CELEX: C2001/118/33
Language: en
Date: 2001-04-21 00:00:00
Title: Case C-103/01: Action brought on 2 March 2001 by the Commission of the European Communities against the Federal Republic of Germany

C 118/20                EN                    Official Journal of the European Communities                                        21.4.2001
Action brought on 1 March 2001 by Italian Republic                       3.    The contested decision is also invalid on the following
    against Commission of the European Communities                             grounds:
                                                                               failure to define the relevant market; misuse of powers
                          (Case C-102/01)                                      by misrepresentation of the facts; infringement of the
                                                                               directive on postal services; infringement and erroneous
                                                                               application of Articles 82 and 86 of the Treaty; misuse of
                         (2001/C 118/32)                                       powers in that the decision is general and indeterminate.
An action against the Commission of the European Communi-                (1) Directive 97/67/EC of the European Parliament and of the Council
ties was brought before the Court of Justice of the European                 of 15 December 1997 on common rules for the development of
Communities on 1 March 2001 by the Italian Republic,                         the internal market of Community postal services and the
represented by Umberto Leanza, acting as Agent, assisted by                  improvement of quality of service (OJ 1998 L 15, p. 14).
Ivo M. Braguglia and Francesca Quadri, avvocati dello Stato.
The applicant claims that the Court should:
—     annul the decision of the Commission of the European
      Communities of 21 December 2000, notified to the
      Italian Government on 22 December 2000;
—     order the Commission to pay the costs.
                                                                         Action brought on 2 March 2001 by the Commission of
                                                                         the European Communities against the Federal Republic
                                                                                                     of Germany
Pleas in law and main arguments
                                                                                                  (Case C-103/01)
1.    The Italian Government claims that the Commission
      committed a manifest error when choosing the proper
      legal basis for assessing whether the national rules at issue
      were compatible with Community law and that that                                           (2001/C 118/33)
      erroneous legal basis has led in the present case to a
      manifest breach of essential procedural requirements and
      ‘détournement de procédure’ (abuse of process), inasmuch           An action against the Federal Republic of Germany was
      as a proceeding pursuant to Article 86(3) of the Treaty            brought before the Court of Justice of the European Communi-
      was instituted and a decision adopted, instead of infringe-        ties on 2 March 2001 by the Commission of the European
      ment proceedings under Article 226 of the Treaty for               Communities, represented by Josef Christian Schieferer, of its
      failure to implement correctly Directive 97/76/EC (1) on           Legal Service, with an address for service in Luxembourg at
      postal services.                                                   the office of Carlos Gómez de la Cruz, of its Legal Service,
                                                                         Wagner Centre C 254, Kirchberg.
      By acting in that way, the Commission has also infringed
      Article 86(3) of the Treaty, which is not applicable in the
      present case, as well as Article 226 of the Treaty for             The applicant claims that the Court should:
      failure to apply the latter.
                                                                         (1) declare that, by including in the legislation applicable
      The decision does not contain the least statement of                     to individual Länder certain additional requirements
      reasons which led the Commission to follow the pro-                      concerning personal protective equipment for fire brig-
      cedure under Article 86, so that it is vitiated on the                   ades which corresponds to the requirements of Directive
      ground of inadequate statement of reasons.                               89/686/EEC (1) and bears the EC mark, the Federal
                                                                               Republic of Germany has infringed Articles 1 and 4 of
                                                                               that directive;
2.    The decision is vitiated for breach of the rights of the
      defence in that the final decision is vitiated with regard to
      the letter of formal notice.                                       (2) order the Federal Republic of Germany to pay the costs.
 ---pagebreak--- 21.4.2001              EN                    Official Journal of the European Communities                                        C 118/21
Pleas in law and main arguments                                         (3) If the first question is to be answered in the affirmative
                                                                              and the second in the negative, must the measures
                                                                              requested in these proceedings be regarded as provisional
In the Commission’s view, the term ‘armed forces or [those                    or protective measures within the meaning of Article 24
responsible for] the maintenance of law and order’, to whose                  of the Brussels Convention?
protective equipment the directive, pursuant to the second
indent of Article 1(4) and Annex I thereof, is not applicable, is
a concept of Community law, and is not to be defined by
reference to the legislation of the Member States. Fire brigades
do not form part of the ‘armed forces or [those responsible
for] the maintenance of law and order’ within the meaning of
the directive, even if, in a Member State, they are under the
control of the Minister of Defence or, as in Germany, that of a         Action brought on 6 March 2001 by the Commission of
Land authority.                                                         the European Communities against the Grand Duchy of
                                                                                                    Luxembourg
                                                                                                  (Case C-107/01)
(1) OJ L 399, 30.12.1989, p. 18.
                                                                                                 (2001/C 118/35)
                                                                        An action against the Grand Duchy of Luxembourg was
                                                                        brought before the Court of Justice of the European Communi-
                                                                        ties on 6 March 2001 by the Commission of the European
                                                                        Communities, represented by M. Wolfcarius, acting as Agent,
                                                                        with an address for service in Luxembourg.
Reference for a preliminary ruling by the Hoge Raad der                 The applicant claims that the Court should:
Nederlanden by order of 2 March 2001 in the case of
                 A.T. van der Plas en W.H. Guis                         —     Declare that, by failing to adopt and bring into force
                                                                              within the prescribed period the laws, regulations and
                         (Case C-105/01)                                      administrative provisions necessary to comply with
                                                                              Council Directive 98/76/EC of 1 October 1998 amending
                                                                              Directive 96/26/EC on admission to the occupation of
                         (2001/C 118/34)                                      road haulage operator and road passenger transport
                                                                              operator and mutual recognition of diplomas, certificates
                                                                              and other evidence of formal qualifications intended to
Reference has been made to the Court of Justice of the                        facilitate for these operators the right to freedom of
European Communities by order of 2 March 2001 by the                          establishment in national and international transport
Hoge Raad der Nederlanden (Supreme Court of the Nether-                       operations, (1) or, in any event, by failing to communicate
lands), which was received at the Court Registry on 5 March                   such provisions to the Commission, the Grand Duchy of
2001, for a preliminary ruling in the case of A.T. van der Plas               Luxembourg has failed to fulfil its obligations under that
en W.H. Guis on the following questions:                                      directive; and
(1) On a proper construction of the first part of, and of               —     Order the Grand Duchy of Luxembourg to pay the costs.
      paragraph (2) of, Article 16, do the abovementioned
      claims in 1(a) to (e), brought against a director, resident
      in the Netherlands, of a company established in the               Pleas in law and main arguments
      Netherlands which holds the shares in a company
      established in France, in order to obtain his collaboration       The mandatory nature of the provisions of the third paragraph
      in the calling of a general meeting and to effect certain         of Article 249 and the first paragraph of Article 10 of the EC
      decisions concerning the company established in France,           Treaty requires Member States to adopt the measures necessary
      relate to what is laid down in the abovementioned                 to transpose directives addressed to them into their domestic
      provisions of the Convention, on the understanding that           law before the expiry of the period prescribed for doing so and
      the French court must be considered to have exclusive             forthwith to inform the Commission thereof. That period,
      jurisdiction as to those claims?                                  which is laid down in Article 2(1) of Directive 98/76/EC,
                                                                        expired on 1 October 1999 without the Grand Duchy
(2) If the answer to the first question is to be in the                 of Luxembourg having brought into force the necessary
      affirmative, does the jurisdiction of a court, on the basis       provisions.
      of the first part of, and paragraph (2) of, Article 16 of
      the Brussels Convention, preclude a court of another              (1) OJ 1998 L 227, p. 17.
      contracting state from having jurisdiction on the basis of
      Article 24 of the Brussels Convention to adopt provisional
      or protective measures provided for by law?