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26.9.

98 EN Official Journal of the European Communities C 299/19

2. order the Republic of Austria to pay the costs. transactions) opened or effected before 1 August 1996 if
the identity of the customer is established beforehand and
Pleas in law and main arguments adduced in support: paragraph 40(2) complied with. However, that provision
still infringes paragraphs (5) and (6) of Article 3 of the
Directive because it does not cover the eventuality of the
Pursuant to the mandatory requirements of paragraph 3 of proprietor of such a securities deposit account selling
Article 189 and paragraph 1 of Article 5 of the EC Treaty, securities held in those accounts, if the securities are
Member States are under an obligation to transpose the repaid or redeemed.
provisions of a directive addressed to them into national
law so that those provisions become fully effective on the
expiry of the deadline for effecting transposition. That (1) OJ L 166, 28.6.1991, p. 77.
deadline laid down in Article 16 of the Directive which, in
Austria's case, due to the entry into force of the Treaty on
the European Economic Area, expired on 1 January 1994,
passed without adequate measures to effect transposition
having been taken in respect of the following two areas of
regulation:
Appeal brought on 28 July 1998 by Sarrió SA against the
Ð limitation of the scope of the Directive: paragraph 165 judgment delivered on 14 May 1998 by the Third
of the Strafgesetzbuch makes money laundering a Chamber, extended composition, of the Court of First
criminal offence only where a threshold of ATS Instance of the European Communities in Case T-334/94
100 000 is exceeded. The reference to the anti-money between Sarrió SA and the Commission of the European
laundering rules provided for in paragraph 278(a)(2) Communities
of the Strafgesetzbuch does nothing to allay the (Case C-291/98 P)
Commission's doubts about the incompatibility of
paragraph 165 with Community law, (98/C 299/30)

Ð disclosure of customers' identity: the fact that
paragraph 40 of the bank law expressly allows An appeal against the judgment delivered on 14 May
anonymous savings account books contradicts 1998 by the Third Chamber, extended composition, of the
Article 3(1) of the Directive which requires credit and Court of First Instance of the European Communities in
financial institutions to establish the identity of their Case T-334/94 between Sarrió SA and the Commission of
customers when entering into business relations, the European Communities was brought before the Court
particularly when opening an account or savings of Justice of the European Communities on 28 July 1998
account'. by Sarrió SA, whose company seat is in Barcelona (Spain),
represented by Alberto Mazzoni, of the Milan Bar, Mario
Siragusa, of the Rome Bar, and Francesco Maria Moretti,
Paragraph 40(2) of the bank law also infringes Article 3(5) of the Venice Bar, with an address for service in
of the Directive, which requires credit and financial Luxembourg at the Chambers of Elvinger, Hoss &
institutions to take reasonable measures in the event of Prussen, 2, place Winston Churchill.
doubt as to whether their customers are acting on their
own behalf or, where it is certain that they are not acting
on their own behalf, to obtain information as to the real
The appellant claims that the Court should:
identity of the person on whose behalf the customers are
acting.
1. set aside the judgment of the Court of First Instance of
Paragraph 40(1) (1) of the bank law also infringes 14 May 1998 in Case T-334/94 Sarrió v. Commission
Article 3(6) of the Directive because in transactions in in so far as the Court of First Instance:
connection with an anonymous savings account book,
establishing the identity of the customer carrying out the
transaction is of no practical use and does not in any Ð declares that the Commission decision did not
event enable any inferences to be drawn as to the actual impute to Sarrió an infringement concerning
economic relations. The duty of identification laid down transaction prices and holds that there is no need
in subparagraphs (1), (2) and (3) of paragraph 40 of the to evaluate Sarrió's conduct as regards the prices
bank law in relation to specific situations cannot be actually applied,
applied meaningfully and in the spirit of the Directive to
transactions connected with anonymous savings account Ð declares that the mere fact of having participated
books. in the PG Paperboard meetings implicates Sarrió in
collusion on market shares and downtime; or, in
Finally, the duty of identification only took effect in the alternative, in so far as it does not regard
relation to securities accounts on 1 August 1996, placing Sarrió's non-implementation of the agreed
Austria in breach of the Directive up to that point. It is strategies as mitigating the seriousness of its
true that under paragraph 40(5) of the bank law, securities misconduct by comparison with other
may only be deposited or purchased for securities accounts undertakings and dismisses the evidence adduced
(and, under paragraph 12 of the deposit law, business by Sarrió to that effect; or, in the further
C 299/20 EN Official Journal of the European Communities 26.9.98

alternative, in so far as it arrives at an erroneous Ð failure to appraise the flawed reasoning underlying
assessment of Sarrió's misconduct regarding calculation of the fine and contradictions between the
market shares and downtime, grounds and the operative part,

Ð does not consider it necessary to set aside the fine Ð failure to appraise the error in the method of
imposed on Sarrió, wholly or in part, by reason of calculating the fine,
the inadequate statement of reasons (the Decision
itself being silent as to the criteria used to calculate
the level of that fine), Ð contradiction between the grounds and the operative
part as regards the granted reduction in the fine.
Ð approves the method of calculating the fine
imposed by the Commission, the amount in ecus
being directly based on the conversion of the
reference year turnover into ecus at the average
exchange rate for that year, without appraising the
legal consequences of such a burden or the damage
caused to Sarrió by the use of such a method, Action brought on 28 July 1998 by the Commission of the
European Communities against Italian Republic
Ð sets a figure of ECU 1,5 million as the amount of (Case C-292/98)
the reduced fine (granted by reason of Prat (98/C 299/31)
Carton's reduced role in the infringement);

2. refer the case back to the Court of First Instance if it An action against the Italian Republic was brought before
decides that it is unable wholly or in part to give final the Court of Justice of the European Communities on
judgment in the matter; 28 July 1998 by the Commission of the European
Communities, represented by Francesco P. Ruggeri
Laderchi, of its Legal Service, acting as Agent, with an
3. annul the Commission's decision to reflect its setting address for service in Luxembourg at the office of Carlos
aside of any part of the judgment under appeal; Gómez de la Cruz, Wagner Centre, Kirchberg.

4. reduce the fine to a level which it considers The applicant claims that the Court should:
reasonable;

1. declare that, by not adopting the laws, regulations and
5. order the Commission to pay all costs and fees administrative provisions necessary to comply with:
incurred in the proceedings at first instance and in this
appeal. (a) Council Directive 95/29/EC of 29 June 1995
amending Directive 91/628/EEC concerning the
protection of animals during transport (1),
Pleas in law and main arguments adduced in support:

(b) Commission Directive 96/6/EC of 16 February
The appellant contests certain specific parts of the 1996 amending Council Directive 74/63/EEC on
judgment under appeal in which, it maintains, the Court undesirable substances and products in animal
of First Instance misapplied Community law and breached nutrition (2),
its obligation to state proper grounds.

or, in any event, by not having communicated such
In particular, the appellant maintains that the Court of measures, the Italian Republic has failed to fulfil its
First Instance made the following errors of assessment in obligations under the Treaty and under those
appraising the legal position: Directives;

Ð incorrect interpretation of the Decision in relation to 2. order the Italian Republic to pay the costs of the
the infringement imputed, proceedings.

Ð incorrect interpretation and misapplication of Pleas in law and main arguments adduced in support:
Community law in holding that Sarrió's participation
in the producers' meetings had by definition an anti-
competitive effect; in the alternative, failure to Article 189 of the EC Treaty, in providing that a directive
evaluate the significance of its non-implementation of is binding, as to the result to be achieved, on the Member
the agreement; in the further alternative, incorrect State to which it is addressed, places Member States under
characterisation of the infringement committed, an obligation to comply with the time limits set by