CELEX: C1995/351/10
Language: en
Date: 1995-12-30 00:00:00
Title: Reference for a preliminary ruling from the Tribunale di Genova, Sesta Sezione Civile, by order of that court of 12 October 1995 in the case of Diego Calì & Figli srl v. Servizi Ecologici Porto di Genova SpA (Case C-343/95)

30 . 12 . 95           EN                   Official Journal of the European Communities                                   No C 351 /7
so far as it unconditionally prohibits as from 1 June 1995 the               — which, since they are imposed exclusively on the
use of HCFCs in the fire-fighting sector, is valid .'                             vessel ( which is merely passively loaded and
                                                                                  unloaded ), affect a subject other than those whose
(') OJ No L 333 , 22 . 12 . 1994 , p . 1 .                                        responsibility it is to carry out the necessary
                                                                                  technical operations ( in this case SpA Porto Petroli
                                                                                  di Genova and the laders/receivers of the product ),
                                                                                  resulting in an inevitable discrepancy between the
                                                                                  responsibility for any pollution and the bearing of
                                                                                  the cost of the anti-pollution service,
Reference for a preliminary ruling from the Tribunale di
Genova, Sesta Sezione Civile, by order of that court of                      — which, given the nature of the product and/or its
12 October 1995 in the case of Diego Call & Figli srl v.                          existence, represent an unnecessary service for
             Servizi Ecologici Porto di Genova SpA                                vessels equipped with their own anti-pollution
                                                                                  devices and systems adapted to the type of product
                         ( Case C-343/95 )
                                                                                  to be loaded or unloaded,
                           ( 95/C 351 / 10
                                                                             — which impose on the vessel a charge, and an
Reference has been made to the Court of Justice of the                            associated extra cost, in addition to those provided
European Communities by an order of the Tribunale di                              for by the landing contract between the carrier and
Genova, Sesta Sezione Civile ( District Court, Genoa, Sixth                       the company operating the wharves, and have no
Civil Chamber ) of 12 October 1995 , which was received at                        practical connection with the subject-matter of the
the Court Registry on 30 October 1995 , for a preliminary                         contract .
ruling in the case of Diego Call &c Figli Sri v. Servizi Ecologici
Porto di Genova SpA on the following questions :                       ( C ) If, in the situations set out in questions ( A ) and ( B ),
                                                                             there are one or more practices amounting to abuse of a
( A ) Can there be said to exist a 'dominant position within                 dominant position by an undertaking for the purposes
      the common market or in a substantial part of it' where                of Article 86 of the Treaty , does this lead to a potential
      a limited company, set up by a national port authority,                adverse effect on trade between Member States of the
      is given responsibility for and does actually carry out,               Union ?
      pursuant to an administrative concession from that
      authority, the task of providing, with exclusive rights
      within a harbour sector specializing in loading and
      unloading petroleum products, an ' anti-pollution
      protection ' service, and where that company collects
      the relevant fee, which is set unilaterally by the port
      authority on the basis of the vessel 's tonnage and the          Action brought on 7 November 1995 by the French
      quantity of the product loaded or unloaded, from users                     Republic against the European Parliament
      of that service , that is to say vessels which dock at the                               ( Case C-345/95 )
      wharves to carry out those operations ?
                                                                                                 ( 95/C 351 / 11 )
( B ) Having regard to the situation set out in question ( A )
      and if there is a dominant position within the common            An action against the European Parliament was brought
      market or a substantial part of it, is there an abuse of         before the Court of Justice of the European Communities on
      the aforesaid 'dominant position' within the meaning             7 November 1995 by the French Republic, represented by
      of Article 86 of the EC Treaty, in particular of                 Marc Perrin de Brichambaut and Denys Wibaux, acting as
      subparagraphs ( a ), ( c ) and ( d ) and are there related       Agents, with an address for service in Luxembourg at the
      'practices ', when an undertaking holding the exclusive          French Embassy, 9 Boulevard du Prince Henri .
      concession for a service ( even though on the basis of a
      decision of the authority granting the concession )              The applicant claims that the Court should :
      charges fees :
                                                                       — declare null and void the Decision of the European
      — which are compulsory and independent of the                         Parliament of 20 September 1995 fixing the timetable of
           provision of an efficient surveillance and/or                    work for 1996 ,
           intervention service, merely because a vessel berths
           in a mooring in the Porto Petroli and loads/unloads         — order the defendant to pay the costs .
           goods, whether petroleum products or chemicals
           and petrochemicals, according to the contractual
           terms imposed,                                              Pleas in law and main arguments adduced in support:
      — the amount of which depends solely on the tonnage              — breach of the Decision taken by common agreement
           of the vessel, the amount of the product and also , in           between the Representatives of the Governments of the
           the event of any actual intervention, the duration               Member States on the location of the seats of the
           thereof, but not on the product's nature, quality or             institutions and of certain bodies and departments of the
           capacity to pollute,                                             European Communities, adopted in Edinburgh on