Adriano Di
2.    If the answer to Question 1 is yes:                              Lenardo srl (C-37/02) and Dilexport srl (C-38/02) against
                                                                       Ministero del Commercio con l’Estero — Direzione
      (a)   How is the incompatibility of Directive 76/207/EEC         Generale per la Politica Commerciale e la Gestione del
            on the one hand with Directives 86/457/EEC and                           Regime degli Scambi — Divisione II
            93/16/EEC on the other to be resolved?
                                                                                          (Case C-37/02 and C-38/02)
      (b) Does the prohibition of indirect discrimination on
            grounds of sex constitute a basic unwritten right
            under Community law that overrides any conflicting                                   (2002/C 97/07)
            rule in secondary legislation?
                                                                       Reference has been made to the Court of Justice of the
(1) OJ L 267, 19.9.1986, p. 26.
                                                                       European Communities by orders of the Tribunale Amminis-
(2) OJ L 165, 7.7.1993, p. 1.
(3) OJ L 39, 14.2.1976, p. 40.                                         trativo Regionale del Veneto — Sezione Terza (Regional
                                                                       Administrative Court of the Veneto — Third Chamber) of
                                                                       16 January 2002, received at the Court Registry on
                                                                       13 February 2002, for a preliminary ruling in the case of
                                                                       Adriano Di Lenardo srl (C-37/02) and Dilexport srl (C-38/02)
                                                                       against Ministero del Commercio con l’Estero (Ministry of
                                                                       Foreign Trade) — Direzione Generale per la Politica Commer-
                                                                       ciale e la Gestione del Regime degli Scambi — Divisione II on
Reference for a preliminary ruling by the Tribunal Tribu-              the following questions:
tario de 1a Instancia de Lisboa, — 3o JUIZO — 2a Secção
by order of 27 December 2001 in the case of Recheio                    (1) Are Articles 1, 3, 4, 5 and 31 of Regulation (EC)
Cash & Carry SA against Fazenda Pública and Registo                         No 896/2001 (1) incompatible, in primis, with the Treaty,
                 Nacional de Pessoas Colectivas                              in particular Article 7 (formerly Article 4) thereof, and
                                                                             with the other provisions and principles enshrined in that
                                                                             Treaty with regard to the principle of the division of
                          (Case C-30/02)                                     functions and powers between the Community institu-
                                                                             tions (in particular between the Council and the Commis-
                          (2002/C 97/06)                                     sion)?
                                                                       (2) Are those same Articles of Regulation 896/2001 contrary
                                                                             to the principle that laws should not have retrospective
Reference has been made to the Court of Justice of the                       effect and to the related principles of the protection of
European Communities by order of the Tribunal Tributario de                  legitimate expectations and legal certainty?
 ---pagebreak--- C 97/4                EN                     Official Journal of the European Communities                                     20.4.2002
(3) Are the same provisions of Regulation 896/2001 incom-               Pleas in law and main arguments
     patible with Council Regulation EEC No 404/93 (2) of
     13 February 1993 (with subsequent amendments and
     additions), in particular with Article 20 thereof?
                                                                        Under the first paragraph of Article 10 and the third paragraph
                                                                        of Article 249 of the EC Treaty, Member States must adopt the
(4) If the answer given to the preceding questions is in the            measures necessary to transpose directives addressed to them
     negative, the Court is asked to state whether, by preclu-          into their domestic law before the expiry of the period
     ding persons related to traditional operators from being           prescribed for doing so. That period expired on 29 September
     granted a tariff quota even as ‘non-traditional operators’,        2000 without Portugal having brought into force the necessary
     Article 6 of the aforementioned Commission regulation,             provisions.
     in particular subparagraph (c) thereof, conflicts with the
     fundamental right to pursue a professional activity,
     viewed in relation to the freedom to conduct a business.
                                                                        (1) OJ 2000 L 173, p. 1.
(1) OJ L 126, 8.5.2001, p. 6.
(2) OJ L 47, 25.2.1993, p. 1.
                                                                        Action brought on 15 February 2002 by Commission of
                                                                         the European Communities against Portuguese Republic
Action brought on 15 February 2002 by Commission of
 the European Communities against Portuguese Republic                                             (Case C-45/02)
                         (Case C-44/02)                                                           (2002/C 97/09)
                         (2002/C 97/08)
                                                                        An action against the Portuguese Republic was brought
                                                                        before the Court of Justice of the European Communities on
An action against the Portuguese Republic was brought                   15 February 2002 by the Commission of the European
before the Court of Justice of the European Communities on              Communities, represented by António Caeiros, acting as
15 February 2002 by the Commission of the European                      Agent.
Communities, represented by António Caeiros, acting as
Agent.
                                                                        The applicant claims that the Court should:
The applicant claims that the Court should:
                                                                        —     Declare that, by failing to adopt and bring into force
—    Declare that, by failing to adopt and bring into force                   within the prescribed period the laws, regulations and
     within the prescribed period the laws, regulations and                   administrative provisions necessary to comply with Com-
     administrative provisions necessary to comply with                       mission Directive 2000/2/EC of 14 January 2000 adapt-
     Directive 2000/25/EC of the European Parliament and of                   ing to technical progress Council Directive 75/322/EEC
     the Council of 22 May 2000 on action to be taken against                 relating to the suppression of radio interference produced
     the emission of gaseous and particulate pollutants by                    by spark-ignition engines fitted to wheeled agricultural
     engines intended to power agricultural or forestry tractors              or forestry tractors and Council Directive 74/150/EEC
     and amending Council Directive 74/150/EEC(1), the                        relating to the type-approval of wheeled agricultural or
     Portuguese Republic has failed to fulfil its obligations                 forestry tractors (1), the Portuguese Republic has failed
     under Article 9 of the aforementioned Directive                          to fulfil its obligations under Article 4 of Directive
     2000/25/EC; and                                                          2000/2/EC;
—    In the alternative, declare that, by failing to inform the         —     In the alternative, declare that, by failing to inform
     Commission of such provisions, the Portuguese Republic                   the Commission immediately of such provisions, the
     has failed to fulfil its obligations under Article 9 of the              Portuguese Republic has failed to fulfil its obligations
     aforementioned Directive 2000/25/EC;                                     under Article 4 of Directive 2000/2/EC;
—    Order the Portuguese Republic to pay the costs.                    —     Order the Portuguese Republic to pay the costs.