CELEX: C2000/149/48
Language: en
Date: 2000-05-27 00:00:00
Title: Case C-100/00: Action brought on 16 March 2000 by the Commission of the European Communities against the Italian Republic

C 149/26               EN                  Official Journal of the European Communities                                  27.5.2000
Reference for a preliminary ruling by the Hovrätten för               Action brought on 16 March 2000 by the Commission of
Västra Sverige by order of 10 March 2000 in the case of                 the European Communities against the Italian Republic
Kenny Roland Lyckeskog against Public Prosecutor’s
                        Office, Uddevalla
                                                                                              (Case C-100/00)
                          (Case C-99/00)
                                                                                              (2000/C 149/48)
                         (2000/C 149/47)
Reference has been made to the Court of Justice of the                An action against the Italian Republic was brought before the
European Communities by order of 10 March 2000 by the                 Court of Justice of the European Communities on 16 March
Hovrätten för Västra Sverige, which was received at the Court         2000 by the Commission of the European Communities,
Registry on 16 March 2000, for a preliminary ruling on the            represented by Richard Wainwright, Principal Legal Adviser,
following questions:                                                  and Giacinto Bisogni, an appeal court judge on secondment to
                                                                      the Commission’s Legal Service, acting as Agents, with an
                                                                      address for service in Luxembourg at the office of Carlos
1. Is a national court or tribunal which in practice is the last      Gómez de la Cruz, Wagner Centre, Kirchberg.
    instance in a case, because leave to appeal is needed in
    order for the case to be reviewed by the country’s supreme
    court, a court or tribunal within the meaning of the third
                                                                      The applicant claims that the Court should:
    paragraph of Article 234 of the EC Treaty?
2. May a court or tribunal within the meaning of the third            — Declare that, by making immersion heaters subject to
    paragraph of Article 234 of the EC Treaty decline to                  safety requirements not provided for by Directive
    request a preliminary ruling where it considers it clear how          73/23/EEC (1) and, consequently, by rejecting, in the case
    the questions of Community law in point must be decided,              of products manufactured in accordance with Standard EN
    even if those questions are not covered by the doctrine of            60335-2-21, the presumption of conformity with safety
    acte clair or acte éclairé?                                           requirements, the Italian Republic has failed to fulfil its
                                                                          obligations under Community law;
    In the event that the Court of Justice answers the first
    question in the negative, or the first question in the            — Order the Italian Republic to pay the costs of the proceed-
    affirmative and the second question in the negative but not           ings.
    otherwise — the Hovrätten also wishes to have an answer
    to the following questions:
3. Under Article 45 of Council Regulation (EEC)                       Pleas in law and main arguments
    No 918/83(1) of 28 March 1983 setting up a Community
    system of reliefs from customs duty, subject to Articles 46
    to 49 of the regulation, goods contained in the personal          Article 9 of Directive 73/23/EEC embodies the so-called
    luggage of travellers coming from a third country are to be       safeguard clause which allows Member States to adopt restric-
    admitted free of import duties, provided that such imports        tive measures for reasons of safety even with respect to
    are of a non-commercial nature. Does this mean that the           products manufactured in conformity with a harmonised
    nature and quantity of the goods should, on an objective          standard. However, such measures must be justified by factual
    view, not be such as to raise doubts about the nature of          evidence that the products in question, albeit manufactured
    the import? Or may regard be had to the individual’s life         in conformity with a harmonised standard, are likely to
    style and customs?                                                compromise the safety of users. In the absence of such
                                                                      evidence, or in the absence of a formal communication
4. What is the legal significance of a national authority’s           in accordance with Article 9 of Directive 73/23/EEC, the
    provisions which indicate the duty-free quantity of a             Commission maintains that immersion heaters which are in
    certain product — to which Council Regulation (EEC)               conformity with Standard EN 60335-2-21 must be freely
    No 918/83 of 28 March 1983 setting up a Community                 released on the market without being made subject to
    system of reliefs from customs duty is applicable —               additional requirements.
    normally to be admitted?
                                                                      (1) OJ L 77 of 26.3.1973, p. 29.
(1) OJ L 105 of 23.4.83, p. 1.