CELEX: C2002/056/13
Language: en
Date: 2002-03-02 00:00:00
Title: Case C-493/01: Reference for a preliminary ruling by the Verwaltungsgericht Stuttgart by order of that court of 4 December 2001 in the case of Raffaele Oliveri against Land Baden-Württemberg

C 56/6                   EN                    Official Journal of the European Communities                                         2.3.2002
The Commission claims that the Court should:                              1.    Is Directive 2001/37/EC (1) invalid, in whole or in part,
                                                                                by reason of:
1.    declare that by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with                    a.      the inadequacy of Articles 95 and/or 133 EC as a
      Council Directive 98/76/EC (1) of 1 October 1998                                  legal basis;
      amending Directive 96/26/EC (2) on admission to the
      occupation of road haulage operator and road passenger
      transport operator and mutual recognition of diplomas,                    b.      the use of Articles 95 and 133 EC as a dual legal
      certificates and other evidence of formal qualifications                          basis;
      intended to facilitate for these operators the right to
      freedom of establishment in national and international                    c.      infringement of the principle of proportionality;
      transport operations the Kingdom of Sweden has failed
      to fulfil its obligations under that directive.
                                                                                d.      infringement of Article 295 EC, the fundamental
2.    order the Kingdom of Sweden to pay the costs of the                               right to property and/or Article 20 of TRIPs;
      proceedings.
                                                                                e.      infringement of Article 253 EC and/or the duty to
                                                                                        give reasons;
Pleas in law and main arguments                                                 f.      infringement of the principle of subsidiarity;
Under the binding provisions of Articles 10 and 249 EC                          g.      misuse of powers?
the Member States must take all appropriate measures to
implement directives in national law within the prescribed                2.    If it is valid, does Article 7 of Directive 2001/37/EC of the
period. The period prescribed in Article 2(1) of Directive                      Parliament and Council apply only to tobacco products
98/76/EC ended on 1 October 1999 without the Kingdom                            marketed within the European Community, or does it
of Sweden having adopted the necessary laws and other                           apply also to tobacco products packaged within the
provisions.                                                                     European Community for export to third countries?
(1) OJ L 277, 14.10.1998, p. 17.
(2) OJ L 124, 23.5.1996, p. 1.                                            (1) Directive 2001/37/EC of the European Parliament and of the
                                                                              Council of 5 June 2001 on the approximation of the laws,
                                                                              regulations and administrative provisions of the Member States
                                                                              concerning the manufacture, presentation and sale of tobacco
                                                                              products — Commission statement (OJ L 194, 18/07/2001,
                                                                              p. 26).
Reference for a preliminary ruling by the High Court
of Justice (England & Wales), Queen’s Bench Division
(Administrative Court), by order of that court dated
6 December 2001, in the case of The Queen on the
application of 1) British American Tobacco (Investments)
Ltd, 2) Imperial Tobacco Ltd against Secretary of State for
                                Health                                    Reference for a preliminary ruling by the Verwaltungsge-
                                                                          richt Stuttgart by order of that court of 4 December 2001
                                                                          in the case of Raffaele Oliveri against Land Baden-
                           (Case C-491/01)                                                             Württemberg
                            (2002/C 56/12)                                                           (Case C-493/01)
                                                                                                      (2002/C 56/13)
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division (Adminis-
trative Court) dated 6 December 2001, which was received at               Reference has been made to the Court of Justice of the
the Court Registry on 19 December 2001, for a preliminary                 European Communities by order of the Verwaltungsgericht
ruling in the case of The Queen on the application of 1) British          Stuttgart (Stuttgart Administrative Court) of 4 December 2001,
American Tobacco (Investments) Ltd, 2) Imperial Tobacco                   received at the Court Registry on 19 December 2001, for a
Ltd against Secretary of State for Health, on the following               preliminary ruling in the case of Raffaele Oliveri against Land
questions:                                                                Baden-Württemberg on the following questions:
 ---pagebreak--- 2.3.2002                EN                    Official Journal of the European Communities                                          C 56/7
1.    Do Article 39 EC and Article 3 of Council Directive                Pleas in law and main arguments
      64/221/EEC (1) of 25 February 1964 preclude national
      legislation which makes it mandatory for authorities to
      expel nationals of other Member States who have been
      finally sentenced to a term of youth custody of at least           a)    The Commission considers that, as a result of a failure to
      two years, or to a term of imprisonment, for an inten-                   ensure that all establishments and undertakings carrying
      tional criminal offence under the Betäubungsmittelgesetz                 out the operations specified in Annex II A (disposal
      (Law on Narcotics) where the sentence has not been                       operations) and Annex II B (operations which may lead
      suspended?                                                               to recovery) of the Directive hold a permit, Ireland is
                                                                               breaching its obligations under Articles 9 and 10 of the
2.    Is Article 3 of Council Directive 64/221/EEC of 25 Febru-                Directive;
      ary 1964 to be interpreted as meaning that the making
      of a statement of facts and a positive development in the
      person concerned which occurred after the final decision
      of the authority must also be taken into account by the            b)    The transposition and application of Article 12 of
      national courts when they review the lawfulness of the                   Directive 75/442/EEC remains unsatisfactory for the
      expulsion of an EU national?                                             following reasons:
(1) OJ L 56, p. 850.
                                                                               First, under the terms of the Directive, the requirement of
                                                                               authorisation or registration should have been the subject
                                                                               of national measures from the expiry of the date of
                                                                               implementation of Directive 91/156/CEE. The Waste
                                                                               Management (Collection Permit) Regulations 2001 do
                                                                               not ensure that all waste collection will in fact be carried
                                                                               out under permit. Second, the Commission has not had
                                                                               confirmation that all waste collection in Ireland is now
Action brought on 20 December 2001 by the Commission                           carried out under permit.
        of the European Communities against Ireland
                         (Case C-494/01)
                                                                         c)    The Commission considers that a seriously incomplete
                                                                               application of the permit requirements of Article 9
                           (2002/C 56/14)                                      represents evidence that Ireland has not taken the appro-
                                                                               priate measures to establish an integrated and adequate
                                                                               network of disposal installations as required under
                                                                               Article 5 of the Directive.
An action against Ireland was brought before the Court of
Justice of the European Communities on 20 December 2001
by the Commission of the European Communities, represented
by Mr Richard Wainwright, acting as agent, with an address               d)    By allowing significant amount of waste disposal and
for service in Luxembourg.                                                     recovery in Ireland to take place for a protracted period
                                                                               outside the permit framework of Article 9 of the Directive,
                                                                               Ireland cannot be considered to have taken all the
The Applicant requests that the Court should                                   necessary measures for the purposes of Article 4, (regu-
                                                                               lation of waste disposal and recovery operations so as to
                                                                               avoid endangering human health and without using
—     declare that, by failing to take all the measures necessary
                                                                               processes or methods which could harm the environ-
      to ensure a correct implementation of the provisions of
                                                                               ment), because without permits disposal and recovery
      Articles 4, 5, 8, 9, 10, 12, 13 and 14 of Council Directive
                                                                               methods are not properly conditioned and controlled.
      75/442/EEC of 15 July 1975 on waste (1) as amended by
      Council Directive 91/156/EEC (2), Ireland has failed to
      comply with its obligations under those Articles of the
      said Directive;
                                                                         e)    The Commission considers that Ireland has failed to
                                                                               respect Article 8 of the Directive, in as much as it has
—     declare that, by failing to completely and satisfactorily                failed to ensure that those who hold waste as a result of
      respond to a request for information dated 20 September                  non-permitted waste operations have the waste at the
      1999 in relation to a waste operation at Fermoy, County                  sites concerned handled by a private or public waste
      Cork, Ireland has failed to fulfil the obligations which it              collector or by an undertaking which carries out the
      has pursuant to Article 10 of the EC Treaty;                             operations listed in Annex II A or B, or, alternatively, it
                                                                               has failed to ensure that the holders recover or dispose of
—     order Ireland to pay the costs.                                          the waste themselves in accordance with the Directive.