CELEX: C2004/007/31
Language: en
Date: 2004-01-10 00:00:00
Title: Case C-442/03 P: Appeal brought on 20 October 2003 by P&O European Ferries (Vizcaya) SA against the judgment delivered on 5 August 2003 by the First Chamber (Extended Composition) of the Court of First Instance of the European Communities in joined cases T-116/01 between P&O European Ferries (Vizcaya) SA, supported by Diputación Foral de Vizcaya, and the Commission of the European Communities and T-118/01 between Diputación Foral de Vizcaya, supported by P&O European Ferries (Vizcaya) SA, and the Commission of the European Communities

C 7/18                    EN                            Official Journal of the European Union                                           10.1.2004
Council Directive 78/687/EEC of 25 July 1978 concerning the                     The Court of Justice of the European Communities clearly has no
coordination of provisions laid down by law, regulation or adminis-             jurisdiction to reply to the questions referred by the Commission de
trative action in respect of the activities of dental practitioners, as         conciliation et d’expertise douanière in its decision of 18 March
amended by the Act concerning the conditions of accession of the                2003.
Republic of Austria, the Republic of Finland and the Kingdom of
Sweden and the adjustments to the Treaties on which the European
Union is founded, properly construed, precludes a national rule                 (1) OJ C 135 of 7.6.2003.
containing a general authorisation for doctors who have not completed
the training required by Article 1 of that directive to carry out the
activities of a dental practitioner, irrespective of the title under which
those activities are carried out.
(1) OJ C 109 of 4.5.2002.
                                                                                Appeal brought on 20 October 2003 by P&O European
                                                                                Ferries (Vizcaya) SA against the judgment delivered
                                                                                on 5 August 2003 by the First Chamber (Extended
                                                                                Composition) of the Court of First Instance of the
                                                                                European Communities in joined cases T-116/01 between
                                                                                P&O European Ferries (Vizcaya) SA, supported by Dipu-
          ORDER OF THE COURT OF THE JUSTICE                                     tación Foral de Vizcaya, and the Commission of the
                                                                                European Communities and T-118/01 between Diputa-
                            of 11 July 2003                                     ción Foral de Vizcaya, supported by P&O European
                                                                                Ferries (Vizcaya) SA, and the Commission of the European
                                                                                                            Communities
in Case C-161/03 (reference for a preliminary ruling by
the Commission de conciliation et d’expertise douanière):
Administration des douanes v Centrale d’achat française                                                  (Case C-442/03 P)
pour l’outre-mer SA (CAFOM), Samsung Electronics
                                France (1)
                                                                                                            (2004/C 7/31)
(Reference for a preliminary ruling — Court’s lack of
                              jurisdiction)
                                                                                An appeal against the judgment delivered on 5 August 2003
                             (2004/C 7/30)                                      by the First Chamber (Extended Composition) of the Court of
                                                                                First Instance of the European Communities in joined cases
                      (Language of the case: French)                            T-116/01 (1) between P&O European Ferries (Vizcaya) SA,
                                                                                supported by Diputación Foral de Vizcaya, and the Com-
                                                                                mission of the European Communities and T-118/01 (2)
(Provisional translation; the definitive translation will be published          between Diputación Foral de Vizcaya, supported by P&O
                     in the European Court Reports)                             European Ferries (Vizcaya) SA, and the Commission of the
                                                                                European Communities, was brought before the Court of
                                                                                Justice of the European Communities on 20 October 2003 by
                                                                                P&O European Ferries (Vizcaya) SA, established in Bilbao
In Case C-161/03: reference to the Court under Article 234 EC                   (Spain), represented by Sir Jeremy Lever QC and M. Pickford,
by the Commission de conciliation et d’expertise douanière                      Barristers, and J. Ellison, Solicitor.
(France) for a preliminary ruling in the proceedings between
Administration des douanes and Centrale d’achat française
pour l’outre-mer SA (CAFOM), Samsung Electronics France —                       The Appellant claims that the Court should:
on the interpretation of Article 27 of Protocol No 4 annexed
to the Europe Agreement between the European Communities
and their Member States, of the one part, and the Republic of                   1.    make an order setting aside the Court of First Instance’s
Hungary, of the other part, concluded and approved in the                             judgment of 5 August 2003 and remitting the questions
name of the European Communities by Decision 93/743/                                  set out at paragraph 13 of the appeal for determination
Euratom, ECSC, EC of the Council and the Commission of                                by the Court of First Instance;
13 December 1993 (OJ 1993 L 348, p. 1) — the Court,
composed of: G.C. Rodríguez Iglesias, President, J.-P. Puisso-                  2.    make an order that the Commission pay the Appellant’s
chet, M. Wathelet, R. Schintgen and C.W.A. Timmermans,                                costs of this appeal; and
Presidents of Chambers, C. Gulmann (Rapporteur),
D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken,                   3.    make an order setting aside the order of the Court of First
N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas,                          Instance of 5 August 2003 that the Appellant pay the
Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar,                         Commission’s costs, and reserving reconsideration of
made an order on 11 July 2003 of which the operative part is                          those costs for the Court of First Instance when the case
as follows:                                                                           is remitted to it.
 ---pagebreak--- 10.1.2004              EN                       Official Journal of the European Union                                           C 7/19
Pleas in law and main arguments                                         event, (c) in the circumstances, the Commission was stopped
                                                                        from denying that the notification was lawful by reason of
                                                                        some formal defect and the Court of First Instance erred in law
                                                                        in failing to hold that that was so.
The Appellant’s application to the Court of First Instance was
dismissed on the basis that aid granted to the Appellant in
1995 was a continuation of aid which had previously been                The Court of First Instance erroneously relied on (a) the
granted to the Appellant in 1992 unlawfully (without prior              reference (‘NN’) used by the Commission in relation to the
notification to the Commission); that the 1995 aid was                  1995 aid and (b) the fact that the Commission did not reject
effectively tainted by the unlawfulness of the earlier aid; and         the letter of 27 March 1995 (which, by circular reasoning, the
that the unlawfulness was not cured by the provision in 1995            Court of First Instance said that it would have done, if it had
of the information about the 1995 agreement The Appellant               understood the letter to be a notification) as showing that the
submits that the Court of First Instance was wrong in law to            1995 aid had not been duly notified to the Commission.
dismiss its application for the following reasons:                      Neither of those facts was capable in law of depriving the letter
                                                                        of 27 March 1995 of its character as a notification of the plan
                                                                        to grant the 1995 aid.
The Court of First Instance misconstrued Article 88(3) EC,
failing to give effect to the principle that the obligation to          (1) OJ C 212, 28.07.2001, p. 26.
inform the Commission of plans to alter aid is a discrete               (2) OJ C 227, 11.08.2001, p. 29.
obligation no less than is the obligation to inform the
Commission of plans to grant (new) aid. Even where aid was
originally granted unlawfully, altered aid granted under an
agreement that replaces the original agreement will be granted
lawfully if the Commission is informed of the plans to grant
the altered aid and takes a favourable decision with regard to
it before the altered aid is granted.
                                                                        Action brought on 22 October 2003 by the Commission
The Court of First Instance erroneously supported its con-              of the European Communities against the Italian Republic
clusion summarised at paragraph 1 above by finding that the
substance of the aid did not differ between the 1992 and 1995
agreements, and that the 1995 aid was therefore tainted by the                                    (Case C-447/03)
unlawfulness of the 1992 aid.
                                                                                                   (2004/C 7/32)
The Court of First Instance failed to recognise that the letter of
27 March 1995 providing information to the Commission
about the 1995 agreement was capable in law of having, and
did have, a two-fold character: it disposed of the 1992                 An action against the Italian Republic was brought before the
agreement as having been replaced and it informed the                   Court of Justice of the European Communities on 22 October
Commission of the finalised plan to grant new aid by way of             2003 by the Commission of the European Communities,
replacement of the 1992 aid; the Court of First Instance erred          represented by Minas Kostantinidis and Roberto Amorosi,
in law in supposing that the first aspect of the letter excluded        acting as Agents.
the second.
                                                                        The applicant claims that the Court should:
The Court of First Instance relied on alleged procedural failings
in the provision of information by way of the letter of                 —     declare that, by failing to bring into force the necessary
27 March 1995. The Court of First Instance erred in so doing                  measures to ensure that waste, stored and deposited in
since: (a) contrary to the Court of First Instance’s judgment,                dumps on Enichem’s former Manfredonia site (province
there is no requirement laid down by Article 88(3), and there                 of Foggia) and in the Pariti I dump (province of Manfre-
was none in law at the time of the notification, that the                     donia) is recovered or disposed of without endangering
relevant information must be supplied by the Member State in                  human health and without using processes or methods
question; (b) the Court of First Instance relied on the fact that             which could harm the environment, and by failing to
the form and content of the notification did not satisfy the                  bring into force the necessary measures to ensure that the
formal criteria laid down by the Commission in communi-                       holder of the waste stored and deposited in dumps on
cations to Member States, overlooking the fact that communi-                  Enichem’s Manfredonia site and the holder of urban waste
cations from the Commission to Member States cannot create                    in the Pariti I and Conte di Troia dumps has it handled by
legal requirements that are binding on individuals; and, in any               a private or public waste collector or by an undertaking