CELEX: C1995/159/24
Language: en
Date: 1995-06-24 00:00:00
Title: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia by order of that Court of 2 March 1995 in the case of Sodemare SA Anni Azzurri Holding and Others (Case C-70/95)

No C 159/ 12            EN                   Official Journal of the European Communities                                    24 . 6 . 95
    subsequently returns or seeks to return to the territory of            ( Such cases being those in which the Member State has
    the Member State concerned, in respect of:                             an 'obligation' (which, for the Italian Constitutional
                                                                           Court, is a 'precise obligation': see judgment of the
    ( a ) the refusal of an application for a residence permit;            Constitutional Court (4 July), 11 July 1989 , No 389, last
          or                                                               subparagraph of paragraph 4 of the grounds of the
                                                                           judgment) to remove from its legal order those
    ( b ) the refusal of an application for entry; or                      provisions which are incompatible with Community
                                                                           law: judgment of the Court of Justice in Case 104/86
    (c ) a decision ordering expulsion ?                                   [ 1988 ] ECR 1799 )).
5 . Do the answers to question 4 vary according to                      — Is a national provision which (without stating reasons )
    whether :
                                                                           reserves to non-profit-making 'companies and firms ' the
                                                                           provision of an entire category of services, which are
    ( a ) the applicant has entered the territory of the                   important inter alia from the financial point of view,
          Member State before asking for a residence                       contrary to Article 58 of the EEC Treaty, in so far as
          permit;                                                          that Article makes a clear distinction between 'profit­
                                                                           making companies and firms ' and 'non-profit-making
    ( b ) the applicant has been expelled from the Member                  companies and firms '?
          State before he has asked for a residence permit, or
          has never asked for a residence permit;
                                                                        — Do Articles 52,58 and 5 9 of the Treaty prohibit national
    ( c ) the earlier departure was as a result of a decision              legislation which hampers the pursuit of a business
          ordering expulsion, or of a threat of detention and              activity by imposing on an undertaking established in a
          expulsion and was followed by a decision to                      particular Member State, which wishes to establish itself
          exclude ?                                                        in another Member State within the meaning of the
                                                                           Treaty, the alternative of either carrying on that activity
(') OJ No L 56 , 4 . 4 . 1964, p . 850 .                                   on a non-economic basis — in that case adopting one of
                                                                           the legal forms which are listed exhaustively but do not
                                                                           coincide with those that facilitate establishment — or —
                                                                           if it intends carrying on the activity on an economic basis
                                                                           — accepting the burden of services which should be
                                                                           provided at the expense of the public health service ?
Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale per la Lombardia by order of                   — Does Article 59 of the Treaty prohibit national
that Court of 2 March 1 995 in the case of Sodemare SA Anni                legislation which, by virtue of the procedures laid down
                 Azzurri Holding and Others                                by domestic law, directs the users of welfare services —
                          ( Case C-70/95 )                                 who are allowed by the said domestic law to choose who
                            ( 95/C 159/24 )                                is to provide them — solely towards undertakings to
                                                                           which, exclusively by reference to their legal structure,
                                                                           the State reimburses the costs of the health services
Reference has been made to the Court of Justice of the                     which all the authorized undertakings are required to
European Communities by an order of the Tribunale                          provide, thereby, first, channelling the demand for
Amministrativo          Regionale        per    la     Lombardia           services towards certain providers and, secondly,
(Administrative Court for the Lombardy Region ) of                         depriving the user of real freedom of choice ?
2 March 1995 which was received at the Court Registry on
2 March 1995 , for a preliminary ruling in the case of
Sodemare SA and Others against Regione Lombardia,                       — Do Articles 3 ( f), 5 , 85 and 86 , possibly in conjunction
intervener Fermabel on the following questions :                           with Article 90 of the Treaty, prohibit the legislation at
                                                                           issue which, under the machinery provided by national
— Under Article 190 of the EEC Treaty, must a national                     law:
    provision which, although dealing with a matter falling
    'within the field of application' of the Community
    Treaties , nevertheless contains no statement whatsoever               ( a ) allows only companies with a particular legal
    of the reasons on which it is based , be regarded as                          structure to provide, without charges to be borne by
    contrary to Community law with the result that that                           the undertaking, services which are ancillary to the
    national provision, lacking a statement of reasons,                           services provided by it against payment;
    cannot be applied by the national court: that result being
    limited to those cases — of which the present case
    appears to be one — where the national provision                       ( b ) allows them to present themselves on the market as
    creates an ambiguous state of affairs, in that it keeps the                   a category of undertakings which, having similar
    persons concerned in a state of uncertainty regarding the                     qualitative and quantitative characteristics, are
    possibilities available to them of relying on Community                       described to users as a largely unitary
    law ?                                                                         organization;
 ---pagebreak--- 24 . 6 . 95              EN                  Official Journal of the European Communities                                  No C 159/ 13
     (c ) makes it possible to channel towards the                      — Lack of competence: Regulation ( EC ) No 3303/94
           undertakings referred to in paragraph ( b ) the                  introduces measures with regard to the three countries in
           demand for welfare services provided to old                      question which are at variance with Regulation ( EC )
           people;                                                          No 404/93 . Under Article 149 ( 3 ) of the Act of
                                                                            Accession, that power was vested in the Council and not
     ( d ) allows imposition on undertakings of the obligation              in the Commission .
           to provide, at their own expense, services ancillary
           to those provided by them in return for payment;             — Inadequate statement of reasons .
                                                                        0 ) OJ No L 341 , 30 . 12 . 1994 , p . 46 .
     ( e ) gives rise to arrangements whose effect is to impose
           on non-participating undertakings the obligation to
           provide at their own expense services ancillary to
           the service offered , passing the cost thereof on to
           users ;                                                      Action brought on 13 March 1995 by the Commission of
                                                                        the European Communities against SA Royale Belge and
     ( f) thus creates the necessity of transferring to users the                                         Others
           economic burden of such services, which are
                                                                                                   ( Case C-76/95 )
           otherwise, where users avail themselves of the
                                                                                                      95/C 159/26
           services of the undertakings participating in the
           arrangement, free of charge ?
                                                                        An action against SA Royale Belge, acting on its own
                                                                        account and as agent and nominee for the following
                                                                        insurance companies : 1 . SA Assurances générales de France;
                                                                        2 . Caisse nationale de prévoyance ; 3 . Les Mutuelles du
                                                                        Mans; 4 . SA Assurantie van de belgische Boerenbond; 5 . SA
                                                                        Hannover; 6 . AG-Securitas and 7. Condor, was brought
Action brought on 14 March 1995 by the Kingdom of                       before the Court of Justice of the European Communities on
Belgium against the Commission of the European                          13 March 1 995 by the Commission of the European
                              Communities                               Communities, represented by Julian Currall, of the Legal
                                                                        Service, acting as Agent, assisted by Jean-Luc Fagnart, of the
                           ( Case C-71/95 )                             Brussels Bar, with an address for service in Luxembourg at
                             ( 95/C 159/25 )                            the office of Georgios Kremlis, Wagner Centre,
                                                                        Kirchberg.
An action against the Commission of the European
Communities was brought before the Court of Justice of the              The Commission of the European Communities claims that
                                                                        the Court should :
European Communities on 14 March 1995 by the Kingdom
of Belgium, represented by J. Devadder, Director of                     — order the defendant to pay the capital sum due or
Administration in the Ministry of Foreign Affairs, Foreign                  becoming due to the Commission pursuant to Article 73
Trade and Cooperation with Developing Countries , acting                    of the Staff Regulations of officials of the European
as Agent, with an address for service in Luxembourg at the                  Communities in consequence of the occupational
Belgian Embassy, 4 Rue des Girondins .                                      disease     of    Mr      L. ,  a   former official of  the
                                                                            Commission ,
The applicant claims that the Court should :
                                                                        — order the defendant to pay default interest pursuant to
                                                                            Article 1 ( 2 ) of the Agreement from 6 May 1994, the date
— annul Commission Regulation ( EC ) No 3303/94 of                          upon which formal notice was given to the insurers by
     21 December 1994 introducing transitional measures                     the Commission,
     for imports of bananas into Austria, Finland and Sweden
     in the first quarter of 1995 (*) and order the Commission          — order the defendant to pay the costs, pursuant to
     to pay the costs .                                                     Article 69 ( 2 ) of the Rules of Procedure of the Court of
                                                                            Justice.
Pleas in law and main arguments adduced in support:
                                                                        Pleas in law and main arguments adduced in support:
— Discrimination : Article 4 of Regulation ( EC )                       The action has been brought before the Court on the basis of
     No 3303/94 is clearly at variance with Article 19 of               an arbitration clause contained in a contract of insurance
     Council Regulation ( EEC ) No 404/93 ; each of the                 the purpose of which is to cover the financial consequences
     countries in question receives an individual quota                 of the obligations assumed by the Communities under the
     without the allocation laid down in Article 19 of
                                                                        Staff Regulations in respect of accidents and occupational
     Regulation ( EEC ) No 404/93 . The introduction of such            diseases suffered by members of their staff. The parties are in
     a specific scheme gives rise to discrimination between the         dispute regarding the question whether the contract of
     various market participants depending on whether they              insurance allows the insurers to contest the correctness of
     are established in one of the original Member States of            the opinion given by the medical committee.
     the European Union or in one of the Member States
     which acceded on 1 January 1995 .