Judgment of the Court (Second Chamber) of  8 December 2005  in Case C-33/04: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Telecommunications — Directive 97/33/EC — Article 7(5) — Obligation to verify the compliance of cost accounting systems by a competent independent body and to publish a statement of compliance — Directive 98/10/EC — Article 18(1) and (2) — Failure to apply correctly the measures adopted as regards verification of the compliance of the cost accounting system by the national regulatory authority and the annual publication of a statement of compliance — Admissibility — Interest in bringing proceedings — Pre-litigation procedure — Rights of the defence — Directives 2002/19/EC, 2002/21/EC and 2002/22/EC — Transitional provisions — Member States to refrain, during the period laid down for transposition of a directive, from taking any measures liable seriously to compromise the result prescribed by that directive — Reference interconnection offers)
Date: 2006-02-11
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, systems interconnection, telecommunications, telephone, universal service

C 36/8

EN

Official Journal of the European Union

11.2.2006

2. Orders the Federal Republic of Germany to pay the costs.

(1) OJ C 47 of 21.02.2004

main proceedings, where compliance with all the minimum require-
ments laid down by that directive in order to protect effectively the
safety and health of workers is not ensured.

Where national law fixes a ceiling more favourable to workers, in par-
ticular for maximum weekly working time, the relevant thresholds or
ceilings for ascertaining whether the protective rules laid down by that
directive are complied with are exclusively those set out in the direc-
tive.

JUDGMENT OF THE COURT

(1) OJ C 59, 06.03.2004.

(Second Chamber)

of 1 December 2005

in Case C-14/04, Reference for a preliminary ruling from
the Conseil d'État, Abdelkader Dellas and Others v
Premier ministre and Others (1)

favourable

to workers,

(Social policy — Protection of the safety and health of
workers — Directive 93/104/CE — Concept of ‘working
time’ — Scope — National legislation providing for a ceiling
more
regards
maximum weekly working time — Determination of working
time in certain social establishments — On-call duty where
the worker is required to be present at the workplace —
Periods of inactivity on the part of the worker in the context
of such duty — National system of calculation of hours of
the
presence differentiated according to the intensity of

in particular as

activity)

(2006/C 36/13)

(Language of the case: French)

In Case C-14/04: reference for a preliminary ruling under
Article 234 EC from the Conseil d'État (France), made by deci-
sion of 3 December 2003, received at the Court on 15 January
2004, in the proceedings between Abdelkader Dellas, Confé-
dération générale du travail, Fédération nationale des syndicats
des services de santé et des services sociaux CFDT, Fédération
nationale de l'action sociale Force ouvrière and Premier
ministre, Ministre des Affaires sociales, du Travail et de la Soli-
darité, in the presence of: Union des fédérations et syndicats
nationaux d'employeurs sans but lucratif du secteur sanitaire,
social et médico-social — the Court
(Second Chamber),
composed of C.W.A. Timmermans, President of the Chamber,
R. Schintgen (Rapporteur), R. Silva de Lapuerta, P. Kūris and G.
Arestis, Judges; D. Ruiz-Jarabo Colomer, Advocate General; L.
Hewlett, Principal Administrator, for the, Registrar, gave a judg-
ment on 1 December 2005, in which it rules:

Council Directive 93/104/EC of 23 November 1993 concerning
certain aspects of the organisation of working time must be interpreted
as precluding legislation of a Member State which, with respect to on-
call duty performed by workers in certain social and medico-social
establishments during which they are required to be physically present
at their workplace, lays down, for the purpose of calculating the actual
working time, a system of equivalence such as that at issue in the

JUDGMENT OF THE COURT

(Second Chamber)

of 8 December 2005

in Case C-33/04: Commission of the European Commu-
nities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations — Telecom-
munications — Directive 97/33/EC — Article 7(5) — Obli-
gation to verify the compliance of cost accounting systems by
a competent independent body and to publish a statement of
compliance — Directive 98/10/EC — Article 18(1) and (2)
— Failure to apply correctly the measures adopted as regards
verification of the compliance of the cost accounting system
by the national regulatory authority and the annual publica-
tion of a statement of compliance — Admissibility —
Interest in bringing proceedings — Pre-litigation procedure
— Rights of
the defence — Directives 2002/19/EC,
2002/21/EC and 2002/22/EC — Transitional provisions —
Member States to refrain, during the period laid down for
transposition of a directive, from taking any measures liable
seriously to compromise the result prescribed by that directive
— Reference interconnection offers)

(2006/C 36/14)

(Language of the case: French)

In Case C-33/04, Commission of the European Communities
(Agent: W. Wils and M. Shotter) v Grand Duchy of Luxem-
bourg (Agents: M. Thill and S. Schreiner, assisted by A.
Verheyden and F. Bimont, avocats,) — action under Article
226 EC for failure to fulfil obligations, brought on 29 January
2004 — the Court (Second Chamber), composed of C.W.A.
Timmermans, President of the Chamber, R. Silva de Lapuerta,
P. Kūris, G. Arestis (Rapporteur) and J. Klučka,, Judges; F.G.
Jacobs, Advocate General; H. von Holstein, Deputy Registrar,
for the Registrar, gave a judgment on 8 December 2005, in
which it:

11.2.2006

EN

Official Journal of the European Union

C 36/9

1. Declares that, by failing to comply with the obligations to verify
the compliance of cost accounting systems by a competent indepen-
dent body and to publish a statement of compliance for the years
in accordance with Article 7(5) of Directive
1998 and 1999,
97/33/EC of the European Parliament and of the Council of 30
June 1997 on interconnection in telecommunications with regard
to ensuring universal service and interoperability through applica-
tion of the principles of Open Network Provision (ONP) and by
failing to apply correctly in practice the measures relating to the
verification of the compliance of the cost accounting system by the
national regulatory authority or another competent body, indepen-
dent of the telecommunications organisation and approved by that
regulatory authority, for the year 2000, in accordance with the
provisions of Article 18(1) and (2) of Directive 98/10/EC of the
European Parliament and of the Council of 26 February 1998 on
the application of open network provision (ONP) to voice tele-
phony and on universal service for telecommunications in a compe-
titive environment, as maintained by Article 27 of Directive
2002/21/EC of the European Parliament and of the Council of 7
March 2002 on a common regulatory framework for electronic
communications networks and services (‘the Framework Directive’),
read in conjunction with Article 16 of Directive 2002/22/EC of
the European Parliament and of the Council of 7 March 2002 on
universal service and users' rights relating to electronic communica-
tions networks and services (‘the Universal Service Directive’), the
Grand Duchy of Luxembourg has failed to fulfil its obligations
under those provisions;

2. Orders the Commission of the European Communities and the

Grand Duchy of Luxembourg to bear their own costs.

(1) OJ C 71 of 23.03.2004.

JUDGMENT OF THE COURT

(Third Chamber)

of 15 December 2005

in Case C-63/04: Reference for a preliminary ruling from
the High Court of Justice of England and Wales, Chancery
Division Centralan Property Ltd v Commissioners of
Customs & Excise (1)

(Sixth VAT Directive — Article 20(3) — Capital goods —
Deduction of input tax — Adjustments of deductions —
Immovable property — Disposal by means of two connected
transactions, one exempt, the other taxable — Apportion-
ment)

(2006/C 36/15)

(Language of the case: English)

Wales, Chancery Division (United Kingdom), made by decision
of 21 February 2003, received at the Court on 13 February
2004, in the proceedings pending before that court between
Centralan Property Ltd and Commissioners of Customs &
Excise — the Court (Third Chamber), composed of A. Rosas,
President of the Chamber, A. La Pergola, J.-P. Puissochet, U.
Lõhmus and A. Ó Caoimh (Rapporteur),
J. Kokott,
Advocate General; L. Hewlett, Principal Administrator, for the
Registrar, gave a judgment on 15 December 2005, the opera-
tive part of which is as follows:

Judges;

Article 20(3) of Sixth Council Directive 77/388/EEC of 17 May
1977 on the harmonisation of the laws of the Member States relating
to turnover taxes — Common system of value added tax: uniform
basis of assessment, as amended by Council Directive 95/7/EC of 10
April 1995, is to be interpreted as meaning that, where a 999-year
lease over capital goods is granted to a person against the payment of
a substantial premium and the freehold reversion in that property is
transferred three days later to another person at a much lower price,
and where those two transactions

— are inextricably linked, and

— consist of a first transaction which is exempt and a second trans-

action which is taxable,

— and if those transactions, owing to the transfer of the right to
dispose of those capital goods as owner, constitute supplies within
the meaning of Article 5(1) of that directive,

the goods in question are regarded, until the expiry of the period of
adjustment, as having been used in business activities which are
presumed to be partly taxable and partly exempt in proportion to the
respective values of the two transactions.

(1) OJ C 85, 3.04.2004.

JUDGMENT OF THE COURT

(Grand Chamber)

of 6 December 2005

in Case C-66/04: United Kingdom of Great Britain and
Northern Ireland v European Parliament, Council of the
European Union (1)

(Foods — Regulation (EC) No 2065/2003 — Smoke flavour-
ings — Choice of legal basis)

(2006/C 36/16)

(Language of the case: English)

In Case C-63/04: Reference for a preliminary ruling under
Article 234 EC from the High Court of Justice of England and

In Case C-66/04: Action for annulment under Article 230 EC,
brought on 11 February 2004, United Kingdom of Great
Britain and Northern Ireland (Agents: R. Caudwell and M.