CELEX: C2003/146/32
Language: en
Date: 2003-06-21 00:00:00
Title: Case C-117/03: Reference for a preliminary ruling by the Consiglio di Stato in sede giurisdizionale, Sezione Sesta by order of that Court of 17 December 2002 in the case of Società Italiana Dragaggi s.p.a. against Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma del Friuli Venezia Giulia

21.6.2003               EN                       Official Journal of the European Union                                         C 146/19
Appeal brought on 14 March 2003 by Augusto Fichtner,                           b)   even if it should be deemed that the appellant did,
a former official of the Commission of the European                                 however, fail to fulfil said obligation, such breach
Communities, against the judgment of 16 January 2003 of                             could not be held to have been committed ‘intention-
the Fourth Chamber of the Court of First Instance in Case                           ally or through negligence’;
           T-75/00 Augusto Fichtner v Commission
                                                                         2.    the principle of proportionality (by the administration)
                         (Case C-116/03 P)                                     by:
                                                                               a)   misuse of its powers: the Commission, by adopting
                          (2003/C 146/31)
                                                                                    the contested decision, pursued an objective other
                                                                                    that for which the relevant power had been con-
                                                                                    ferred on it (safeguarding the internal rules of the
                                                                                    civil service) and, in any event, in order to achieve
An appeal against the judgment of 16 January 2003 of the                            purposes other than those declared;
Fourth Chamber of the Court of First Instance in Case T-75/
00 Augusto Fichtner v Commission was brought before the
                                                                               b)   manifest error of assessment of the facts: the Com-
Court of Justice of the European Communities on 14 March                            mission failed to take into account:
2003 by Augusto Fichtner, represented by Michele Tamburini
and Franco Colussi, lawyers.
                                                                                    1.    the good faith of the appellant;
The appellant claims that the Court should:
                                                                                    2.    that he could not have been refused the per-
                                                                                          mission in question since the outside activity
—     set aside the contested judgment;                                                   did not impair the official’s independence nor
                                                                                          was detrimental to the work of the Communi-
—     uphold the claims submitted at first instance and, accord-                          ties.
      ingly;
      —     annul the contested decision of the appointing
            authority of 30 September 1999, which is at issue;
      —     order the Commission to pay him the outstanding
            remuneration and allowances as revalued and with
            interest to run from the date on which the decision
            took effect until actual payment is made;
                                                                         Reference for a preliminary ruling by the Consiglio di
                                                                         Stato in sede giurisdizionale, Sezione Sesta by order of
      —     order the Commission to make good the material
                                                                         that Court of 17 December 2002 in the case of Società
            and non-material damage suffered by the appellant,
                                                                         Italiana Dragaggi s.p.a. against Ministero delle Infrastruttu-
            such compensation being assessed at EUR 50 000 or
                                                                         re e dei Trasporti and Regione Autonoma del Friuli
            any other amount which the Court might deem
                                                                                                   Venezia Giulia
            appropriate and equitable or as may be subsequently
            decided;
                                                                                                  (Case C-117/03)
—     order the Commission to pay the costs.
                                                                                                  (2003/C 146/32)
Pleas in law and main arguments
The judgment of the Court of First Instance is contrary to
Community law, in particular to:                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Consiglio di Stato in
                                                                         sede giurisdizionale, Sezione Sesta (Judicial Committee of the
1.    Article 86(1) of the Staff Regulations, inasmuch as:
                                                                         Council of State, Sixth Chamber) of 17 December 2002,
                                                                         received at the Court Registry on 18 March 2003, for a
      a)    the appellant did not fail to fulfil his obligations         preliminary ruling in the case of Società Italiana Dragaggi s.p.a.
            under the third paragraph of Article 12 of the Staff         against Ministero delle Infrastrutture e dei Trasporti and
            Regulations, having proved that he did request               Regione Autonoma del Friuli Venezia Giulia on the following
            permission to pursue an outside activity;                    question:
 ---pagebreak--- C 146/20               EN                         Official Journal of the European Union                                          21.6.2003
Is Article 4(5) of Directive No 92/43 ( 1) of 21 May 1992 to be                 b)    If the answer to question 1(a) is affirmative: must
interpreted as meaning that the measures under Article 6 and,                         Article 22 of Directive 92/46/EEC be interpreted as
in particular, under Article 6(3) of that directive are mandatory                     meaning that in the case of imports from non-
for the Member States only after final approval at Community                          Member States that directive is applicable only to
level of the list of sites under Article 21 or, alternatively, in                     the milk constituent of a product and thus not to
addition to determination of the ordinary commencement date                           the product of which it is a constituent?
of conservation measures, must a distinction be drawn between
declaratory listing and determinative listing (including in the           2.    a)    Does the concept of ’milk-based products’ in
first category the listing of priority sites) with the result that,                   Article 2(4) of Directive 92/46/EEC concern only
in order to ensure the effectiveness of the directive, where a                        finished products or also semifinished products
Member State identifies a site of Community importance                                which must undergo further processing before they
sustaining priority natural habitat types or species, there must                      can be offered for sale to the consumer?
be considered to be an obligation to carry out an assessment
of plans and projects with a significant effect on the site even
before the Commission draws up the draft list of sites or                       b)    In the event that Article 2(4) of Directive 92/46/EEC
adopts the final version of that list pursuant to Article 21 of                       also refers to semifinished products, according to
the directive and, in fact, with effect from the drawing up of                        which criteria must it be determined whether milk
the national list?                                                                    or a milk product forms an essential part of a
                                                                                      product, either in terms of quantity or for charac-
                                                                                      terization of those products, as referred to in
                                                                                      Article 2(4) of Directive 92/46/EEC?
( 1) OJ L 206 of 22.7.1992, p. 7.
                                                                          (1 ) OJ L 268 [1992], p. 1.
Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by judgment of that Court                   Action brought on 20 March 2003 by the Commission of
of 11 March 2003 in the case of (1) Artrada (Freezone)                    the European Communities against the Federal Republic
NV, (2) Videmecum BV and (3) Jac. Meisner Internationaal                                              of Germany
Expeditiebedrijf BV against Rijksdienst voor de Keuring
                        van Vee en Vlees
                                                                                                    (Case C-126/03)
                         (Case C-124/03)                                                            (2003/C 146/34)
                         (2003/C 146/33)
                                                                          An action against the Federal Republic of Germany was
                                                                          brought before the Court of Justice of the European Communi-
                                                                          ties on 20 March 2003 by the Commission of the European
Reference has been made to the Court of Justice of the                    Communities, represented by Klaus Wiedner, of the Com-
European Communities by judgment of the College van Beroep                mission’s Legal Service, acting as Agent, with an address for
voor het bedrijfsleven (Administrative Court for Trade and                service in Luxembourg.
Industry) of 11 March 2003, received at the Court Registry on
20 March 2003, for a preliminary ruling in the case of
(1) Artrada (Freezone) NV, (2) Videmecum BV and (3) Jac.                  The Commission claims that the Court should:
Meisner Internationaal Expeditiebedrijf BV against Rijksdienst
voor de Keuring van Vee en Vlees (Netherlands Livestock and               —     Declare that, by reason of the fact that the contract for
Meat Inspectorate) on the following questions:                                  waste transport concluded by the City of Munich was
                                                                                awarded without compliance with the notification
1.    a)    Must the term ‘milk for the manufacture of milk-                    requirements laid down in Article 8, in conjunction with
            based products’ in Article 2(2) of Directive 92/46/                 Articles 15(2) and 16(1), of Directive 92/50 (1), the
            EEC ( 1) be interpreted as meaning that it (also)                   Federal Republic of Germany has failed to fulfil its
            includes milk constituents of a product which also                  obligations under that directive; and
            contains other non-milk constituents and where the
            milk constituent cannot be separated from the non-            —     Order the Federal Republic of Germany to pay the costs
            milk constituents?                                                  of the proceedings.