CELEX: C2003/124/14
Language: en
Date: 2003-05-24 00:00:00
Title: Case C-126/03: Action brought on 20 March 2003 by the Commission of the European Communities against the Federal Republic of Germany

C 124/8                EN                        Official Journal of the European Union                                           24.5.2003
listing (including in the first category the listing of priority         2(b) In the event that Article 2(4) of Directive 92/46/EEC also
sites) with the result that, in order to ensure the effectiveness              refers to semifinished products, according to which
of the directive, where a Member State identifies a site of                    criteria must it be determined whether milk or a milk
Community importance sustaining priority natural habitat                       product forms an essential part of a product, either in
types or species, there must be considered to be an obligation                 terms of quantity or for characterization of those prod-
to carry out an assessment of plans and projects with a                        ucts, as referred to in Article 2(4) of Directive 92/46/EEC?
significant effect on the site even before the Commission draws
up the draft list of sites or adopts the final version of that list
pursuant to Article 21 of the directive and, in fact, with effect        (1 ) OJ L 268 [1992], p. 1.
from the drawing up of the national list?
( 1) OJ L 206 of 22.7.1992, p. 7.
                                                                         Action brought on 20 March 2003 by the Commission of
                                                                         the European Communities against the Federal Republic
                                                                                                     of Germany
                                                                                                   (Case C-126/03)
Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by judgment of that Court                                            (2003/C 124/14)
of 11 March 2003 in the case of (1) Artrada (Freezone)
NV, (2) Videmecum BV and (3) Jac. Meisner Internationaal
Expeditiebedrijf BV against Rijksdienst voor de Keuring
                        van Vee en Vlees                                 An action against the Federal Republic of Germany was
                                                                         brought before the Court of Justice of the European Communi-
                                                                         ties on 20 March 2003 by the Commission of the European
                         (Case C-124/03)                                 Communities, represented by Klaus Wiedner, of the Com-
                                                                         mission’s Legal Service, acting as Agent, with an address for
                         (2003/C 124/13)                                 service in Luxembourg.
                                                                         The Commission claims that the Court should:
Reference has been made to the Court of Justice of the                   —     Declare that, by reason of the fact that the contract for
European Communities by judgment of the College van Beroep                     waste transport concluded by the City of Munich was
voor het bedrijfsleven (Administrative Court for Trade and                     awarded without compliance with the notification
Industry) of 11 March 2003, received at the Court Registry on                  requirements laid down in Article 8, in conjunction with
20 March 2003, for a preliminary ruling in the case of                         Articles 15(2) and 16(1), of Directive 92/50 (1), the
(1) Artrada (Freezone) NV, (2) Videmecum BV and (3) Jac.                       Federal Republic of Germany has failed to fulfil its
Meisner Internationaal Expeditiebedrijf BV against Rijksdienst                 obligations under that directive; and
voor de Keuring van Vee en Vlees (Netherlands Livestock and
Meat Inspectorate) on the following questions:                           —     Order the Federal Republic of Germany to pay the costs
                                                                               of the proceedings.
1(a) Must the term ‘milk for the manufacture of milk-based
      products’ in Article 2(2) of Directive 92/46/EEC (1) be
      interpreted as meaning that it (also) includes milk con-
      stituents of a product which also contains other non-milk          Pleas in law and main arguments
      constituents and where the milk constituent cannot be
      separated from the non-milk constituents?
                                                                         If — as is the case with the Municipality of the City of Munich
                                                                         — the conditions for the existence of a body governed by
1(b) If the answer to question 1(a) is affirmative: must                 public law are met, there is no need under the directive to
      Article 22 of Directive 92/46/EEC be interpreted as                draw a distinction, in the case of every requested provision of
      meaning that in the case of imports from non-Member                services, as to whether such services are provided in the general
      States that directive is applicable only to the milk               interest and are commercial in nature. It is for that reason
      constituent of a product and thus not to the product of            irrelevant that, in the present case, the City of Munich, in
      which it is a constituent?                                         connection with the provision of a service for a third party,
                                                                         burns waste in its own incineration plant and does not effect
2(a) Does the concept of ‘milk-based products’ in Article 2(4)           the transport to that plant itself but relies on a private
      of Directive 92/46/EEC concern only finished products              undertaking to do so. If a public body tenders successfully for
      or also semifinished products which must undergo further           a contract but is obliged to subcontract out certain services in
      processing before they can be offered for sale to the              order to ensure provision of the overall service, that public
      consumer?                                                          body must apply the procedures set out in Directive 92/50.
 ---pagebreak--- 24.5.2003              EN                       Official Journal of the European Union                                               C 124/9
The obligation to end breaches of the Community law on the                     electricity occasioned, as stated in the reasoning, by the
award of contracts even by terminating contracts that have                     altered legislative framework and to finance general
already been concluded can also not be placed in question by                   revenue charges of the electricity system.
Article 2(6) of Directive 89/665 (2), which deals with ex post
facto review of potential breaches of the Community law on
tendering. A Treaty infringement can be treated as terminated           (1 ) Directive 96/92/EC of the European Parliament and of the Council
only once the Member State concerned recognises the illegal                  of 19 December 1996 concerning common rules for the internal
nature of its action and the breach has been completely                      market in electricity (OJ L 27 of 30.1.1997, p. 20).
brought to an end.
( 1) OJ 1992 L 209, p. 1.
( 2) OJ 1989 L 395, p. 33.
                                                                        Action brought on 24 March 2003 by the Commission of
                                                                          the European Communities against the Italian Republic
                                                                                                    (Case C-130/03)
                                                                                                    (2003/C 124/16)
Reference for a preliminary ruling by the Consiglio di
Stato by order of that Court of 14 January 2003 in the
appeal brought by AEM SpA (C-128/03) and by AEM                         An action against the Italian Republic was brought before the
Torino SpA (C-129/03) against l’Autorità per l’energia                  Court of Justice of the European Communities on 24 March
  elettrica e per il gas; Third party: ENEL Produzione SpA              2003 by the Commission of the European Communities,
                                                                        represented by Niels Bertil Rasmussen and Luigi Cimaglia,
                                                                        acting as Agents.
                 (Case C-128/03 and C-129/03)
                                                                        The applicant claims that the Court should:
                          (2003/C 124/15)
                                                                        —      Declare that, by failing to designate Community trade
                                                                               mark courts and tribunals of first and second instance, or
                                                                               in any event by failing to forward to the Commission,
                                                                               within the prescribed period, a list of such courts and
Reference has been made to the Court of Justice of the                         tribunals indicating their names and territorial jurisdic-
European Communities by order of the Consiglio di Stato                        tion, the Italian Republic has failed to fulfil its obligations
(Council of State) of 14 January 2003, received at the Court                   under Article 91 of Council Regulation (EC) No 40/94 (1)
Registry on 24 March 2003, for a preliminary ruling in the                     of 20 December 1993 on the Community trade mark;
appeal brought by AEM SpA (C-128/03) and by AEM Torino
SpA (C-129/03) against l’Autorità per l’energia elettrica e per         —      Order the Italian Republic to pay the costs.
il gas; Third party: ENEL Produzione SpA on the following
questions:
(a)   Can an administrative measure which, on the terms and             Pleas in law and main arguments
      for the purposes stated in the reasoning, imposes on
      certain undertakings using the electricity transmission
      network an increased charge for access and use in order           Under the second paragraph of Article 249 of the Treaty
      to finance general revenue charges of the electricity             establishing the European Community, regulations are binding
      system be regarded as a State aid for the purposes of             in their entirety and directly applicable in all Member States.
      Article 87 et seq. EC
                                                                        In the present case, Article 91 of Regulation (EC) No 40/94
(b)   Must the principles established in Directive 96/92 (1)            imposes an obligation on Member States to designate, in
      concerning the liberalisation of the internal electricity         accordance with their own national legal systems, national
      market and in particular Article 7 and 8 thereof concern-         courts and tribunals of first and second instance with jurisdic-
      ing operation of the electricity transmission network be          tion in matters of infringement and validity of Community
      interpreted as precluding the possibility for the Member          trade marks, and to forward to the Commission a list
      State to adopt measures imposing for a transitional period        of designated Community trade mark courts and tribunals
      on certain undertakings for access to and use of the              indicating their names and territorial jurisdiction. The final
      transmission network an increased charge in order to              date for compliance with these obligations was 15 March
      offset the overvaluation of hydroelectric and geothermal          1997.