CELEX: C2001/134/14
Language: en
Date: 2001-05-05 00:00:00
Title: Case C-108/01: Reference for a preliminary ruling made by the House of Lords by order of that court of 8 February 2001, in the case of 1) Consorzio del Prosciutto Di Parma 2) Salumificio S. Rita S.P.A. against 1) Asda Stores Limited 2) Hygrade Foods Limited

5.5.2001               EN                    Official Journal of the European Communities                                           C 134/9
     iii)  By assimilating the position of the existing four            Pleas in law and main arguments
           global CRS operators with all other operators active
           on the relevant market such as system vendors,               Article 40 of BAA’s Articles, which prevents any person from
           airlines or subscribers and in so doing failed to apply      controlling more than 15 % of the company, restricts portfolio
           the case law of the Court of Justice and, in particular
                                                                        investment, and restricts direct investment and, by the same
           the Court’s decision in Bock and Piraiki-Patraiki.           token, establishment: such restrictions fall under Articles 56
                                                                        and 43 of the EC Treaty. While the restriction is not explicitly
b)   In finding that exceptional economic circumstances do              of a discriminatory nature, such a restriction, liable to hinder
     not mean that the Appellants are individually concerned            the exercise of these freedoms, must be justified by ‘imperative
     by the contested measure the Court of First Instance erred         requirements in the general interest’ and be necessary and
     as a matter of law:                                                appropriate for these requirements.
     i)    By failing to apply the principles laid down in the          The UK authorities have failed to demonstrate the imperative
           judgments of the Court of First Instance in Codorniu         requirements of general interest which are to be protected by
           v. Council and Extrament Industrie v. Council and            the rights attached to the Special share and by the 15 % equity
           subsequently applied by the Court of First Instance          limit and, thus, a fortiori, their proportionality, and it therefore
           and the Court of Justice and/or failing to distinguish       must be concluded that the restrictions on the free movement
           those cases adequately or at all.                            of capital and on establishment created thereby are in violation
                                                                        of the obligations of the Member State under Articles 43 and
     ii)   By failing to take account of the decision of the            56 of the Treaty.
           Court of First Instance in Case T-60/96, Merck and
           others.                                                      A breach of the Treaty may occur upon the introduction by a
                                                                        Member State of restrictions on establishment or capital
                                                                        movements, by whatever means. In relation to BAA the
(1) OJ C 226, 7.8.1999, p. 34.                                          measures introduced by mechanisms of company law were
                                                                        introduced by the State in its capacity as public authority and
                                                                        are clearly intended to remain thus since Article 10(1) of BAA’s
                                                                        Articles only allows the Special share to be transferred to ‘one
                                                                        of Her Majesty’s Secretaries of State, another Minister of the
                                                                        Crown or any other person acting on behalf of the Crown’.
                                                                        Consequently, and in order in particular to uphold the
                                                                        uniformity and supremacy of Community law, the adoption
                                                                        by a Member State of the mechanisms of private company law
                                                                        to introduce restrictions on Treaty freedoms can in no way
Action brought on 27 February 2001 by the Commission                    avoid the examination of the compatibility of such restrictions
of the European Communities against the United                          with the Treaty.
      Kingdom of Great Britain and Northern Ireland
                                                                        After such examination the Commission has reached the
                          (Case C-98/01)                                conclusion that the restrictions contained in Articles 10 and
                                                                        40 of the Articles of Association of BAA are incompatible
                                                                        with the provisions of Articles 43 and 56 of the Treaty on the
                         (2001/C 134/13)                                freedoms of establishment and capital movements.
An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 27 February 2001 by the
Commission of the European Communities, represented by
Mr Frank Benyon and Ms Maria Patakia, acting as agents, with
an address for service in Luxembourg.
                                                                        Reference for a preliminary ruling made by the House of
                                                                        Lords by order of that court of 8 February 2001, in the
The Applicant claims that the Court should:                             case of 1) Consorzio del Prosciutto Di Parma 2) Salumi-
                                                                        ficio S. Rita S.P.A. against 1) Asda Stores Limited 2) Hy-
a)   declare that the provisions setting a limitation on interests                            grade Foods Limited
     in voting shares in the BAA plc company (Article 40 of
     the Articles of Association), as well as the authorisation                                  (Case C-108/01)
     procedure on the disposal of assets of the company or
     control in subsidiaries and winding-up (Article 10 of the
     Articles of Association) are incompatible with Articles 43                                  (2001/C 134/14)
     and 56 of the EC Treaty;
                                                                        Reference has been made to the Court of Justice of the
b)   order the United Kingdom to pay the costs.                         European Communities by an order of the House of Lords, of
 ---pagebreak--- C 134/10                EN                     Official Journal of the European Communities                                        5.5.2001
8 February 2001, which was received at the Court Registry on              2.    In the examination of the question whether ‘the same
7 March 2001, for a preliminary ruling in the case of                           cause of action’ has been brought, are exclusively the
1) Consorzio del Prosciutto Di Parma 2) Salumificio S. Rita                     pleadings of the plaintiff in the proceedings initiated by a
S.P.A. against 1) Asda Stores Limited 2) Hygrade Foods                          later action decisive and the defences and submissions of
Limited, on the following question:                                             the defendant therefore irrelevant, in particular also the
                                                                                defence of the procedural objection of set-off concerning
                                                                                a claim that is the subject-matter of a legal dispute
As a matter of Community law, does Council Regulation                           between the same parties on the basis of an action that
(EEC) No 2081/92 (1) read with Commission Regulation (EC)                       has already been brought earlier in another Contracting
No 1107/96 (2) and the specification for the PDO (3)‘prosciutto                 State?
di Parma’ create a valid Community right, directly enforceable
in the court of a member state, to restrain the retail sale as            3.    Where, on the basis of an action to enforce a contract
‘Parma ham’ of sliced and packaged ham derived from hams                        seeking damages for unlawful termination of a long-term
duly exported from Parma in compliance with the conditions                      obligation, the question as to whether such a long-term
of the PDO but which have not been thereafter sliced, packaged                  obligation existed at all is decided, is that decision also
and labelled in accordance with the specification?                              binding in subsequent proceedings between the same
                                                                                parties?
(1) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the
    protection of geographical indications and designations of origin
    for agricultural products and foodstuffs (JO L 208, 24.07.1992,
    p. 1).
(2) Commission Regulation (EC) No 1107/96 of 12 June 1996 on
    the registration of geographical indications and designations of
    origin under the procedure laid down in Article 17 of Council
    Regulation (EEC) No 2081/92 (JO L 148, 21.06.1996, p. 1).
(3) (protected designation of origin).                                    Reference for a preliminary ruling by the Vestre Landsret
                                                                          by order of 9 March 2001 in the case of ApS SPKR 4
                                                                          No 3482 v (1) Skatteministeriet, (2) Public limited com-
                                                                          pany of 11/9 1996, and (3) A.T.S. I/S Arden Transport &
                                                                          Spedition, represented by Søren Lauritsen and Lene
                                                                                                      Lauritsen
                                                                                                   (Case C-112/01)
                                                                                                   (2001/C 134/16)
Reference for a preliminary ruling from the Oberster
Gerichtshof, Austria, by order of that court of 22 February
2001 in the case of Gantner Electronic GmbH v Basch                       Reference has been made to the Court of Justice of the
                  Exploitatie Maatschappij B.V.                           European Communities by order of 9 March 2001 by the
                                                                          Vestre Landsret (Western Regional Court), which was received
                                                                          at the Court Registry on 12 March 2001, for a preliminary
                          (Case C-111/01)                                 ruling in the case of ApS SPKR 4 No 3482 v (1) Skatteministe-
                                                                          riet (Ministry of Fiscal Affairs), (2) Public limited company of
                                                                          11/9 1996, and (3) AT.S. I/S Arden Transport & Spedition,
                          (2001/C 134/15)                                 represented by Søren Lauritsen and Lene Lauritsen, on the
                                                                          following questions:
Reference has been made to the Court of Justice of the
European Communities by an order of the Oberster Gerichts-
hof (Supreme Court), Austria, of 22 February 2001, which was              Question 1
received at the Court Registry on 12 March 2001, for a
preliminary ruling in the case of Gantner Electronic GmbH v
Basch Exploitatie Maatschappij B.V. on the following questions:           Must the provisions in Council Regulation No 2913/92 (1) (the
                                                                          Customs Code) and in Commission Regulation No 2454/93 (2)
                                                                          (the implementing regulation), in particular Article 379(1) of
1.    Does the concept of ‘the same cause of action’ in                   the implementing regulation, be construed as meaning that a
      Article 21 of the Brussels Convention extend also to the            customs debt arising by reason of an offence or irregularity
      defence of the defendant that he has extinguished a part            in connection with external Community transit cannot be
      of the claim sued for by extra-judicial set-off, where the          recovered by the office of departure from the principal in so
      part of this counterclaim that is allegedly not extinguished        far as the principal did not, before the end of the eleventh
      is the subject-matter of a legal dispute between the same           month following the date of registration of the Community
      parties on the basis of an action that has already been             transit declaration, receive the notification referred to in
      brought earlier in another Contracting State?                       Article 379 of the implementing regulation?