Case C-265/06: Action brought on 16 June 2006 — Commission of the European Communities v Portuguese Republic
Date: 2006-09-02
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, import restriction, marketing restriction, quantitative restriction, vehicle parts

2.9.2006

EN

Official Journal of the European Union

C 212/15

Parties to the main proceedings

Parties to the main proceedings

Cross-appellant: Ministère public

Applicant: Deutsche Telekom AG

Appellants: Daniel Pierre Raymond Escalier (C-260/06) and Jean
Louis François Bonnarel (C-261/06)

Defendant: Bundesrepublik Deutschland

Question referred

Questions referred

Where a Member State makes the importation of a plant
protection product from another Member State in which the
product has already been authorised to be placed on the
market in accordance with Directive 91/414/EEC (1) subject to
a simplified procedure for such authorisation in order to verify
that the product imported meets the identity requirements laid
down in Case C-100/96 The Queen v Ministry of Agriculture,
Fisheries and Food, ex parte: British Agrochemicals Association Ltd
[1999] ECR I-1499, is that Member State entitled to make an
operator subject to that simplified authorisation procedure if:

— the importer is a farmer who is importing the product
solely for the needs of his own farm, which are manifold
but limited in quantity, and is therefore not placing it on
the market in the commercial sense which that concept
implies;

— the simplified marketing authorisation procedure consti-
tuting import authorisation is personal to each operator/
distributor, who is required to give the product imported its
own brand name and is subject to a charge of EUR 800?

If the reply to the first question is negative, can the judgment
in Case C-212/03 Commission v France [2005] ECR I-4213
relating to personal imports of medicinal products by indivi-
duals be applied to the case of plant protection products
imported by farmers solely for the needs of their own farms?

(1) Council Directive 91/414/EEC of 15 July 1991 concerning the
placing of plant protection products on the market (OJ 1991 L 230,
p. 1).

1. Are

the

first

the European Parliament and of

sentence of Article 27 of Directive
2002/21/EC (1) of
the
the European Parliament and of
Council of 7 March 2002 on a common regulatory frame-
work for electronic communications networks and services
(Framework Directive) and Article 16(1)(a) of Directive
2002/22/EC (2) of
the
Council of 7 March 2002 on universal service and users'
rights relating to electronic communications networks and
services (Universal Service Directive) to be understood as
meaning that a statutory requirement provided for under
earlier national law for the authorisation of charges for the
supply of voice telephony services to end-users by an under-
taking with a dominant position in that market, and hence
an administrative measure confirming that requirement,
should be temporarily maintained?

If the answer to the first question is in the negative:

2. Does European Community law preclude such extensive

continuation?

(1) OJ 2002 L 108, p. 33.
(2) OJ 2002 L 108, p. 51.

Action brought on 16 June 2006 — Commission of the
European Communities v Portuguese Republic

Reference for a preliminary ruling from the Bundesver-
waltungsgericht (Germany) lodged on 15 June 2006 —
Deutsche Telekom AG v Bundesrepublik Deutschland

(Case C-262/06)

(2006/C 212/26)

Language of the case: German

Parties

(Case C-265/06)

(2006/C 212/27)

Language of the case: Portuguese

Referring court

Applicant: Commission of the European Communities (repre-
sented by: A.Caeiros, Agent)

Bundesverwaltungsgericht

Defendant: Portuguese Republic

C 212/16

EN

Official Journal of the European Union

2.9.2006

Form of order sought

— Declare that by prohibiting pursuant

to Article 2(1) of
Decree-Law no 40/2003 of 11 March 2003 the affixing of
coloured film on windows of motor vehicles the Portuguese
Republic has failed to fulfil its obligations under Articles 28
and 30 EC and Articles 11 and 13 of the EEA Agreement,
as that prohibition hinders the marketing in Portugal of
coloured film lawfully manufactured and/or marketed in
another Member State or in a State signatory to the EEA
Agreement;

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The prohibition laid down in Article 2(1) of Decree-Law no
40/2003 of 11 March 2003 constitutes a measure having
equivalent effect
to a quantitative restriction on imports,
contrary to Article 28 EC and Article 11 of the EEA Agree-
ment, as it hinders in practice the marketing in Portugal of
coloured film lawfully manufactured and /or marketed in
another Member State or in a State signatory to the EEA Agree-
ment. It is also not justified under Article 30 EC and Article 13
of the EEA Agreement.

Reference for a preliminary ruling from Labour Court
(Ireland) made on 19 June 2006 — Impact v Minister for
for Arts, Sport and
Agriculture and Food, Minister
Tourism, Minister
and
Natural Resources, Minister for Foreign Affairs, Minister
for Justice, Equality and Law Reform, Minister for Trans-
port

for Communications, Marine

(Case C-268/06)

(2006/C 212/28)

Questions referred

Question 1

first

In deciding a case at
instance under a provision of
domestic law or in determining an appeal against such a deci-
sion, are the Rights Commissioners and the Labour Court
required by any principle of Community law (in particular the
principle of equivalence and effectiveness) to apply a directly
effective provision of Council Directive 1999/70/EC of 28th
June 1999 concerning the framework agreement of fixed-term
work concluded by ETUC, UNICE and CEEP (1) in circumstances
where:

— The Rights Commissioner and the Labour Court have not
been given express jurisdiction to do so under the domestic
the Member State including the provisions of
law of
domestic law transposing the Directive,

— Individuals can pursue alternative claims arising out of a
failure by their employer to apply the Directive to their
individual circumstances before the High Court and

— Individuals can pursue alternative claims before an ordinary
Court of competent jurisdiction against the Member State
seeking damages for loss suffered by them arising from the
Member States failure to transpose the Directive on time?

Question 2.

If the answer to Question 1 is in the Affirmative,

(a) Is Clause 4(1) of the Framework Agreement on Fixed-Term
Work concluded by ETUC, UNIC and CEEP annexed to
Directive 1999/70/EC unconditional and sufficiently precise
in its terms as to be capable of being relied upon by indivi-
duals before their national courts?.

(b) Is Clauses 5(1) of the Framework Agreement on Fixed-Term
Work concluded by ETUC, UNIC and CEEP annexed to
Directive 1999/70/EC unconditional and sufficiently precise
in its terms as to be capable of being relied upon by indivi-
duals before their national courts?

Language of the case: English

Question 3

Referring court

Labour Court (Ireland)

Parties to the main proceedings

Applicant: Impact

Having regard to the Court's answers to Question 1 and Ques-
tion 2(b) does clause 5(1) of the Framework Agreement on
Fixed-Term Work concluded by ETUC, UNIC and CEEP
annexed to Directive 1999/70/EC preclude a Member State,
acting in its capacity as an employer, from renewing a fixed
term contract of employment for up to 8 years in the period
after the said Directive should have been transposed and before
the transposing legislation was enacted in domestic law where:

— on all previous occasions the contract had been renewed
for shorter periods, and the employer requires the services
of the employee for the extended period,

Defendant: Minister for Agriculture and Food, Minister for Arts,
Sport and Tourism, Minister for Communications, Marine and
Natural Resources, Minister for Foreign Affairs, Minister for
Justice, Equality and Law Reform, Minister for Transport

— the renewal

for the extended period has the effect of
circumventing the application to an individual of the full
benefit of Clause 5 of the Framework Agreement when
transposed into domestic law, and