CELEX: C1995/299/18
Language: en
Date: 1995-11-11 00:00:00
Title: Action brought on 20 September 1995 by Commission of the European Communities against the Federal Republic of Germany (Case C-301/95)

11 . 11 . 95                EN                  Official Journal of the European Communities                                     No C 299/ 11
2 . Where a scheme has been commercially devised and                                 has found that, in the criminal proceedings, the
      marketed whereunder purchases made in Member                                   national court was in breach of the procedural
      State B for the personal use of a private individual in                        safeguards       enshrined     in   Article  6  of  the
      Member State A are made by an agent for that                                   Convention ?
      individual and those purchases are transported from
      Member State B to Member State A as a result of                           4. Is the legal entity against which proceedings have
      arrangements made by such an agent, does Directive                             been brought for State liability entitled to plead
      92/ 12/EEC have the effect of precluding the charging of                       that the punishment would have been on no
     excise duty on those purchases in Member State A ?                              different a scale if the violation of Article 6 of the
                                                                                     Convention found by the Court of Human Rights
(') Council Directive 92/ 12/EEC of 25 February 1992 on the                          had not occurred , although the Austrian law of
    general arrangements for products subject to excise duty and on                  criminal procedure — to date — does not provide
    the holding, movement and monitoring of such products                            in such cases for proceedings for the revision of a
    ( OJ No L 76 , 23 . 3 . 1992 , p. 1 ).                                           judgment or other amending proceedings by means
                                                                                     of which the procedural error could have been
                                                                                     remedied ?
Reference for a preliminary ruling from the Oberster                            5 . Does the burden of proving the causal connection
                                                                                     between     the      violation   of Article   6  of the
Gerichtshof by order of that court of 29 August 1995 in the
case of Dr Friedrich Wilhelm Kremzow, intervener: Dr                                 Convention and the deprivation of the plaintiff's
           Wilfried Ludwig Weh, v. Republic of Austria                               liberty fall on the plaintiff or does the burden of
                                                                                     proof in respect of this defect fall on the defendant
                             ( Case C-299/95 )                                       legal entity ?'
                               ( 95/C 299/ 17 )
Reference has been made to the Court of Justice of the
European Communities by an order of the Oberster
Gerichtshof ( Austrian Supreme Court ) of 29 August 1995 ,                 Action brought on 20 September 1995 by Commission of
which was received at the Court Registry on 18 September                   the European Communities against the Federal Republic of
1995 , for a preliminary ruling in the case of Dr. Friedrich                                               Germany
Wilhelm Kremzow, intervener : Dr Wilfried Ludwig Weh, v.                                            ( Case C-301 /95 )
Republic of Austria , on the following questions :                                                     ( 95/C 299/ 18 )
A. ' Are all or at least the substantive-law provisions of the             An action against the Federal Republic of Germany was
      European Convention for the Protection of Human                      brought before the Court of Justice of the European
       Rights and Fundamental Freedoms ( the Convention ) —                Communities on 20 September 1995 by the Commission of
      including the provisions of Articles 5 , 6 and 53 of the             the European Communities , represented by Dr Gotz zur
       Convention which are relevant to the proceedings                    Hausen , Legal Adviser, acting as Agent, with an address for
       before the Oberster Gerichtshof — part of Community                 service in Luxembourg at the office of Carlos Gomez de la
       law ( Article 164 of the EC Treaty ), with the result that          Cruz, of the Commission 's legal Service , Wagner Centre
      the Court of Justice of the European Communities may                 C 254 , Kirchberg .
      give a preliminary ruling on their interpretation
       pursuant to the first paragraph of Article 1 77 of the EC           The applicant claims that the Court should :
      Treaty ?'
                                                                           1 . declare that, by
B. The following further questions are referred to the
       Court of Justice of the European Communities for a                      — failing to adopt the measures necessary to comply
       preliminary ruling only in the event that Question A is                     with Council Directive 85/337/EEC of 27 June 1985
       answered in the affirmative — at least as regards                           on the assessment of certain public and private
       Articles 5 and 6 of the Convention :                                        projects on the environment (') within the
                                                                                   prescribed period ,
       ' 1 . Are national courts bound by judgments of the
                                                                               — failing to communicate to the Commission all the
             European Court of Human Rights finding
             violations of the Convention at least in so far as                    measures which it has taken in order to comply with
                                                                                   the Directive,
             they may not take the view that the conduct of State
             institutions to which the finding of a violation                  — failing to provide for an environmental impact
             relates was in accordance with the Convention ?                       assessment to be carried out for all projects in respect
                                                                                   of which such an assessment is to be carried out
         2 . Are claims for compensation for damage based on                       under the Directive and for which the development
             Article 5 ( 5 ) of the Convention precluded where the                 consent procedure was commenced after 3 July
             damage is derived from a decision of the Oberster                      1988 ,
             Gerichtshof ?
                                                                               — failing to provide that all the projects set out in
         3 . Is detention within the meaning of Article 5 ( 1 ) ( a )              Annex II to the Directive must be examined in order
             of the Convention contrary to the Convention ex                       to determine whether they are likely to have
             tunc where the European Court of Human Rights                         significant effects on the environment,
 ---pagebreak--- No C 299/ 12               EN                         Official Journal of the European Communities                                    11 . 11 . 95
     — failing to adopt all the measures necessary to comply                     Action brought on 25 September 1995 by the Commission
          with Article 5 ( 2 ) of the Directive , and                            of the European Communities against the Hellenic
                                                                                                                Republic
     — authorizing the creation of a disposal site for special
          waste in Mainhausen and the construction of a                                                   ( Case C-304/95 )
          motorway near Luneburg without observing the                                                      ( 95/C 299/ 19 )
          procedure prescribed in the Directive ,
     — the Federal Republic of Germany has failed to fulfil                      An action against the Hellenic Republic was brought before
          its obligations under Article 5 and the third                          the Court of Justice of the European Communities on
          paragraph of Article 189 of the EC Treaty and under                    25 September 1995 by the Commission of the European
          Articles 2 , 3 , 5 ( 2 ), 6 ( 2 ), 8 , 9 and 12(1 ) and ( 2 ) of the   Communities, represented by Maria Kondou Durande, of
          Directive ;                                                            its Legal Service, with an address for service in Luxembourg
                                                                                 at the office of Carlos Gomez de la Cruz, Wagner Centre,
2 . order the Federal Republic of Germany to pay the                             Kirchberg.
     costs .
Pleas in law and main arguments adduced in support:                              The applicant claims that the Court should :
— although the timelimit for the transposition of the
    Directive expired on 3 July 1 988 , the defendant did not                    1 . declare , that by not bringing into force , the laws,
    take any measures until it adopted the 'UVP-Gesetz ' of                           regulations and administrative provisions necessary to
     12 January 1990, which entered into force on 1 August                            comply with Council Directive 92/5/EEC of 10 February
     1990 ,                                                                           1992 amending and updating Directive 77/99/EEC on
                                                                                      health problems affecting intra-Community trade in
— the duty to inform the Commission provided for in                                   meat products and amending Directive 64/433/EEC ('),
    Article 12 ( 2 ) of the Directive also covers rules enacted                       or at least not notifying those provisions to the
    by the Lander and provisions in force prior to the                                Commission within the prescribed period, the Hellenic
    adoption of the Directive; the existence of paragraph 4                           Republic failed to fulfil its obligations under the Treaty
    of     the    UVP-Gesetz            shows       that   the   defendant            and Directive 92/5/EEC ;
    presupposes that provisions enacted by the Lander are
    applicable to the field covered by the Directive ,
                                                                                2 . order the Hellenic Republic to pay the costs .
— paragraph 22 of the UVP-Gesetz provides that
    proceedings already commenced are to be completed in
    accordance with its provisions only where they had not                       Pleas in law and main arguments adduced in support:
    yet been publicly notified when the UVP-Gesetz entered
    into force ,                                                                The mandatory nature of the provisions of Article 189 of the
                                                                                Treaty requires the Member States to bring into force the
— in the Commission 's view, all the projects set out under                      provisions necessary for transposing into national law the
    the various letters in points 1 to 1 1 of Annex II to the                   directives of which they are the addressees before the expiry
    Directive are to be regarded as 'classes ' within the                       of the period provided therefor and immediately to notify
    meaning of Article 4 of the Directive . Paragraph 3 of the                  those provisions to the Commission . That period expired on
    UVP-Gesetz sets threshold values or criteria for some ,                      1 January 1993 without the Hellenic Republic bringing into
    but not all , of such classes; for the remaining classes , the               force the necessary provisions or indeed notifying those
    UVP-Gesetz does not make any provision for project                           provisions to the Commission .
    assessment in individual cases ,
— although the defendant has specified , in accordance with                      (') OJ No L 57 , n . 1 .
    the Directive, the documents to be submitted by the
    developer, the provisions in question are applicable only
    ' in so far as the . . . said documents are not defined in
    detail in a legislative provision '. The Commission does
    not share the defendant's view that on a proper
    interpretation of the UVP-Gesetz the rules laid down by
    the specific technical legal provisions are to be applied
    only where their requirements at least correspond to
    those of the UVP-Gesetz,                                                     Reference for a preliminary ruling from the Cour du Travail,
                                                                                 Mons , by judgment of that Court of 21 September 1995 in
— it cannot be deduced from the documents submitted by                          the case of Universite Catholique de Louvain v. Francine
    the defendant that the obligations imposed by Articles 2 ,                                    Plapied and Danielle Gallez
    3 , 5 ( 2 ), 6 ( 2 ), 8 and 9 of the Directive were complied                                           Case C-305 /95 )
    with in the case of the Mainhausen and Luneburg
                                                                                                            ( 95 /C 299/20 )
    projects .
(') OJ No L 175 , 5 . 7 . 1985 , p . 40 .
                                                                                 Reference has been made to the Court of Justice of the
                                                                                 European Communities by a judgment of the Cour du