CELEX: C1997/166/12
Language: en
Date: 1997-05-31 00:00:00
Title: Action brought on 24 March 1997 by the Commission of the European Communities against the Federal Republic of Germany (Case C-122/97)

31 . 5 . 97          I EN                  Official Journal of the European Communities                                No C 166/7
Appeals Board ) of 12 March 1997, which was received at               of Justice, the latter must nevertheless begin
the Court Registry on 20 March 1997, for a preliminary                implementation of the judgment without delay and
ruling in the proceedings brought by Laura Pitkaranta,                conclude it as soon as possible .
represented by her legal guardian Anne Pitkaranta , on the
following questions :                                                 The application for determination of a penalty payment is
                                                                      based on Article 171 ( 2 ) of the EC Treaty. The
1 . ( Question 1 is the same as Question 1 in Case C- 9/              Commission justifies the amount of the penalty by
     97 H )                                                           reference to its calculation method set out in Official
                                                                      Journal No C 242 of 21 . 8 . 1996, p. 6 . In evaluating the
2 . Is it contrary, with respect in particular to a minor             severity of the infringement, it proceeds on the basis that
     who regularly lives with her guardian in the Helsinki            only a single provision in a single Bundesland does not yet
     region about 70 kilometres by road from the                      comply with Council Directive 79/409/EEC ( 2 ), and that
     operational centre of the farm and who cannot herself            the infringement is essentially procedural , since there are
     carry on agriculture on the farm and whose guardian              no known cases of environmental damage arising from
     does not do so either on her own account, to the                 application of the rules currently in force in the Saarland
     prohibition of discrimination, the principle of                  ( Coefficient 1 /20 ). The Commission regards the period of
     proportionality or other principles to be observed in            treaty infringement as very considerable ( Coefficient 2/3 ).
     Community law to exclude her from the compensation               Concerning the deterrent effect of the penalty applied for,
     in question ?                                                    the Commission uses a calculation formula notified to the
                                                                      Member States, whereby reference is made to the relative
o OJ No C 74 , 8 . 3 . 1997, p . 15 .                                 position of each Member State in relation to its gross
                                                                      domestic product and its weighted voting strength in the
                                                                      Council under Article 148 ( 2 ) of the EC Treaty.
                                                                      o [ 1990] ECR 1-2721 .
                                                                      ( 2 ) OJ No L 103 , 1979 , p . 1 .
Action brought on 24 March 1997 by the Commission of
the European Communities against the Federal Republic
                            of Germany
                        ( Case C-121 /97 )
                          ( 97/C 166/ 11 )
                                                                      Action brought on 24 March 1997 by the Commission of
                                                                      the European Communities against the Federal Republic
An action against the Federal Republic of Germany was
                                                                                                    of Germany
brought before the Court of Justice of the European
Communities on 24 March 1997 by the Commission of                                               ( Case C-122/97 )
the European Communities, represented by Gotz zur                                                 ( 97/C 166/ 12 )
Hausen, Legal Adviser to the Commission, with an
address for service in Luxembourg at the offices of Carlos
Gomez de la Cruz, a member of the Commission's Legal                  An action against the Federal Republic of Germany was
Service, Wagner Centre, Kirchberg.                                    brought before the Court of Justice of the European
                                                                      Communities on 24 March 1997 by the Commission of
The applicant claims that the Court should :                          the European Communities, represented by Gotz zur
                                                                      Hausen, Legal Adviser to the Commission, with an
— declare the Federal Republic of Germany in breach of                address for service in Luxembourg at the offices of Carlos
     its obligations under Article 171 of the EC Treaty for           Gomez de la Cruz, a member of the Commission's Legal
     failing to bring the Hunting Law of the Saarland into            Service, Wagner Centre, Kirchberg.
     line with the judgment of the Court of Justice in Case
     C-288/88 Commission v. Germany ('),                              The applicant claims that the Court should :
— order the Federal Republic of Germany to pay the
                                                                      — declare the Federal Republic of Germany in breach of
     Commission a penalty of ECU 26 400 (to Account
     H 1 KEG 'EC Own Resources', Bundeskasse Bonn ) for
                                                                             its obligations under Article 171 of the EC Treaty for
                                                                             failing to comply with the judgment of the Court of
     each day of non-compliance with the obligations in
                                                                             Justice in Case C-58/89 Commission v. Germany ( 1 ),
     the first indent above, as from the date judgment is
     delivered,
                                                                      — order the Federal Republic of Germany to pay the
— order the Federal Republic of Germany to pay the                           Commission a penalty of ECU 158 400 ( to Account
     costs .                                                                 H 1 KEG ' EC Own Resources ', Bundeskasse Bonn ) for
                                                                             each day of non-compliance with the obligations in
Pleas in law and main arguments adduced in support:                          the first indent above , as from the date judgment is
                                                                             delivered,
Whilst Article 171 ( 1 ) of the EC Treaty does not lay down
a specific time-limit for the Member State concerned to               — order the Federal Republic of Germany to pay the
fulfil its obligations arising under a judgment of the Court                 costs .
 ---pagebreak--- No C 166/8             EN                    Official Journal of the European Communities                                        31 . 5 . 97
Pleas in law and main arguments adduced in support:                     ( b ) Do national rules exempting a public economic entity
                                                                              from complying with the general rules laid down by
Whilst Article 171 ( 1 ) of the EC Treaty does not lay down                   ordinary private-law provisions for all the other
a specific time-limit for the Member State concerned to                       operators in the sector in respect of fixed-term
fulfil its obligations arising under a judgment of the                        contracts of employment constitute an aid within the
Court of Justice, the latter must nevertheless begin                          meaning of Article 92 of the EEC Treaty ?
implementation of the judgment without delay and
conclude it as soon as possible .
The Federal Republic of Germany has failed to take
binding measures to transpose Article 3 ( 1 ) of Directive              Reference for a preliminary ruling from the Vaasan
75/440/EEC (2 ). It has also not yet drawn up a systematic              Hovioikeus by order of that court of 21 March 1997 in
plan of action under Article 4 ( 2 ) of the Directive, nor, in          the     case    of Markku Läärä and Others            v.   District
the Bundesländer, drawn up improvement plans for all                                         Prosecutor and Finnish State
watercourses . Finally, it has failed to comply with its                                           (Case C-124/97)
obligations to provide information under Article 8 of
Council Directive 79/869/EEC ( 3 ) of 9 October 1979 .                                              ( 97/C 166/14 )
The application for determination of a penalty payment                  Reference has been made to the Court of Justice of the
is based on Article 171 ( 2 ) of the EC Treaty. The                     European Communities by an order of the Vaasan
Commission justifies the amount of the penalty by                       Hovioikeus (Vaasa Court of Appeal ) of 21 March 1997,
reference to its calculation method set out in Official                 which was received at the Court Registry on 25 March
Journal No C 242 of 21 . 8 . 1996 , p. 6 . It assesses the              1997, for a preliminary ruling in the case of Markku
Treaty infringement as severe ( Coefficient 8/20 ) and                  Läärä , Cotswold Microsystems Limited and Oy
regards its duration as very considerable ( Coefficient 2/3 ).          Transatlantic        Software   Limited v.   District Prosecutor
Concerning the deterrent effect of the penalty applied for,             (Jyväskylä Prosecutor's Office ) and Finnish State,
the Commission uses a calculation formula notified to the               represented by the Provincial Governments of Keski-Suomi
Member States, whereby reference is made to the relative                und Uusimaa, on the following questions :
position of each Member State in relation to its gross
domestic product and its weighted voting strength in the                 1 . Is the judgment of the Court of Justice of 24 March
Council under Article 148 ( 2 ) of the EC Treaty.                             1994 in Case C-275/92 Her Majesty's Customs and
                                                                              Excise v. Gerhart Schindler and Jörg Schindler (^ to be
(') [ 1991 ] ECR 1-4983 .                                                     interpreted in such a way that it may be regarded as
( 2 ) OJ No L 194 , 1975 , p . 26 .                                           equivalent to the present case ( compare the judgment
( 3 ) OJ No L 271 , 1979 , p . 44 .                                           of the Court of Justice of 6 October 1982 in Case 283/
                                                                              81 Sri CILFIT and Lanificio di Gavardo SpA v.
                                                                              Ministry of Health ( 2 ) and that the provisions of the
                                                                              EC Treaty should therefore be interpreted in the
                                                                              present case in the same way as in the aforesaid case ?
Reference for a preliminary ruling by the Pretura                             In case the answer to the first question is wholly or
Circondariale di Padova by order of that court of                             partly negative, the Hovioikeus submits the following
17 December 1996 in the case of Tommaso Nalon against                         additional questions .
                        Ente Poste Italiane
                          ( Case C-123/97 )                             2 . Do the rules of the EC Treaty on the free movement of
                            ( 97/C 166/ 13 )                                  goods and services (Articles 30, 59 and 60 ) apply also
                                                                              to gaming machines like those in question here ?
Reference has been made to the Court of Justice of the                   3 . If the answer to the second question is affirmative,
European Communities by order of the Pretura Circonda­
riale di Padova (Padua District Magistrate's Court ) of                       ( a ) do Articles 30 , 59 or 60 or any other article
 17 December 1996 , which was received at the Court                                 preclude Finland from restricting operation of the
Registry on 24 March 1997, for a preliminary ruling in                              gaming machines in question by granting the
the case of Tommaso Nalon against Ente Poste Italiane on                            sole right to the Raha-automaattiyhdistys ( Slot
the following questions concerning the interpretation of                            Machine Association ), irrespective of whether the
Articles 92 and 93 of the Treaty:                                                   restriction affects domestic and foreign organizers
                                                                                    of gaming in the same way, and
 ( a ) May the questions concerning the compatibility of the                  ( b ) do there exist for that restriction any justifications
       national law with the Community provisions at issue                          as referred to in Articles 36 or 56 or any other
       be raised and determined in proceedings which have                           article of the EC Treaty, on the grounds put
       not been initiated by undertakings having interests                          forward in the Arpajaislaki ( Law on Lotteries ) or
       protected by the Community rules designed to                                 its preparatory work or any other grounds, and in
       safeguard competition ?                                                      considering that question may it be relevant how