CELEX: C2003/044/24
Language: en
Date: 2003-02-22 00:00:00
Title: Case C-435/02: Reference for a preliminary ruling by the Landgericht Essen by order of that Court of 25 November 2002 in proceedings relating to the commercial register between Axel Springer AG and Zeitungsverlag Niederrhein GmbH & Co. Essen KG

C 44/12                  EN                       Official Journal of the European Union                                       22.2.2003
Action brought on 16 October 2002 by the Commission                       received at the Court Registry on 29 November 2002, for a
of the European Communities against the Italian Republic                  preliminary ruling in the administrative judicial proceedings
                                                                          between Arnold André GmbH & Co. KG and the Landrat
                                                                          (Principal Officer) of the Herford Local Authority on the
                          (Case C-374/02)
                                                                          following question:
                           (2003/C 44/22)
                                                                          Is the provision in Article 8 of Directive 2001/37/EC (1), by
                                                                          which, with a view to the approximation of the laws,
                                                                          regulations and administrative provisions of the Member States
An action against the Italian Republic was brought before the             concerning the manufacture, presentation and sale of tobacco
Court of Justice of the European Communities on 16 October                products, the placing on the market of tobacco for oral use is
2002 by the Commission of the European Communities,                       prohibited, without prejudice to Article 151 of the Act
represented by M. Konstantinidis and Roberto Amorosi, acting              concerning the Accession of Austria, Finland and Sweden,
as Agents.                                                                compatible with the superior law of the European Communi-
                                                                          ties?
The applicant claims that the Court should:
                                                                          (1 ) OJ L 194, p. 26.
—     declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with
      Council Directive 1999/31/EC (1) of 26 April 1999 on
      the landfill of waste, or in any event by failing to inform
      the Commission thereof, the Italian Republic has failed to
      fulfil its obligations under Article 18 of that directive:
                                                                          Reference for a preliminary ruling by the Landgericht
—     order the Italian Republic to pay the costs.                        Essen by order of that Court of 25 November 2002 in
                                                                          proceedings relating to the commercial register between
                                                                          Axel Springer AG and Zeitungsverlag Niederrhein GmbH
                                                                                                   & Co. Essen KG
Pleas in law and main arguments
                                                                                                   (Case C-435/02)
Article 249 EC, according to which a directive is to be binding,
                                                                                                    (2003/C 44/24)
as to the result to be achieved, upon each Member State to
which it is addressed, implies that Member States are required
to comply with the time-limits for transposition laid down in
directives. When the time-limit expired, the Italian Republic             Reference has been made to the Court of Justice of the
had not promulgated the provisions necessary to comply with               European Communities by order of the Landgericht Essen
the directive referred to in the Commission’s claims.                     (Regional Court Essen) of 25 November 2002, received at the
                                                                          Court Registry on 2 December 2002, for a preliminary ruling
                                                                          in proceedings relating to the commercial register between
( 1) OJ L 182 of 16.7.1999, p. 1.
                                                                          Axel Springer AG and Zeitungsverlag Niederrhein GmbH &
                                                                          Co. Essen KG on the following questions:
                                                                          (1) Is Directive 90/605/EEC ( 1), in conjunction with
                                                                                Article 47 of Directive 78/660/EEC ( 2), compatible with
                                                                                the fundamental Community right of freedom to exercise
                                                                                a trade or profession in so far as Kommanditgesellschaften
Reference for a preliminary ruling by the Verwaltungsger-                       (limited partnerships) whose personally liable partner is a
icht Minden by order of that Court of 14 November                               private limited company are obliged to publish their
2002 in the administrative judicial proceedings between                         annual accounts and annual report, in particular without
Arnold André GmbH & Co. KG and the Landrat of the                               any restriction being imposed on the group of persons
                     Herford Local Authority                                    entitled to inspect those documents?
                                                                          (2) Is Directive 90/605/EEC, in conjunction with Article 47
                          (Case C-434/02)                                       of Directive 78/660/EEC, compatible with the fundamen-
                                                                                tal Community rights of freedom of the press and radio
                           (2003/C 44/23)                                       in so far as Kommanditgesellschaften whose personally
                                                                                liable partner is a private limited company and which are
                                                                                engaged in the press and publishing sector or the radio
                                                                                broadcasting sector are obliged to publish their annual
Reference has been made to the Court of Justice of the                          accounts and annual report, in particular without any
European Communities by order of the Verwaltungsgericht                         restriction being imposed on the group of persons
Minden (Administrative Court Minden) of 14 November 2002,                       entitled to inspect those documents?
 ---pagebreak--- 22.2.2003              EN                           Official Journal of the European Union                                           C 44/13
(3) Is Directive 90/605/EEC compatible with the general                     of certain alleged irregularities in its conduct. According to the
      principle of equality in so far as it places at a disadvantage        applicant, the Customs Service merely has jurisdiction to
      those Kommanditgesellschaften whose personally liable                 record in its statements facts gathered during the course of its
      partner is a private limited company as compared with                 investigations. It is not competent to evaluate those facts and
      Kommanditgesellschaften whose personally liable partner               the Commission ought to have conducted its own investigation
      is a natural person, even though creditors of a GmbH &                of the matter. The applicant says that, in finding the Customs
      Co. KG (a limited partnership in which the unlimited                  Service’s statement to be sufficient proof, the Court of First
      partner is a private company) are better protected by the             Instance erred in law and its judgment is thereby vitiated.
      duty of disclosure imposed on private limited companies
      than are creditors of a Kommanditgesellschaft whose
      personally liable partner, as a natural person, is not under
      any duties of disclosure?                                             The applicant maintains that the judgment is also vitiated by
                                                                            the fact that the Court failed to give consideration to the
                                                                            subjective element as a decisive factor in determining whether
( 1) OJ L 317 of 16.11.1990, p. 60.                                         a decision to withdraw a certain grant was permissible. The
( 2) OJ L 222 of 14.8.1978, p. 11.
                                                                            Court should have distinguished between the possible case of a
                                                                            culpable, but not fraudulent, breach of the financial conditions,
                                                                            such as would justify no more than the reduction or suspension
                                                                            of the grant, and a fraudulent breach of the financial conditions,
                                                                            entitling the Commission to withdraw the grant in its entirety.
Appeal brought on 13 December 2002 by Sgaravatti
Mediterranea S.r.l. against the judgment delivered on
                                                                            Lastly, the applicant maintains that the Court’s finding that
26 September 2002 by the Fifth Chamber of the Court of
                                                                            there is no possibility of a breach of the principle of ne bis in
First Instance of the European Communities in Case
                                                                            idem is questionable, given that the sanction imposed by means
T-199/99 between Sgaravatti Mediterranea S.r.l and the
                                                                            of the injunction issued in Italy came after the Community
          Commission of the European Communities
                                                                            decision. According to the applicant, when the Commission
                                                                            decided to withdraw the grant which was due it knew or ought
                        (Case C-455/02 P)                                   to have known that an administrative sanction would be
                                                                            handed down in Italy.
                         (2003/C 44/25)
An appeal against the judgment delivered on 26 September
2002 by the Fifth Chamber of the Court of First Instance
of the European Communities in Case T-199/99 between
Sgaravatti Mediterranea S.r.l and the Commission of the
European Communities was brought before the Court of
Justice of the European Communities on 13 December 2002
by Sgaravatti Mediterranea S.r.l., a company with registered
offices in Capoterra (CA), Italy, represented by Massimo Merola             Reference for a preliminary ruling by the Tribunal du
and Piero A.M. Ferrari, Lawyers.                                            Travail de Bruxelles by judgment of that Court of 21 No-
                                                                            vember 2002 in the proceedings between Michel Trojani
                                                                                  and Le Centre Public d’Aide Sociale de Bruxelles
The applicant claims that the Court should:
—     annul the judgment of the Court of First Instance delivered
      on 26 September 2002 in Case T-199/99;                                                        (Case C-456/02)
—     annul Commission Decision C(1999) 1502 of 4 June
      1990 or, in the alternative, refer the case back to the                                        (2003/C 44/26)
      Court of First Instance in accordance with Article 54 of
      the EC Statute of the Court of Justice;
—     in any event, order the Commission to pay the costs of
      both sets of proceedings.
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by judgment of the Tribunal du Travail
Pleas in law and main arguments                                             de Bruxelles (Labour Court, Brussels) of 21 November 2002,
                                                                            received at the Court Registry on 18 December 2002, for a
                                                                            preliminary ruling in the proceedings between Michel Trojani
The applicant takes issue with the improper use of a statement              and Le Centre Public d’Aide Sociale de Bruxelles on the
made by the Customs Service as evidence, sufficient in itself,              following questions: