CELEX: C1998/299/28
Language: en
Date: 1998-09-26 00:00:00
Title: Reference for a preliminary ruling by the Tribunal d'Arrondissement, Luxembourg, by order of that court of 15 July 1998 in the case of the State of the Grand Duchy of Luxembourg v. Linster and Others (Case C-287/98)

26.9.98                EN                Official Journal of the European Communities                                         C 299/17
           infringements committed by Kopparfors, the                     in the infringement and failed to adopt appropriate
           burden of proof is imposed on the appellant and,               measures in order to prevent the continuation of the
           with respect to Feldmühle and CBC, mere                        infringement;
           assumptions are relied on to the detriment of the
           appellant;
                                                                    (iii) held that the Commission's failure to set out in the
     (iii) violate the principle that punishment requires                 Decision the factors of which it had systematically
           fault in that, without any basis in the facts of the           taken account when fixing the appellant's fine was
           case, an assumption is made that the appellant                 not an infringement of the duty to state reasons such
           must have been aware of Feldmühle's and CBC's                  as would justify annulment in whole or in part of the
           participation in the cartel;                                   fine imposed,
     (iv) offend the laws of logic in that the appellant is         and, further and in the alternative, that it erred in law in
           held to be under an obligation to take measures          that it:
           against infringements committed by Feldmühle
           and CBC of which it was not even aware and
           without regard to the fact that the appellant,           (iv) held that its own conclusion that the Commission
           even if he had been aware thereof, did not have                had failed to prove all the alleged effects of the
           the power to implement such measures;                          infringement could not materially affect its
                                                                          assessment of the gravity of the infringement and
     (v)   infringe the rules regarding the burden    of proof            thus could not lead to a reduction in the fine.
           and the principle in dubio pro reo in      that the
           appellant is required to prove that it      did not      (1) Not yet published.
           continue the infringing conduct             of its       (2) OJ L 243, 19.9.1994, p. 1.
           subsidiaries;                                            (3) Official Journal, English Special Edition, 1962, p. 87.
     (vi) violate     essential   procedural     requirements
           pursuant to Articles 173 and 190 in that the fine
           imposed on the appellant is not annulled
           although it is acknowledged in the judgment that
           the criteria applied in calculating the individual
           amount of the fine should have been disclosed in         Reference for a preliminary ruling by the Tribunal
           the Decision.                                            d'Arrondissement, Luxembourg, by order of that court of
                                                                    15 July 1998 in the case of the State of the Grand Duchy
                                                                                  of Luxembourg v. Linster and Others
Ð Alternatively, the fine imposed on Stora must be
     annulled or at least reduced because the Court of First                                 (Case C-287/98)
     Instance made on the basis substantive errors of                                          (98/C 299/28)
     Community law which:
     vii) violate Article 15(2) of Regulation No 17 in that
                                                                    Reference has been made to the Court of Justice of the
           the Commission's failure to fully prove the
                                                                    European Communities by an order of the Tribunal
           effects of the collusion on prices is held not to
                                                                    d'Arrondissement (District Court), Luxembourg, of 15 July
           materially affect the assessment of the gravity of
                                                                    1998, which was received at the Court Registry on 27 July
           the infringement.
                                                                    1998, for a preliminary ruling in the case of the State of
                                                                    the Grand Duchy of Luxembourg v. Linster and Others,
                                                                    on the following questions:
Pleas in law and main arguments adduced in support:
                                                                    1. Must Articles 177 and 189 of the EC Treaty be
It is submitted that the Court of First Instance erred in                interpreted as meaning that a court against whose
law in that it:                                                          decisions there is no judicial remedy under national
                                                                         law and which is called on to verify the legality of a
                                                                         procedure for the expropriation on grounds of public
(i)   held that infringements of Article 85 committed by
                                                                         utility of immovable property belonging to a private
      its subsidiary Kopparfors must be imputed to the
                                                                         individual may find that the assessment of the impact
      appellant without regard to the Commission's failure
                                                                         of the construction of a motorway required by
      to establish whether the appellant had exercised any
                                                                         Article 5(1) of Council Directive 85/337/EEC of
      influence on Kopparfors' commercial policy;
                                                                         27 June 1985 (1) on the assessment of the effects of
                                                                         certain public and private projects on the environment,
(ii) disregarded the relevant case-law when it held that                 being a project of the kind referred to in Article 4(1)
      infringements committed by Feldmühle and CBC                       thereof, has not been carried out and that the
      prior to and after their acquisition by the appellant              information obtained in accordance with Article 5 has
      must be imputed to the appellant because the                       not been made available to the public and that the
      appellant could not be unaware of their participation              members of the public concerned have not had an
 ---pagebreak--- C 299/18             EN                  Official Journal of the European Communities                                     26.9.98
   opportunity of expressing their views before the                     of the motorway to be built, to be regarded as a
   project is initiated, contrary to the requirements of                project to which the Directive does not apply?
   Article 6(2), the Directive not having been fully
   transposed into national law despite the expiry of the           (1) OJ L 175, 5.7.1985, p. 40.
   period laid down for that purpose, or does such a
   finding involve an appraisal of the direct effect of the
   Directive, so that the court is required to refer a
   question on the matter to the Court of Justice of the
   European Communities?
                                                                    Action brought on 28 July 1998 by the Commission of the
                                                                       European Communities against the Republic of Austria
2. If the Court of Justice, in reply to the first question,                                (Case C-290/98)
   holds that the court against whose decisions there is
   no judicial remedy under national law is under an                                         (98/C 299/29)
   obligation to seek a preliminary ruling from the Court
   of Justice, then the question referred is as follows.
                                                                    An action against the Republic of Austria was brought
                                                                    before the Court of Justice of the European Communities
                                                                    on 28 July 1998 by the Commission of the European
   May the abovementioned Directive be applied to a                 Communities, represented by Christina Tufvesson and
   dispute concerning the expropriation on grounds of               Viktor Kreuschitz, of its Legal Service, acting as Agents,
   public utility of immovable property belonging to a              with an address for service in Luxembourg at the office of
   private individual and may the court called on to                Carlos Gómez de la Cruz, a member of the European
   examine the legality of the expropriation procedure              Commission's Legal Service, Wagner Centre C 254,
   find that, contrary to Articles 5(1) and 6(2), no                Kirchberg, Luxembourg.
   environmental impact assessment has been carried out
   and that the information obtained in accordance with
                                                                    The applicant claims that the Court should:
   Article 5 has not been made available to the public
   and that the members of the public concerned have
   not had an opportunity of expressing their views                 1. declare that by
   before the construction of a motorway, a project of
   the kind referred to in Article 4(1), is initiated?                  Ð limiting the prohibition on money laundering
                                                                            contained in paragraph 165 of the Strafgesetzbuch
                                                                            (penal code) to assets having a value of over ATS
                                                                            100 000,
3. Does the act of national legislation mentioned in
   Article 1(5) of the abovementioned Directive have an
   independent meaning in Community law or must it be                   Ð not requiring customer identification when a
   characterised in accordance with domestic law?                           securities account is opened as from 1 January
                                                                            1994 (the date on which the Treaty on the
                                                                            European Economic Area entered into force), but
                                                                            as from 1 August 1996,
4. If the term specific act of national legislation' has an
   independent meaning in Community law, is a measure                   Ð not requiring customer identification for all
   adopted by the parliament after public parliamentary                     transactions into or out of an existing securities
   debate to be regarded as an act of national legislation                  account, but only, under paragraph 40(5) of the
   within the meaning of Article 1(5) of the Directive?                     Bankwesengesetz (bank law), requiring that the
                                                                            customer's identity be established for deposits and
                                                                            purchases of securities for a securities account,
5. Does the term project' as used in Article 1(5) of the               Ð not requiring customer identification whenever a
   abovementioned Directive, the details of which are                       savings account is opened on or after 1 January
   adopted by a specific act of national legislation, have                  1994,
   an independent meaning in Community law or must it
   be characterised in accordance with domestic law?                    Ð not requiring customer identification for all
                                                                            operations relating to a savings account book,
                                                                            whether opened before or after 1 January 1994,
6. If the term project' as used in Article 1(5) of the
   Directive, the details of which are adopted by a                     the Republic of Austria has failed to fulfil its
   specific act of national legislation, has an independent             obligations under the EC Treaty and Articles 2, 3(1),
   meaning in Community law, is the project adopted by                  3(5) and 3(6) of Council Directive 91/308/EEC of
   decision of the parliament after public parliamentary                10 June 1991 on prevention of the use of the financial
   debate to construct a motorway in order to establish a               system for the purpose of money laundering (1) (the
   link with two other roads, without settling the route                Directive');