CELEX: C2003/124/12
Language: en
Date: 2003-05-24 00:00:00
Title: Case C-117/03: Reference for a preliminary ruling by the Consiglio di Stato in sede giurisdizionale, Sezione Sesta by order of that Court of 17 December 2002 in the case of Società Italiana Dragaggi s.p.a. against Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma del Friuli Venezia Giulia

24.5.2003               EN                       Official Journal of the European Union                                          C 124/7
Appeal brought on 14 March 2003 by Augusto Fichtner,                           b)   even if it should be deemed that the appellant did,
a former official of the Commission of the European                                 however, fail to fulfil said obligation, such breach
Communities, against the judgment of 16 January 2003 of                             could not be held to have been committed ‘intention-
the Fourth Chamber of the Court of First Instance in Case                           ally or through negligence’;
           T-75/00 Augusto Fichtner v Commission
                                                                         2.    the principle of proportionality (by the administration)
                                                                               by:
                         (Case C-116/03 P)
                                                                               a)   misuse of its powers: the Commission, by adopting
                                                                                    the contested decision, pursued an objective other
                          (2003/C 124/11)                                           that for which the relevant power had been con-
                                                                                    ferred on it (safeguarding the internal rules of the
                                                                                    civil service) and, in any event, in order to achieve
                                                                                    purposes other than those declared;
An appeal against the judgment of 16 January 2003 of the
Fourth Chamber of the Court of First Instance in Case T-75/                    b)   manifest error of assessment of the facts: the Com-
00 Augusto Fichtner v Commission was brought before the                             mission failed to take into account:
Court of Justice of the European Communities on 14 March
2003 by Augusto Fichtner, represented by Michele Tamburini                          1)    the good faith of the appellant;
and Franco Colussi, lawyers.
                                                                                    2)    that he could not have been refused the per-
                                                                                          mission in question since the outside activity
                                                                                          did not impair the official’s independence nor
The appellant claims that the Court should:
                                                                                          was detrimental to the work of the Communi-
                                                                                          ties.
—     set aside the contested judgment;
—     uphold the claims submitted at first instance and, accord-
      ingly;
      —     annul the contested decision of the appointing
            authority of 30 September 1999, which is at issue;           Reference for a preliminary ruling by the Consiglio di
                                                                         Stato in sede giurisdizionale, Sezione Sesta by order of
                                                                         that Court of 17 December 2002 in the case of Società
      —     order the Commission to pay him the outstanding              Italiana Dragaggi s.p.a. against Ministero delle Infrastruttu-
            remuneration and allowances as revalued and with             re e dei Trasporti and Regione Autonoma del Friuli
            interest to run from the date on which the decision                                    Venezia Giulia
            took effect until actual payment is made;
                                                                                                  (Case C-117/03)
      —     order the Commission to make good the material
            and non-material damage suffered by the appellant,
            such compensation being assessed at EUR 50 000 or                                     (2003/C 124/12)
            any other amount which the Court might deem
            appropriate and equitable or as may be subsequently
            decided;
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Consiglio di Stato in
—     order the Commission to pay the costs.                             sede giurisdizionale, Sezione Sesta (Judicial Committee of the
                                                                         Council of State, Sixth Chamber) of 17 December 2002,
                                                                         received at the Court Registry on 18 March 2003, for a
                                                                         preliminary ruling in the case of Società Italiana Dragaggi s.p.a.
                                                                         against Ministero delle Infrastrutture e dei Trasporti and
Pleas in law and main arguments
                                                                         Regione Autonoma del Friuli Venezia Giulia on the following
                                                                         question:
The judgment of the Court of First Instance is contrary to
Community law, in particular to:
                                                                         Is Article 4(5) of Directive No 92/43/EEC (1) of 21 May 1992
                                                                         to be interpreted as meaning that the measures under Article 6
1)    Article 86(1) of the Staff Regulations, inasmuch as:
                                                                         and, in particular, under Article 6(3) of that directive are
                                                                         mandatory for the Member States only after final approval at
      a)    the appellant did not fail to fulfil his obligations         Community level of the list of sites under Article 21 or,
            under the third paragraph of Article 12 of the Staff         alternatively, in addition to determination of the ordinary
            Regulations, having proved that he did request               commencement date of conservation measures, must a distinc-
            permission to pursue an outside activity;                    tion be drawn between declaratory listing and determinative
 ---pagebreak--- C 124/8                EN                        Official Journal of the European Union                                           24.5.2003
listing (including in the first category the listing of priority         2(b) In the event that Article 2(4) of Directive 92/46/EEC also
sites) with the result that, in order to ensure the effectiveness              refers to semifinished products, according to which
of the directive, where a Member State identifies a site of                    criteria must it be determined whether milk or a milk
Community importance sustaining priority natural habitat                       product forms an essential part of a product, either in
types or species, there must be considered to be an obligation                 terms of quantity or for characterization of those prod-
to carry out an assessment of plans and projects with a                        ucts, as referred to in Article 2(4) of Directive 92/46/EEC?
significant effect on the site even before the Commission draws
up the draft list of sites or adopts the final version of that list
pursuant to Article 21 of the directive and, in fact, with effect        (1 ) OJ L 268 [1992], p. 1.
from the drawing up of the national list?
( 1) OJ L 206 of 22.7.1992, p. 7.
                                                                         Action brought on 20 March 2003 by the Commission of
                                                                         the European Communities against the Federal Republic
                                                                                                     of Germany
                                                                                                   (Case C-126/03)
Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by judgment of that Court                                            (2003/C 124/14)
of 11 March 2003 in the case of (1) Artrada (Freezone)
NV, (2) Videmecum BV and (3) Jac. Meisner Internationaal
Expeditiebedrijf BV against Rijksdienst voor de Keuring
                        van Vee en Vlees                                 An action against the Federal Republic of Germany was
                                                                         brought before the Court of Justice of the European Communi-
                                                                         ties on 20 March 2003 by the Commission of the European
                         (Case C-124/03)                                 Communities, represented by Klaus Wiedner, of the Com-
                                                                         mission’s Legal Service, acting as Agent, with an address for
                         (2003/C 124/13)                                 service in Luxembourg.
                                                                         The Commission claims that the Court should:
Reference has been made to the Court of Justice of the                   —     Declare that, by reason of the fact that the contract for
European Communities by judgment of the College van Beroep                     waste transport concluded by the City of Munich was
voor het bedrijfsleven (Administrative Court for Trade and                     awarded without compliance with the notification
Industry) of 11 March 2003, received at the Court Registry on                  requirements laid down in Article 8, in conjunction with
20 March 2003, for a preliminary ruling in the case of                         Articles 15(2) and 16(1), of Directive 92/50 (1), the
(1) Artrada (Freezone) NV, (2) Videmecum BV and (3) Jac.                       Federal Republic of Germany has failed to fulfil its
Meisner Internationaal Expeditiebedrijf BV against Rijksdienst                 obligations under that directive; and
voor de Keuring van Vee en Vlees (Netherlands Livestock and
Meat Inspectorate) on the following questions:                           —     Order the Federal Republic of Germany to pay the costs
                                                                               of the proceedings.
1(a) Must the term ‘milk for the manufacture of milk-based
      products’ in Article 2(2) of Directive 92/46/EEC (1) be
      interpreted as meaning that it (also) includes milk con-
      stituents of a product which also contains other non-milk          Pleas in law and main arguments
      constituents and where the milk constituent cannot be
      separated from the non-milk constituents?
                                                                         If — as is the case with the Municipality of the City of Munich
                                                                         — the conditions for the existence of a body governed by
1(b) If the answer to question 1(a) is affirmative: must                 public law are met, there is no need under the directive to
      Article 22 of Directive 92/46/EEC be interpreted as                draw a distinction, in the case of every requested provision of
      meaning that in the case of imports from non-Member                services, as to whether such services are provided in the general
      States that directive is applicable only to the milk               interest and are commercial in nature. It is for that reason
      constituent of a product and thus not to the product of            irrelevant that, in the present case, the City of Munich, in
      which it is a constituent?                                         connection with the provision of a service for a third party,
                                                                         burns waste in its own incineration plant and does not effect
2(a) Does the concept of ‘milk-based products’ in Article 2(4)           the transport to that plant itself but relies on a private
      of Directive 92/46/EEC concern only finished products              undertaking to do so. If a public body tenders successfully for
      or also semifinished products which must undergo further           a contract but is obliged to subcontract out certain services in
      processing before they can be offered for sale to the              order to ensure provision of the overall service, that public
      consumer?                                                          body must apply the procedures set out in Directive 92/50.