CELEX: C1998/209/33
Language: en
Date: 1998-07-04 00:00:00
Title: Reference for a preliminary ruling from the Bundesgerichtshof by order of that court of 5 March 1998 in the case of Union Deutsche Lebensmittelwerke GmbH v. Schutzverband gegen Unwesen in der Wirtschaft e.V. (Case C-101/98)

4.7.98                EN                 Official Journal of the European Communities                                      C 209/17
The applicant claims that the Court should:                         Communities on 9 April 1998 by the Kingdom of Sweden,
                                                                    represented by Lotty Nordling, Rättschef, with an address
                                                                    for service in Luxembourg at the Swedish Embassy, 2 Rue
Ð annul Commission Decision SG(98) D/1124 of                        H. Heine, Luxembourg.
     9 February 1998 in its entirety on the grounds of
     breach of the EC Treaty and breach of essential
                                                                    The applicant claims that the Court should:
     procedural requirements and misuse of powers by the
     Commission,
                                                                    Ð pursuant to Article 173, declare invalid the 1998 TAC
                                                                         Regulation (EC No 45/98) (1), in so far as the
Ð order the Commission of the European Communities                       regulation provides for the allocation of cod in
     to pay the costs.                                                   zone IIIbcd, and
                                                                    Ð order the council to pay the Kingdom of Sweden's
Pleas in law and main arguments adduced in support:                      costs.
Breach of the EC Treaty, breach of essential procedural             Pleas in law and main arguments adduced in support:
requirements and misuse of powers: The aid which is the
subject of the proceedings is to be regarded as existing aid,       Article 121(1) of the Act concerning the conditions of
since the Commission failed to express its opinion on the           accession of the Republic of Austria, the Republic of
proposed aid within a reasonable time. The opening of a             Finland and the Kingdom of Sweden and the adjustments
formal examination procedure therefore conflicts with the           to the Treaties on which the European Union is founded,
Treaty, since the legally incorrect classification as a newly       as worded according to Council Decision 95/1/EC,
notified aid is thereby effected and the application of the         Euratom, ECSC (2), should be annulled:
prohibition of implementation under Article 93(3)
expressly stated. The applicant considers that by the letter
of 19 March 1997 at the latest it transmitted in full to the        For the year 1998 a quantity of 86 547 tonnes of
Commission all the information which the Commission                 Community cod is available for fishing in Community
required to be able to express an opinion on the                    waters in zone IIIb, c, d. According to the conditions laid
compatibility of the measure with the Treaty; none of the           down in Article 121(1) of the Act of Accession, Sweden
later questions' of the Commission were in any way                 should have been allocated 29 921 tonnes (0.35037 
material for the decision, but evidently served only to             50 000 + 0.4  36 947  400  1 976) of that amount.
delay a decision.                                                   This is taking into account the fact that the transfer of
                                                                    400 tonnes to Poland under the agreement between the
                                                                    Community and Poland has been deducted from Sweden's
The Commission asserts that it is entitled to oppose the            quota and that in 1998 1 976 tonnes of Sweden's quota is
implementation of the measures after proper notification            to be transferred to other Member States in accordance
by the Member State under the Lorenz procedure'. That              with the agreement made in connection with the signing
opposition is evidently intended to have the consequence            of the EEA Agreement. Instead, Sweden has been allocated
that thereafter (ex tunc or ex nunc?) there is no existing          under Regulation (EC) No 45/98 29 246 tonnes, which is
aid. That follows from the final paragraph of the                   675 tonnes less than results from the Act of Accession.
Background' section of the contested decision and from
the last sentence of Point 2.1 and the last sentence of             (1) Council Regulation (EC) No 45/98 of 19 December 1997
Point 5.1 of the Commission's Guidelines'. In the                      fixing, for certain fish stocks and groups of fish stocks, the
applicant's opinion, there is no such right of opposition;              total allowable catches for 1998 and certain conditions under
moreover, even supposing that it did exist as stated in the             which they may be fished (OJ L 12, 19.1.1998, p. 1).
                                                                    (2) OJ L 1, 1.1.1995, p. 1.
Commission's Guidelines', it was exercised too late, and
is therefore of no effect.
                                                                    Reference for a preliminary ruling from the Bundes-
                                                                    gerichtshof by order of that court of 5 March 1998 in the
Action brought on 9 April 1998 by the Kingdom of                    case of Union Deutsche Lebensmittelwerke GmbH v.
     Sweden against the Council of the European Union                   Schutzverband gegen Unwesen in der Wirtschaft e.V.
                       (Case C-100/98)                                                       (Case C-101/98)
                                                                                               (98/C 209/33)
                        (98/C 209/32)
                                                                    Reference has been made to the Court of Justice of the
An action against the Council of the European Union was             European Communities by an order of the 1st Civil
brought before the Court of Justice of the European                 Chamber of the Bundesgerichtshof (Federal Court of
 ---pagebreak--- C 209/18              EN                  Official Journal of the European Communities                                     4.7.98
Justice) of 5 March 1998, which was received at the Court            date of birth which results from the first information given
Registry on 9 April 1998, for a preliminary ruling in the            by the insured person to the social security institution of
case of Union Deutsche Lebensmittelwerke GmbH v.                     the Member State in question or to the employer in that
Schutzverband gegen Unwesen in der Wirtschaft e.V. on                State (in so far as he is under a duty to notify the social
the following questions:                                             security institution)?
(a) Is Article 3(1) of Council Regulation (EEC) No 1898/
     87 (1) of 2 July 1987 on the protection of
     designations used in marketing of milk and milk
     products, read in conjunction with Article 3(2) of
     Council Directive 89/398/EEC (2) of 3 May 1989 on
                                                                     Reference for a preliminary ruling from the Oberster
     the approximation of the laws of the Member States
                                                                     Gerichtshof by order of that court of 31 March 1998 in
     relating to foodstuffs intended for particular
                                                                     the case of Johann Buchner and 12 others v. Sozialver-
     nutritional uses, to be interpreted as meaning that a
                                                                                      sicherungsanstalt der Bauern
     milk product, in which milk fat has been replaced on
     dietary grounds by vegetable fat, cannot be described                                  (Case C-104/98)
     as cheese?                                                                               (98/C 209/35)
(b) If Question (a) is answered in the affirmative, is it
     significant that the designation dietary cheese                Reference has been made to the Court of Justice of the
     (dietary soft cheese) containing vegetable oil for a fat-       European Communities by an order of the Oberster
     modified diet' is complemented by additional                    Gerichtshof (Supreme Court, Austria) of 31 March 1998,
     descriptive material on the packaging, such as this            which was received at the Court Registry on 14 April
     dietary cheese is rich in polyunsaturated fats¼' or             1998, for a preliminary ruling in the case of Johann
     this dietary cheese is ideal for a cholesterol-conscious       Buchner and 12 others v. Sozialversicherungsanstalt der
     lifestyle¼'?                                                    Bauern on the following questions:
(1) OJ L 182, 3.7.1987, p. 36.                                       1. Is Article 7(1)(a) of Directive 79/7/EEC (1) to be
(2) OJ L 186, 30.6.1989, p. 27.                                          interpreted as allowing Member States to determine
                                                                         different pensionable ages only for pension rights
                                                                         which are granted exclusively on the basis of the risk
                                                                         of old age, or is that derogation applicable also to
                                                                         pension rights which are granted only from a specified
Reference for a preliminary ruling by the Bundessozial-                  age but in addition are granted only because of
gericht by order of that court of 17 February 1998 in the                invalidity (incapacity for work)?
case of Ibrahim Kocak against Landesversicherungsanstalt
               Oberfranken und Mittelfranken                         2. Is Article 7(1)(a) and (2) of Directive 79/7/EEC to the
                       (Case C-102/98)                                   interpreted as allowing a Member State to alter a
                                                                         previously existing identical provision on pensionable
                         (98/C 209/34)                                   age (in this case completion of the 55th year for men
                                                                         and women) after the end of the transposition period,
Reference has been made to the Court of Justice of the                   in such a way that a different pensionable age for men
European Communities by order of the Thirteenth Senate                   and women (in this case completion of the 57th year
of the Bundessozialgericht (Federal Social Court) of                     for men and the 55th year for women) is now
17 February 1998, received at the Court Registry on                      determined?
9 April 1998, for a preliminary ruling in the case of
Ibrahim      Kocak     against    Landesversicherungsanstalt         (1) OJ L 6, 10.1.1979, p. 24.
(Regional Insurance Office) Oberfranken und Mittel-
franken on the following question:
Is the law relating to the association between the
European Economic Community and Turkey (in particular
Article 9 of the Agreement establishing an Association
between the European Economic Community and Turkey                   Appeal brought on 14 April 1998 by Günther Bühring
of 12 September 1963, Article 37 of the Additional                   against the judgment delivered on 4 February 1998 by the
Protocol to that agreement of 23 November 1970,                      First Chamber of the Court of First Instance of the
Article 10 of Decision No 1/80 of the Council of                     European Communities in Case T-246/93 between
Association of 19 September 1980 and Article 3(1) of                 Günther Bühring and the Council of the European Union
Decision No 3/80 of the Council of Association of                        and the Commission of the European Communities
19 September 1980) to be interpreted as not permitting                                     (Case C-105/98 P)
the legislature of a Member State to adopt rules under                                        (98/C 209/36)
which the applicable date of birth for use in the insurance
number allocated to an insured person and for the grant
of old-age pension is in principle, in the case of Turkish           An appeal against the judgment delivered on 4 February
migrant workers also Ð without regard to particular                  1998 by the First Chamber of the Court of First Instance
characteristics of the Turkish register of civil status Ð the        of the European Communities in Case T-246/93 between