CELEX: C2001/245/04
Language: en
Date: 2001-09-01 00:00:00
Title: Case C-213/01 P: Appeal brought on 23 May 2001 by T. Port GmbH & Co. KG against the judgment delivered on 20 March 2001 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-52/99 between T. Port GmbH & Co. KG and the Commission of the European Communities

C 245/2                 EN                        Official Journal of the European Communities                                              1.9.2001
Directive 94/58/EC on the minimum level of training of                       of Article 59 of the EC Treaty (now, after amendment,
seafarers (OJ 1998 L 172, p. 1), the Grand Duchy of                          Article 49 EC), Articles 86 and 90(1) of the EC Treaty (now
Luxembourg has failed to fulfil its obligations under                        Articles 82 EC and 86(1) EC) — the Court (Fourth Chamber),
Article 249 EC and Article 2 of that directive — the Court                   composed of: A. La Pergola, President of the Chamber,
(Third Chamber), composed of: C. Gulmann, President of                       D.A.O. Edward and C.W.A. Timmermans (Rapporteur), Judges;
the Chamber, J.-P. Puissochet and J.N. Cunha Rodrigues                       D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar,
(Rapporteur), Judges; C. Stix-Hackl, Advocate General;                       has made an order on 19 June 2001, in which it rules:
R. Grass, for the Registrar, has given a judgment on 3 July
2001, in which it:                                                           Public employment procurement offices are subject to the prohibition
                                                                             in Article 86 of the EC Treaty (now Article 82 EC), provided that
1.    Declares that, by failing to bring into force within the prescribed    the application of that provision does not frustrate the specific
      period the laws, regulations and administrative provisions,            function entrusted to them. A Member State which prohibits any
      including any penalties, necessary to comply with Council              activity of mediation and intervention between the seeking and
      Directive 98/35/EC of 25 May 1998 amending Directive                   offering of employment which is not carried on by those offices
      94/58/EC on the minimum level of training of seafarers, the            infringes Article 90(1) of the EC Treaty (now Article 86(1) EC) if it
      Grand Duchy of Luxembourg has failed to fulfil its obligations         creates a situation in which public employment procurement offices
      under Article 2 of that directive;                                     are necessarily put in a position where they contravene the provisions
                                                                             of Article 86 of the Treaty. That is the case in particular where the
2.    Orders the Grand Duchy of Luxembourg to pay the costs.                 following conditions are met:
(1) OJ C 273 of 23.9.2000.                                                   —      the public employment procurement offices are manifestly
                                                                                    unable to satisfy demand on the labour market for the kind of
                                                                                    activities concerned;
                                                                             —      the actual carrying on of employment procurement activities by
                                                                                    private agencies is rendered impossible by the maintenance in
                                                                                    force of provisions of law which prohibit those activities on pain
                                                                                    of criminal and administrative penalties;
                    ORDER OF THE COURT
                                                                             —      the procurement activities in question are to extend to the
                         (Fourth Chamber)                                           nationals or the territory of other Member States.
                          of 19 June 2001
                                                                             (1) OJ C 61 of 24.2.2001.
in Joined Cases C-9/01 to C-12/01 (references for a
preliminary ruling from the Hof van Beroep te Gent):
Stéphane Monnier v Govan Sports NV, Edwin van Anke-
ren v Govan Sports NV, Govan Sports NV v Pascal Jacobs
         and Govan Sports NV v Dannie D’Hondt (1)
(Article 104(3) of the Rules of Procedure — Activity of
     procuring employment for professional sportsmen)                        Appeal brought on 23 May 2001 by T. Port GmbH &
                                                                             Co. KG against the judgment delivered on 20 March 2001
                                                                             by the Fifth Chamber of the Court of First Instance of the
                          (2001/C 245/03)                                    European Communities in Case T-52/99 between T. Port
                                                                             GmbH & Co. KG and the Commission of the European
                                                                                                          Communities
                    (Language of the case: Dutch)
                                                                                                       (Case C-213/01 P)
(Provisional translation; the definitive translation will be published
                                                                                                         (2001/C 245/04)
                   in the European Court Reports)
In Joined Cases C-9/01 to C-12/01: references to the Court                   An appeal against the judgment delivered on 20 March 2001
under Article 234 EC from the Hof van Beroep te Gent (Court                  by the Fifth Chamber of the Court of First Instance of the
of Appeal, Ghent), Belgium, for a preliminary ruling in the                  European Communities in Case T-52/99 between T. Port
proceedings pending before that court between Stéphane                       GmbH & Co. KG and the Commission of the European
Monnier and Govan Sports NV, Edwin van Ankeren and                           Communities was brought before the Court of Justice of the
Govan Sports NV, Govan Sports NV and Pascal Jacobs, and                      European Communities on 23 May 2001 by T. Port GmbH &
Govan Sports NV and Dannie D’Hondt — on the interpretation                   Co. KG, represented by Gert Meier, Rechtsanwalt, Cologne.
 ---pagebreak--- 1.9.2001               EN                    Official Journal of the European Communities                                       C 245/3
The appellant claims that the Court should:                             1.   Is the application of a provision of a bilateral agreement
                                                                             concluded between a Member State and a non-member
1.    set aside the contested judgment in so far as the Court                country, under which a simpe/qualified geographical
      of First Instance dismissed the plea in law, that the                  indication which in the country of origin is the name
      Commission wrongly failed to take into account the                     neither of a region nor a place nor a country is accorded
      quantity judicially determined by the Finanzgericht Ham-               the absolute protection, regardless of any misleading, of
      burg in calculating the reference quantity for the years               a qualified geographical indication within the meaning of
      1997 to 1999 (paragraph 88); and                                       Regulation No 2081/92 (1), compatible with Article 28 EC
                                                                             and/or Regulation No 2081/92, if on application of that
2.    order the Commission to pay the costs                                  provision the import of a product which is lawfully
                                                                             put on the market in another Member State may be
                                                                             prevented?
Pleas in law and main arguments                                         2.   Does this apply also where the geographical indication
                                                                             which in the country of origin is the name neither of a
The Court of First Instance fails to take proper account of the              region nor a place nor a country is not understood in the
scope of Article 5(2) and (3) of Regulation No 2362/98 (1). In               country of origin as a geographical designation for a
accordance with that provision, any customs duty paid in                     specific product, and also not as a simple or indirect
respect of the quantity imported constitutes sufficient evidence             geographical indication?
of the reference quantity to which the operator is entitled. The
relevant duty is that which was due from the importer on the            3.   Do the answers to Questions 1 and 2 apply also where
day of importation. The duty applicable to the appellant on                  the bilateral agreement is an agreement which the
the day of importation was the quota duty, which the Court of                Member State concluded before its accession to the
First Instance fails to take into account. The Finanzgericht                 European Union and continued after its accession to the
Hamburg had made an interim order to the effect that the                     European Union with a successor State to the original
customs must accept the importation of the ‘quantity judicially              other State party to the agreement by means of a
determined’ without a certificate, provided the quota duty was               declaration of the Federal Government?
paid. The competent Hauptzollamt had decided that the duty
due from the appellant was the quota duty. The appellant                4.   Does the second paragraph of Article 307 EC oblige the
actually paid it. In relation to the question of actual payment              Member State to interpret such a bilateral agreement,
of the customs duty by the appellant in its capacity as importer,            concluded between that Member State and a non-member
the fact that the appeal court annulled the interim order of the             country before the Member State’s accession to the
Finanzgericht Hamburg, and that the Hauptzollamt sub-                        EU, in conformity with Community law as stated in
sequently amended the duty notice and determined the normal                  Article 28 EC and/or Regulation No 2081/92, so that
duty, is irrelevant. In relation to the quantity judicially                  the protection laid down therein for a simple/indirect
determined, it is obvious from the wording of Article 5(3)(b)                geographical indication which in the country of origin is
that the duty determined by the customs authorities on the                   the name neither of a region nor a place nor a country
day of importation and paid for the quantity imported                        comprises merely protection against misleading and
constitutes sufficient evidence of the reference quantity to                 not the absolute protection of a qualified geographical
which the appellant was entitled.                                            indication within the meaning of Regulation
                                                                             No 2081/92?
(1) OJ 1998 L 293, p. 32.
                                                                        (1) OJ L 208 of 24.7.1992, p. 1.
Reference for a preliminary ruling from the Handels-                    Reference for a preliminary ruling by the Bundesfinanz-
gericht Wien by order of that court of 26 February                      hof by order of 24 April 2001 in the case of British
2001 in the case of Budejovicky Budvar, n.p. v Rudolf                   American Tobacco Manufacturing B.V. v Hauptzollamt
                       Ammersin GmbH                                                                 Krefeld
                         (Case C-216/01)                                                        (Case C-222/01)
                         (2001/C 245/05)                                                        (2001/C 245/06)
Reference has been made to the Court of Justice of the                  Reference has been made to the Court of Justice of the
European Communities by an order of the Handelsgericht                  European Communities by order of the Bundesfinanzhof
Wien (Commercial Court, Vienna) of 26 February 2001, which              (Federal Finance Court) of 24 April 2001, received at the Court
was received at the Court Registry on 25 May 2001, for a                Registry on 5 June 2001, for a preliminary ruling in the
preliminary ruling in the case of Budejovicky Budvar, n.p. v            case of British American Tobacco Manufacturing B.V. v
Rudolf Ammersin GmbH on the following questions:                        Hauptzollamt Krefeld on the following questions: