CELEX: C2001/079/36
Language: en
Date: 2001-03-10 00:00:00
Title: Case C-34/01 to C-38/01: Reference for a preliminary ruling by the Corte Suprema di Cassazione — Sezione Tributaria by order of that court of 12 July 2000 in the case of Enirisorse SpA against Ministero delle Finanze

10.3.2001              EN                  Official Journal of the European Communities                                        C 79/19
Reference for a preliminary ruling by the Hof van Beroep              The Applicant claims that the Court should:
te Brussel by order of 15 January 2001 in the case of NV
               Robelco and NV Robeco Groep                            —     declare that by failing to notify the laws, regulations
                                                                            and administrative provisions necessary to comply with
                                                                            European Parliament and Council Directive 98/4/EC (1) of
                         (Case C-23/01)                                     16 February 1998 amending Directive 93/38/EEC (2)
                                                                            coordinating the procurement procedures of entities
                                                                            operating in the water, energy, transport and telecom-
                         (2001/C 79/34)                                     munications sectors or by failing to adopt the measures
                                                                            to comply with it, the United Kingdom has failed to fulfil
                                                                            its obligations under Article 2(1) of the said Directive;
Reference has been made to the Court of Justice of the
European Communities by order of 15 January 2001 by the
                                                                      —     order the United Kingdom to pay the costs.
Hof van Beroep te Brussel (Court of Appeal, Brussels), which
was received at the Court Registry on 22 January 2001, for a
preliminary ruling in the case of NV Robelco and NV Robeco
Groep on the following questions:                                     Pleas in law and main arguments
—    Must Article 5(5) of First Council Directive 89/104/EEC          Article 249 EC (ex Article 189 of the EC Treaty), under which
     of 21 December 1988 to approximate the laws of the               a directive shall be binding, as to the result to be achieved,
     Member States relating to trade marks be interpreted             upon each Member State carries by implication an obligation
     as meaning that the possibility laid down therein for            on the Member States to observe the period for compliance
     protection by Member States can be afforded only against         laid down in the directive. That period expired on 16 February
     the use of a sign which is identical to the trade mark or        1999 without the United Kingdom having enacted the pro-
     can it also be afforded in that case against the use of a        visions necessary to comply with the directive referred to in
     sign similar to the trade mark?                                  the conclusions of the Commission.
—    If that protection can also be afforded against a sign           (1) OJ L 101, 1.4.1998, p. 1.
     similar to the trade mark, does unlawful similarity within       (2) OJ L 199, 9.8.1993, p. 84.
     the meaning of the abovementioned article require that
     confusion can arise as a consequence or is likelihood of
     association sufficient, in the sense that in the minds of
     those confronted by the trade mark and the sign one
     will suggest the other without any confusion resulting
     therefrom, or must no likelihood of association at all
     exist in this respect?
                                                                      Reference for a preliminary ruling by the Corte Suprema
                                                                      di Cassazione — Sezione Tributaria by order of that court
                                                                      of 12 July 2000 in the case of Enirisorse SpA against
                                                                                          Ministero delle Finanze
                                                                                         (Case C-34/01 to C-38/01)
                                                                                               (2001/C 79/36)
Action brought on 24 January 2001 by the Commission of
the European Communities against the United Kingdom                   Reference has been made to the Court of Justice of the
                                                                      European Communities by order of the Corte Suprema di
                                                                      Cassazione — Sezione Tributaria (Supreme Court of Cassation,
                         (Case C-31/01)                               Tax Chamber) of 12 July 2000, which was received at the
                                                                      Court Registry on 25 January 2001, for a preliminary ruling
                                                                      in the case of Enirisorse SpA against Ministero delle Finanze
                         (2001/C 79/35)                               on the following questions:
                                                                      1.    Does allocation to a public undertaking — operating in
An action against the United Kingdom was brought before the                 the market for dockside unloading and loading of goods
Court of Justice of the European Communities on 24 January                  — of a significant proportion of a charge (port charge on
2001 by the Commission of the European Communities,                         loading and unloading goods) paid to the State by
represented by Mr Richard Wainwright, Principal Legal                       operators which have not obtained any services from that
Adviser, acting as Agent, with an address for service in                    undertaking, constitute a special or exclusive right or a
Luxembourg at the office of Mr Carlos Gómez de la Cruz,                    measure contrary to the rules of the Treaty, in particular
member of the Legal Service of the Commission, Centre                       the rules on competition, within the meaning of Article
Wagner.                                                                     90(1) of the Treaty?
 ---pagebreak--- C 79/20                EN                    Official Journal of the European Communities                                    10.3.2001
2.    Irrespective of the reply to the preceding question, does         The Applicant claims that the Court should:
      the allocation to such a public undertaking of a significant
      proportion of the proceeds from the charge amount to              —     declare that by failing to adopt the laws, regulations
      abuse of a dominant position as a result of a State                     or administrative provisions necessary to comply with
      legislative measure and is it thus contrary to Article 86 in            Council Directive 96/61/EC of 24 September 1996
      conjunction with Article 90 of the Treaty?                              concerning integral pollution prevention and control(1)
                                                                              or in any event by failing to inform the Commission
                                                                              thereof, the United Kingdom has failed to fulfil its
3.    May the allocation to such an undertaking of a significant              obligations under that Directive, and
      proportion of the abovementioned charge be defined as
      State aid, within the meaning of Article 92 of the Treaty,
                                                                        —     order the United Kingdom to pay the costs.
      and does it therefore justify, in the event that the
      Commission is either not notified or adopts a decision
      finding the aid to be incompatible with the common
      market, pursuant to Article 93, the exercise by national          Pleas in law and main arguments
      courts of their powers — in accordance with the case-law
      of the Court of Justice — to ensure disapplication of             Article 249 EC, under which a directive shall be binding, as to
      illegal and/or incompatible aid?                                  the result to be achieved, upon each Member State carries by
                                                                        implication an obligation on the Member States to observe the
4.    Does the appropriation to the abovementioned public               period for compliance laid down in the directive. That period
      undertaking, ab origine, of a significant proportion of the       expired on 30 October 1999 without the United Kingdom
      proceeds from a State charge levied for or upon the               having enacted the provisions necessary to comply with the
      unloading or loading of goods at ports, without such              directive referred to in the conclusions of the Commission.
      payment being reciprocated by any services rendered by
      the AMM itself, constitute a charge having an effect
                                                                        (1) OJ L 257, 10.10.1996, p. 26.
      equivalent to a customs duty on imports (prohibited by
      Articles 12 and 13 of the Treaty), or an internal taxation
      imposed on products of other Member States in excess of
      that imposed on similar domestic products (Article 95),
      or a barrier to imports, prohibited by Article 30?
5.    In the event that the national provisions are in conflict
      with Community law, do the factors set out in the
      foregoing paragraphs, considered individually, affect the         Action brought on 1 February 2001 by the Commission
      charge as a whole or only the portion allocated to the            of the European Communities against the Federal Repub-
      AMM?                                                                                       lic of Germany
                                                                                                  (Case C-41/01)
                                                                                                 (2001/C 79/38)
                                                                        An action against the Federal Republic of Germany was
                                                                        brought before the Court of Justice on 1 February 2001 by the
                                                                        Commission of the European Communities, represented by
                                                                        Götz zur Hausen, Legal Adviser, of the Legal Service of the
Action brought on 29 January 2001 by the Commission of                  Commission of the European Communities, with an address
the European Communities against the United Kingdom                     for service in Luxembourg at the office of Carlos Gómez de la
                                                                        Cruz, of the Legal Service of the Commission of the European
                                                                        Communities, Wagner Centre C 254, Kirchberg.
                         (Case C-39/01)
                                                                        The applicant claims that the Court should:
                         (2001/C 79/37)
                                                                        (1) declare that, by having, contrary to the judgment of the
                                                                              Court of Justice of 22 October 1998 in Case C-301/95 (1),
An action against the United Kingdom was brought before the                   excluded in advance from the environmental impact
Court of Justice of the European Communities on 29 January                    assessment requirement whole classes of projects listed
2001 by the Commission of the European Communities,                           in Annex II to Council Directive 85/337/EEC (2) of 27 June
represented by Mr Richard Wainwright, Principal Legal                         1985 on the assessment of the effects of certain public
Adviser, acting as agent, with an address for service at the                  and private projects on the environment, the Federal
office of Mr Carlos Gómez de la Cruz, a member of its Legal                  Republic of Germany has failed to comply with its
Service, at the Wagner Centre, Kirchberg, Luxembourg.                         obligations under Article 228 of the EC Treaty;