CELEX: C1995/208/31
Language: en
Date: 1995-08-12 00:00:00
Title: Appeal by Ferriere Nord SpA, established in Osoppo, Udine, against the judgment of the Court of First Instance of 6 April 1995 in Case T-143/89, Ferriere Nord Spa v. Commission of the European Communities (Case C-219/95 P)

12 . 8 . 95                 EN                  Official Journal of the European Communities                                 No C 208/ 15
Action brought on 16 June 1995 by the Commission of the                    References for a preliminary ruling from the Tribunal
European Communities against the Federal Republic of                       d'Instance, Paris VII, by judgments of that court of
                                  Germany                                  20 December 1994 , in the cases of Societe Comateb and
                                                                           Others v. Directeur General des Douanes et Droits
                             ( Case C-191 /95 )
                                                                                                        Indirects
                               ( 95/C 208/29 )
                                                                                          ( Cases C-192/95 to C-218/95 )
                                                                                                    ( 95/C 208/30 )
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European                        Reference has been made to the Court of Justice of the
Communities on 16 June 1995 by the Commission of the                       European Communities by judgments of the Tribunal
European Communities, represented by Jiirgen Grunwald ,                    d'Instance ( District Court ), Paris VII, of 20 December 1994,
of the Commission's Legal Service, with an address for                     which were received at the Court Registry on 1 9 June 1 995 ,
service in Luxembourg at the office of Carlos Gomez de la                  for a preliminary ruling in the cases of Société Comateb,
Cruz, Wagner Centre, Kirchberg.                                            Société Panigua, Société Edouard et Fils , Société de
                                                                           Distribution de Vins et Liqueurs , Société Etablissements
                                                                           André Haan, Société Diffusion Générale de Quincaillerie,
The applicant claims that the Court should:                                Société Diffusion Générale, Société Cama Renault, Société
                                                                           SCP Ovide et Dorville , Société Ducros Guadeloupe , Société
                                                                           Comptoir Commercial Caraïbes, Société Giafa , Société
1 . declare that, by not providing for appropriate penalties               LVS, Société Catherine et Jean-Claude Tabar Nouval ,
      in cases where companies limited by shares fail to
                                                                           Société L'Heure et L'Or, Société Général Bazar Bricolage,
      disclose their annual accounts, the Federal Republic of              Société Grain d'Or, Société Cash Service, Etablissements
      Germany has failed to fulfil its obligations under the EC            Efira, Société Farandole, Société Carat, Société Rio, Société
      Treaty and under First Council Directive 68/ 15 1 /EEC of            Guadeloupéenne de Distribution Moderne, Société
      9 March 1968 on coordination of safeguards which, for                Martinique        Automobiles ,      Société     Socovi   Sàrl ,
      the protection of the interests of members and others,               Etablissements Gabriel Vangout et Cie , Sàrl and Société
      are required by Member States of companies within the                Simat Guadeloupe Sàrl v . Directeur Général des Douanes et
      meaning of the second paragraph of Article 58 of the                 Droits Indirects, on the following question:
      Treaty, with a view to making such safeguards
      equivalent throughout the Community (') and Fourth
      Council Directive 78/660/EEC of 25 July 1978 based on                does the fact that a Member State objects to the repayment
      Article 54 ( 3 ) ( g ) of the Treaty on the annual accounts of       of a charge, levied in breach of Community law, on the
      certain types of companies ( 2 );                                    ground that it has been passed on to the purchaser make it
                                                                           virtually impossible or excessively difficult to obtain
                                                                           reimbursement, where the undertaking concerned is
2 . order the Federal Republic of Germany to pay the                       required by the law of that Member State to incorporate the
      costs .                                                              charge in the cost price of the goods sold ?
Pleas in law and main arguments adduced in support:
Effective implementation of the above Directives requires
that appropriate penalties be provided for within the                      Appeal by Ferriere Nord SpA, established in Osoppo,
meaning of Article 6 of Directive 68/151 /EEC . The Federal                Udine, against the judgment of the Court of First Instance of
Republic of Germany has so far failed to do so . Although                  6 April 1995 in Case T-143/89 , Ferriere Nord Spa v.
Paragraph 335 ( 6 ) of the Handelsgesetzbuch ( Commercial                          Commission of the European Communities
Code ) provides for a penalty payment, the Registergericht
( Registration Court) does not take any action unless a                                          ( Case C-219/95 P)
member, a creditor or the works council of the company                                               ( 95/C 208/31 )
requests it to do so .
                                                                           An appeal against the judgment delivered on 6 April 1 995 by
Because of the lack of legal sanctions and a widespread open               the Court of First Instance in Case T-143 / 89 between
disregard in Germany of Community law disclosure                           Ferriere Nord SpA and the Commission was brought before
requirements, disclosure of company results in that country                the Court of Justice of the European Communities on
is abnormally low.                                                         14 June 1995 by Ferriere Nord SpA, established in Osoppo,
                                                                           Udine, represented by Wilma Viscardini Dona , with an
                                                                           address for service in Luxembourg at the Chambers of
(') OJ , English Special Edition 1968 ( I ), p . 41 .                      Ernest Arendt, 8—10 Rue Mathias Hardt.
( 2 ) OJ No L 222 , 14 . 8 . 1978 , p . 11 .
                                                                           The appellant claims that the Court should :
                                                                           — annul the judgment of the Court of First Instance ,
 ---pagebreak--- No C 208/16             EN                 Official Journal of the European Communities                                         12 . 8 . 95
— grant the forms of order sought at first instance .                 Reference         for    a       preliminary   ruling   from      the
                                                                      Arrondissementsrechtbank te Amsterdam by judgment of
                                                                      14 June 1995 in the case of A. H. M. van den Boogaard v.
Pleas in law and main arguments adduced in support:                                                 P. M. Laumen
                                                                                                 ( Case C-220/95 )
— Article 85 of the Treaty                                                                          ( 95 /C 208/32 )
   The Court of First Instance affirmed that the agreements           Reference has been made to the Court of Justice of the
    in which the appellant participated were intended to              European Communities by a judgment of the
    restrict competition and were likely to impede trade              Arrondissementsrechtbank te Amsterdam ( District Court,
    between the Member States merely by establishing prices           Amsterdam ) of 14 June 1995 , which was received at the
   and quotas .                                                       Court Registry on 21 June 1995 , for a preliminary ruling in
                                                                      the case of A. H. M. van den Boogaard v. P. M. Laumen on
   The Court of First Instance did not take account either of         the following question:
    the Italian version of Article 85 according to which an
                                                                      Must the decision of the English j udge ( 1 ), which in any case
    agreement must have not only as its 'object' but also as
    its 'effect' the prevention of competition, nor of the            relates in part to a maintenance obligation, be regarded as a
    Court's interpretation of that article in the other               decision which relates ( in part ) to rights in property arising
    language versions .
                                                                      out of a matrimonial relationship within the meaning of
                                                                      indent 1 of the second paragraph of Article 1 of the Brussels
                                                                      Convention even though :
    It is in any event arbitrary, in the appellant's view, to
    hold that all agreements fixing prices and setting quotas         ( a ) the income requirement is capitalized ;
    are ipso facto contrary to Article 85 ( 1 ). In fact, whilst it
    is true that the agreements which directly or indirectly          ( b ) an order was made to transfer the house and the De
    fix prices and which limit outlets have as their object the               Heem painting which, according to the decision, belong
    prevention , restriction or distortion of competition, that               to the husband;
    does not suffice for a finding that they are contrary to
                                                                      ( c ) in his decree , the English judge himself expressly stated
    Article 85 . It is further necessary that they are capable of
                                                                              that he did not regard the marriage settlement as
    affecting trade between Member States . That effect on                    binding;
    trade must also be appreciable . In the appellant's view,
    the contested agreement was not in a position to alter to         ( d ) it cannot be made out from that decree to what extent
    a significant extent trade between Italy and France.                      the factor mentioned in ( c ) influenced the English
                                                                              judge's decision ?
— The wire regime
                                                                      ( ! ) The parties who both have Netherlands nationality, were
                                                                            married in the Netherlands under the regime of common
    In the appellant's view the 'Court of First Instance                    property . They later concluded a marriage settlement whereby
    omitted to examine an important question of law,                        the marriage regime was amended to universal separation of
    namely whether an agreement between producers of a                      property . This severed and divided the community of property.
    finished product (welded steel mesh ) may be deemed                     The parties later settled in London .
    unlawful when the agreement is the necessary
    consequence of mandatory Community rules imposing
    quotas and prices for the semi-finished product
    ( wire ).
                                                                      Reference for a preliminary ruling from the Tribunal du
                                                                      Travail de Tournai by judgment of 6 June 1995 in the case
— Article 15 of Regulation No 17                                      of Institut National d'Assurances Sociales pour Travailleurs
                                                                      Independants (INASTI ) v. Claude Hervein and Herviller
                                                                                                            SA
    The appellant considers that the Court of First Instance
    did not correctly interpret Article 15 of Regulation                                          ( Case C-221/95 )
    No 17 which gives the Community the power to impose                                              ( 95/C 208/33 )
    fines, that is a discretionary and not a mandatory
    power .                                                           Reference has been made to the Court of Justice of the
                                                                      European Communities by a judgment of the Tribunal du
    All the arguments relied on by the appellant in support of        Travail de Tournai ( Labour Tribunal , Tournai ) of 6 June
    the legality of the agreement must be considered in order          1995 , which was received at the Court Registry on 26 June
    to assess at least whether a fine was justified and whether        1995 , for a preliminary ruling in the case of Institut
    the fine actually imposed satisfied equitable criteria .           National d'Assurances Sociales pour Travailleurs
    However, the Court of First Instance examined only                Independants v. Claude Hervein and Herviller SA on the
     some of those arguments whilst minimizing others of               following question:
    greater importance .
                                                                       does self-employment ( activite non salariee ) referred to in
                                                                       particular in Article 14a ( 2 ) of CounciURegulation ( EEC )
                                                                       No 2001 /83 of 2 June 1983 (') refer in particular to the