CELEX: C1995/248/22
Language: en
Date: 1995-09-23 00:00:00
Title: Appeal brought on 4 August 1995 by the Commission of the European Communities against the judgment delivered on 6 June 1995 by the Third Chamber (extended composition) of the Court of First Instance of the European Communities in Case T-14/93 between the Union Internationale des Chemins de Fer and the Commission of the European Communities (Case C-264/95 P)

No C 248/ 10               EN                    Official Journal of the European Communities                                    23 . 9 . 95
       — Council Directive 84/156/EEC ( 3 ) of 8 March 1984                     was not properly obtained . Since the German language
           on limit values and quality objectives for mercury                   version of the drafts was not made available within the
           discharges by sectors other than the chlor-alkali                    period prescribed in the rules of procedure of the said
           electrolysis industry,                                               committee, it was not possible to make a decision
                                                                                thereon,
       — Council Directive 84/49 1 /EEC ( 4 ) of 9 October
           1984 on limit values and quality objectives for                  — infringement of essential procedural requirements : the
           discharges of hexachlorocyclohexane,                                 majority required by the third sentence of Article 20 ( 3 )
                                                                                of Directive 89/106/EEC for the Standing Committee to
       — Council Directive 86/280/EEC ( 5 ) of 12 June 1986                     take a Decision was not obtained at the meeting on
           on limit values and quality objectives for discharges                30 November 1994 . The rules of procedure of the
           of certain dangerous substances included in List I of                Standing Committee lay down detailed provisions for
           the Annex to Directive 76/464/EEC;                                   the exercise of voting rights; there exists no written
                                                                                procedure for the adoption of resolutions, nor any
( 2 ) order the Federal Republic of Germany to pay the                          provision for the exercise of voting rights after meetings
       costs .
                                                                                have ended,
Pleas in law and main arguments adduced in support:                         — infringement of Article 13 ( 4 ) of Directive 89/106/EEC :
                                                                                the initial testing of a product must in principle extend
limit values for emissions must be laid down on the basis of                    to all characteristics reasonably connected with the
environmental protection directives by means of provisions                      product which are important for the fulfilment of the
the mandatory nature of which must be undisputable, which                       essential requirements in accordance with the provisions
enable individuals to assert their rights and which provide                     of Annex I of Directive 89/106/EEC . However, the
those responsible for compliance with emission norms with                       Commission, in adopting the contested Decision, did not
precise information regarding their obligations . So-called                     deal fully with the relevant product characteristics; for
administrative provisions, the mandatory nature of which                        example, its consideration of health and environmental
does not extend beyond the local district of the                                protection aspects was merely selective and incomplete .
administrative authorities concerned, do not fulfil those                       Consequently, the contested Decision does not satisfy
requirements .                                                                  the concerns referred to in Article 100a ( 3 ) of the EC
                                                                                Treaty,
(')   OJ No    L 81 , 27 . 3 . 1982 , p . 29 .
(2)   OJ No    L 291 , 24 . 10 . 1983 ,   p. 1 .                            — infringement of the obligation to give a statement of
(3)   OJ No    L 74, 17. 3 . 1984 , p .   49 .                                  reasons (Article 190 of the EC Treaty ): the Federal
(4)   OJ No    L 274 , 17 . 10 . 1984,    p . 11                                Government was involved in the preparation of the
( 5)  OJ No    L 181 , 4 . 7. 1986 , p.   16 .                                  Decision, yet even it is unable to see the considerations
                                                                                on the basis of which the Commission declined to have
                                                                                regard to essential requirements ( for example, in the case
                                                                                of thermal insulating products : energy economy and
                                                                                heat retention, as well as hygiene, health and
Action brought on 7 August 1995 by the Federal Republic                         environmental protection; in the case of precast concrete
of Germany against the Commission of the European                               products : safety in use; in the case of windows, doors
                                 Communities                                    etc .: protection against noise ), and these must a fortiori
                                                                                be unclear to the Court of Justice, which has been called
                              ( Case C-263/95 )                                 upon to exercise its powers of judicial review .
                                ( 95/C 248/21 )
                                                                            (') OJ No L 129 , 14 . 6 . 1995 , p . 23 .
An action against the Commission of the European
 Communities was brought before the Court of Justice of the
 European Communities on 7 August 1995 by the Federal
 Republic of Germany, represented by Ernst Roder,
 Ministerialrat, and Bernd Kloke, Oberregierungsrat,                        Appeal brought on 4 August 1995 by the Commission of the
 Federal Ministry of Economics, D-53107 Bonn.                               European Communities against the judgment delivered on
                                                                            6 June 1995 by the Third Chamber ( extended composition )
 The applicant claims that the Court should :                               of the Court of First Instance of the European Communities
                                                                            in Case T-14/93 between the Union Internationale des
 ( 1 ) annul Commission Decision 95/204/EC (') of 31 May                    Chemins de Fer and the Commission of the European
        1995 implementing Article 20 ( 2 ) of Council Directive                                        Communities
        89/ 106/EEC on construction products .
                                                                                                   ( Case C-264/95 P)
 ( 2 ) order the defendant to pay the costs .                                                          95/C 248/22 )
 Pleas in law and main arguments adduced in support:                        An appeal against the judgment delivered on 6 June 1995 by
                                                                            the Third Chamber ( extended composition ) of the Court of
 — infringement of essential procedural requirements : the                  First Instance of the European Communities in Case
       opinion of the Standing Committee on Construction                    T-14/93 between the Union Internationale des Chemins de
 ---pagebreak--- 23 . 9 . 95            EN                 Official Journal of the European Communities                                    No C 248/ 11
Fer and the Commission of the European Communities was               Bundessozialgericht ( Federal Social Court) of 20 June 1995 ,
brought before the Court of Justice of the European                  which was received at the Court Registry on 8 August 1995 ,
Communities on 4 August 1995 by the Commission of the                for a preliminary ruling in the case of Pascual Merino Garcia
European Communities, represented by Bernd Langeheine,               v. Bundesanstalt fur Arbeit, Kindergeldkasse, on the
of the Legal Service, and Gerard de Bergues, a national              following questions :
official on secondment to the Commission, acting as agents,
with an address for service in Luxembourg at the office of           1 . is subsection I C of Annex I to Regulation ( EEC ) No
Carlos Gomez de la Cruz, Wagner Centre, Kirchberg.                        1408/71 (^ compatible with the EC Treaty, in particular
                                                                          Article 48 ( 2 ) thereof, in so far as it leads to a situation
The appellant claims that the Court should :                              where workers with children resident outside Germany
                                                                          have no right to child allowance in respect of full
— set aside the judgment of the Court of First Instance of
                                                                          calendar months included within a lengthy period of
     6 June 1995 ,
                                                                          unpaid leave but such workers with children resident in
— dismiss the action brought before the Court of First                    Germany do have that right ?
     Instance by the Union Internationale des Chemins de
     Fer, or alternatively refer it back to the Court of First       2 . if subsection I C of Annex I to Regulation ( EEC ) No
     Instance ,                                                           1408/71 is invalid , is the consequence thereof that an
                                                                          'employed person' within the meaning of Article 73 of
— order the respondent to pay the costs incurred by the                   Regulation ( EEC ) No 1408/71 is any person who has
     Commission both in the proceedings before the Court                  been given unpaid leave of absence by his employer on
     of First Instance and in those before the Court of                   the basis of a voluntary agreement, or are there
     Justice .                                                            restrictions in that respect ( e.g. as regards the duration
                                                                          of the leave of absence )?
Pleas in law and main arguments adduced in support:
The Commission considers that the Court of First Instance            (>) OJ No L 149 , 5 . 7 . 1971 , p . 2 .
committed a threefold error of law in ruling:
— first, that Regulation (EEC ) No 1017/68 also applies
     to agreements, decisions and concerted practices
     concerning activities which are 'related to', and               Reference for a preliminary ruling by the High Court of
     ' indispensable for', the provision of transport services,      Justice, Chancery Division, Patents Court, by orders of that
     when that Regulation covers, apart from specific                court of 13 July 1995 , in the case of Merck & Co. Inc. and
     agreements which are restrictively listed and irrelevant                    others against Primecrown Ltd and others
     to the present case , only agreements, decisions and                                      Case C-267/95
     concerted practices which directly concern the provision
     of transport,                                                                              ( 95/C 248/24 )
— second , that leaflet No 130 of the Union Internationale           Reference has been made to the Court of Justice of the
     des Chemins de Fer covers both the supply of transport          European Communities by orders of the High Court of
     and transport rates within the meaning of Regulation            Justice, Chancery Division, Patents Court, of 13 July 1995 ,
      ( EEC ) No 1017/68 , when the contested provisions             which were received at the Court Registry on 8 August
     thereof restrict competition not on the transport market         1995 , for a preliminary ruling in the case of Merck & Co .
     but on the market for the distribution of tickets,              Inc . and others against Primecrown Ltd and others, on the
— lastly, that by offering railway tickets for sale on behalf        following questions :
     of railway companies, travel agencies perform
      ' operations of providers of services ancillary to              1.    that the provisions and effect of Article 47 of the
     transport' within the meaning of Article 1 of Regulation               Spanish Treaty of Accession to the European
      ( EEC ) No 1017/68 , when travel agents do not fall within            Communities will continue to apply to
      the professional category of providers of services                    pharmaceutical products
      ancillary to transport and the Regulation applies in any
                                                                      1.1   imported from Spain; or
      event only to the operations of such providers of
      ancillary services which are directly related to the            1.2   first marketed in Spain
      provision of transport.
                                                                            until
                                                                             ( a ) 7 October 1995 ; or
Reference for a preliminary ruling from the Bundes­                          ( b ) 31 December 1995 , or
 sozialgericht, by order of that court of 20 June 1995 , in the              ( c ) 7 October 1996 , or
 case of Pascual Merino Garcia against Bundesanstalt fur
                     Arbeit, Kindergeldkasse                                 ( d ) 31 December 1996 , or
                        ( Case C-266/95 )                                    ( e ) the end of the third year after the particular
                          ( 95/C 248/23 )                                           pharmaceutical , protected by a product patent in
                                                                                    one or more Member State(s ) of the European
 Reference has been made to the Court of Justice                                    Union and which was previously unpatentable in
 of the European Communities by an order of the                                     Spain, has become patentable in Spain