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C 184/22 EN Official Journal of the European Union 2.8.

2003

Is it contrary to Articles 12, 43 et seq. and 49 et seq. of the EC Pleas in law and main arguments
Treaty, and Article 3(2) of Council Directive 92/50/EEC (1) of
18 June 1992 relating to the coordination of procedures for the
award of public service contracts, to include in the general The Commission submits that the CFI'S ruling contains
specifications and special administrative clauses and technical numerous contradictions and inconsistencies, not to say distor-
specifications governing public competitions relating to home tions and that, accordingly, the contested judgment would
respiratory treatments and other assisted breathing techniques: render the division of offenders into groups, which is a key
element of the Guidelines, unworkable. The Commission main-
tains that it followed an approach which is both entirely
1) the requirement that, in order to qualify to tender, under- reasonable and wholly consonant with the principle of non-
takings must already have offices open to the public in discrimination.
the province or capital of the province in which the
service is to be provided;
In the Commission's submission, the CFI has erred in finding
2) award criteria which favour: that the Decision contained inadequate reasoning and has, in
any event, exceeded the bounds of its jurisdiction.
a) tenders from undertakings established within a
1 000 Km radius of the capital in which the service According to the Commission the contested ruling would
is to be provided; severely fetter the Commission's discretion when setting fines,
and would be virtually tantamount to imposing on the
b) undertakings which already have offices open to the Commission a duty to apply a mathematical or ‘scientifically’
public in certain towns in that province; or verifiable formula. This would seriously undermine the
Commission's discretion, and thus its power and duty to
c) undertakings which have been providing the service pursue infringements of Articles 81 and 82 of the Treaty.
previously?

Finally the Commission contests the CFI's finding that the


(1) OJ L 209 of 18.06.1992, p. 1. imposition of fines was time-barred and maintains that such
finding is unsustained by any reasoning in the judgment.

(1) OJ C 124, 24.05.2003, p. 18.

Appeal brought on 2 June 2003 by the Commission of the


European Communities against the judgment delivered on
19 March 2003 by the Third Chamber of the Court of
First Instance of the European Communities in case T-213/
00 (1) between CMA CGM and thirteen other liner ship-
ping companies and the Commission of the European
Reference for a preliminary ruling from the Tribunal
Communities
d'Instance de Roubaix by judgment of that court of
15 May 2003 in the case of Banque Sofinco SA against
(Case C-236/03 P) Daniel and Carole Djemoui

(2003/C 184/39)
(Case C-237/03)

An appeal against the judgment delivered on 19 March 2003 (2003/C 184/40)


by the Third Chamber of the Court of First Instance of the
European Communities in case T-213/00 between CMA CGM
and thirteen other liner shipping companies and the Commis-
sion of the European Communities was brought before the Reference has been made to the Court of Justice of the
Court of Justice of the European Communities on 2 June 2003 European Communities by judgment of the Tribunal d'instance
by the Commission of the European Communities, represented (District Court), Roubaix of 15 May 2003 received at the
by P. Oliver, acting as agent, with an address for service in Court Registry on 4 June 2003, for a preliminary ruling in
Luxembourg. the case of Banque Sofinco SA against Daniel and Carole
Djemoui on the following questions:
The Appellant claims that the Court should:
1. Must Council Directives 87/102/EC (1) of 22 December
— annul point 1 of the judgment of the Court of First 1986 and 90/88/EC (2) of 22 February 1990 be inter-
Instance of 19 March 2003 in Case T-213/00 (CMA preted as requiring the national court to favour the
CGM v. Commission); interpretation of national law obliging consumer credit
institutions to inform the borrower/consumer in writing
— reject the Respondents' Application in its entirety; of the current annual percentage rate of charge, before
each renewal of a credit agreement renewable in instal-
— order the Respondents to pay the Commission's costs. ments in which the interest is stipulated to be variable?
2.8.2003 EN Official Journal of the European Union C 184/23

Must those directives be interpreted as requiring the by G. Valero Jordana and B. Stromsky, acting as Agents, with
national court to favour the interpretation of national law an address for service in Luxembourg.
obliging consumer credit institutions to bring to the atten-
tion of the consumer the clause concerning the variation
in that annual percentage rate of charge before each The Commission of the European Communities claims that the
renewal of the agreement? Court should:

2. Must those directives be interpreted as designed solely to


— find that, by failing to take all appropriate measures to
protect the consumer or, beyond that, to organise the
prevent, abate and combat the substantial and prolonged
single market in consumer credit?
pollution of the Étang de Berre and by failing to take due
account of the provisions of Annex III to the Athens
Does the requirement of an interpretation in conformity Protocol of 17 May 1980 for the Protection of the
with the aims — at the very least those of protecting the Mediterranean Sea against Pollution from Land-Based
consumer — of those directives mean that the court may Sources (1) by amending the authorisation for discharges
raise of its own motion defects in credit agreements, such of the substances referred to in Annex II to the Protocol
as the failure to include a written statement of the annual in consequence of its conclusion, the French Republic has
percentage rate of charge or the clause providing for its failed to fulfil its obligations under Article 6(1) and (3) of
variation? the Protocol and Articles 4(1) and 8 of the Barcelona
Convention of 16 February 1976 for the Protection of the
3. Must those directives be interpreted as meaning that the Mediterranean Sea against Pollution (2), approved on
court is required to favour the interpretation of national behalf of the Community by Council Decisions 77/585/
law authorising it to uphold pleas of irregularity vitiating EEC (3) and 83/101/EEC (4) on 25 July 1977 and
the conclusion or renewal of a consumer credit agree- 28 February 1983, and Article 300(7) (formerly
ment, such as those described above, raised by the Article 228) of the Treaty establishing the European
consumer or of the court's own motion, without any Community;
time-limit, in a dispute arising out of an action for
payment brought by the credit institution? — order the French Republic to pay the costs.

If not, must those directives be interpreted as meaning


that the court is required to favour the interpretation of
national law authorising it to set aside a national provi-
sion prohibiting the consumer or the court of its own
motion from raising a plea of irregularity affecting the
conclusion or renewal of a consumer credit agreement, at Pleas in law and main arguments
the end of a time-limit derogating from the ordinary law,
inasmuch as it constitutes an exceptional restriction of the
consumer's right to bring an action and compromises the Under Article 3(c) of the Athens Protocol, the area to which
effectiveness of consumer protection? the Protocol applies includes saltwater marshes communicating
with the sea, of which the Étang de Berre is one. It therefore
follows from Article 6(1) of the Protocol that the French
(1) Directive 87/102/EEC of 22 December 1986 for the approximation Republic must reduce direct and indirect discharges of
of the laws, regulations and administrative provisions of the substances into that lake when those discharges give rise to
Member States concerning consumer credit (OJ 1987 L 42, p. 48). harmful effects, and must prevent and combat those
(2) Council Directive 90/88/EEC of 22 February 1990 amending Direc- discharges. That involves an obligation as to the result to be
tive 87/102/EEC for the approximation of the laws, regulations and
achieved.
administrative provisions of the Member States concerning
consumer credit (OJ 1990 L 61, p. 14).

The abatement of direct and indirect discharges of substances


into the Étang de Berre must be stringent. That stringency
requires a sizeable and lasting reduction in the quantity of
substances discharged, with a major and lasting positive effect
on the environment, and also applies to the method which the
State uses to arrive at that result. However, the French
Republic has not abated the pollution from land-based sources
Action brought on 4 June 2003 by the Commission of the in the Étang de Berre in accordance with its obligations under
European Communities against the French Republic Article 6(1) of the Protocol, in conjunction with Articles 4(1)
and 8 of the Barcelona Convention of 16 February 1976 for
the Protection of the Mediterranean Sea against Pollution. Since
(Case C-239/03) 1983, as the result of the operation of the hydroelectric power
station at Saint-Chamas, the lake has suffered substantial and
(2003/C 184/41) prolonged point-source land-based pollution, with considerable
negative effects on flora, fauna and amenities. While it is true
that there has been abatement of the pollution, the reduction
in discharges has been belated, erratic and, above all, extremely
An action against the French Republic was brought before the limited. Finally, the measures taken by the public authorities
Court of Justice of the European Communities on 4 June 2003 for the purpose of long-term pollution abatement in the Étang
by the Commission of the European Communities, represented de Berre have been limited in scope.