CELEX: C1996/269/19
Language: en
Date: 1996-09-14 00:00:00
Title: Reference for a preliminary ruling by the Ufficio del Giudice Conciliatore di Milano by order of that court of 25 June 1996 in the case of Aprile SRL against Amministrazione delle Finanze (Case C-228/96)

14 . 9 . 96        1 EN                    Official Journal of the European Communities                                    No C 269/7
Action brought on 1 July 1996 by the Commission of the                      provisions necessary to comply with Council Directive
   European Communities against the Hellenic Republic                       92/65/EEC ( 1 ) of 13 July 1992 laying down animal
                        ( Case C-226/96 )                                   health requirements governing trade in and imports into
                                                                            the Community of animals, semen , ova and embryos not
                          ( 96/C 269/ 17
                                                                            subject to animal health requirements laid down in
                                                                            specific Community rules referred to in Annex A ( I ) to
An action against the Hellenic Republic was brought before                  Directive 90/425/EEC ( 2 ), the Hellenic Republic is in
the Court of Justice of the European Communities on 1 July                  breach of its obligations under the Treaty and that
1996 by the Commission of the European Communities,                         Directive ,
represented by Maria Kontou-Durande and Carmel
O'Reilly, of its Legal Service, with an address for service in
Luxembourg at the office of Carlos Gomez de la Cruz, also             — order the Hellenic Republic to pay the costs .
of the Commission 's Legal Service, Wagner Centre,
Kirchberg.
                                                                      Pleas in law and main arguments adduced in support:
The applicant claims that the Court should :
                                                                      Under the third paragraph of Article 189 of the Treaty
— declare that, by failing to adopt, or communicate to the            establishing the European Community, a directive is to be
     Commission, within the period prescribed, the laws,              binding, as to the result to be achieved, upon each Member
    regulations or administrative provisions necessary to             State to which it is addressed . Under the first paragraph of
    comply with Council Directive 90/314/EEC of 13 June               Article 5 of the Treaty, the Member States are to take all
     1990 on package travel , package holidays and package            appropriate measures, whether general or particular, to
    tours ('), the Hellenic Republic is in breach of its              ensure fulfilment of the obligations arising out of the Treaty
    obligations under the Treaty and that Directive,                  or resulting from action taken by the institutions of the
                                                                      Community . Hitherto the Hellenic Republic has not
— order the Hellenic Republic to pay the costs .                      informed the Commission of the adoption of the laws,
                                                                      regulations or administrative provisions adapting Greek
Pleas in law and main arguments adduced in support:                   legislation to the Directive in question .
Under the third paragraph of Article 189 of the Treaty
establishing the European Community, a directive is to be             (') OJ No L 268 , 14 . 9 . 1992 , p . 54 .
binding, as to the result to be achieved , upon each Member           ( 2 ) OJ No L 224 , 18 . 8 . 1990 , p . 29 .
State to which it is addressed . Under the first paragraph of
Article 5 of the Treaty, the Member 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 of the
Community. Hitherto the Hellenic Republic has not
informed the Commission of the adoption of the laws ,
regulations or administrative provisions adapting Greek               Reference for a preliminary ruling by the Ufficio del Giudice
legislation to the Directive in question .                            Conciliatore di Milano by order of that court of 25 June
                                                                      1996 in the case of Aprile SRL against Amministrazione
(') OJ No L 158 , 23 . 6 . 1990 , p . 59 .                                                         delle Finanze
                                                                                                ( Case C-228/96 )
                                                                                                   96/C 269/ 19 )
Action brought on 1 July 1996 by the Commission of the                Reference has been made to the Court of Justice of the
   European Communities against the Hellenic Republic                 European Communities by order of Ufficio del Giudice
                          Case C-227/96                               Conciliatore di Milano ( Office of the Judge-Conciliator,
                                                                      Milan ) on the following questions :
                          ( 96/C 269/ 18 )
An action against the Hellenic Republic was brought before             1 . Do the principles of legal certainty , effective protection
the Court of Justice of the European Communities on 1 July                  of rights arising under Community law and
19 96 by the Commission of the European Communities,                        non-discrimination as regards the protection in damages
represented by Maria Kontou-Durande, of its Legal Service ,                 of the aforesaid rights ( according to which the
with an address for service in Luxembourg at the office of                  procedural conditions of domestic law must not be less
Carlos Gomez de la Cruz, also of the Commission 's Legal                    favourable and , in any event, must not make it
Service, Wagner Centre, Kirchberg .                                         excessively difficult to exercise such rights ), as
                                                                            formulated in the case-law of the Court of Justice ,
The applicant claims that the Court should :                                preclude the introduction of national rules , such as those
                                                                            laid down in the first paragraph of Article 29 of Law
— declare that, by failing to adopt within the period                       No 428 of 29 December 1990 , which , whilst it is
    prescribed , the laws, regulations or administrative                    apparently formulated as an interpretative provision
 ---pagebreak--- No C 269/8           [ EN |                 Official Journal of the European Communities                                        14 . 9 . 96
    and, as a result, has retroactive effect, in fact substituted             subject of judgment in Case 340/87 Commission v.
    a ( five-year ) prescription period for the ordinary                      Italy ( 6 ) — and, in any event, whenever national
    ( 10-year ) limitation period formerly in force, and which,               provisions are retained or introduced which lay down
    in further reducing the prescription period to three                      rules inconsistent with what is provided by directly
    years, considers those periods to be already in course at                 applicable Community rules, such as those of the Treaty
    the time when it entered into force, thereby derogating,                  prohibiting charges having equivalent effect and of the
    without apparent justification, also from the general                     Common Customs Tariff which were the subject of the
    principle set out in Article 252 of the implementing and                  Court's judgment in Case C-209/89 Commission v.
    transitional provisions of the Civil Code, under which,                   Italy ( 7) and its judgment of 5 October 1995 in Case
    in the event that the exercise of a right is made subject to              C-l 25/94 Aprile SRL, in liquidation v. Amministrazione
    a shorter time limit than that laid down by previous                      delle Finanze dello Stato ( 8 ), where the national
    laws, the new time limit applicable also to the exercise of               provisions maintained in force required the payment,
    rights which arose previously begins to run only as from                  contrary to Community law, of charges not due in
    the entry into force of the new provision ?                               circumstances ( such as customs clearance of goods ) such
                                                                              that the trader was not in a position to refuse to pay ? It is
                                                                              therefore asked whether the Member State in breach of
2 . Does the principle that the procedural conditions of
    domestic law for the protection of rights arising under                   the obligation to implement Community provisions
    Community law must not be less favourable than those                      having direct effect is entitled to plead that periods of
    relating to similar actions of a domestic nature                          prescription or limitation expired during the time when
    ( judgments of 15 December 1976 (*) in Case 33/76 Rewe                    the incompatible national provisions were maintained in
    v. Landwirtschaftskammer Saarland ( 2 ) and Case 45/76                    force .
    Comet BV v. Produktschap voor Siergewassen ( , ) ;
    upheld in subsequent other judgments ) preclude the                (])   Properly, judgment of 16 December 1976 .
    introduction of a national provision, such as that                 (2)   ( 1976 ] ECR, p . 1989 .
    provided for in the first paragraph of Article 29 of Law           (3)   | 1976 ] ECR, p . 2043 .
                                                                       (4)   [ 1991 ] ECR I , p . 1575 .
    No 428 of 29 December 1990, which, whilst apparently               (5)   Council Directive 83/643/EEC of 1 December 1983 ( OJ No
    designed to standardize the time limits for the                          L 359 , 22 . 12 . 1983 , p. 8 ).
    repayment of sums paid in relation to customs                      ( 6 ) | 1989 ] ECR , p . 1483 .
    operations , in reality ( as is clear from the heading and         ( 7 ) [ 1991 ] ECR I , p . 1575 .
    the actual wording of the provision ) has the effect of            ( 8 ) | 1995 ] ECR I , p . 2919 .
    extending the prescription periods formerly laid down
    by Article 91 of the Customs Law ( applicable only in the
    event of calculation errors or where a duty other than
    that laid down in the tariff is applied ) to objective undue
    payments made as a result of breaches of Community
                                                                       Reference for a preliminary ruling by the Arbeitsgericht
    law, whilst analogous claims for the recovery of
                                                                       Frankfurt am Main by order of that court of 11 June 1996
    objective undue payments under the ordinary domestic
                                                                       in the case of Friedrich Santner against Hoechst
    law ( Article 2033 of the Civil Code ) are subject to the
                                                                                                   Aktiengesellschaft
     10-year limitation period ?
                                                                                                    Case C-229/96 )
3 . Is the principle laid down by the Court of Justice in Case                                         96/C 269/20 )
     C-208 /90 Emmott v. Minister for Social Welfare and
     Attorney General ( 4 ) — to the effect that, until such time      Reference has been made to the Court of Justice of the
     as an EEC directive has been properly transposed, a               European Communities by order from the Arbeitsgericht
     defaulting Member State may not rely on an individual's           ( Labour Court ) Frankfurt am Main of 11 June 1996 ,
     delay in initiating proceedings against it in order to            received at the Court Registry on 1 July 1996 , for a
     protect rights conferred upon him by the provisions of            preliminary ruling in the case of Friedrich Santner against
     the directive and that a period laid down by national law         Hoechst Aktiengesellschaft on the following questions :
     within which proceedings must be initiated cannot begin
     to run before that time — as an application of the                 1 . Where, following termination of the legal transfer to an
     principle of legal certainty, binding upon the national                   outside firm of the cleaning operations of individual
     courts in the same way as written provisions of                           parts of a business, those operations are again carried
     Community law ?                                                           out by the undertaking itself, can they be treated as part
                                                                               of a business within the meaning of Directive
4 . If the preceding question is answered in the affirmative,                  77/ 187/EEC (')?
     does the aforementioned principle laid down in Case
     C-208/90 Emmott v. Minister for Social Welfare and                 2 . Is the position the same where, following their retransfer
     Attorney General, by virtue of its constituting a specific                to the undertaking, those cleaning operations of
     application of one of the fundamental principles of                       individual parts of the business are re-merged into the
     Community law, have general , direct effect, that is to                   cleaning operations of the business as a whole ?
     say, is it directly applicable and may it be relied upon
     before the national courts by individuals whenever a               (M OJ No L 61 , 5 . 3 . 1977, p . 26 .
     directive is not properly transposed — as in the case
     relating to Directive 83/643/EEC ( 5 ) which formed the