CELEX: C1997/252/32
Language: en
Date: 1997-08-16 00:00:00
Title: Action brought on 17 June 1997 by the Commission of the European Communities against the French Republic (Case C-225/97)

No C 252/16           I EN 1                Official Journal of the European Communities                                      16 . 8 . 97
  the time-limit for transposition expires . The time-limit in                 of limited liability, which the Court of Justice has
  question expired on 1 January 1994 but the Federal                           developed in relation to the Community's liability for
- Republic of Germany has not adopted the necessary                            legal acts, to the Commission decisions in question,
  measures .                                                                   which, in the applicants' and appellants' view, do not
                                                                               constitute legislative acts. In applying the principles of
  (•) OJ No L 35 , 12 . 2 . 1992, p . 24 .                                     liability for administrative action the Court of First
                                                                               Instance should have held the defendant 's measures to
                                                                               be unlawful so that the applicants' and appellants'
                                                                               claim in damages was well founded . A further
                                                                               infringement of Community law incurred in that, in
                                                                               examining whether the fundamental right to property
                                                                               and the fundamental right to carry on a business or
  Appeal brought on 13 June 1997 by Aloys Schroder, Jan                        trade had been infringed, the Court took no account
  Thamann and Karl-Julius Thamann, acting in the capacity
                                                                               of the individual's interest in fundamental rights which
  of partners in Zuchtschweine Epe GbR, against the
                                                                               is guaranteed in the Community legal order. In
  judgment delivered on 15 April 1997 by the Fifth                             adopting the contested decisions the Commission did
  Chamber of the Court of First Instance of the European
  Communities in Case T-3 90/94 between Aloys Schroder
                                                                               not in fact adopt generally applicable rules in relation
                                                                               to which it could claim scope for prognosis; they were
  and Others against Commission of the European
                               Communities                                     specific measures whose effects were not only
                                                                               foreseeable but also specifically intended.
                           ( Case C-221/97 P)
                              ( 97/C 252/31 )                            (') OJN0CI8I , 14 . 6 . 1997, p . 11 .
                                                                         (2 ) OJ No C 392, 31 . 12 . 1994 , p . 12 .
  An appeal against the judgment delivered on 15 April
  1997 by the Fifth Chamber of the Court of First Instance
  of the European Communities in Case T-3 90/94 ( J )
  between Aloys Schroder and Others and the Commission
  of the European Communities was brought before the
  Court of Justice of the European Communities on 13 June
  1997 by Aloys Schroder, Jan Thamann and Karl-Julius                    Action brought on 17 June 1997 by the Commission of
  Thamann, acting in the capacity of partners in                            the European Communities against the French Republic
  Zuchtschweine Epe GbR, Neuenkirchen, represented                                                  ( Case C-225/97)
  by Rudolf Brenken, of Rentzmann und Brenken,
  Quakenbriick, with an address for service in Luxembourg                                             ( 97/C 252/32 )
  at the Chambers of Michel Molitor, Pierre Feltgen and
  Andre Harpas, 14a Rue des Bains, Luxembourg.
                                                                         An action against the French Republic was brought before
  The appellants maintain the claims submitted in the                    the Court of Justice of the European Communities on
  proceedings before the Court of First Instance of the                  17 June 1997 by the Commission of the European
  European Communities (2 ) and claim that the Court of                  Communities, represented by Hendrik van Lier, Legal
  Justice should:                                                        Adviser, acting as Agent, with an address for service in
                                                                         Luxembourg at the office of Carlos Gomez de la Cruz,
  — order the respondent to pay DM 173 174,45 as                         Wagner Centre, Kirchberg.
      compensation for the damage arising from the
      contested decisions,
                                                                         The Commission of the European Communities claims
                                                                         that the Court should :
  — order the respondents to pay the costs.
  Pleas in law and main arguments adduced in support:                    — declare that, by adopting Law No 93/1416 of
                                                                              29 December 1993 as a measure for the transposition
  — Infringement of the right to a fair hearing: the Court                    into national law of the provisions of Council
      of First Instance did not take account of significant                   Directive 92/13/EEC of 25 February 1992
      arguments of the applicants and at any rate did not                     coordinating the laws, regulations and administrative
      refer to them, or referred to them incorrectly, in the                  provisions relating to the application of Community
      contested judgment. This applies in particular to the                   rules on the procurement procedures of entities
      argument that the definition, according to                              operating in the water, energy, transport and
      administrative borders, of the areas to be covered by                   telecommunications sectors ( ! ), the French Republic
      the bans was inappropriate and that only the criterion                  has failed to fulfil its obligations under Articles 1 (2 ),
      of distance away from the infected herds was the                        2 ( 1 ) (c ) and 2 ( 5 ) and Chapters 2 and 4 of Directive
      appropriate means of fighting the disease.                              92/ 13/EEC,
  — Infringement of Community law: an infringement of
      Community law resides in particular in the application             — order the French Republic to pay the costs.
 ---pagebreak--- 16 . 8 . 97             EN                      Official Journal of the European Communities                                 No C 252/ 17
Pleas in law and main arguments adduced in support:                        Pleas in law and main arguments adduced in support:
— Failure to fulfil the obligations resulting from                         The appellant complains that Community law has been
     Articles 1 (2 ), 2 ( 1 ) (c ) and 2 ( 5 ) of the Directive: Law       infringed and, in particular, that, in reaching its decision,
     No 93/1416 does not guarantee that the penalty will                   the Court of First Instance disregarded its obligation to
     have a genuinely dissuasive effect. It establishes, by                extrapolate the law.
     way of derogation, a specific interlocutory procedure
     which is less restrictive than that provided for under
     national civil law.                                                   (') OJ No C 137, 3 . 6 . 1995 , p . 26 .
                                                                           ( 2 ) OJ No C 181 , 4 . 6 . 1997, p. 13 .
— Failure to fulfil the obligations resulting from
     Chapter 2 of the Directive: the fact that recourse to
     the attestation procedure is optional for the
     contracting entities does not in any way mean that the
     attestation system is optional for the Member States,
     which are obliged to organize a system complying                      Action brought on 24 June 1997 by the Commission of
     with the provisions of Chapter 2 of the Directive .                   the European Communities against the Portuguese
                                                                                                            Republic
— Failure to fulfil the obligations resulting from                                                     ( Case C-229/97)
     Chapter 4 of the Directive: France has failed to specify
     the detailed rules governing intervention by the                                                    ( 97/C 252/34 )
     national authorities called upon to forward requests
     for conciliation to the Commission (Article 9 ( 2 ) of
     the Directive ). Lastly, Chapter 4 should have been                   An action against the Portuguese Republic was brought
     transposed in its entirety, if only for the purposes of               before the Court of Justice of the European Communities
     informing the persons concerned, as defined in                        on 24 June 1997 by the Commission of the European
     Article 9 ( 1 ), of the possibility open to them of having             Communities, represented by Francisco de Sousa Fialho,
     recourse to conciliation .                                             of its Legal Service, acting as Agent, with an address for
                                                                            service in Luxembourg at the office of Carlos Gomez de la
(') OJ No L 76 , 23 . 3 . 1992, p . 14 .
                                                                            Cruz, Wagner Centre, Kirchberg.
                                                                            The applicant claims that the Court should:
                                                                            — declare that, by failing to adopt within the prescribed
                                                                                  period the laws, regulations or administrative
Appeal brought on 20 June 1997 by Hedwig Kuchlenz­                                provisions necessary to comply fully and correctly
Winter against the judgment delivered on 16 April 1997                            with Council Directive 79/869/EEC H of 9 October
by the First Chamber of the Court of First Instance of the                        1979 concerning the methods of measurement and
European Communities in Case T-66/95 between Hedwig                               frequencies of sampling and analysis of surface water
Kuchlenz-Winter and the Commission of the European                                intended for the abstraction of drinking water in the
                              Communities
                                                                                  Member States, the Portuguese Republic has failed to
                         ( Case C-228/97 P)                                       fulfil its obligations under the third paragraph of
                             ( 97/C 252/33 )                                      Article 189 of the EC Treaty and Article 13 of
                                                                                  Directive 79/869/EEC in combination with Article 395
                                                                                  and Annex XXXVI of the Act of Accession ( 2 ),
An appeal against the judgment delivered on 16 April
 1997 by the First Chamber of the Court of First Instance
of the European Communities in Case T-66/95 between                         — declare, in the alternative, that, by failing to inform
Hedwig Kuchlenz-Winter and the Commission of the                                  the Commission forthwith of such measures, the
 European Communities was brought before the Court of                             Portuguese Republic failed to fulfil its obligations
Justice of the European Communities on 20 June 1997 by                            under those provisions,
 Hedwig Kuchlenz-Winter, represented by Dieter Rogalla,
 Rechtsanwalt, with an address for service in Luxembourg                    — order the Portuguese Republic to pay the costs .
 at the Chambers of Decker, Braun & Wagner, 16 Avenue
 Marie-Therese .
                                                                             Pleas in law and main arguments adduced in support:
 The appellant claims that the Court should:
                                                                             Under the third paragraph of Article 189 of the EC Treaty,
 — uphold all four heads of claim ( l ) advanced by the                      a directive is to be binding, as to the result to be achieved,
      applicant and set aside the judgment (2 ) of the Court                 upon each Member State to which it is addressed. In the
      of First Instance,                                                     present case, under Article 13 of Directive 79/869/EEC,
                                                                             the Member States are to bring into force the necessary
 — order the respondent to pay all the costs, including                      provisions within two years of its notification. That period
      those of the proceedings before the Court of First                     expired on 1 January 1989 without Portugal having
      Instance .                                                             adopted the provisions necessary to comply with, firstly,