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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
26.9.98 EN Official Journal of the European Communities C 299/21

directives for their implementation. In the present case, the European Communities was brought before the Court
when the time limits expired, the Italian Republic had not of Justice of the European Communities on 29 July 1998
adopted the measures necessary to comply with the by Metsä-Serla OYJ and Others, represented by Hans
Directives named in the Commission's application. Hellmann, Am Morsdorfer Hof 16, D-50933 Cologne,
and Hans-Joachim Hellmann LL.M., Schilling, Zutt &
(1) OJ L 148, 30.6.1995, p. 52. Anschütz, Otto-Beck Straûe 42, D-68165 Mannheim,
(2) OJ L 49, 28.2.1996, p. 29. Rechtsanwälte, with an address for service in Luxembourg
at the Chambers of Loesch & Wolter, 11 rue Goethe, B.P.
1107, L-1011 Luxembourg.

The appellants claim that the Court should:

Reference for a preliminary ruling by the Juzgado de 1. declare void, in so far as it concerns the appellants, the
Primera Instancia e Instrucción No 5, Oviedo, by order of Commission Decision of 13 July 1994 relating to a
that Court of 1 June 1998 in the Case of Entidad de proceeding under Article 85 of the EC Treaty (IV/C
Gestión de Derechos de los Productores Audiovisuales 33.833 Ð Cartonboard), notified to the appellants on
(EGEDA) v. Hostelería Asturiana, SA (HOASA) 8 August 1994 and published in the Official Journal
(Case C-293/98) of the European Communities of 19 September 1994;
(98/C 299/32)
2. order the Commission to pay the costs.

Reference has been made to the Court of Justice of the
European Communities by an order of the Juzgado de Pleas in law and main arguments adduced in support:
Primera Instancia e Instrucción (Court of First Instance)
No 5, Oviedo, of 1 June 1998, which was received at the Infringement of Community law: there is no legal basis for
Court Registry on 29 July 1998, for a preliminary ruling an order that the appellants should bear joint and several
in the Case of Entidad de Gestión de Derechos de los liability for the fine imposed on Finnboard. Article 15(2)
Productores Audiovisuales (EGEDA) v. Hostelería of Council Regulation No 17 does not impose liability for
Asturiana, SA (HOASA), on the following question. infringements of third parties. Neither the Commission
nor the Court of First Instance found that the appellants
Must Article 1(2)(a) and (3) of Directive 93/83/EEC (1) be had themselves infringed Article 85(1) of the EC Treaty.
interpreted as meaning that the reception by a hotel The Court's view that an undertaking may be held jointly
establishment of satellite or terrestrial television signals and severally liable for payment of a fine where the
and their retransmission by cable to the various rooms of Commission finds in the same instrument that the
the hotel is an act of communication to the public' or infringement could have been established also in the case 
reception by the public'? of that undertaking infringes the principle of nulla poena
sine lege, or the prohibition which follows by analogy
from that principle, and the principle of the presumption
(1) OJ L 248, 6.10.1993, p. 15. of innocence; it is incompatible with the principles of the
rule of law and contravenes the appellants' fundamental
rights of defence.

The Court of First Instance wrongly relies on the case-law
of the Court of Justice on the determination of fines in
Appeal brought on 29 July 1998 by Metsä-Serla OYJ, regard to undertakings which form an economic unit.
UPM-Kymmene OYJ (formerly United Paper Mills Ltd), Joint and several liability cannot be derived from the
Tamrock OY (formerly Tampella Corporation) and Kyro principles of economic unity. Moreover, the preconditions
OYJ ABP (formerly OY Kyro AB) against the judgment for a finding that there was economic unity do not exist.
delivered on 14 May 1998 by the Third Chamber
(extended composition) of the Court of First Instance of
the European Communities in Joined Cases T-339/94,
T-340/94, T-341/94 and T-342/94 Metsä-Serla OYJ and
Others against the Commission of the European
Communities
(Case C-294/98 P) Action brought on 29 July 1998 by the Commission of the
European Communities against the French Republic
(98/C 299/33)
(Case C-296/98)
(98/C 299/34)
An appeal against the judgment delivered on 14 May
1998 by the Third Chamber (extended composition) of the
Court of First Instance of the European Communities in An action against the French Republic was brought before
Joined Cases T-339/94, T-340/94, T-341/94 and T-342/94 the Court of Justice of the European Communities on
Metsä-Serla OYJ and Others against the Commission of 29 July 1998 by the Commission of the European