CELEX: C2001/108/09
Language: en
Date: 2001-04-07 00:00:00
Title: Case C-42/01: Action brought on 1 February 2001 by the Portuguese Republic against Commission of the European Communities

C 108/6                EN                     Official Journal of the European Communities                                     7.4.2001
      to the permissible sound power level of compressors (20)           The United Kingdom has not notified the Commission of
      as amended by Directive 85/406/EEC(21), Council Direc-             the transposition into national law of the aforementioned
      tive 84/534/EEC of 17 September 1984 on the approxi-               directives to cover the territory of Gibraltar. The Commission
      mation of the laws in the Member States relating to the            therefore maintains that the United Kingdom is in breach of
      permissible sound power level of tower cranes (22) as              its obligations under the Treaty.
      amended by Directive 87/405/EEC (23), Council Directive
      84/535/EEC of 17 September 1984 on the approxi-
      mation of the laws in the Member States relating to the            (1) OJ 196, 16.8.1967, p. 1 (SE SER1 67, p. 234).
                                                                         (2) OJ L 133, 30.5.1988, p. 1.
      permissible sound power level of welding generators (24)
                                                                         (3) OJ L 228, 17.8.1991, p. 67.
      as amended by Directive 85/407/EEC (25), Council Direc-            (4) OJ L 154, 5.6.1992, p. 1.
      tive 84/536/EEC of 17 September 1984 on the approxi-               (5) OJ L 383, 29.12.1992, p. 113.
      mation of the laws in the Member States relating to the            (6) OJ L 110, 4.5.1993, p. 20.
      permissible sound power level of power generators (26) as          (7) OJ L 227, 8.9.1993, p. 9.
      amended by Directive 85/408/EEC (27), Council Directive            (8) OJ L 258, 16.10.1993, p. 29.
      84/537/EEC of 17 September 1984 on the approximation               (9) OJ L 13, 15.1.1994, p. 1.
      of the laws in the Member States relating to the permiss-          (10) OJ L 294, 30.11.1993, p. 21.
      ible sound power level of powered hand-held concrete-              (11) OJ L 381, 31.12.1994, p. 1.
      breakers and picks (28) as amended by Directive                    (12) OJ L 248, 30.9.1996, p. 1.
                                                                         (13) OJ L 343, 13.12.1997, p. 19.
      85/409/EEC (29), Council Directive 84/538/EEC of
                                                                         (14) OJ L 15, 17.1.1987, p. 29.
      17 September 1984 on the approximation of the laws in              (15) OJ L 74, 27.3.1993, p. 81.
      the Member States relating to the permissible sound                (16) OJ L 350, 28.12.1998, p. 58.
      power level of lawnmowers (30) as amended by Directive             (17) OJ L 33, 8.2.1979, p. 15.
      87/252/EEC (31), Directive 88/180/EEC (32) and Directive           (18) OJ L 376, 30.12.1981, p. 49.
      88/181/EEC (33), Council Directive 86/594/EEC of                   (19) OJ L 233, 30.8.1985, p. 9.
      1 December 1986 on airborne noise emitted by house-                (20) OJ L 300, 19.11.1984, p. 123.
      hold appliances(34), Council Directive 86/662/EEC of               (21) OJ L 233, 30.8.1985, p. 11.
      22 December 1986 on the limitation of noise emitted by             (22) OJ L 300, 19.11.1984, p. 130.
      hydraulic excavators, rope-operated excavators, dozers,            (23) OJ L 220, 8.8.1987, p. 60.
                                                                         (24) OJ L 300, 19.11.1984, p. 142.
      loaders and excavator-loaders (35) as amended by Direc-
                                                                         (25) OJ L 233, 30.8.1985, p. 16.
      tive 89/514/EEC (36) and Directive 95/27/EC (37), Euro-            (26) OJ L 300, 19.11.1984, p. 149.
      pean Parliament and Council Directive 94/62/EC of                  (27) OJ L 233, 30.8.1985, p. 18.
      20 December 1994 on packaging and packaging                        (28) OJ L 300, 19.11.1984, p. 156.
      waste (38) and Commission Directive 97/35/EC of 18 June            (29) OJ L 233, 30.8.1985, p. 20.
      1997 (39) adapting to technical progress for the second            (30) OJ L 300, 19.11.1984, p. 171.
      time Council Directive 90/220/EEC on the deliberate                (31) OJ L 117, 5.5.1987, p. 22.
      release into the environment of genetically modified               (32) OJ L 81, 26.3.1988, p. 69.
      organisms (40) or in any event by failing to inform the            (33) OJ L 81, 26.3.1988, p. 71.
      Commission, the United Kingdom has failed to fulfil its            (34) OJ L 344, 6.12.1986, p. 24.
                                                                         (35) OJ L 384, 31.12.1986, p. 1.
      obligations under these directives
                                                                         (36) OJ L 253, 30.8.1989, p. 35.
                                                                         (37) OJ L 168, 18.7.1995, p. 14.
                                                                         (38) OJ L 365, 31.12.1994, p. 10.
—     order the United Kingdom to pay the costs.                         (39) OJ L 169, 27.6.1997, p. 72.
                                                                         (40) OJ L 117, 8.5.1990, p. 15.
Pleas in law and main arguments
The third paragraph of Article 249 of the EC Treaty provides
that directives are to be binding, as to the result to be achieved,      Action brought on 1 February 2001 by the Portuguese
on each Member State to which they are addressed. The first              Republic against Commission of the European Communi-
paragraph of Article 10 of the Treaty provides that Member                                               ties
States are to take all appropriate measures, whether general or
particular, to ensure fulfilment of the obligations arising out
of the Treaty or resulting from action taken by the institutions                                   (Case C-42/01)
of the Community.
                                                                                                  (2001/C 108/09)
The Commission considers that it follows from the provisions             An action against the Commission of the European Communi-
of the EC Treaty and of the 1972 Act of Accession to the                 ties was brought before the Court of Justice of the European
Communities by Denmark, Ireland and the United Kingdom                   Communities on 1 February 2001 by the Portuguese Republic,
that the United Kingdom is under an obligation to extend the             represented by L. Inês Fernandes and M.L. Duarte, acting as
transposition of the directives referred to in its conclusions to        Agents, and M. Marques Mendes, advogado, with an address
cover the territory of Gibraltar.                                        for service in Luxembourg.
 ---pagebreak--- 7.4.2001               EN                    Official Journal of the European Communities                                       C 108/7
The applicant claims that the Court should:                                  by the Portuguese Republic constitute restrictions on the
                                                                             freedom of establishment and free movement of capital
                                                                             and, thus, are not in pursuit of legitimate interests,
1.    declare null and void Commission Decision C(2000)3543                  compatible with Community law, for the purposes of
      final, of 22 November 2000, concerning a proceeding                    Article 21(3) of Regulation (EEC) No 4064/89.
      pursuant to Article 21 of Council Regulation (EEC)
      No 4064/89 (1) of 21 December 1989 on the con-
      trol of concentrations between undertakings (Case
      No COMPN.2054 - Secil/Holderbank/Cimpor);                         —    Breach of Article 7(1), in fine, EC (ex Article 4(1) in fine,
                                                                             of the EC Treaty) and of Article 21(1) and the third
                                                                             paragraph of Article 21(3) of Regulation (EEC) No
2.    order the Commission to pay the costs.                                 4064/89: the Commission has no power to adopt the
                                                                             contested decision. The third paragraph of Article 21(3)
                                                                             defines, very clearly, the procedural requirements which
                                                                             must be fulfilled in order for such a decision to be valid.
                                                                             Failure by a State to inform, as is the case here, does not
Pleas in law and main arguments                                              provide the Commission with a legal basis for adopting a
                                                                             decision. It is open to the Commission to open infringe-
                                                                             ment proceedings so that it does not have to look to
                                                                             Article 21(3) for justification for a power exercised
Portugal has brought the present action on the ground that it                contrary to the legal requirements expressly laid down in
is not possible to ascertain what effects the Commission                     that provision.
attributes to the withdrawal, on 9 January 2001, of the
notification by Holderbel and Secil of their bid to acquire
shares in the capital of Cimpor, a withdrawal which, in the
view of the applicant, results in the lapse of the contested            —    Breach of Article 220 EC (ex Article 164 of the EC Treaty)
decision.                                                                    and of Article 21(1) of Regulation (EEC) No 4064/89: the
                                                                             Commission infringed the Court’s jurisdiction. Pending
                                                                             an action for failure to fulfil obligations, brought by the
                                                                             Commission for a finding by the Court that the Portugue-
Unlawfulness of the contested decision in that it constitutes                se privatisation scheme under, in particular, Decree-
                                                                             Law No 380/93 is contrary to Community law, the
                                                                             Commission cannot impose on the Member State con-
—     Breach of Article 253 EC (ex Article 190 of the EC                     cerned an obligation which, since it is based on a
      Treaty): absence of a precise legal provision granting                 presumption of incompatibility, amounts to an unlawful
      sufficient authorisation. It is not possible to infer from             measure which prejudges the as-yet-unknown judgment
      any of the references to Article 21 of Regulation No                   to be delivered by the Community judicature.
      4064/89 a precise indication of how and why that
      provision empowers the Commission, in the absence of
      communication of the ‘legitimate interests’ which the
      ‘appropriate measures’ are intended to protect, as pro-
      vided for in the third paragraph of Article 21(3), to rule        —    Breach of the third paragraph of Article 5 EC (formerly
      on the compatibility with Community law of‘ interests                  the third paragraph of Article 3b of the EC Treaty): the
      (allegedly) underlying the orders made by the Minister for             contested decision gravely and manifestly infringes the
      Finances on 5 July and 11 August 2000’.                                principle of proportionality. Even supposing that the
                                                                             Portuguese Republic had infringed Community law with
                                                                             regard to a concentration which has a ‘Community
                                                                             dimension’, that is to say the merger between Holderbank
—     Breach of Article 253 EC (ex Article 190 of the EC                     and Cimpor, the Commission should have made the
      Treaty): no ground for alleged incompatibility between                 solution to that hypothetical infringement fit the sphere
      Community law and national measures. If the system                     in which it had allegedly occurred, without interfering
      which allows for possible limits on the acquisition of                 with the sphere reserved to the Portuguese Republic to
      large numbers of shares in the capital of privatised                   assess a concentration which does not have a ‘Community
      undertakings, together with the national measures, at                  dimension’, namely the Secil/Cimpor merger.
      issue here, were deemed to constitute ‘restrictions’, which
      are not discriminatory, on the freedom of establishment
      and free movement of capital in the EC, it would then be
      necessary to analyse its possible justification by reference
      not only to the express derogations provided by the               —    Breach of Article 226 EC (ex Article 169 of the EC
      Treaty, but also to the imperative reasons in the general              Treaty): abuse of process. In order to avoid what it
      interest which have been accepted in respect of both                   describes as the exclusion of the effectiveness of Article
      those fields. However, the Commission merely adopted a                 21(3) of Regulation (EEC) No 4064/89, the Commission
      decision, devoid of any factual or legal grounds to                    deems itself empowered, in the absence of formal com-
      substantiate it, according to which the measures adopted               munication, to declare incompatible with Community
 ---pagebreak--- C 108/8                EN                     Official Journal of the European Communities                                     7.4.2001
      law the interests underlying the Ministerial orders. The           Appeal brought on 6 February 2001 by Royal Olympic
      Commission’s claim that Article 21(3) may be understood            Cruises and other companies against the order made on
      as conferring a duty on it to act by way of decision as if         12 December 2000 by the Second Chamber of the Court
      its role as ‘guardian of the treaties’, together with the          of First Instance of the European Communities in Case
      overriding interests of Community law, required such               T-201/99 Royal Olympic Cruises and Others v Council of
      a solution, makes no sense whatever. In fact, if the               the European Union and Commission of the European
      Commission had reason to believe that the Portuguese                                          Communities
      Republic infringed a particular duty to inform, the proper
      procedure, and the only one in this case, was to bring
      infringement proceedings under Article 226 EC.
                                                                                                  (Case C-49/01 P)
(1) OJ 1989 L 395, p. 1.
                                                                                                   (2001/C 108/11)
                                                                         An appeal against the order made on 12 December 2000 by
                                                                         the Second Chamber of the Court of First Instance of the
                                                                         European Communities in Case T-201/99 Royal Olympic
                                                                         Cruises and Others v Council of the European Union and
Action brought on 2 February 2001 by Commission of                       Commission of the European Communities was brought
    the European Communities against Italian Republic                    before the Court of Justice of the European Communities
                                                                         on 6 February 2001 by Royal Olympic Cruises and other
                                                                         companies, represented by Professor N. Skandamis, of the
                          (Case C-46/01)                                 Athens Bar, and A. Potamianos of the Piraeus Bar.
                         (2001/C 108/10)
                                                                         The appellants claim that the Court should:
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 2 February
2001 by the Commission of the European Communities,                      —     set aside the order of the Court of First Instance of
represented by Hans Støvlbaek and Roberto Amorosi, acting                      12 December 2000;
as Agents.
                                                                         —     refer back to the Court of First Instance for judgment
The applicant claims that the Court should:                                    the action for damages brought by the appellants on
                                                                               9 September 1999;
—     declare that, by failing to draw up and forward to
      the Commission the appropriate plans, outlines and
      summary inventories necessary to comply with Articles              —     order the Council of the European Union and the
      11 and 4(1) of Council Directive 96/59/EC (1) of 16 Sep-                 European Commission to pay the costs.
      tember 1996 on the disposal of polychlorinated biphe-
      nyls and polychlorinated terphenyls (PC13/PCT), the
      Italian Republic has failed to fulfil its obligations under
      those provisions of the directive;and
                                                                         Pleas in law and main arguments
—     order the Italian Republic.
                                                                         1.    Inadequate reasoning: the dismissal of the action for
                                                                               damages as clearly unfounded denied the applicants
Pleas in law and main arguments                                                their procedural right to put forward and to develop
                                                                               sufficiently their arguments concerning a case which is of
The Italian authorities should have taken steps to communicate                 major importance and, in many respects, novel for the
to the Commission the various plans, outlines and summary                      case-law.
inventories, provided for by Articles 11 and 4(1) of the
directive referred to in the Commission’s application, by
16 September 1999. To date, it has not yet done so.                      2.    Misinterpretation of the condition requiring a direct
                                                                               causal link.
(1) OJ L 243, 24.9.1996, p. 31.