CELEX: C1996/354/34
Language: en
Date: 1996-11-23 00:00:00
Title: Reference for a preliminary ruling by the Østre Landsret by a decision of that court of 4 September 1996 in the case of Brinkmann Tabakfabriken GmbH v. Skatteministeriet (Case C-319/96)

23 . 11 . 96              EN                   Official Journal of the European Communities                                 No C 354/ 17
        Republic has in any event failed to fulfil its obligations        Reference for a preliminary ruling by the 0stre Landsret by
        under the said Directive;                                         a decision of that court of 4 September 1996 in the case of
                                                                             Brinkmann Tabakfabriken GmbH v. Skatteministeriet
— order the French Republic to pay the costs .                                                     ( Case C-3 19/96 )
                                                                                                     ( 96/C 354/34 )
Pleas in law and main arguments adduced in support:
The pleas in law and main arguments are the same as in Case               Reference has been made to the Court of Justice of the
C-3 1 1 /96 ( 2 ); the time-limit laid down in Article 34 of              European Communities by a decision of the 0stre Landsret
Directive 93/36/EEC expired on 14 June 1994 .                             [Eastern Regional Court] of 4 September 1996 , which was
                                                                          received at the Court Registry on 1 October 1996 , for a
(') OJ No L 199 , 9 . 8 . 1993 , p . 1 .                                  preliminary ruling in the case of Brinkmann Tabakfabriken
( 2 ) See Case C-3 11 /96 above .                                         GmbH against Skatteministeriet ( Ministry of Fiscal Affairs )
                                                                          on the following questions :
                                                                          1.   Should the definitions in the Council 's second Directive
                                                                               79/32/EEC of 18 December 1978 on taxes other than
                                                                               turnover taxes which affect the consumption of
Action brought on 25 September 1996 by the Commission                          manufactured tobacco ('), in the version in force on
of the European Communities against the Kingdom of                             14 May 1990 , be interpreted to the effect that a product
                                  Belgium                                      with the following characteristics should be classified as
                            ( Case C-3 13/96 )                                 cigarettes or as smoking tobacco :
                              ( 96/C 354/33
                                                                               — there is a packet containing 25 g of fine-cut smoking
                                                                                    tobacco divided up into 30 rolls of tobacco,
An action against the Kingdom of Belgium was brought                                industrially manufactured , each roll being of the
before the Court of Justice of the European Communities on                          same size, consistency and uniformity;
25 September 1996 by the Commission of the European
Communities, represented by Henrik van Lier, Legal                             — each roll of tobacco is 68,6 mm long and consists of
Adviser, and Jean-Francis Pasquier, a national civil servant                        approximately 833 mg of fine-cut smoking tobacco
on secondment to the Legal Service pursuant to the scheme                           wrapped in cellulose , and pressed out into a thin
for the secondment of national experts, acting as Agents ,                          block;
with an address for service in Luxembourg at the office of
 Carlos Gomez de la Cruz, Wagner Centre, Kirchberg.                            — the wrapping is porous, and the roll of tobacco
                                                                                    cannot be smoked as it is but must be inserted into a
The Commission of the European Communities claims that                              cigarette-paper tube or wrapped in ordinary
 the Court should :                                                                 cigarette paper, which in both cases can be done
                                                                                    without the use of implements ?
— declare that, by failing to adopt the laws, regulations and
        administrative measures ( with the exception of those                  If the answer to Question 1 is that the product should be
        applicable to mobile gas cylinders containing butane,                  classified as smoking tobacco, the Court is asked to
        propane or liquid petroleum gas ) necessary in order to                 reply to the following questions :
        comply with Commission Directive 93/21 /EEC of
        27 April 1 993 ( 1 ) adapting to technical progress for the       2 . Under Community law is an undertaking entitled to
        18th time Council Directive 67/548/EEC (2 ) on the                     compensation for every loss suffered by it as a
        approximation of the laws , regulations and                             consequence of a Member State's infringement of
        administrative provisions relating to the classification,               Community law, consisting in the fact that an authority
        packaging and labelling of dangerous substances, and by                 responsible for the final administrative decision as to
        failing in any event to communicate such measures, the                  which tax group a tobacco product should fall under has
        Kingdom of Belgium has failed to fulfil its obligations                 reached a decision which conflicts with Article 3 ( 1 ) of
        under that directive;                                                   Directive 79/32/EEC and, if so , what are the conditions
                                                                                governing such liability ?
 — order the Kingdom of Belgium to pay the costs .
                                                                           3 . ( a ) Are the definitions of manufactured tobacco
  Pleas in law and main arguments adduced in support:                                 products in Directive 79/32/EEC properly
                                                                                      implemented in a Member State if the Minister for
  The pleas in law and main arguments are the same as in Case                         Fiscal Affairs is, by law, empowered to lay down
  C 311 /96 ( 3 ); the time-limit laid down in Article 2 of                           provisions concerning the definitions of tobacco
  Directive 93/21 /EEC expired on 1 July 1994 .                                       products in compliance with the provisions laid
                                                                                      down by the European Communities, where no
  (') OJ No L 110 , 4 . 5 . 1993 , p . 20 .                                           legal provisions have been adopted pursuant to the
  ( 2 ) OJ, English Special Edition 1967, p. 234 .                                    Law .
  ( 3 ) See Case C-311 /96 above .
                                                                                If Question 3 ( a ) is answered in the negative , the Court
                                                                                 of Justice is asked to reply to the following question :
 ---pagebreak--- No C 354/ 18           EN                    Official Journal of the European Communities                                      23 . 11 . 96
3 . ( b ) Does it matter, as regards the answer to Question 2 ,         Pleas in law and main arguments adduced in support:
          that the definitions in the Tobacco Directive were
          not implemented in the Member State if the
          national authority, in its decision, referred to the          — Misinterpretation of Articles 90 (2 ) and 85 ( 3 ): the fact
          definitions, and the parties to the case before the              that the former provision is applicable does not preclude
          national court are in agreement that the definitions             the applicability of the latter . There is no basis for the
          in the Directive are directly applicable ?                       proposition that the collective activities of public service
                                                                           broadcasting organizations should be considered under
                                                                           Article 90 ( 2 ) rather than under Article 85 ( 3 ) nor for the
                                                                           proposition that, when granting exemption, the
4 . Does it matter, as regards the answer to Question 2 , that
                                                                           Commission could not take into account public interest
     the authorities refused to suspend the operation of the               considerations in the absence of other circumstances .
     authority's decision as requested by the plaintiff with a
                                                                           The judgment confused two separate concepts, that of
     view to limiting its losses ?
                                                                           ' services of general economic interest' within the
                                                                           meaning of Article 90 ( 2 ) of the Treaty and that of the
                                                                           'particular public mission' conferred on a broadcasting
(!) OJ No L 10 , 16 . 1 . 1979 , p . 8 .
                                                                           service under the specific rules of its national
                                                                           legislation.
                                                                        — Misapplication of Article 85 and manifest error of
                                                                           assessment in so far as it is held in the judgment that the
                                                                           acquisition of exclusive rights to retransmit
                                                                           international sports events on television might not be
                                                                           necessary and should be the subject of an in-depth
                                                                           investigation on the part of the Commission, whereas it
Appeal brought on 30 September 1996 by the European                        is sufficiently evident from the case-file that exclusive
Broadcasting Union against the judgment delivered on                       rights are the norm .
11 July 1996 by the First Chamber, Extended Composition,
of the Court of First Instance of the European Communities
in Joined Cases T-528/93 , T-542/93 , T-543/93 and                      — Misapplication of Article 85 and manifest error of
T-5 46/93 between Metropole Television SA, Reti Televise                   assessment in so far as the judgment requires the
                                                                           Commission to examine whether the burdens and
Italiane Spa, Sociedade Independente de Comunicagao SA
( SIC ), Gestevision Telecinco and Antena 3 de Television, on              obligations arising for the members of the EBU as a
the one hand, and Commission of the European                               result of their mission of public interest are not
Communities,          European           Broadcasting      Union,          compensated for financially, possibly by State aid within
Radiotelevisione Italiana SpA ( RAI ) and Radiotelevision                  the meaning of Articles 92 and 93 . No such requirement
                         espanola ( RTVE )                                 follows from the wording of Article 85 ( 3 ). There is no
                                                                           connection between the manner in which a Member
                       ( Case C-320/96 P )                                 State proposes to organize the funding of a broadcaster
                           ( 96/C 354/35 )                                 and the legality of any cooperation between that
                                                                           broadcaster and other broadcasters with a view to
                                                                           presenting a joint offering in terms of the retransmission
                                                                           of sports events .
An appeal against the judgment delivered on 11 July 1996
by the First Chamber, Extended Composition, of the Court
of First Instance of the European Communities in Joined
                                                                        — Manifest error of assessment and reasoning: the
Cases T-528/93 , T-542/93 , T-543/93 and T-546/93
                                                                           judgment is defective in so far as it fails to take account
between Metropole Television SA, Reti Televise Italiane
                                                                           of an essential aspect. The Court of First Instance went
SpA, Sociedade Independente de Comunicagao SA ( SIC ),                     off on the wrong track: the exemption decision relates to
Gestevision Telecinco and Antena 3 de Television, on the
                                                                           the joint offering in the name of the members of the EBU
one hand, and Commission of the European Communities,
                                                                           and not to the manner in which an organization becomes
European Broadcasting Union, Radiotelevisione Italiana
                                                                           a member of the EBU. The exemption decision was
SpA ( RAI ) and Radiotelevision espanola ( RTVE ), was                     preceded by years of negotiations between the
brought before the Court of Justice of the European                        Commission and the EBU on the conditions on which
Communities on 30 Septemnber 1996 by the European
                                                                           the EBU was to grant sublicences to any broadcaster in
Broadcasting Union ( EBU ), represented by Ian S. Forrester
                                                                           Europe, including the respondents . The judgment has
QC, of the Scottish Bar, and Alasdair R. M. Bell, solicitor                regard only to the criteria for EBU membership and does
( Scotland ), with an address for service in Luxembourg at the
                                                                           not take account of the impact in favour of competition
Chambers of M. Loesch, 11 Rue Goethe .
                                                                           of the system of sublicences .
The appellant claims that the judgment of the Court of First            — Manifest error of assessment and misapplication of
Instance of 11 July 1996 in Joined Cases T-528/93 ,                        Article 85 in that the Court of First Instance wrongly
T-542/93 , T-543/93 and T-546/93 ( ] ) should be set aside .               concludes that national legislative provisions relating to