CELEX: C2001/348/33
Language: en
Date: 2001-12-08 00:00:00
Title: Case C-406/01: Action brought on 15 October 2001 by the Federal Republic of Germany against the European Parliament and the Council of the European Union

C 348/18                EN                    Official Journal of the European Communities                                     8.12.2001
Pleas in law and main arguments                                          Action brought on 15 October 2001 by the Federal
                                                                         Republic of Germany against the European Parliament
                                                                                    and the Council of the European Union
—     Infringement of the conditions laid down by Decision
      2001/376/EC (2), the Commission adopted Decision                                           (Case C-406/01)
      2001/577/EC without having carried out all the inspec-
      tions prescribed by Article 21 of Decision 2001/376/EC.
      The last inspection report of the Food and Veterinary                                      (2001/C 348/33)
      Office communicated to the French Republic before the
      decision of 25 July 2001 was the report of 25 to 27 June
      2001 in its final version DG(SANCO)3345/2001, which
      does not examine the development of the incidence of
      the disease and the effective enforcement of the relevant          An action against the European Parliament and the Council of
      national measures and does not contain a risk assessment           the European Union was brought before the Court of Justice
      demonstrating whether appropriate measures to manage               of the European Communities on 15 October 2001 by the
      any risk have been taken. It is apparent from the                  Federal Republic of Germany, represented by Wolf-Dieter
      conclusions of that report that, at the time when the              Plessing, Ministerialrat, Moritz Lumma, Oberregierungsrat,
      inspection report was submitted, the desired legislation           both of the Federal Ministry of Finance, 108 Graurheindorfer
      was not yet in force and certain Food and Veterinary               Straße, D-53117 Bonn, and Jochim Sedemund, Rechtsanwalt,
      Office inspections were still awaited in order to avoid the        of Freshfields Bruckhaus Deringer, 1 Potsdamer Platz,
      risk of ‘cross-contamination’ which have been revealed in          D-10785 Berlin.
      other countries. The Portuguese decree-law which sets
      out the DBES was not approved until 12 July 2001, that
      is to say two weeks before the lifting of the ban fixed for
      1 August 2001, and the DBES application manual was to              The applicant claims that the Court should:
      be submitted to the Minister for Agriculture on 14 July.
      The French Government therefore considers that ‘effective
                                                                         1.    Annul Article 3(1) in conjunction with Article 3(2) of
      enforcement of the relevant national measures’, within
                                                                               Directive 2001/37/EC of the European Parliament and of
      the meaning of Article 21(2) was not ensured at the time
                                                                               the Council of 5 June 2001 on the approximation of the
      when the decision setting the date for the lifting of the
                                                                               laws, regulations and administrative provisions of the
      ban was adopted.
                                                                               Member States concerning the manufacture, presentation
                                                                               and sale of tobacco products (1), in so far as those
      Nor could the operational effectiveness of the procedures                provisions prohibit the manufacture of cigarettes for
      set up be checked, either in terms of traceability of bovine             export from the European Community to non-member
      products or in terms of tests on cattle, on the date on                  countries;
      which the contested decision was adopted any more than
      it could on the date set for the partial lifting of the ban.       2.    Order the defendants to pay the costs.
      Accordingly, the Commission infringed Article 22 of
      Decision 2001/376/EC.
—     Infringement of the precautionary principle: while                 Pleas in law and main arguments
      Article 174 EC falls within the framework of Community
      environmental policy, Community case-law does not                  —     Article 95 EC is not an adequate legal basis for the
      confine the precautionary principle to that field alone                  contested prohibition of export. Approximation
      and extends it to public health objectives. The nature and               measures under Article 95 EC must have as their subject
      seriousness of the risks relating to BSE warrant full                    the elimination of differences between the legal systems
      compliance with the precautionary principle.                             of the Member States with the aim of eliminating
                                                                               distortions of competition in relations between the
                                                                               Member States or preventing them from occurring.
                                                                               Measures which concern exports to non-member
                                                                               countries are not covered by Article 95 EC. The internal
(1) OJ L 203, 28.7.2001, p. 27.                                                market aim of removing barriers to trade which result
(2) Commission Decision 2001/376/EC concerning measures made                   from differing national rules is achieved already by
    necessary by the occurrence of bovine spongiform encephalopa-              the prohibition of marketing. That a prohibition of
    thy in Portugal and implementing a date-based export scheme (OJ            manufacture is not necessary for that purpose is shown
    L 132, 15.5.2001, p. 17).
                                                                               by the fact that all comparable harmonisation directives
                                                                               (for example, in the field of regulating additives to
                                                                               foodstuffs) confine themselves to prohibitions of market-
                                                                               ing and do not lay down prohibition of manufacture. The
                                                                               prohibition of manufacture in the contested Directive
                                                                               thus in fact pursues exclusively the aim of the protection
 ---pagebreak--- 8.12.2001             EN                    Official Journal of the European Communities                                       C 348/19
     of health of Community citizens, since according to               Reference for a preliminary ruling by the Tribunale Civile
     recital 11 of the Directive the prohibition is to ensure          e Penale di L’Aquila by order of 5 October 2001 in the
     that ‘the internal market provisions are not undermined’                 case of Rolando Salusest v Giovanni Petrucci
     (by illegal reimports). The prohibition of manufacture
     thus appears, according to its true nature, as a pure
     prohibition of export. However, in the opinion of the
     German Government, such a measure cannot be based                                          (Case C-409/01)
     on Article 95 EC either, since protection against illegal
     imports (whether the causes are of a State or private
     character) does not fall within the scope of Article 95 EC.
     Nor, finally, can Article 95 be an appropriate ground of
     competence for a general prohibition of manufacture and                                    (2001/C 348/34)
     export in view of the aim of preventing ‘evasion’ of the
     rules of the internal market, since so comprehensive a
     prohibition would be manifestly disproportionate to
     achieving the aim pursued. That is because it is almost
     exclusively cigarettes manufactured in non-member
     countries, not in the Community, which are the object of
     illegal imports.
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of 5 October 2001 by the
—    Article 133 EC is not a proper legal basis for the contested      Tribunale Civile e Penale di l’Aquila (Civil and Criminal District
     prohibition of export. The aim of the contested measure           Court, L’Aquila), which was received at the Court Registry on
     is not in fact the regulation of trade with non-member            16 October 2001, for a preliminary ruling in the case
     countries or the influencing of commerce or trade flows,          of Rolando Salusest v Giovanni Petrucci on the following
     but the prevention of illegal reimports. The measure does         questions:
     not therefore meet the requirements for competence
     defined by the Court of Justice in opinions 1/94 and
     2/92.
                                                                       (a)  Is the provision of binding minimum tariffs contrary to
                                                                            free competition on the ground that it prevents the free
     In the alternative: even if the scope of Article 133 EC                fixing of fees for a lawyer’s services, as provided for under
     were available, the prohibition of export cannot, in                   Article 81(1)(a) EC, and does it also have the effect
     the opinion of the German Government, be based on                      of reinforcing the compartmentalisation of markets at
     Article 133, because it restricts disproportionately the               national level, thereby hindering the economic integration
     principle of freedom of export to be taken into account                intended by the Treaty?
     by the Community legislature, and hence infringes the
     third paragraph of Article 5 EC. In view of the trivial
     extent of reimports of cigarettes manufactured in the                  Lawyers who are nationals of other EC Member States
     Community, the contested provision is not appropriate                  and who work in Italy are also required under Article 13
     at all for protecting Community citizens effectively                   of the Law of 9 February 1982 to comply with the tariff
     against health risks caused by illegal imports into the                for legal fees and thus also with the rule prohibiting
     Community; that aim can only be effectively attained by                differentiation of amounts below a specified minimum
     a reinforcement of import controls, which are necessary                level.
     anyway for combating the evasion of customs duty, are
     much more effective, and involve much lesser competitive
     disadvantages for Community industry. Since the contest-
     ed provision does not constitute an ‘overt’ and ‘specific’        (b) Are Articles 633(1)(2) and 636(1) of the Italian Code of
     measure of external trade policy, but is intended to ensure            Civil Procedure, under which a lawyer is authorised to
     higher health standards in the Community, the reference                have his fees determined by the Council of the order to
     to Article 133 EC amounts to an evasion of                             which he belongs through the adoption of an opinion
     Article 152(4)(c) EC.                                                  binding on his client and on the court (in enforcement
                                                                            proceedings), allowing him to obtain entitlement based
                                                                            on that unilateral determination of the professional
—    The combination of the above legal bases, each of which                fee pursuant to the abovementioned minimum tariffs,
     is insufficient on its own, does not confer on them a                  contrary to free competition on the ground that they
     more extensive scope.                                                  prevent the free fixing of fees for a lawyer’s services, as
                                                                            provided for under Article 81(1)(a) EC, by reserving such
                                                                            determination to a body consisting exclusively of lawyers?
(1) OJ L 194 of 18.7.2001, p. 26.