CELEX: C1995/268/40
Language: en
Date: 1995-10-14 00:00:00
Title: Reference for a preliminary ruling from the Oberverwaltungsgericht Berlin by order of that court of 11 August 1995 in the case of Suat Kol v. Land Berlin (Case C-285/95)

No C 268/18              iENl                 Official Journal of the European Communities                                      14 . 10 . 95
nothing to prevent the Commission from persisting in its                 ( a ) Is Council Regulation ( EC ) No 3093/94 ( ] ) to be
inaction, perpetuating the failure to act, or at least to give                  interpreted ( given that it must comply with Article 130r
deliberately ambiguous replies.                                                 of the Treaty ) as permitting the free use of halons ( that
                                                                                is, products which have a serious impact on the
The appellant will rely on all the arguments put forward                        environment ), subject only to limitations on their
before the Court of First Instance in the application and in                    production or on their use by producers, and not on
the reply .                                                                     their importation, but as prohibiting absolutely the use
                                                                                ( and hence both the production and the importation ) of
                                                                                HCFCs (that is, of products which have little impact on
                                                                                the environment )        for purposes not stated in
                                                                                Article 5 ?
Reference for a preliminary ruling from the Finanzgericht                ( b) Is not the provision in point in Regulation (EC )
Baden-Wiirttemberg by order of that court of 21 August                          No 3093/94 in substance a measure having equivalent
1995 in the case of Karlheinz Fischer v. Finanzamt                              effect to a quantitative restriction in so far as, in the
                            Donaueschingen                                      absence of any of the grounds of justification under
                           ( Case C-283/95 )                                    Article 36 of the Treaty, it restricts the free movement
                                                                                of a product throughout the Community ?
                              ( 95/C 268/38 )
                                                                         (c ) Does not the conduct of the Community and of its
Reference has been made to the Court of Justice of the                          institutions, in adopting Regulation ( EC ) No 3093/94 ,
European Communities by an order of the Finanzgericht                           and particularly at the stages subsequent to its
Baden-Wiirttemberg ( Finance Court of the Land                                  adoption, constitute action of a public-law nature
Baden-Wiirttemberg) of 21 August 1 995 , which was                              designed to reinforce the dominant position of certain
received at the Court Registry on 25 August 1995 , for a                        operators, such action constituting in itself an instance
preliminary ruling in the case of Karlheinz Fischer v.                          of serious abuse for the purposes of Article 86 of the
Finanzamt Donaueschingen on the following questions :                           Treaty ?
1 . Is Article 2 ( 1 ) of the Sixth Directive ( 1 ) to be interpreted    ( d ) May legislation for the protection of the environment
      as meaning that services which the organizer of unlawful                  — and particularly Regulation ( EC ) No 3093/94 —
      and punishable games of chance provides to the players                    derogate ( be interpreted as derogating ) from the
      are not taxable ?                                                         Community rules on competition ( by thus permitting
                                                                                or facilitating restrictive agreements or the abuse of a
2 . If Question 1 is to be answered in the negative :                           dominant position ) or are the prohibitions under those
                                                                                rules unconditional and not subject to derogation,
      Is Article 11 A ( 1 ) ( a ) of the Sixth Directive to be                  precluding derogations or restrictions, whether
      interpreted as meaning that, in the case of unlawful                      introduced by the Community or by individual
      gaming in the form of roulette, the basis of assessment                   Member States ?
      for the operator's services to the players is the amount
      retained by the operator during a tax period ?                     (') OJ No L 333 , 22. 12 . 1994, p. 1 .
3 . If Question 2 is to be answered in the negative :
      How is the basis of assessment to be determined in cases
      described under Questions 1 and 2 ?
                                                                        Reference for a preliminary ruling from the
( ] ) Sixth Council Directive 77/388/EEC of 17 May 1977 ( OJ             Oberverwaltungsgericht Berlin by order of that court of
      No L 145 , p . 1 ).                                                   11 August 1995 in the case of Suat Kol v. Land Berlin
                                                                                                  ( Case C-285/95 )
                                                                                                    ( 95/C 268/40 )
                                                                         Reference has been made to the Court of Justice of the
Reference for a preliminary ruling from the Ufficio del                  European Communities by order of the Eighth Chamber of
Giudice di Pace, Genoa, by order of that court of 8 August              the Oberverwaltungsgericht Berlin ( Higher Administrative
     1995 in the case of Safety Hi-Tech Sri v. S> &c T. Sri              Court, Berlin ) of 1 1 August 1995 , which was received at the
                             Case C-284/95 )                             Court Registry on 28 August 1 995, for a preliminary ruling
                                                                         in the case of Suat Kol v . Land Berlin on the following
                             ( 95/C 268/39 )                             questions :
Reference has been made to the Court of Justice of the                   1 . Are periods of employment spent in a Member State by a
European Communities by an order of the Ufficio del                            Turkish worker on the basis of a residence permit
Giudice di Pace ( Magistrate's Office ), Genoa , of 8 August                   obtained by wilful and criminal deceit to be recognized
1995 , which was received at the Court Registry on                             as legal employment within the meaning of Article 6(1 )
28 August 1 995 , for a preliminary ruling in the case of Safety               of Decision No 1/80 of the EEC-Turkey Council of
Hi-Tech Sri v. S. & T. Sri on the following questions :                        Association ?
 ---pagebreak--- 14 . 10 . 95           EN                    Official Journal of the European Communities                                  No C 268/ 19
2 . If Question 1 is to be answered in the affirmative :                Second limb of the plea :
     Is the termination of residence of such a worker by virtue         The Court of First Instance has further infringed
     of an expulsion order made solely on general preventive            Community law by holding, in points 84 and 85 of the
     grounds with a view to deterring other aliens compatible           judgment, that there is no limit of time for raising a new plea
     with Article 14 ( 1 ) of the abovementioned Decision ?             under Article 48 ( 2 ) of its Rules of Procedure.
                                                                        Third limb of the plea :
                                                                        In ordering the Commission to produce the text of the
Appeal brought on 30 August 1995 by the Commission of                   decision as authenticated at the time, the Court of First
the European Communities against the judgment delivered                 Instance infringed Community law, in so far as its order is
on 29 June 1995 by the First Chamber of the Court of First              based on a mistaken view of the rules governing the
Instance of the European Communities sitting in extended                procedure and the rules of proof and evidence; the Court of
composition in case T-37/91 between Imperial Chemical                   First Instance also made a mistake of reasoning in that it
Industries pic and the Commission of the European                       failed to explain in both the order of 25 October 1994 and
                          Communities                                   the judgment why it had concluded that it should order the
                       ( Case C-286/95 P)                               Commission to produce that text.
                           95/C 268/41
                                                                        Second plea for setting aside the judgment: infringement of
An appeal against the judgment delivered on 29 June 1995                Community law and lack of reasoning as concerns the
by the First Chamber of the Court of First Instance of the              purpose of authentication and the consequences of a failure
European Communities sitting in extended composition in                 to authenticate the decision at the time of its adoption.
Case T-37/91 between Imperial Chemical Industries pic and
the Commission of the European Communities, was
                                                                        First limb of the plea :
brought before the Court of Justice of the European
Communities on 30 August 1995 by the Commission of the                  The Court of First Instance has infringed Community law by
European Communities, represented by Julian Currall and                 holding, in particular in ground 91 of the judgment, that
Berend Jan Drijber, members of its Legal Service, acting as             authentication is a formal requirement which must be
agents, with an address for service in Luxembourg at the                observed independently of the existence or not of any
office of Carlos Gômez de la Cruz, Centre Wagner,                       evidence capable of casting doubt on the authenticity of the
Kirchberg.                                                              notified text .
The appellant claims that the Court should:
                                                                        Second limb of the plea :
1 , set aside the Court of First Instance's judgment of
     29 June 1995 in Case T-37/91 , Imperial Chemical                   The Court of First Instance infringed Community law and
     Industries pic v. Commission of the European                       made a mistake of reasoning in holding in grounds 88 , 90
     Communities ;                                                      and 92 that authentication must take place before the act is
                                                                        notified to the addressee, failing which it is void, and that the
                                                                        authentication carried out in this case was defective .
2 , dismiss the ground of annulment of the Commission's
     decision based upon the lack of authentication;
                                                                        Third limb of the plea :
3 , remit the case to the Court of First Instance pursuant to
     Article 54 of the Statute ( EC ) of the Court of Justice for a     The Court of First Instance has infringed Community law
     decision on the other grounds of annulment alleged                 and incidentally neglected its obligation to give reasons for
     against the Commission's decision;                                 its judgment by failing to consider whether the alleged defect
                                                                        was such as to affect the interests of the addressee of the
4 , order ICI to pay the costs of this appeal .                         decision .
Pleas in law and main arguments adduced in support:
First plea for the setting aside of the judgment: infringement
of Community law and lack of reasoning as regards the
admissibility of ICI's new plea for annulment, the
organization of the procedure and the rules of proof and
evidence .                                                              Action brought on 30 August 1995 by the Commission of
                                                                          the European Communities against the Italian Republic
First limb of the plea :                                                                       Case C-289/95 )
The Court of First Instance has infringed Community law by                                       ( 95/C 268/42
holding, at point 82 of the judgment, that the statements by
the Commission to which reference is made, can amount in
themselves to a new fact for the purposes of Article 48 ( 2 ) of        An action against the Italian Republic was brought before
its Rules of Procedure .                                                the Court of Justice of the European Communities on