CELEX: C2002/233/26
Language: en
Date: 2002-09-28 00:00:00
Title: Case C-281/02: Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 5 July 2002, in the case of Andrew Owusu against 1) N. B. Jackson (trading as Villa Holidays Bal-Inn Villas), 2) Mammee Bay Resorts Ltd, 3) Mammee Bay Club Ltd, 4) The Enchanted Garden Resorts & Spa Ltd, 5) Consulting Services Ltd, 6) Town & Country Resorts Ltd

C 233/16                EN                    Official Journal of the European Communities                                      28.9.2002
Action brought on 25 July 2002 by the Commission of                      make good that failure. A Member State may not rely on
 the European Communities against the French Republic                    provisions, practices or circumstances existing in its internal
                                                                         legal order to justify its failure to comply with obligations laid
                                                                         down by Community law. Under no circumstances may it
                          (Case C-274/02)                                make its compliance with the judgment subject to any
                                                                         conditions whatsoever. The task given to the AFSSA by the
                                                                         French Government’s new referral, namely a study whether
                          (2002/C 233/25)                                ‘DBES’ products and French products are comparable, amounts
                                                                         to casting doubt on the primacy of Community law. The
                                                                         argument based on the alleged complexity of the judgment of
                                                                         13 December 2001 cannot in any circumstance justify any
An action against the French Republic was brought before the             delay in compliance; moreover, the operative part of the
Court of Justice of the European Communities on 25 July                  judgment is very clear, namely that the French Republic is
2002 by the Commission of the European Communities,                      required to permit the marketing of correctly marked or
represented by D. Booss and G. Berscheid, acting as Agents,              labelled ‘DBES’ products in its territory.
with an address for service in Luxembourg.
                                                                         In the alternative: it is not open to a Member State to rely
                                                                         upon the illegality of decisions addressed to it as a defence to
The Commission of the European Communities claims that
                                                                         an action for failure to fulfil its obligations based on its failure
the Court should:
                                                                         to comply with those decisions, either in proceedings under
                                                                         Article 226 EC, or, a fortiori, in proceedings under Article 228
—     declare that, by failing to take the necessary measures to         EC.
      comply with the judgment of the Court of Justice of the
      European Communities of 13 December 2001 in Case
      C-1/00 (1), that the French Republic, by refusing to adopt         So far as the amount of the penalty payment is concerned, the
      the measures necessary to comply with Council Decision             Commission refers to its information notices of 21 August
      98/256/EC of 16 March 1998 concerning emergency                    1996 (5) and 28 February 1997 ( 6) and applies to the basic
      measures to protect against bovine spongiform encepha-             amount of EUR 500 a factor of 15 (maximum possible: 20)
      lopathy, amending Decision 94/474/EC and repealing                 for the seriousness of the infringement, a factor of 1 (maximum
      Decision 96/239/EC ( 2), in the version resulting from             possible: 3) for its duration, and a factor of 21,1 for France’s
      Commission Decision 98/692/EC of 25 November                       ability to pay.
      1998 ( 3), in particular with Article 6 and Annex III, and
      Commission Decision 1999/514/EC of 23 July 1999 (4)
      setting the date on which dispatch from the United                 (1 ) [2001] ECR I-9989.
      Kingdom of bovine products under the date-based export             (2 ) OJ L 113, 15.4.1998, p. 33.
      scheme may commence by virtue of Article 6(5) of                   (3 ) OJ L 328, 4.12.1998, p. 35.
      Decision 98/256, in particular with Article 1, in particu-         (4 ) OJ L 195, 28.7.1999, p. 42.
      lar, by refusing to permit the marketing in its territory          (5 ) OJ C 242, p. 6.
      after 30 December 1999 of products subject to that                 (6 ) OJ C 63, p. 2.
      scheme which are correctly marked or labelled, was in
      breach of its obligations under those two decisions, in
      particular their provisions referred to above, the French
      Republic has failed to fulfil its obligations under
      Article 228 of the Treaty establishing the European
      Community,
—     order the French Republic to pay into the Commission’s             Reference for a preliminary ruling by the Court of Appeal
      ‘own resources of the EC’ account, a penalty payment of            (England & Wales) (Civil Division), by order of that court
      EUR 158 250 per day, for each day’s delay in taking the            dated 5 July 2002, in the case of Andrew Owusu against
      measures necessary to comply with the judgment given               1) N. B. Jackson (trading as Villa Holidays Bal-Inn Villas),
      by the Court of Justice in Case C-1/00, calculated from            2) Mammee Bay Resorts Ltd, 3) Mammee Bay Club Ltd,
      the date of delivery of that judgment,                             4) The Enchanted Garden Resorts & Spa Ltd, 5) Consulting
                                                                                 Services Ltd, 6) Town & Country Resorts Ltd
—     order the French Republic to pay the costs.
                                                                                                  (Case C-281/02)
                                                                                                  (2002/C 233/26)
Pleas in law and main arguments
The simple fact that the Court has found that a Member State             Reference has been made to the Court of Justice of the
has failed to fulfil its obligations obliges the Member State to         European Communities by an order of the Court of Appeal
 ---pagebreak--- 28.9.2002              EN                    Official Journal of the European Communities                                          C 233/17
(England & Wales) (Civil Division) dated 5 July 2002, which             Pleas in law and main arguments
was received at the Court Registry on 31 July 2002, for
a preliminary ruling in the case of Andrew Owusu and
1) N. B. Jackson (trading as Villa Holidays Bal-Inn Villas),
2) Mammee Bay Resorts Ltd, 3) Mammee Bay Club Ltd, 4) The               The Italian Government claims that, by adopting the contested
Enchanted Garden Resorts & Spa Ltd, 5) Consulting Services              implementing regulation, the Commission has, de iure,
Ltd, 6) Town & Country Resorts Ltd, on the following                    accorded limited and inconsistent protection to ‘traditional
questions:                                                              terms’, in particular to Italian ‘traditional terms’, contrary to
                                                                        the guiding principles of the rules in the sector, as clarified in
                                                                        the preamble to Council Regulation (EC) No 1493/1999 (2).
(1) Is it inconsistent with the Brussels Convention on Jurisdic-        This has not only prejudiced the efforts directed towards the
      tion and the Enforcement of Judgments 1968, where a               reclassification of Community produce, but also the interests
      Claimant contends that jurisdiction is founded on                 of producers and consumers, as recognised by the Treaty, the
      Article 2, for a court of a Contracting State to exercise a       protection of which constitutes the purpose of the common
      discretionary power, available under its national law, to         agricultural policy and of free competition.
      decline to hear proceedings brought against a person
      domiciled in that State in favour of the courts of a non-
      Contracting State:                                                (1 ) OJ 2002 L 118, p. 1. Commission Regulation (EC) No 753/2002
                                                                             of 29 April 2002 laying down certain rules for applying Council
                                                                             Regulation (EC) No 1493/1999 as regards the description, desig-
      (a)  if the jurisdiction of no other Contracting State                 nation, presentation and protection of certain wine sector prod-
           under the 1968 Convention is in issue;                            ucts (OJ L 118, 4.5.2002, p. 1).
                                                                        (2 ) OJ 1999 L 179, p. 1. Council Regulation (EC) No 1493/1999 of
                                                                             17 May 1999 on the common organisation of the market in wine.
      (b) if the proceedings have no other connecting factors
           to any other Contracting State?
(2) If the answer to question (1)(a) or (1)(b) is yes, is it
      consistent in all the circumstances or only in some and if
      so in which?
                                                                        Action brought on 9 August 2002 by the Kingdom of
                                                                        Spain against the Commission of the European Communi-
                                                                                                          ties
Action brought on 25 July 2002 by the Italian Republic                                            (Case C-287/02)
  against the Commission of the European Communities
                                                                                                  (2002/C 233/28)
                         (Case C-283/02)
                         (2002/C 233/27)
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of Justice of the European
                                                                        Communities on 9 August 2002 by the Kingdom of Spain
                                                                        represented by Lourdes Fraguas Gadea, Abogada del Estado,
An action against the Commission of the European Communi-               with an address for service in Luxembourg at the Spanish
ties was brought before the Court of Justice of the European            Embassy, 4 - 6 Boulevard Emmanuel Servais.
Communities on 25 July 2002 by the Italian Republic,
represented by U. Leanza, acting as Agent and M. Fiorilli,
avvocato dello Stato.
                                                                        The applicant claims that the Court should:
The applicant claims that the Court should:                             —      annul the contested decision (1) as regards the financial
                                                                               corrections imposed on the Kingdom of Spain and
                                                                               contested by this action;
—     annul Article 24 and, to the extent of the complaints
      advanced to that effect, Annexes A and B of Commission
      Regulation (EC) No 753/2002 ( 1) of 29 April 2002.                —      order the Commission to pay the costs.