CELEX: C1998/299/31
Language: en
Date: 1998-09-26 00:00:00
Title: Action brought on 28 July 1998 by the Commission of the European Communities against Italian Republic (Case C-292/98)

C 299/20               EN                   Official Journal of the European Communities                                    26.9.98
         alternative, in so far as it arrives at an erroneous          Ð failure to appraise the flawed reasoning underlying
         assessment of Sarrió's misconduct regarding                       calculation of the fine and contradictions between the
         market shares and downtime,                                       grounds and the operative part,
     Ð does not consider it necessary to set aside the fine            Ð failure to appraise the error in the method of
         imposed on Sarrió, wholly or in part, by reason of                calculating the fine,
         the inadequate statement of reasons (the Decision
         itself being silent as to the criteria used to calculate
         the level of that fine),                                      Ð contradiction between the grounds and the operative
                                                                           part as regards the granted reduction in the fine.
     Ð approves the method of calculating the fine
         imposed by the Commission, the amount in ecus
         being directly based on the conversion of the
         reference year turnover into ecus at the average
         exchange rate for that year, without appraising the
         legal consequences of such a burden or the damage
         caused to Sarrió by the use of such a method,                 Action brought on 28 July 1998 by the Commission of the
                                                                             European Communities against Italian Republic
     Ð sets a figure of ECU 1,5 million as the amount of                                       (Case C-292/98)
         the reduced fine (granted by reason of Prat                                            (98/C 299/31)
         Carton's reduced role in the infringement);
2. refer the case back to the Court of First Instance if it            An action against the Italian Republic was brought before
     decides that it is unable wholly or in part to give final         the Court of Justice of the European Communities on
     judgment in the matter;                                           28 July 1998 by the Commission of the European
                                                                       Communities, represented by Francesco P. Ruggeri
                                                                       Laderchi, of its Legal Service, acting as Agent, with an
3. annul the Commission's decision to reflect its setting              address for service in Luxembourg at the office of Carlos
     aside of any part of the judgment under appeal;                   Gómez de la Cruz, Wagner Centre, Kirchberg.
4. reduce the fine to a level which it considers                       The applicant claims that the Court should:
     reasonable;
                                                                       1. declare that, by not adopting the laws, regulations and
5. order the Commission to pay all costs and fees                          administrative provisions necessary to comply with:
     incurred in the proceedings at first instance and in this
     appeal.                                                               (a) Council Directive 95/29/EC of 29 June 1995
                                                                                amending Directive 91/628/EEC concerning the
                                                                                protection of animals during transport (1),
Pleas in law and main arguments adduced in support:
                                                                           (b) Commission Directive 96/6/EC of 16 February
The appellant contests certain specific parts of the                            1996 amending Council Directive 74/63/EEC on
judgment under appeal in which, it maintains, the Court                         undesirable substances and products in animal
of First Instance misapplied Community law and breached                         nutrition (2),
its obligation to state proper grounds.
                                                                           or, in any event, by not having communicated such
In particular, the appellant maintains that the Court of                   measures, the Italian Republic has failed to fulfil its
First Instance made the following errors of assessment in                  obligations under the Treaty and under those
appraising the legal position:                                             Directives;
Ð incorrect interpretation of the Decision in relation to              2. order the Italian Republic to pay the costs of the
     the infringement imputed,                                             proceedings.
Ð incorrect interpretation and misapplication of                       Pleas in law and main arguments adduced in support:
     Community law in holding that Sarrió's participation
     in the producers' meetings had by definition an anti-
     competitive effect; in the alternative, failure to                Article 189 of the EC Treaty, in providing that a directive
     evaluate the significance of its non-implementation of            is binding, as to the result to be achieved, on the Member
     the agreement; in the further alternative, incorrect              State to which it is addressed, places Member States under
     characterisation of the infringement committed,                   an obligation to comply with the time limits set by
 ---pagebreak--- 26.9.98               EN                Official Journal of the European Communities                                  C 299/21
directives for their implementation. In the present case,          the European Communities was brought before the Court
when the time limits expired, the Italian Republic had not         of Justice of the European Communities on 29 July 1998
adopted the measures necessary to comply with the                  by Metsä-Serla OYJ and Others, represented by Hans
Directives named in the Commission's application.                  Hellmann, Am Morsdorfer Hof 16, D-50933 Cologne,
                                                                   and Hans-Joachim Hellmann LL.M., Schilling, Zutt &
(1) OJ L 148, 30.6.1995, p. 52.                                    Anschütz, Otto-Beck Straûe 42, D-68165 Mannheim,
(2) OJ L 49, 28.2.1996, p. 29.                                     Rechtsanwälte, with an address for service in Luxembourg
                                                                   at the Chambers of Loesch & Wolter, 11 rue Goethe, B.P.
                                                                   1107, L-1011 Luxembourg.
                                                                   The appellants claim that the Court should:
Reference for a preliminary ruling by the Juzgado de               1. declare void, in so far as it concerns the appellants, the
Primera Instancia e Instrucción No 5, Oviedo, by order of              Commission Decision of 13 July 1994 relating to a
that Court of 1 June 1998 in the Case of Entidad de                    proceeding under Article 85 of the EC Treaty (IV/C
Gestión de Derechos de los Productores Audiovisuales                   33.833 Ð Cartonboard), notified to the appellants on
      (EGEDA) v. Hostelería Asturiana, SA (HOASA)                      8 August 1994 and published in the Official Journal
                       (Case C-293/98)                                 of the European Communities of 19 September 1994;
                         (98/C 299/32)
                                                                   2. order the Commission to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by an order of the Juzgado de                 Pleas in law and main arguments adduced in support:
Primera Instancia e Instrucción (Court of First Instance)
No 5, Oviedo, of 1 June 1998, which was received at the            Infringement of Community law: there is no legal basis for
Court Registry on 29 July 1998, for a preliminary ruling           an order that the appellants should bear joint and several
in the Case of Entidad de Gestión de Derechos de los               liability for the fine imposed on Finnboard. Article 15(2)
Productores Audiovisuales (EGEDA) v. Hostelería                    of Council Regulation No 17 does not impose liability for
Asturiana, SA (HOASA), on the following question.                  infringements of third parties. Neither the Commission
                                                                   nor the Court of First Instance found that the appellants
Must Article 1(2)(a) and (3) of Directive 93/83/EEC (1) be         had themselves infringed Article 85(1) of the EC Treaty.
interpreted as meaning that the reception by a hotel               The Court's view that an undertaking may be held jointly
establishment of satellite or terrestrial television signals       and severally liable for payment of a fine where the
and their retransmission by cable to the various rooms of          Commission finds in the same instrument that the
the hotel is an act of communication to the public' or            infringement could have been established also in the case
reception by the public'?                                         of that undertaking infringes the principle of nulla poena
                                                                   sine lege, or the prohibition which follows by analogy
                                                                   from that principle, and the principle of the presumption
(1) OJ L 248, 6.10.1993, p. 15.                                    of innocence; it is incompatible with the principles of the
                                                                   rule of law and contravenes the appellants' fundamental
                                                                   rights of defence.
                                                                   The Court of First Instance wrongly relies on the case-law
                                                                   of the Court of Justice on the determination of fines in
Appeal brought on 29 July 1998 by Metsä-Serla OYJ,                 regard to undertakings which form an economic unit.
UPM-Kymmene OYJ (formerly United Paper Mills Ltd),                 Joint and several liability cannot be derived from the
Tamrock OY (formerly Tampella Corporation) and Kyro                principles of economic unity. Moreover, the preconditions
OYJ ABP (formerly OY Kyro AB) against the judgment                 for a finding that there was economic unity do not exist.
delivered on 14 May 1998 by the Third Chamber
(extended composition) of the Court of First Instance of
the European Communities in Joined Cases T-339/94,
T-340/94, T-341/94 and T-342/94 Metsä-Serla OYJ and
Others against the Commission of the European
                          Communities
                      (Case C-294/98 P)                            Action brought on 29 July 1998 by the Commission of the
                                                                       European Communities against the French Republic
                         (98/C 299/33)
                                                                                          (Case C-296/98)
                                                                                           (98/C 299/34)
An appeal against the judgment delivered on 14 May
1998 by the Third Chamber (extended composition) of the
Court of First Instance of the European Communities in             An action against the French Republic was brought before
Joined Cases T-339/94, T-340/94, T-341/94 and T-342/94             the Court of Justice of the European Communities on
Metsä-Serla OYJ and Others against the Commission of               29 July 1998 by the Commission of the European