CELEX: C2003/112/17
Language: en
Date: 2003-05-10 00:00:00
Title: Case C-83/03: Action brought on 26 February 2003 by the Commission of the European Communities against the Italian Republic

10.5.2003              EN                        Official Journal of the European Union                                           C 112/9
4.     If Question 2 is answered in the negative:                        Action brought on 26 February 2003 by the Commission
                                                                         of the European Communities against the Italian Republic
       Does the content of the reference for a preliminary ruling,
       together with the supporting documents, afford the
       Court, in the light of its judgment in Case C-392/93
                                                                                                    (Case C-83/03)
       British Telecommunications [1996] ( 2), sufficient infor-
       mation to answer the question of whether the
       implementing provisions described fall within the scope
       for discretion afforded to the national legislator under                                    (2003/C 112/17)
       Council Directive 89/105/EEC of 21 December 1998
       relating to the transparency of measures regulating the
       prices of medicinal products for human use and their
       inclusion in the scope of national health insurance
       systems or does the Court leave it to the referring court
       to answer this question?                                          An action against the Italian Republic was brought before the
                                                                         Court of Justice of the European Communities on 26 February
                                                                         2003 by the Commission of the European Communities,
( 1) European Court Reports 2001 p. I-09285.                             represented by Antonio Aresu and Roberto Amorosi, acting as
( 2) European Court Reports 1996 p. I-01631.                             Agents.
                                                                         The applicant claims that the Court should:
                                                                         a)     find that the Italian Republic has failed to fulfil its
                                                                                obligations under Article 4(2) of Council Directive 85/
Reference for a preliminary ruling by the Bundesarbeits-                        337/EEC (1) of 27 June 1985 on the assessment of the
gericht by order of that Court of 6 November 2002 in the                        effects of certain public and private projects on the
case of Wolff & Müller GmbH & Co.KG against José Filipe                         environment in as much as it failed properly to determine
                           Pereira Félix                                        whether a project for the construction of a tourist port at
                                                                                Fassacesia (Chieti) — a project covered by Annex II to the
                                                                                directive — warranted the commencement of a procedure
                          (Case C-60/03)                                        to assess its impact on the environment, and
                         (2003/C 112/16)                                 b)     order the Italian Republic to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesarbeitsgericht
(Federal Labour Court) of 6 November 2002, received at the               Pleas in law and main arguments
Court Registry on 14 February 2003, for a preliminary ruling
in the case of Wolff & Müller GmbH & Co.KG against José
Filipe Pereira Félix on the following question:
                                                                         The Italian authorities have given the Commission no expla-
                                                                         nation of the reasons for which they took the view that there
Does Article 49 EC (formerly Article 59 of the EC Treaty)                was no need for an environmental impact assessment, in
preclude a national system whereby, when subcontracting the              accordance with Article 4(2) of Directive 85/337/EEC, to be
conduct of building work to another undertaking, a building              carried out in relation to a project for the construction of a
contractor becomes liable, in the same way as a guarantor who            tourist port in Fassacesia (Chieti).
has waived benefit of execution, for the obligation on that
undertaking or that undertaking’s subcontractors to pay the
minimum wage to a worker or to pay contributions to a
communal scheme for parties to a collective agreement where              It is therefore unclear whether the characteristics of the project
the minimum wage means the sum payable to the worker                     were considered with reference to its possible impact on fauna
after tax, social security contributions, payments towards the           and flora and on the landscape. The fact that the area in
promotion of employment or other such social insurance                   question has not been proposed as a Site of Community
payments have been deducted (net pay), if the safeguarding of            Importance is all the more reason why the project’s impact on
workers’ pay is not the primary objective of the legislation or          fauna and flora and on the landscape should have been taken
is merely a subsidiary objective?                                        into consideration. Moreover, the fact that this point was
                                                                         considered only after building permission had already been
                                                                         granted is further indication that the procedure followed was
                                                                         incoherent, to say the least.
 ---pagebreak--- C 112/10                EN                       Official Journal of the European Union                                         10.5.2003
Despite the absence from the directive of guidelines and                 4.    If the answer is in the negative, may the courts of the
criteria for determining whether there is any need to conduct                  Member States extend the meaning of a commercial agent
an assessment of the environmental impact of a given project,                  to cover the foregoing person, by analogical application
Article 4(2) cannot be regarded as having been correctly                       of their national legislation which incorporated the
applied where there is no reasonable justification for a decision              directive into their domestic law, or is that impermissible
not to subject a project to that procedure.                                    because it runs counter to the uniformity of Community
                                                                               law?
( 1) OJ L 175 of 5.7.1985, p. 40.
                                                                         (1 ) OJ L 372 of 31.12.1986, p. 1.
                                                                         Action brought on 26 February 2003 by the Hellenic
                                                                         Republic against the Commission of the European Com-
Reference for a preliminary ruling by the Polimeles
Protodikio Athinon by judgment of that Court of 27 April                                                munities
2001 in the case of Anastasia Mavrona kai Sia O.E. against
        Delta Etairia Simmetokhon Anonimos Etairia                                                   (Case C-86/03)
                                                                                                    (2003/C 112/19)
                          (Case C-85/03)
                         (2003/C 112/18)                                 An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 26 February 2003 by the Hellenic Republic,
                                                                         represented by Ekaterini Samoni-Radou and Panayiotis Milon-
Reference has been made to the Court of Justice of the                   opoulos, acting as Agents, with an address for service in
European Communities by judgment of the Polimeles Protodi-               Luxembourg.
kio Athinon (Court of First Instance, Athens) of 27 April 2001,
received at the Court Registry on 26 February 2003, for a                The applicant claims that the Court should:
preliminary ruling in the case of Anastasia Mavrona kai Sia
O.E. against Delta Etairia Simmetokhon Anonimos Etairia on               1.    annul Commission Decision C(2002) 2575 final of
the following questions:                                                       17 December 2002 on a request by Greece for authoris-
                                                                               ation to use heavy fuel oils with a maximum sulphur
1.    Does the definition of a commercial agent in Article 1(2)                content of 3 % by mass in part of its territory; (1)
      of Council Directive 86/653/EEC (1) extend to a self-
      employed intermediary who purchases in his own name                2.    declare Directive 1999/32/EC inapplicable on the basis
      goods from the principal, deducting his commission from                  of Article 241 of the EC Treaty; and
      the purchase price, and subsequently sells those goods to
      third parties, but acting on behalf of the principal?              3.    order the Commission to pay the costs.
2.    If the answer is in the negative, in the present instance
      has the definition of commercial agent laid down by                Pleas in law and main arguments
      that article been laid down in contradistinction to the
      foregoing person (that is to say to a self-employed                —     Infringement of rights of defence;
      intermediary who purchases in his own name goods
      from the principal, deducting his commission from the
                                                                         —     Infringement of the principle of effectiveness (effet utile);
      purchase price, and subsequently sells those goods to
      third parties, but acting on behalf of the principal), or is
                                                                         —     Infringement of the principle of protection of legitimate
      there in fact a lacuna?
                                                                               expectations;
3.    If there is a lacuna, is it possible, on the basis of the          —     Infringement of the principle of proportionality;
      principles of equity, for the foregoing definition in
      Article 1(2) of the directive to be applied by analogy to a        —     Infringement of Article 252 EC.
      self-employed intermediary who purchases in his own
      name goods from the principal, deducting his com-
      mission from the purchase price, and subsequently sells            (1 ) OJ L 4, 9.1.2003, p. 16.
      those goods to third parties, but acting on behalf of the
      principal?