Case C-228/07: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 9 May 2007 — Jörn Petersen v Arbeitsmarktservice Niederösterreich
Date: 2007-07-21
Institutions: Court of Justice
Subjects: disability insurance, incapacity for work, interpretation of the law, pension scheme, social-security benefit, unemployment insurance

C 170/10

EN

Official Journal of the European Union

21.7.2007

By its fourth ground of appeal the appellant claims that, by
deciding that the costs and revenues subsequent to the period of
the alleged infringement should not be taken into account, the
Court misconstrued both Article 82 EC and its duty to provide
reasons. The Commission wrongly concluded there had been an
infringement on the basis of that temporal limitation on costs
and revenues to be taken into account.

By its fifth ground of appeal the appellant also alleges the Court
infringed Article 82 EC, and its duty to give reasons, by holding
that a price may be predatory even when it is accompanied by a
considerable reduction in the market share of
the relevant
undertaking. Such a price cannot be regarded as likely to lead to
the exclusion of competitors.

By its sixth ground of appeal the appellant claims that, as
regards the alleged plan of predation, the Court distorted the
facts and the evidence submitted for its consideration, and at
the same time infringed Article 82 EC. That article requires an
objectively identifiable plan to remove competitors and cannot,
in any circumstances, be satisfied by a subjective test of the
concept of an abuse of a dominant position.

Finally by its seventh ground of appeal the appellant alleges that
the Court infringed Article 82 EC not only in holding that
proving the possibility for recoupment of losses was not a pre-
requisite for finding predatory pricing, but also in confusing the
Commission's evidence on the possibility of recoupment of
those losses with the relevant undertaking's evidence on the
impossibility of recoupment of those losses.

Action brought on 23 April 2007 — Commission of the
European Communities v French Republic

(Case C-214/07)

(2007/C 170/17)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by C. Giolito, acting as Agent)

Defendant: French Republic

Form of order sought

— order the French Republic to pay the costs.

Pleas in law and main arguments

In support of its application, the Commission claims that the
defendant has not taken the necessary measures to ensure the
rapid and effective implementation of
its decision, because,
more than three years after its adoption, there has been no
repayment whatsoever of the aid illegally granted by the French
State. Such a situation also clearly contravenes the fourth para-
graph of Article 249 EC and Article 14(1) and (3) of Council
Regulation (EC) No 659/1999 of 22 March 1999 laying down
detailed rules for the application of Article 93 of
the EC
Treaty (2).

Nor can the defendant rely, in respect of the period after 1993,
on the absolute impossibility of implementing the decision of
16 December 2003. First, the French authorities did not truly
take steps in order to recover the disputed aid, since orders for
recovery were not even sent to the debtors. Secondly, those
authorities cannot rely on the difficulty of identifying the recipi-
ents of the aid in question because, as tax authorities, they
could easily quantify the amounts of the tax exemptions from
which those recipients had benefited.

In any event, it is clear from the Court's case-law that the condi-
tion as to absolute impossibility of implementation is not satis-
fied where the defendant State merely informs the Commission
of the legal, political or practical difficulties arising from the
implementation of the decision ordering the recovery of the aid,
the undertakings
without having truly taken steps against
concerned in order to recover the amount of
that aid and
without having proposed alternative methods to the Commis-
sion of implementing the decision which would have allowed
the difficulties to be overcome.

(1) OJ 2004 L 108, p. 38.
(2) OJ 1999 L 83, p. 1.

for

from the
preliminary
Reference
Verwaltungsgerichtshof (Austria) lodged on 9 May 2007 —
Jörn Petersen v Arbeitsmarktservice Niederösterreich

ruling

a

(Case C-228/07)

(2007/C 170/18)

Language of the case: German

— declare that, by failing to implement, within the prescribed
period, Decision of the Commission of 16 December 2003
on the aid scheme implemented by France for the takeover
of firms in difficulty (State aid C(2003) 4636) (1), the French
Republic has failed to perform its obligations under Arti-
cles 5 and 6 of
the fourth paragraph of
Article 249 of the EC Treaty and Article 10 of that Treaty;

that decision,

Referring court

Verwaltungsgerichtshof

21.7.2007

EN

Official Journal of the European Union

C 170/11

Parties to the main proceedings

Parties to the main proceedings

Applicant: Jörn Petersen

Defendant: Arbeitsmarktservice Niederösterreich

Questions referred

1. Is

benefit

granted

a monetary

unemployment

to
unemployed persons who have applied for the grant of a
benefit under the statutory pension and accident insurance
scheme on the ground of reduced capacity to work or inca-
pacity to work until a decision is made on their application
which is an advance payment of such benefit and is to be
such benefit, and which,
subsequently set off against
although subject to the conditions that the person is unem-
ployed and has completed a minimum eligibility period, is
not subject to the other requirements for the payment of
unemployment
to work,
willingness to work and readiness to work, and which is paid
only if, having regard to the circumstances, it is likely that
benefits will be granted under the statutory pension and acci-
dent insurance scheme, an unemployment benefit within the
meaning
(EEC)
4(1)(g)
No 1408/71 (1) of the Council of 14 June 1971 on the
application of social security schemes to employed persons
and their families moving within the Community, or an inva-
lidity benefit within the meaning of Article 4(1)(b) of that
Regulation?

of Article

Regulation

capacity

benefit,

namely

of

2. If the answer to the first question is to the effect that the
benefit referred to is an unemployment benefit within the
meaning of Article 4(1)(g) of Regulation (EEC) No 1408/71:
Does Article 39 EC preclude a national provision which
provides that — apart from a discretion available on applica-
tion by the unemployed person in cases of exceptional
circumstances for up to three months — the claim to the
benefit is suspended if the unemployed person lives abroad
(in another Member State)?

(1) OJ L 149, p. 2.

Applicant: Tiercé Ladbroke SA

Defendant: Belgian State

Question referred

sporting events, exempt

Is the supply of the following services by an agent, acting on
behalf of a principal who operates a business of taking bets on
horse-races and other
from VAT
pursuant to Article 13(B)(d)(3) (1) of the Sixth Directive, which
exempts transactions, including negotiation, concerning deposit
accounts, …, payments …: namely, taking of the bets in the
name of the principal; recording the bets; confirming to the
customer, by the issue of a betting slip, that the bet has been
made; collecting the monies; paying out the winnings; assuming
sole responsibility, vis-à-vis the principal, for management of
the collected monies and for any thefts or losses of money; and
receiving remuneration for those activities in the form of a
commission from the principal?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment
(OJ 1977 L 145, p. 1).

Reference for a preliminary ruling from the Cour d'appel
de Bruxelles (Belgium) lodged on 10 May 2007 — Derby
SA v Belgian State

(Case C-232/07)

(2007/C 170/20)

Language of the case: French

Reference for a preliminary ruling from the Cour d'appel
de Bruxelles (Belgium) lodged on 10 May 2007 — Tiercé
Ladbroke SA v Belgian State

(Case C-231/07)

(2007/C 170/19)

Language of the case: French

Referring court

Referring court

Cour d'appel de Bruxelles

Parties to the main proceedings

Applicant: Derby SA

Cour d'appel de Bruxelles

Defendant: Belgian State