CELEX: C1996/108/05
Language: en
Date: 1996-04-13 00:00:00
Title: Appeal brought on 3 February 1996 by Giovanni Battista Abello and Others and Gerhard Riesch against the jugdment delivered on 7 December 1995 by the Fourth Chamber of the Court of First Instance of the European Communities in Joined Cases T-544/93 and T-566/93 between Giovanni Battista Abello and Others and Gerhard Riesch and the Commission of the European Communities, supported by the Council of the European Union (Case C-30/96 P)

13 . 4 . 96        I EN                      Official Journal of the European Communities                                   No C 108 /3
               JUDGMENT OF THE COURT                                    Union, was brought before the Court of Justice of the
                       ( Third Chamber )                                European Communities on 3 February 1996 by Giovanni
                                                                        Battista Abello and Others and Gerhard Riesch, represented
                     of 8 February 1996                                 by Michele Tamburini and Franco Colussi , Avvocati , with
in Case C-202/94 ( reference for a preliminary ruling                   an address for service in Luxembourg at the Chambers of
made by the Gerechtshof, 's-Hertogenbosch ): Criminal                   Franco Colussi at 36 Rue de Wiltz .
     proceedings against Godefridus van der Feesten ( 1 )
(Council Directive 79/409/EEC on the conservation of wild               The appellants claim that the Court should :
birds — Scope — Protected species — Application of the
Directive to a subspecies not occurring naturally in the wild           — set aside the judgment of the Court of First Instance of
       in the European territory of the Member States)                      7 December 1995 in Joined Cases T-544/93 and
                           ( 96/C 108 /04 )                                 T-566/93 and proceed to judgment in those cases or
                                                                            refer them back to the Court of First Instance for a
                (Language of the case: Dutch)                               judgment granting the forms of order sought at first
                                                                            instance , namely that the court should :
(Provisional translation; the definitive translation will be
          published in the European Court Reports)                          — order the Commission to give precise details of the
                                                                                headings, surveys and prices on the basis of which it
In Case C-202/94 : reference to the Court under Article 177
                                                                                determined the basic exchange rates used in order to
                                                                                fix the weightings refèrred to in Regulations ( EEC,
of the EC Treaty by the Gerechtshof ( Regional Court                            Euratom, ECSC ) No 3761 /92 ('), ( EEC , Euratom,
of Appeal ), ' s-Hertogenbosch ( the Netherlands ), for a                       ECSC ) No 3765/92 ( 2 ) and ( EEC, Euratom, ECSC )
preliminary ruling in the criminal proceedings before that                      No 3766/92 ( 3 ),
court against Godefridus van der Feesten — on the
interpretation of Council Directive 79/409/EEC of 2 April
 1979 on the conservation of wild birds ( OJ 1979 L 103 , p . 1 )
                                                                            — make an assessment of the suitability of those
— the Court (Third Chamber ), composed of: J. -P.
                                                                                headings, surveys and prices, and of the conclusions
                                                                                drawn from them in order to fix the abovementioned
 Puissochet, President of the Chamber, J. C. Moitinho
                                                                                weightings ,
 de Almeida and C. Gulmann ( Rapporteur), Judges;
 N. Fennelly, Advocate-General ; H. von Holstein, Deputy
 Registrar, for the Registrar, has given a judgment on                      — declare that the applicants' remuneration, as given in
 8 February 1996 , the operative part of which is as                            the salary slips for December 1992 et seq., does not
 follows :                                                                      correspond to what is owed to them and that
                                                                                Regulations ( EEC, Euratom, ECSC ) No 3761 /92 ,
                                                                                ( EEC, Euratom, ECSC ) No 3765/92 and ( EEC,
 Council Directive 79/409/EEC of 2 April 1979 on the                            Euratom, ECSC ) No 3766/92 therefore do not apply
 conservation of wild birds applies to bird subspecies which                    to them,
 occur naturally in the wild only outside the European
 territory of the Member States if the species to which they
                                                                            — declare those salary slips to be unlawful and annul
 belong or other subspecies of that species occur naturally in                  them,
 the wild within the terrirtory in question .
                                                                             — annul the Commission's decision of 12 August 1993
 (') OJ No C 233 , 20 . 8 . 1994 .
                                                                                rejecting the complaint submitted by Gerhard Riesch
                                                                                under Article 90 ( 2 ) of the Staff Regulations,
                                                                             — order any measure which may be considered
                                                                                 appropriate as a result,
 Appeal brought on 3 February 1996 by Giovanni Battista
 Abello and Others and Gerhard Riesch against the jugdment                   — order the Commission to pay the sums due and to
 delivered on 7 December 1995 by the Fourth Chamber of                           pay compensation for any loss ( including loss
 the Court of First Instance of the European Communities in                      resulting from currency depreciation in the
 Joined Cases T-544/93 and T-566/93 between Giovanni                             intervening period from the due date of payment ),
 Battista Abello and Others and Gerhard Riesch and the                           together with the costs of the case, to be calculated by
  Commission of the European Communities, supported by                           reference to the maximum permitted under the
              the Council of the European Union                                  Italian legal fee structure currently in force .
                         ( Case C-30/96 P)
                             ( 96/C 108/05 )                             Pleas and main arguments adduced in support:
  An appeal against the judgment delivered on 7 December                 The appellants challenge the judgment of the Court of First
  1995 by the Fourth Chamber of the Court of First Instance              Instance on the ground that it constitutes a manifest
  of the European Communities in Joined Cases T-544/93 and               infringement of Community law .
  T-566/93 , between Giovanni Battista Abello and Others
  and Gerhard Riesch and the Commission of the European                  The judgment of the Court of First Instance is contrary to
  Communities, supported by the Council of the European                  the fundamental principles of legal procedure , such as the
 ---pagebreak--- No C 108 /4              EN                   Official Journal of the European Communities                                      13 . 4 . 96
right to a fair hearing, the right of each party to be heard, the        impervious merely in theory, or impervious in theory and in
principle of the equality of both parties before the court and           practice ?
the obligation to give an adequate statement of reasons . In
any event, the Court of First Instance failed :                          (') OJ 1985 L 15 , p . 16 .
— to allow the appellants access to the data on the basis of
       which the Commission determined the basic exchange
       rates used in order to fix the weightings referred to in the      Reference for a preliminary ruling from the Tribunale Civile
       Regulations at issue and, consequently, to enable the             e Penale di Venezia by order of that court of 2 February
       appellants to submit observations in that regard ,                         1996 in the case of Immobiliare S.I.F. SpA v.
                                                                                   Amministrazione delle Finanze dello Stato
— to make an accurate and impartial examination of all the
       information relevant to the cases,                                                           ( Case C-42/ 96 )
                                                                                                      ( 96/C 108/07
— to take into account many of the arguments adduced by
       the appellants,                                                   Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Tribunale Civile
— to give reasons — or, at any rate, to give adequate                    e Penale di Venezia ( Civil and Criminal Court, Venice ) of
       reasons — for its own decision, which is based on                 2 February 1996 , which was received at the Court Registry
       assertions which not only disregard the points made by            on 13 February 1 996 , for a preliminary ruling in the case of
       the appellants, but are also, in more than one instance,          Immobiliare S.I. F. SpA v. Amministrazione delle Finanze
       tautologous and/or subjective .                                   dello Stato, in which the Court is requested to :
The Court of First Instance has not only failed to comply                'give a ruling on the question concerning the application of
with obligations specifically incumbent upon it, but has                 Articles 4, 7 and 10 of Council Directive 69/335/EEC of
also, by making such a ruling, enabled a factual situation to            17 July 1969 (^ concerning indirect taxes on the raising of
persist which is contrary to Community law.                              capital, as amended by Council Directive 73/80/EEC of
                                                                         9 April 1973 ( 2 ) in the case brought by the plaintiff and on
(') OJ No L 383 of 29 . 12 . 1992 , p . 1 .                              whether the application of those provisions precludes the
( 2 ) Ibid ., p . 9 .                                                    charging of any other taxation, in particular the taxes
( 3 ) Ibid ., p . 11 .                                                   charged by the Italian Registry Office, including Invim
                                                                         (Imposta communale sull'incremento di valore dei beni
                                                                         immobili — municipal tax on the increase in value of
                                                                         immovables ); if so, is the applicable rate 2 % or the reduced
                                                                         rate ?'
Reference for a preliminary ruling from the Landgericht
Hamburg by order of that court of 4 October 1995 in the                  (') OJ, English Special Edition 1969 ( II ), p . 412 .
       case of V.A.G. Hàndlerbeirat e . V. v. SYD-Consult                ( 2 ) OJ 1973 L 103 , p . 15 .
                           ( Case C-41 /96 )
                             ( 96/C 108 /06 )
                                                                         Action brought on 15 February 1996 by the Federal
Reference has been made to the Court of Justice of the                   Republic of Germany against the Commission of the
European Communities by an order of the Landgericht                                           European Communities
( Regional Court) Hamburg of 4 October 1995 , which was                                               Case C-46/96 )
received at the Court Registry on 13 February 1996 , for a
preliminary ruling in the case of V.A.G. Hàndlerbeirat e.V.                                           ( 96/C 108/08 )
v . SYD-Consult on the following question:
                                                                         An action against the Commission of the European
                                                                         Communities was brought before the Court of Justice of the
in the light of the judgment of the Court of Justice of
                                                                         European Communities on 15 February 1 996 by the Federal
 13 January 1994 in Case C-376/92 Metro SB-Grotëmàrkte
v. Cartier, is it compatible with Community law, in
                                                                         Republic of Germany, represented by Ernst Rôder,
                                                                         Ministerialrat in the Federal Ministry of Economic
particular with the principle of the unrestricted and uniform            Affairs .
application of Community law, if German national law
applies in such a way that proceedings for an injunction                 The applicant claims that the Court should :
restraining the distribution of products covered by a
selective distribution system exempted from application of               — annul Decision (K 95 ) 3319 final of the Commission of
Article 85 ( 1 ) by a block exemption of the Commission of                     29 November 1995 concerning fiscal aid in the field of
the European Communities (') may be brought against                            depreciation favouring German undertakings ( J ),
outsiders who obtain those products outside such a selective
distribution system only if — in addition to satisfying the              — order the defendant to pay the costs .
 further requirements of Paragraph 1 of the Gesetz gegen den             Pleas in law and main arguments adduced in support:
 unlauteren Wettbewerb ( Law against Unfair Competition,
UWG ) — the selective distribution system is impervious                  Infringement of the EC Treaty ( the constituent criteria
 ( liickenlos ), specific reference being made to the alternative        laid down in Article 92 ( 1 ) of the EC Treaty are not
 of the selective distribution system being required to be               fulfilled ):