CELEX: C1996/180/41
Language: en
Date: 1996-06-22 00:00:00
Title: Action brought on 17 April 1996 by Kingdom of Spain against the Commission of the European Communities (Case C-123/96)

22 . 6 . 96           EN                    Official Journal of the European Communities                                   No C 180/ 19
 The request for a preliminary ruling submitted by the                  Gerichtshof ( Austrian Supreme Court) of 11 March 1996 ,
 Pretura Circondariale di Ivrea, Sezione di Strambino, by an            which was received at the Court Registry on 16 April 1996 ,
 order of 14 December 1995 is inadmissible.                             for a preliminary ruling in the case of Stephen Austin
                                                                        Saldanha and MTS Securities Corporation v . Hiross
.(') OJ No C 46 , 17 . 2 . 1996 .                                       Holding Aktiengesellschaft on the following question :
                                                                        Where proceedings are brought before an Austrian civil
                                                                        court by a British national who is also a national of the
                                                                        United States of America, who resides in that country ( in
 Reference for a preliminary ruling from the Finanzgericht              Florida ) and does not have any residence or assets in Austria ,
 Dusseldorf — Fourth Chamber — by order of that court of                against a joint-stock company whose registered office is in
 26 March 1996, in the case of Fruko-Handelsgesellschaft                Austria, by which he seeks to restrain that company from
               mbH v. Hauptzollamt Emmerich                             selling or otherwise transferring shares in specified
                          ( Case C-120/96 )                             subsidiary companies to its Italian subsidiary company, or
                                                                        to subsidiaries of that company established in Italy, without
                            ( 96/C 180/39 )                             the approval of a qualified majority of three quarters of the
                                                                        general meeting of shareholders or, in the alternative, of a
 Reference has been made to the Court of Justice of the                 simple majority of the general meeting of shareholders, does
 European Communities by an order of the Finanzgericht                  the fact that he has been ordered by the competent Austrian
 ( Finance Court ) Dusseldorf, Fourth Chamber, of 26 March              court ( of first instance ), on application by the defendant
 1 996 , which was received at the Court Registry on 15 April           company pursuant to paragraph 57 ( 1 ) of the Austrian Code
 1996 , for a preliminary ruling in the case of                         of Civil Procedure, to provide security for costs in a specified
 Fruko-Handelsgesellschaft           mbH      v.    Hauptzollamt        sum constitute discrimination on grounds of nationality
 Emmerich on the following questions :                                  contrary to the first paragraph of Article 6 of the EC
                                                                        Treaty ?
 1 . What degree of severity is required before there can be
      any finding of irreparable damage within the meaning of
      the second paragraph of Article 244 of Regulation
      ( EEC ) No 2913/92 0 ?
 2 . When is there damage within the meaning of the second              Action brought on 17 April 1996 by Kingdom of Spain
                                                                          against the Commission of the European Communities
      paragraph of Article 244 of Regulation ( EEC )
      No 2913 /92 ?                                                                             ( Case C-123 /96 )
                                                                                                  ( 96/C 180/41 )
 3 . What degree of probability must be held to exist for it to
      be found that there is a possibility of the occurrence of         An action against the Commission of the European
      the irreparable damage referred to in the second                  Communities was brought before the Court of Justice of the
      paragraph of Article 244 of Regulation ( EEC )                    European Communities on 17 April 1 996 by Kingdom of
      No 2913/92 ?
                                                                        Spain, represented by Gloria Calvo Diaz, Abodago del
                                                                        Estado, with an address for service in Luxembourg at the
 4 . If the answer to Question 1 is that sufficiently severe            Spanish Embassy, 4—6 Boulevard E. Servais .
      damage is constituted by the mere possibility of a
      winding-up petition based on the disputed but not                 The applicant claims that the Court should:
      suspended decision of the customs authority being
      presented with prospects of success in view of the tax            1 , annul the following Articles of Commission Directive
      debtor's       financial         circumstances,      should            96/2/EC of 16 January 1996 ( ! ):
      implementation of the decision be suspended if a
      winding-up petition could be presented even in the                     — Article 1 ( 3 ) in so far as follows :
      absence of the customs authority's decision ?
                                                                                 — the second indent of Article 3 ( a ) inserted into
 (!) OJ No L 302 , 1992 , p . 1 .                                                   Directive 90/388/EEC ( 2 ),
                                                                                 — the fifth ( last) indent of Article 3 ( a ) inserted into
                                                                                    Directive 90/388/EEC ,
                                                                                 — Article 3          (c)   inserted    into      Directive
 Reference for a preliminary ruling from the Oberster                               90/388/EEC,
 Gerichtshof by order of that court of 11 March 1996, in the
 case of Stephen Austin Saldanha and MTS Securities                              — Article 3          (d)   inserted    into      Directive
       Corporation v. Hiross Holding Aktiengesellschaft                             90/388 /EEC ,
                          ( Case C-122/96 )
                                                                             — Articles 2 ( 1 ) and 2 ( 2 ), and
                             ( 96/C 180/40 )
                                                                             — Article 4 ;
 Reference has been made to the Court of Justice of the
 European Communities by an order of the Oberster                       2 , order the Commission to pay the costs .
 ---pagebreak---  No C 180/20              EN j                 Official Journal of the European Communities                                      22 . 6 . 96
 Pleas in law and main arguments                                                38 ( 1 ) where the issuing court has already ordered that
                                                                                provisional execution of the judgment against the
 Lack of competence of the Commission ( see Case C-ll/96,                      judgment debtor is to be conditional on the provision of
 OJ No C 95 , 1996, p. 5 ).                                                     certain security to the judgment debtor.
 Misuse, of powers: the articles added ex novo to Directive
 90/388/EEC by Directive 96/2/EC make substantive                         Interrelationship between Article 38 (2) and the issuing
 changes to the existing system without observing either the              court's order for security
 division of powers between the Community institutions and
 in relation to the Member State or the procedure and the
 timetable laid down by the Council for drawing up the                    3 . Whether or not the Article 37(1 ) appellate court has the
 necessary provisions to enable the obligations flowing from                   power to consider whether the security or guarantee
 the full liberalization of the mobile and personal                            already provided by the judgment creditor is an
 communications sector to be imposed upon the Member                           adequate response to the order of the issuing court and
 States .                                                                      take account of any inadequacy in deciding whether to
                                                                               make an order under Article 38 ( 2 ), and
 (') OJ No L 20, 26 . 1 . 1996 , p . 59 .
 ( 2 ) OJ No L 192 , 24 . 7 . 1990, p . 10.
                                                                          4 , whether or not the Article 37(1 ) appellate court has the
                                                                               power, under Article 38 ( 2 ), to make enforcement
                                                                               conditional on the provision of security or guarantee
                                                                               greater than that ordered by the issuing court pending a
                                                                               final determination of the appeal proceedings in the
                                                                               issuing country .
Reference for a preliminary ruling by Her Majesty's Court
of Session in Scotland, by decision of that court of 29 March
 1996, in the case of Marie Brizard et Roger International SA             Time of exercise of Article 38 (1 ) power to sist or stay
against William Grant & Sons ( International ) Ltd and
                                 Another
                            Case C- 1 26/96                              5 . Whether or not the power to sist or stay the proceedings
                             ( 96/C 180/42 )                                   under Article 38 ( 1 ) may be exercised by an Article 37
                                                                               ( 1 ) appellate court only on dismissing the Article 37 ( 1 )
                                                                               appeal (regardless of whether a further appeal on a point
Reference has been made to the Court of Justice of the
European Communities by a decision of Her Majesty's                            of law may be made^ to the court designated under
                                                                              Article 37 ( 2 )) or instead may be exercised by the Article
Court of Session in Scotland of 29 March 1996, which was
                                                                               37(1 ) appellate court before it reaches any final decision
received at the Court Registry on 18 April 1996, for a                        on the merits of the appeal before it.
preliminary ruling in the case of Marie Brizard et Roger
International SA against William Grant & Sons
( International ) Ltd and another, on the following
questions :                                                              Interrelationship between Article 38 (1 ) and Article 34
Interrelationship between Article 38 (l )( l ) and Article 38
(2)
                                                                         6 . Whether, when deciding whether or not to exercise the
                                                                              power given under Article 38 ( 1 ), the Article 37 ( 1 )
                                                                              appellate court may properly take into consideration,
1 , ( a ) Whether or not, in a situation where adequate
            protection for the judgment debtor can be made
            available, Article 38 is to be construed to make                      ( i ) only those matters set out in Articles 27 and 28 ;
            available to the Article 37 ( 1 ) appellate court both
            the Article 38 ( 1 ) power to sist or stay the                      ( ii ) those matters which have arisen due to a material
            proceedings and the Article 38 ( 2 ) power to make
                                                                                        change of circumstances since the order for
            enforcement of a judgment conditional on such
                                                                                        provisional execution was pronounced;
            security as the Court shall determine, and
       ( b) If Question ( 1 ) ( a ) is answered in the affirmative,           ( iii ) matters of which the respondents could not have
            whether the exercise of one of these powers is to be                        been aware at the time the order for provisional
            preferred to that of the other.                                             execution was pronounced;
Interrelationship between Article 38 (1 ) and the issuing                     ( iv ) matters of which the respondents were unaware at
court's order for security                                                              the time of the order for provisional execution,
                                                                                        whether or not they might reasonably have
2 . Whether or not the Article 37(1 ) appellate court has the                           anticipated them, and which were accordingly not
       power to order a sist or stay in proceedings under Article                       presented to the issuing court;