CELEX: C2002/144/28
Language: en
Date: 2002-06-15 00:00:00
Title: Case C-116/02: Reference for a preliminary ruling by the Oberlandesgericht Innsbruck by order of that Court of 25 March 2002 in the proceedings between Erich Gasser Gesellschaft m. b. H. and MISAT s. r. l.

15.6.2002              EN                       Official Journal of the European Communities                                     C 144/17
—     order the Kingdom of the Netherlands to pay the costs.                    foreign competitors. Those rules result in a situation
                                                                                whereby more waste is regarded as destined for disposal,
                                                                                so that more waste is presented to AVR Chemie for
                                                                                incineration.
                                                                           (1) OJ 1993 L 30, p. 1.
                                                                           (2) OJ 1975 L 194, p. 39.
                                                                           (3) OJ 1991 L 78, p. 32.
Pleas in law and main arguments
—     In cases in which 20 % of waste in the Netherlands can
      be re-used and, in the country of destination, a smaller
      proportion of the waste can be recovered, objections are             Reference for a preliminary ruling by the Oberlandesge-
      systematically raised. That possibility is not provided for          richt Innsbruck by order of that Court of 25 March 2002
      either in Regulation (EEC) No 259/93 or in Directive 75/             in the proceedings between Erich Gasser Gesellschaft m.
      442/EEC. The Netherlands treats the extent of the recov-                                  b. H. and MISAT s. r. l.
      ery which can be achieved by means of the processing
      capacity in the Netherlands as a subjective criterion for
      the current application of the fifth indent of Article 7(4)                                   (Case C-116/02)
      of Regulation (EEC) No 259/93. It is not apparent from
      any of the provisions of Regulation (EEC) No 259/93 that
      this constitutes the objective or scope of that regulation.                                   (2002/C 144/28)
      On the contrary, the fifth indent of Article 7(4) provides
      that the Member States are to carry out an individual test
      in respect of each request for export, in the course of
      which they are to consider in an objective manner — that             Reference has been made to the Court of Justice of the
      is to say, without regard to their own market situation —            European Communities by order of the Oberlandesgericht
      the characteristics of that individual request.                      Innsbruck (Higher Regional Court, Innsbruck) of 25 March
                                                                           2002, received at the Court Registry on 2 April 2002, for a
                                                                           preliminary ruling in the proceedings between Erich Gasser
                                                                           Gesellschaft m. b. H. and MISAT s. r. l. on the following
—     The Netherlands applies a criterion consisting of a                  questions:
      requirement for the calorific value of incineration of the
      waste coupled with its chlorine content, and on that basis           1.   May a court which refers questions to the Court of Justice
      draws the dividing line between recovery, with the main                   for a preliminary ruling do so purely on the basis of a
      use being fuel from hazardous waste, and definitive                       party’s (unrefuted) submissions, whether they have been
      disposal of hazardous waste. However, in accordance                       contested or not contested (on good grounds), or is it
      with the provisions of the regulation and of the directive,               first required to clarify those questions as regards the
      the question whether waste is to be regarded as destined                  facts by the taking of appropriate evidence (and if so, to
      for disposal or as destined for recovery depends chiefly                  what extent)?
      on the way in which the waste is processed. That is the
      position, in particular, as regards the drawing of a                 2.   May a court other than the court first seised, within the
      distinction between waste for disposal, in terms of                       meaning of the first paragraph of Article 21 of the
      point D10 in Annex II A of the directive, and waste for                   Brussels Convention on Jurisdiction and the Enforcement
      recovery, in terms of point R9 in Annex II B. For that                    of Judgments in Civil and Commercial Matters [‘the
      reason, it is necessary to fulfil the criteria connected with             Brussels Convention’], review the jurisdiction of the court
      the processing installation or the relevant use; and the                  first seised if the second court has exclusive jurisdiction
      type and nature of contamination of the waste itself are                  pursuant to an agreement conferring jurisdiction under
      not relevant criteria for distinguishing between waste                    Article 17 of the Brussels Convention, or must the agreed
      destined for disposal and waste destined for recovery.                    second court proceed in accordance with Article 21 of
                                                                                the Brussels Convention notwithstanding the agreement
                                                                                conferring jurisdiction?
—     The Commission considers that the rules contained in                 3.   Can the fact that court proceedings in a Contracting State
      Chapter 8.3 of Part I and Chapter 18 of Part II of the                    take an unjustifiably long time (for reasons largely
      Multi-annual Plan concerning hazardous waste for the                      unconnected with the conduct of the parties), so that
      period 1997-2007 are inconsistent with the obligations                    material detriment may be caused to one party, have the
      imposed on the Netherlands by Article 86 EC, inasmuch                     consequence that the court other than the court first
      as the effect of those rules is to protect and strengthen                 seised, within the meaning of Article 21, is not allowed
      the position of AVR Chemie to the detriment of its                        to proceed in accordance with that provision?
 ---pagebreak--- C 144/18              EN                   Official Journal of the European Communities                                   15.6.2002
4.   Do the legal consequences provided for by Italian Law                 with a moisture content of over 30 % and an average
     No 89 of 24 March 2001 justify the application of                     moisture content, on entry to the processing undertaking,
     Article 21 of the Brussels Convention even if a party is at           of at least 35 % measured at most every ten days
     risk of detriment as a consequence of the possible                    compatible with Article 249(2) EC, Article 10 EC,
     excessive length of proceedings before the Italian court              Article 34.2(2) EC, Council Regulation (EC) No 603/95
     and therefore, as suggested in Question 3, it would not               of 21 February 1995 and Commission Regulation (EC)
     actually be appropriate to proceed in accordance with                 No 785/95 of 6 April 1995.
     Article 21?
                                                                      3.   Is a national provision which makes the grant of aid for
5.   Under what conditions must the court other than the                   the drying of green or fresh fodder subject to the
     court first seised refrain from applying Article 21 of the            condition that the fodder must be kept at the processing
     Brussels Convention?                                                  plant for a maximum of 24 hours before it is processed
                                                                           compatible with Article 249(2) EC, Article 10 EC,
6.   What course of action must the court follow if, in the                Article 34.2(2) EC, Council Regulation (EC) No 603/95
     circumstances described in Question 3, it is not allowed              of 21 February 1995 and Commission Regulation (EC)
     to apply Article 21 of the Brussels Convention?                       No 785/95 of 6 April 1995?
Should it be necessary in any event, even in the circumstances        4.   Is a national provision which makes the grant of aid for
described in Question 3, to proceed in accordance with                     the drying of green or fresh fodder subject to the
Article 21 of the Brussels Convention, there is no need to                 condition that the fodder must come from parcels situated
answer Questions 4, 5 and 6.                                               at a maximum distance of 100 kilometres from the
                                                                           corresponding processing plant unless, in the latter case,
                                                                           a greater distance may be justified by the use of the
                                                                           appropriate specialised transport compatible with
                                                                           Article 249(2) EC, Article 10 EC, Article 34.2(2) EC,
                                                                           Council Regulation (EC) No 603/95 of 21 February 1995
                                                                           and Commission Regulation (EC) No 785/95 of 6 April
                                                                           1995?
Reference for a preliminary ruling by the Tribunal Supre-
mo, Sala de lo Contencioso-administrativo, Sección: Cuar-
ta by order of that Court of 6 February 2002 in the case              (1) OJ L 063 of 21.3.1995, p. 1.
of Industrias de Deshidratación Agrı́cola, S.A. against              (2) OJ L 079 of 7.4.1995, p. 5.
                  Administración del Estado
                        (Case C-118/02)
                        (2002/C 144/29)
                                                                      Action brought on 5 April 2002 by European Parliament
                                                                             against Royal & Sun Alliance Insurance (RSA)
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunal Supremo, Sala
de lo Contencioso-administrativo, Sección: Cuarta (Supreme                                   (Case C-123/02)
Court — Chamber for contentious administrative matters,
Fourth Chamber) of 6 February 2002, received at the Court                                     (2002/C 144/30)
Registry on 29 March 2002, for a preliminary ruling in the
case of Industrias de Deshidratación Agrı́cola, S.A. against
Administración del Estado on the following questions:
                                                                      An action against Royal & Sun Alliance Insurance (RSA)
1.   Is a national provision which makes the grant of aid for
                                                                      was brought before the Court of Justice of the European
     the drying of green or fresh fodder subject to the
                                                                      Communities on 5 April 2002 by the European Parliament,
     condition that the fodder for drying is delivered to
                                                                      represented by D. Petersheim, O. Caisou-Rousseau and
     processing undertakings chopped, and not baled compat-
                                                                      M. Ecker, acting as Agents, with an address for service in
     ible with Article 249(2) EC, Article 10 EC, the second
                                                                      Luxembourg.
     subparagraph of Article 34(2) EC, Council Regulation
     (EC) No 603/95 (1) of 21 February 1995 and Commission
     Regulation (EC) No 785/95 (2) of 6 April 1995?
                                                                      The applicant claims that the Court should:
2.   Is a national provision which makes the grant of aid for
     the drying of green or fresh fodder subject to the               1.   declare null and void the terminations of guarantee
     condition that the fodder must reach the processing plant             notified by RSA on 9 October and 6 November 2001;