CELEX: C1998/137/23
Language: en
Date: 1998-05-02 00:00:00
Title: Reference for a preliminary ruling by the Tribunale Ordinario, Milan, by order of that court of 12 February 1998 in the case of Butterfly Music Srl against Carosello Edizioni Musicali e Discografiche Cemed Srl and FIMI, Federazione Industria Musicale Italiana (Case C-60/98)

2.5.98               EN                 Official Journal of the European Communities                                   C 137/11
Court of First Instance of the European Communities in             Reference for a preliminary ruling by the Amtsgericht,
Case T-178/94 between Associación Telefónica de                    Heinsberg, by decision of that court of 13 February 1998
Mutualistas and the Commission of the European                     in the proceedings for an administrative fine against Josef
Communities was brought before the Court of Justice of                                         Corsten
the European Communities on 26 February 1998 by
                                                                                           (Case C-58/98)
Associación Telefónica de Mutualistas (ATM), represented
by Juan Eugenio Blanco Rodríguez and Bernardo Vicente                                       (98/C 137/22)
HernaÂndez Bataller, of the Madrid Bar, with an address
for service in Luxembourg at the Chambers of Loesch &
Wolter, 11, rue Goethe.
                                                                   Reference has been made to the Court of Justice of the
The appellant claims that the Court should:                        European Communities by decision of the Amtsgericht
                                                                   (Local Court), Heinsberg, of 13 February 1998, received
                                                                   at the Court Registry on 27 February 1998, for a
1. quash the judgment of the Court of First Instance (1);
                                                                   preliminary ruling in the proceedings for an administrative
                                                                   fine against Josef Corsten on the following question:
2. uphold in their entirety the claims put forward at first
    instance.
                                                                   Is it compatible with Community law on the freedom to
Pleas in law and main arguments adduced in support:
                                                                   provide services for a Netherlands undertaking, which in
                                                                   the Netherlands satisfies all the conditions for carrying on
Ð lack of jurisdiction of the Court of First Instance on
                                                                   a commercial activity, to have to satisfy further, albeit
    the ground of exceeding the bounds of its jurisdiction:
                                                                   purely formal, conditions (in this case entry in the register
    the contested judgment makes a number of statements
                                                                   of manual trades) in order to carry on that activity in
    concerning Spanish law which, in the view of the
                                                                   Germany?
    appellants, are neither lawful or referred to in the
    pleadings, nor is it open to the Court of First Instance
    to give such reasons for judgment,
Ð irregularities in the procedure before the Court of First
    Instance which are to the detriment of the appellant's
    interests (inadequate statement of reasons),
                                                                   Reference for a preliminary ruling by the Tribunale
Ð breach of Community law by the Court of First                    Ordinario, Milan, by order of that court of 12 February
    Instance in that it misinterpreted the fourth paragraph        1998 in the case of Butterfly Music Srl against Carosello
    of Article 173 of the EC Treaty: ATM does have an              Edizioni Musicali e Discografiche Cemed Srl and FIMI,
    interest in bringing proceedings inasmuch as the                           Federazione Industria Musicale Italiana
    categorisation of the financial assistance provided by                                 (Case C-60/98)
    the Kingdom of Spain in favour of CompanÄia
    Telefónica de EspanÄa SA (TESA) as State aid                                            (98/C 137/23)
    incompatible with the common market, and any order
    to repay it, undoubtedly benefits ATM, as an entity
    acting on behalf of its members, since the reduced             Reference has been made to the Court of Justice of the
    social charges would have to be reimbursed in                  European Communities by an order of the Tribunale
    accordance with Spanish law, that is to say, first by          Ordinario, Milan, of 12 February 1998, which was
    TESA to the Spanish public authorities, in order for           received at the Court Registry on 2 March 1998, for a
    the latter to pay the Institución Telefónica de                preliminary ruling in the case of Butterfly Music Srl
    Previsión, and finally to benefit those of ATM's               against Carosello Edizioni Musicali e Discografiche
    members on whose behalf ATM acted,                             Cemed Srl and FIMI, Federazione Industria Musicale
                                                                   Italiana, on the following question.
Ð breach of Community law by the Court of First
    Instance, inasmuch as the interpretation was erroneous
    and the judgment was inconsistent with the applicant's
                                                                   Whether the interpretation of Article 10 of Council
    submissions concerning the possible infringement of
                                                                   Directive 93/98/EEC of 29 October 1993 harmonising the
    Article 92 of the EC Treaty: in order to ascertain
                                                                   term of protection of copyright and certain related
    whether or not trade had been affected, there should
                                                                   rights (1), in particular where it provides for the adoption
    first have been a finding as to whether or not aid had
                                                                   of the necessary provisions to protect in particular
    been granted contrary to Article 92 of the EC Treaty
                                                                   acquired rights of third parties', is compatible with
    before deciding that the appellant did not have an
                                                                   Article 17(4) of Law No 52 of 6 February 1996, as
    interest in bringing proceedings, which the appellant
                                                                   amended by Law No 650 of 23 December 1996.
    considers to be an inconsistency in the contested
    judgment.
                                                                   (1) OJ L 290, 24.11.1993, p. 9.
( ) OJ C 55, 20.2.1998, p. 25.
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