CELEX: C2001/173/48
Language: en
Date: 2001-06-16 00:00:00
Title: Case C-150/01: Action brought on 9 April 2001 by the Commission of the European Communities against the French Republic

C 173/28               EN                    Official Journal of the European Communities                                      16.6.2001
Reference for a preliminary ruling by the Court of Appeal                     2.    Does ‘the total amount to be paid by the traveller’
(England & Wales) (Civil Division), by order of that court                          within Article 26.2 include the additional sum
of 13 March 2001, in the case of Commissioners of                                   referred to in (c) above?
    Customs and Excise against First Choice Holidays plc
                         (Case C-149/01)                                (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                            harmonization of the laws of the Member States relating to
                                                                            turnover taxes — Common system of value added tax: uniform
                                                                            basis of assessment (OJ L 145, 13.06.77, p. 1).
                         (2001/C 173/47)
Reference has been made to the Court of Justice of the
European Communities by an order of the Court of Appeal
(England & Wales) (Civil Division) of 13 March 2001, which
was received at the Court Registry on 26 March 2001, for a
preliminary ruling in the case of Commissioners of Customs
and Excise against First Choice Holidays, on the following
questions:
                                                                        Action brought on 9 April 2001 by the Commission of
                                                                         the European Communities against the French Republic
Where a tour operator within the meaning of Article 26 of
Council Directive 77/388/EEC (1)
                                                                                                  (Case C-150/01)
(a)   supplies package holidays to customers through the
      disclosed agency of a travel agent;                                                        (2001/C 173/48)
(b) permits the agent to arrange the supply of package                  An action against the French Republic was brought before the
      holidays at a discount from the price published in the            Court of Justice of the European Communities on 9 April
      tour operator’s brochure (the customer being liable to            2001 by the Commission of the European Communities,
      pay only the discounted price for the holiday);                   represented by M. Patakia and B. Mongin, acting as Agents,
                                                                        with an address for service in Luxembourg.
(c)   requires the agent who arranges the supply of a package
      holiday at a discount not only to pass on to the tour             The Commission claims that the Court should:
      operator the price actually charged to the customer but
      also to pay to the tour operator an additional sum equal
      to the discount given to the customer (who is unaware of          1.    declare that, by retaining legislation which requires
      the financial arrangements between the tour operator and                intellectual property advisers established in other Member
      the agent), so that the agent accounts to the tour operator             States to appear on the register of French intellectual
      for the full brochure price of the holiday;                             property advisers, and thus to possess the French qualifi-
                                                                              cation and to be ordinarily resident or have a place of
                                                                              business in France, in order to supply services in France,
(d) agrees to pay the agent a commission based on the                         the French Republic has failed to fulfil its obligations
      brochure price of the holiday, which in practice is paid                under Articles 49 to 55 of the EC Treaty and Council
      by set-off against the sums due from the agent as                       Directive 89/48/EEC of 21 December 1988 on a general
      mentioned in (c) above;                                                 system for the recognition of higher-education diplomas
                                                                              awarded on completion of professional education and
                                                                              training of at least three years’ duration (1);
(e)   does not know whether or not the agent has arranged the
      sale of a particular holiday at a discounted price, or the
      amount of the discount;                                           2.    order the French Republic to pay the costs.
(f)   as between itself and the agent, accounts for the sale of
      the holiday on the basis that it has been paid the full           Pleas in law and main arguments
      brochure price of the holiday;
                                                                        —     By making an ‘intellectual property adviser’ who provides
      1.    Having established the above facts, how should the                services subject to the same obligations as an ‘intellectual
            additional sum (referred to in (c) above) paid by the             property adviser’ established in France, the French legis-
            travel agent to the tour operator be characterised for            lation infringes Article 49 EC. While the pursuit, even as
            the purposes of Article 26.2?                                     a provider of services, of an activity which is not
 ---pagebreak--- 16.6.2001               EN                     Official Journal of the European Communities                                            C 173/29
      harmonised at Community level may be subject to                     The appellant claims that the Court should:
      provisions justified in the general interest such as rules
      concerning organisation of the profession, qualification            —     set aside the order of the Court of First Instance of the
      and professional conduct, the Commission considers that                   European Communities of 30 January 2001;
      the French legislation lays down disproportionate and
      excessively restrictive conditions for the exercise in France       —     order the European Commission to pay all the costs, with
      of the profession in question by intellectual property                    all the legal consequences which that entails.
      advisers lawfully established in another Member State and
      supplying services in France on an isolated occasion.
      Other measures — less restrictive than mandatory entry              Pleas in law and main arguments
      on a register preceded by an examination — could be
      envisaged, for example:                                             —     Error of law: given the structure of the appellant com-
                                                                                pany’s production chain, which is unique in the south-
      1.    a requirement to practice under the home-country                    west, the Court of First Instance should have specifically
            title;                                                              examined whether, as at the date of its adoption, the
                                                                                contested regulation particularly affected the appellant.
      2.    a requirement that the person practising the pro-
            fession produces his qualification;                           —     Distortion of the appellant’s claims.
                                                                          —     Absence of a sufficient statement of reasons for the ruling
      3.    a declaration system (such as that provided for in                  on the plea alleging disregard of the right to seek effective
            Article 22 of Council Directive 85/384/EEC on the                   relief by bringing proceedings: the contested order does
            mutual recognition of architects’ qualifications) (2).              not deal with the appellant’s argument that the Com-
                                                                                mission’s interpretation of Article 7 of Regulation
—     Infringement of Article 49 EC by imposing residence or                    No 2081/92 (1), to the effect that that article restricts the
      a place of business in France as a condition for the supply               right to object to the procedure at Member State level,
      of services there on an isolated occasion.                                disregards the right to seek effective relief by bringing
                                                                                proceedings.
                                                                          —     Misinterpretation of Article 7 of Regulation No 2081/92:
(1) OJ L 19, 24.1.1989, p. 16.                                                  disregard by the Community legal order of the guaranteed
(2) Council Directive 85/384/EEC on the mutual recognition of                   right to seek effective relief by bringing proceedings,
    diplomas, certificates and other evidence of formal qualifications          which constitutes a general legal principle: the effect of a
    in architecture, including measures to facilitate the effective             failure to act on the part of a Member State must be such
    exercise of the right of establishment and freedom to provide               as to permit an undertaking which otherwise fulfils the
    services (OJ No L 223, 21.8.1985, p. 15).
                                                                                admissibility requirements laid down by Article 7(4) to
                                                                                raise an objection with the Commission.
                                                                          (1) Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of
                                                                              geographical indications and designations of origin for agricultural
                                                                              products and foodstuffs (OJ L 208 of 24.7.1992, p. 1).
Appeal brought on 9 April 2001 by S.C.E.A. La Conqueste
against the order made on 30 January 2001 by the Fifth
Chamber of the Court of First Instance of the European
Communities in Case T-215/00 between S.C.E.A. La Con-
queste and the Commission of the European Communities
                                                                          Reference for a preliminary ruling by the Sozialgericht
                                                                          Leipzig by order of that court of 30 March 2001 in the
                         (Case C-151/01 P)                                    case of Karen Mau against Bundesanstalt für Arbeit
                          (2001/C 173/49)                                                           (Case C-160/01)
An appeal against the order made on 30 January 2001 by the                                          (2001/C 173/50)
Fifth Chamber of the Court of First Instance of the European
Communities in Case T-215/00 between S.C.E.A. La Conqueste                Reference has been made to the Court of Justice of the
and the Commission of the European Communities was                        European Communities by order of the Sozialgericht Leipzig
brought before the Court of Justice of the European Communi-              (Social Court, Leipzig) of 30 March 2001, received at the Court
ties on 9 April 2001 by S.C.E.A. La Conqueste, represented by             Registry on 12 April 2001, for a preliminary ruling in the case
A. Lyon-Caen, F. Fabiani and F. Thiriez, avocats, with an                 of Karen Mau against the Bundesanstalt für Arbeit (Federal
address for service in Paris.                                             Labour Office) on the following questions: