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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
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');