CELEX: C2003/304/15
Language: en
Date: 2003-12-13 00:00:00
Title: Case C-402/03: Reference for a preliminary ruling by the Vestre Landsret by order of that Court of 26 September 2003 in the case of Skov Æg against Bilka Lavprisvarehus A/S and Bilka Lavprisvarehus A/S against Jette Mikkelsen and Michael Due Nielsen

C 304/10               EN                        Official Journal of the European Union                                     13.12.2003
The applicant claims that the Court should:                                    —    infringement of the principle of non-retroactivity
                                                                                    and inadequate statement of reasons;
—     annul Commission Regulation (EC) No 1145/2003 (1) of                     —    infringement of the principle of legitimate expec-
      27 June 2003, published in the Official Journal of the                        tations; inconsistency.
      European Union L 160 of 28 June 2003, p. 48, amending
      Regulation (EC) No 1685/2000 (2) as regards the rules of           C.    Misuse of powers
      eligibility for co-financing by the Structural Funds for
      procedural irregularities, as set out at points 52 to 59 of        (1) OJ 2003 L 160 of 28.06.2003, p. 3.
      Section I of the application;                                      (2) OJ 2000 L 242 of 27.09.2000, p. 39.
                                                                         (3) OJ 1999 L 161 of 26.06.1999, p. 1.
—     in the alternative, annul Article 2(a) in so far as it refers
      to Rule 1, points 1.2, 2.1 and 2.3 and Rule 1, points 1.2,
      2.1 and 2.3 of the annex on the basis of the pleas on the
      merits as set out at points 60 to 93 of Section II and
      points 94 to 102 of Section III of the application;                Reference for a preliminary ruling by the Vestre Landsret
                                                                         by order of that Court of 26 September 2003 in the case
                                                                         of Skov Æg against Bilka Lavprisvarehus A/S and Bilka
—     annul all related and ancillary measures;                          Lavprisvarehus A/S against Jette Mikkelsen and Michael
                                                                                                    Due Nielsen
—     order the Commission of the European Communities to                                         (Case C-402/03)
      pay the costs.
                                                                                                  (2003/C 304/15)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Vestre Landsret
Pleas in law and main arguments                                          (Western Regional Court) of 26 September 2003, received at
                                                                         the Court Registry on 29 September 2003, for a preliminary
                                                                         ruling in the case of Skov Æg against Bilka Lavprisvarehus A/
The applicant submits that Regulation (EC) No 1145/2003                  S and Bilka Lavprisvarehus A/S against Jette Mikkelsen and
should be annulled on the following grounds:                             Michael Due Nielsen on the following questions:
A.    Grounds relating to the infringement of the ‘committee             Question 1
      procedure’ laid down by Council Regulation (EC)
      No 1260/1999 ‘the general regulation’:
                                                                         Does Council Directive 85/374/EEC of 25 July 1985 on the
                                                                         approximation of the laws, regulations and administrative
      —     infringement of essential procedural requirement             provisions of the Member States concerning liability for
            (Article 230 EC); infringement of Article 47(3) of           defective products (1) preclude a statutory system under which
            the general regulation (committees); failure to satisfy      an intermediary bears unlimited responsibility for the pro-
            the requirements for the adoption of the regulation.         ducer’s liability under the Directive?
B.    Pleas on the merits                                                Question 2
                                                                         Does the abovementioned Council Directive preclude a system
      —     infringement of essential procedural requirements:           under which the intermediary bears, in accordance with case-
            insufficient and inconsistent statement of reasons;          law, unlimited responsibility for the producer’s fault-based
                                                                         liability established in case-law in respect of liability for
                                                                         defective products resulting in personal injury or damage to
      —     infringement of Article 9(j) of Regulation (EC) No           consumers’ property?
            1260/1999 (3): definition of operation;
                                                                         Question 3
      —     further infringement of Article 9 and of Articles 8
            and 32 of Regulation (EC) No 1260/1999;                      With reference to:
                                                                         1.    The Council of Ministers minutes in BEUC-News, Legal
      —     infringement of the principle of sound financial                   Supplement 12 November/December 1985, pages 20
            management;                                                        and 21, paragraph 2 of which states:
 ---pagebreak--- 13.12.2003              EN                        Official Journal of the European Union                                           C 304/11
      Statements on Articles 3 and 12: With regard to the                 (c)   the intermediary has a right of contribution or recourse
      interpretation of Articles 2 and 10, the Council and the                  against the producer (Paragraph 11(3) of the Danish law
      Commission are in agreement that there is nothing to                      on liability for defective products)?
      prevent individual Member States from laying down in
      their national legislation rules regarding liability for
      intermediaries, since intermediary liability is not covered         Question 5
      by the Directive. There is further agreement that under
      the Directive the Member States may determine rules on
      the final mutual apportionment of liability among several           Does the Directive (Council Directive 85/374/EEC of 25 July
      liable producers (see Article 3) and intermediaries; and            1985 on the approximation of the laws, regulations and
                                                                          administrative provisions of the Member States concerning
                                                                          liability for defective products) preclude a Member State from
2.    Article 13 of the Directive, which provides that:                   maintaining a non-statutory, but case-law-based, rule, which
                                                                          existed before the Directive on liability for defective products,
      ‘This Directive shall not affect any rights which an injured        relating to liability for defective products under which the
      person may have according to the rules of the law of                intermediary — without himself being the producer or treated
      contractual or non-contractual liability or a special liab-         as a producer under Article 3 of the Directive — is responsible
      ility system existing at the moment when this Directive is          for:
      notified’,
                                                                          —     the producer’s liability for defective products under the
does the Directive preclude a Member State from laying down                     Directive on liability for defective products,
legal rules on intermediary liability for defective products
where the intermediary is, as occurred in [Paragraph 3(1)] of             —     the producer’s fault-based liability established in case-law
the Danish law on liability for defective products, defined as                  in respect of liability for defective products resulting in
any person who, in the course of his business, puts a product                   personal injury or damage to consumers’ property,
into circulation without being deemed to be the producer
under the definition thereof in Article 3 of the Directive on             where the case-law-based rule concerned requires that:
liability for defective products?
                                                                          (a)   the intermediary be defined as any person who, in the
                                                                                course of his business, puts a product into circulation
                                                                                without being deemed to be the producer ([Para-
                                                                                graph 3(3)] of the Danish law on liability for defective
Question 4                                                                      products);
                                                                          (b) the producer can be held liable and the intermediary
Does the Directive (Council Directive 85/374/EEC of 25 July                     therefore does not bear responsibility where the producer
1985 on the approximation of the laws, regulations and                          is not held liable (Paragraph 10 of the Danish law on
administrative provisions of the Member States concerning                       liability for defective products);
liability for defective products) preclude a Member State from
laying down a legal rule relating to liability for defective              (c)   the intermediary has a right of contribution or recourse
products, under which the intermediary — without himself                        against the producer (Paragraph 11(3) of the Danish law
being the producer or treated as a producer under Article 3 of                  on liability for defective products)?
the Directive — is responsible for:
                                                                          (1) OJ L 210 of 7.8.1985, p. 29.
—     the producer’s liability for defective products under the
      Directive,
—     the producer’s fault based-liability established in case-law
      in respect of liability for defective products resulting in
                                                                          Reference for a preliminary ruling by the Bundesfinanz-
      personal injury or damage to consumers’ property,
                                                                          hof by order of that Court of 22 July 2003 in the case of
                                                                                  Egon Schempp against Finanzamt München V
where the legal rule in question requires that:                                                     (Case C-403/03)
(a)   the intermediary be defined as any person who, in the                                         (2003/C 304/16)
      course of his business, puts a product into circulation
      without being deemed to be the producer ([Paragraph
      3(3)] of the Danish law on liability for defective products);       Reference has been made to the Court of Justice of the
                                                                          European Communities by order of the Bundesfinanzhof
(b) the producer can be held liable and the intermediary                  (Federal Finance Court) of 22 July 2003, received at the Court
      therefore does not bear responsibility where the producer           Registry on 29 September 2003, for a preliminary ruling in
      is not held liable (Paragraph 10 of the Danish law on               the case of Egon Schempp against Finanzamt München V on
      liability for defective products);                                  the following questions: