CELEX: C1995/268/37
Language: en
Date: 1995-10-14 00:00:00
Title: Appeal brought on 24 August 1995 by Guérin Automobiles against the judgment delivered on 27 June 1995 by the Third Chamber (extended composition) of the Court of First Instance of the European Communities in Case T-186/94 between Guérin Automobiles and Commission of the European Communities (Case C-282/95 P)

14 . 10 . 95          EN                   Official Journal of the European Communities                                 No C 268/ 17
Pleas in law and main arguments adduced in support:                   — in the alternative, should the Court of First Instance
                                                                          interpret the Commission's letters of 21 January 1993
The Italian Republic has not taken any steps as yet — that is             and 4 February 1994 as expressing and repeating a
to say, two years after the adoption of Decision 93/496/EEC               decision not to pursue Mr Guérin's complaint, annul the
— to comply with the Commission's repeated calls to                       decision contained in those letters pursuant to
execute that Decision . It has merely apprised the                        Article 173 of the Treaty,
Commission of the legal and practical difficulties involved in
the implementation of the Decision and has failed to take             — order the Commission to pay the costs .
any steps to recover the aid or to make any proposal to the
Commission regarding detailed alternative arrangements
for implementing the Decision, under which the alleged                Pleas in law and main arguments adduced in support:
difficulties would be overcome . In the light of those
considerations, it must be concluded that the Italian                 There were defects in the procedure which are detrimental
Republic cannot plead impossibility of performance in                 to the appellant's interests in so far as the Court of First
relation to the decision in question.                                 Instance failed entirely:
(>) OJ No L 233 , 16 . 9 . 1993 , p . 10 .                            — to analyse the exchange of letters between June and
                                                                          August 1994 enabling it to rule on the facts and to
                                                                          address the pleas and submissions of the appellant
                                                                          relating thereto,
                                                                      — to draw the consequences from the Commission's
                                                                          refusal to produce evidence to justify the procedure
                                                                          resorted to by the Commission to more or less abstain
Appeal brought on 24 August 1995 by Guérin Automobiles                    from acting ( holding letter ).
against the judgment delivered on 27 June 1995 by the
Third Chamber ( extended composition ) of the Court of
First Instance of the European Communities in Case                    The Court of First Instance made an error of law in
T-l 86/94 between Guérin Automobiles and Commission of                determining the nature of the letter of 13 June 1994 as an
                 the European Communities                             act, an error aggravated by the failure to compare it with the
                       Case C-282/95 P                                subsequent correspondence from Guérin Automobiles,
                                                                      which was not considered at all . The Court was obliged to
                           ( 95/C 268/37 )                            accept the Commission's own description of it — a holding
                                                                      letter — which, according to the settled case-law of the
An appeal against the judgment delivered by the Third                 Court of Justice relating to acts, means that it cannot be a
Chamber ( extended composition ) of the Court of First                'definition of position' terminating the failure to act.
Instance of the European Communities in Case T-l 86/94
between Guérin Automobiles and Commission of the                      The Court of First Instance could not have based its decision
European Communities was brought before the Court of                  on the information gathered by the Commission and relied
Justice of the European Communities on 24 August 1995 by              upon by the latter to justify its reply when there was no trace
Guérin Automobiles , represented by Jean-Claude                       of that information in the case-file .
Fourgoux, of the Paris and Brussels Bars , with an address for
service at the Chambers of Pierrot Schiltz, 4 rue Béatrix de
Bourbon .                                                             The Court of First Instance could not fail to recognize the
                                                                      breach of the principle audi et alteram partem and admit
                                                                      that the Commission could have referred in its letter of
The appellant claims that the Court should :                          13 June 1994 to an alleged procedure, alleged to be similar,
                                                                      the alleged existence of which justified the failure to deal
— annul the judgment of the Court of First Instance (Third            with the Guérin Automobiles case and concerning which
     Chamber, extended composition ) of the European                  Commission staff have refused to produce any evidence
     Communities of 27 June 1 995 in Case T-l 86/94 Guérin            whatsoever in court .
    Automobiles v . Commission of the European
     Communities , save as regards costs,
                                                                      The Court of First Instance could not, without breaching the
                                                                      general principle of the right of access to the courts, state
and, ruling on the substance of the action,                           that the letter of 13 June 1994 had the effect in this instance
                                                                      of depriving the applicant of any legal remedy.
having regard to the arguments submitted at first
instance ,
                                                                      Since it was impossible to contest the principle of the right of
— declare, pursuant to Article 175 of the Treaty, that the            access to the courts, the Court of First Instance wrongly held
     Commission has failed to take a decision with regard to          that the appellant was henceforth entitled to obtain a
     the complainant, whereas the latter had requested it in          definitive Commission decision which was capable of ' being
     due time to do so ,                                              the subject-matter of an action for annulment', when there is
 ---pagebreak--- No C 268/18              iENl                 Official Journal of the European Communities                                      14 . 10 . 95
nothing to prevent the Commission from persisting in its                 ( a ) Is Council Regulation ( EC ) No 3093/94 ( ] ) to be
inaction, perpetuating the failure to act, or at least to give                  interpreted ( given that it must comply with Article 130r
deliberately ambiguous replies.                                                 of the Treaty ) as permitting the free use of halons ( that
                                                                                is, products which have a serious impact on the
The appellant will rely on all the arguments put forward                        environment ), subject only to limitations on their
before the Court of First Instance in the application and in                    production or on their use by producers, and not on
the reply .                                                                     their importation, but as prohibiting absolutely the use
                                                                                ( and hence both the production and the importation ) of
                                                                                HCFCs (that is, of products which have little impact on
                                                                                the environment )        for purposes not stated in
                                                                                Article 5 ?
Reference for a preliminary ruling from the Finanzgericht                ( b) Is not the provision in point in Regulation (EC )
Baden-Wiirttemberg by order of that court of 21 August                          No 3093/94 in substance a measure having equivalent
1995 in the case of Karlheinz Fischer v. Finanzamt                              effect to a quantitative restriction in so far as, in the
                            Donaueschingen                                      absence of any of the grounds of justification under
                           ( Case C-283/95 )                                    Article 36 of the Treaty, it restricts the free movement
                                                                                of a product throughout the Community ?
                              ( 95/C 268/38 )
                                                                         (c ) Does not the conduct of the Community and of its
Reference has been made to the Court of Justice of the                          institutions, in adopting Regulation ( EC ) No 3093/94 ,
European Communities by an order of the Finanzgericht                           and particularly at the stages subsequent to its
Baden-Wiirttemberg ( Finance Court of the Land                                  adoption, constitute action of a public-law nature
Baden-Wiirttemberg) of 21 August 1 995 , which was                              designed to reinforce the dominant position of certain
received at the Court Registry on 25 August 1995 , for a                        operators, such action constituting in itself an instance
preliminary ruling in the case of Karlheinz Fischer v.                          of serious abuse for the purposes of Article 86 of the
Finanzamt Donaueschingen on the following questions :                           Treaty ?
1 . Is Article 2 ( 1 ) of the Sixth Directive ( 1 ) to be interpreted    ( d ) May legislation for the protection of the environment
      as meaning that services which the organizer of unlawful                  — and particularly Regulation ( EC ) No 3093/94 —
      and punishable games of chance provides to the players                    derogate ( be interpreted as derogating ) from the
      are not taxable ?                                                         Community rules on competition ( by thus permitting
                                                                                or facilitating restrictive agreements or the abuse of a
2 . If Question 1 is to be answered in the negative :                           dominant position ) or are the prohibitions under those
                                                                                rules unconditional and not subject to derogation,
      Is Article 11 A ( 1 ) ( a ) of the Sixth Directive to be                  precluding derogations or restrictions, whether
      interpreted as meaning that, in the case of unlawful                      introduced by the Community or by individual
      gaming in the form of roulette, the basis of assessment                   Member States ?
      for the operator's services to the players is the amount
      retained by the operator during a tax period ?                     (') OJ No L 333 , 22. 12 . 1994, p. 1 .
3 . If Question 2 is to be answered in the negative :
      How is the basis of assessment to be determined in cases
      described under Questions 1 and 2 ?
                                                                        Reference for a preliminary ruling from the
( ] ) Sixth Council Directive 77/388/EEC of 17 May 1977 ( OJ             Oberverwaltungsgericht Berlin by order of that court of
      No L 145 , p . 1 ).                                                   11 August 1995 in the case of Suat Kol v. Land Berlin
                                                                                                  ( Case C-285/95 )
                                                                                                    ( 95/C 268/40 )
                                                                         Reference has been made to the Court of Justice of the
Reference for a preliminary ruling from the Ufficio del                  European Communities by order of the Eighth Chamber of
Giudice di Pace, Genoa, by order of that court of 8 August              the Oberverwaltungsgericht Berlin ( Higher Administrative
     1995 in the case of Safety Hi-Tech Sri v. S> &c T. Sri              Court, Berlin ) of 1 1 August 1995 , which was received at the
                             Case C-284/95 )                             Court Registry on 28 August 1 995, for a preliminary ruling
                                                                         in the case of Suat Kol v . Land Berlin on the following
                             ( 95/C 268/39 )                             questions :
Reference has been made to the Court of Justice of the                   1 . Are periods of employment spent in a Member State by a
European Communities by an order of the Ufficio del                            Turkish worker on the basis of a residence permit
Giudice di Pace ( Magistrate's Office ), Genoa , of 8 August                   obtained by wilful and criminal deceit to be recognized
1995 , which was received at the Court Registry on                             as legal employment within the meaning of Article 6(1 )
28 August 1 995 , for a preliminary ruling in the case of Safety               of Decision No 1/80 of the EEC-Turkey Council of
Hi-Tech Sri v. S. & T. Sri on the following questions :                        Association ?