Case C-227/07: Action brought on 8 May 2007 — Commission of the European Communities v Republic of Poland
Date: 2007-08-25
Institutions: Court of Justice
Subjects: Poland, access to information, action for failure to fulfil an obligation, systems interconnection, telecommunications, transmission network

C 199/16

EN

Official Journal of the European Union

25.8.2007

deterioration of the unique and exceptional ecosystem of the
valley of the Rospuda river in terms of its impact on birds, habi-
tats and species in need of protection within the meaning of
Directives 79/409/EEC and 92/43/EEC. It must be noted that, at
the time of the impact assessment of the Augustów bypass
project on the Natura 2000 areas, the Polish authorities did not
take appropriate account of alternative solutions. By having
failed to show the lack of alternative solutions, the Polish autho-
rities cannot rely on an overriding public interest in order to
approve the project in question.

With regard to the road project to bypass of the town of
Wasilków, its route is intended to cross the SPA Puszcza Knys-
zyńska which forms the habitat of 37 species of birds listed in
Annex I of the Birds Directive. The authorisation procedure
began before the accession of Poland to the European Union,
and thus it is a project to which the procedural provisions in
Article 6(3) and (4) apply. The impact assessment carried out
for that project is defective from a number of points of view
and does not constitute due assessment of the impact under
Article 6(3) of the Habitats Directive. Furthermore, it must also
be noted that the Polish authorities did not submit alternative
solutions to the Wasilków bypass to the Commission and did
not raise the question of compensatory measures with regard to
the area which will be destroyed by that bypass.

The work has already begun; in particular, trees have already
been felled.

The afforestation project to be carried out in the potential
SCI of Pojezierze Sejneńskie as a compensatory measure for
the ecological losses suffered in the areas affected by the
Augustów bypass project not only fails to compensate for the
losses but also implies an adverse impact on the
ecological
potential SCI. The site, which contains 15 types of habitat listed
in Annex I to the Habitats Directive, meets all the ecological
criteria of Annex III for proposal and subsequent classification
as an SCI under that directive. The Commission has reliable
information that two species included in Annexes II and IV to
the abovementioned directive, that is to say the species Pulsatilla
patens and the species Thesium ebracteatum, are present in that
area. Furthermore, the area forms the habitat of six animal
species and six plant species listed in Annex II to the Habitats
Directive, including a priority species, that is to say the wolf.
Part of
(approximately
17 hectares) and the habitats of two plant species listed in
Annex II will be deforested as part of the measures envisaged by
the project investor to compensate for the damage to the habi-
tats caused by the construction of the Augustów bypass.

that priority habitat

the area of

The Polish authorities have confirmed that
they wish to
complete this afforestation project by the end of next June at
the latest. The Commission requests the Court to order that the
work be suspended or that it not begin until delivery of the
judgment in the main proceedings.

(1) OJ L 206, 22.7.1992, p. 7.
(2) Directive 79/409/EEC on the conservation of wild birds (OJ L 103,

25.4.1979, p. 1).

Action brought on 8 May 2007 — Commission of the
European Communities v Republic of Poland

(Case C-227/07)

(2007/C 199/26)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Shotter and K. Mojzesowicz, Agents)

Defendant: Republic of Poland

Form of order sought

The applicant claims that the Court should:

— declare that, by failing to transpose correctly into national
law Directive 2002/19/EC of the European Parliament and
of the Council of 7 March 2002 on access to, and intercon-
nection of, electronic communications networks and asso-
(Access Directive) (1) and,
ciated facilities
in particular,
Article 4(1) thereof relating to an obligation to negotiate
interconnection with each other, and the first subparagraph
of Article 5(1) thereof relating to the power of the national
regulatory authority to encourage and where appropriate
ensure,
in accordance with the directive's provisions,
adequate access and interconnection, and interoperability of
services, the Republic of Poland failed to fulfil its obligations
under that directive;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

Directive 2002/19/EC of the European Parliament and of the
Council
(Access Directive) provides that operators of public
communications networks are to have a right and obligation to
negotiate interconnection with each other for the purpose of
providing publicly available electronic communications services,
in order to ensure provision and interoperability of services
throughout the Community. It also requires that the national
regulatory authorities have power
to encourage and where
appropriate to ensure, in accordance with the directive's provi-
interconnection and interoperability of
sions, adequate access,
services.

As regards the Republic of Poland, the period for transposing
that directive expired, under the combined provisions of Arti-
cles 2 and 54 of the Act of Accession, on 30 April 2004.

Under Polish law, all operators of public communications
networks are bound to negotiate access and the national regula-
tory authority may impose a time-limit for such negotiations to
be concluded. In addition, if the parties do not reach an agree-
ment, the national regulatory authority may, at the request of
one of
the parties, adopt a decision which will replace the
contract and thus impose obligations on undertakings irrespec-
tive of their position on the market. The Commission claims
that those provisions of Poland's law on telecommunications do
not comply with the requirements of Article 4(1) and the first
subparagraph of Article 5(1) of the Access Directive.

25.8.2007

EN

Official Journal of the European Union

C 199/17

As regards the introduction, in general legal provisions, of an
obligation to negotiate access contracts in good faith, the effect
of that solution is to impose the obligation to negotiate without
first establishing a lack of effective competition on the market
the national
concerned,
regulatory
authority to examine the impact of
the obligation to grant
access on long term competition on that market and, conse-
quently,
to suppress that obligation if competition on the
market intensifies.

and does not

enable

As regards the national regulatory authority's power to adopt a
decision which will replace the parties' contract, it is important
to note that the first subparagraph of Article 5(1) of the Access
Directive cannot be implemented by a general legal provision
because it requires that a national regulatory authority be
empowered to act only in certain circumstances. The power
conferred on national regulatory authorities by virtue of the
above-mentioned provision of the directive is clearly limited,
first, by the reference to the ‘objectives set out in Article 8 of
Directive 2002/21/EC (2) (Framework Directive)’ and, second, by
the requirement laid down in Article 5(3) of the Access Direc-
tive. Those limits on the national regulatory authority's power
ensure that it will act only in certain well defined circumstances.
In addition, the regulatory obligations may be imposed only on
undertakings having significant power on the market or, irres-
pective of
in the
circumstances mentioned in Article 8(3) of the Access Directive.
It follows that if the national regulatory authority decides to
intervene, such intervention must have the directive's provisions
as
regulatory
authority decides to impose regulatory obligations.

the undertaking's power on the market,

including when the national

legal basis,

its

(1) OJ 2002, L 108, p. 7.
(2) Directive 2002/21/EC of

the European Parliament and of

the
Council of 7 March 2002 on a common regulatory framework for
(Framework Directive)
electronic
(OJ 2002, L 108, p. 33, and OJ, Polish Special Edition, Chapter 13,
Vol. 29, p. 349).

communications and services

Appeal brought on 22 May 2007 by Carsten Brinkmann
against the judgment of the Court of First Instance (Fifth
Chamber) delivered on 22 March 2007 in Case T-322/05
Carsten Brinkmann v Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case C-243/07 P)

(2007/C 199/27)

Language of the case: German

Parties

Appellant: Carsten Brinkmann (represented by: K. van Bebber,
lawyer)

Other parties to the proceedings:

1. Office for Harmonisation in the Internal Market

(Trade

Marks and Designs)

2. Terra Networks, S.A.

Form of order sought

— set aside the judgment of the Court of First Instance (Fifth

Chamber) of 22 March 2007 in Case T-322/05;

— annul Decision No 3646/2004 of the Office for Harmonisa-
tion in the Internal Market (OHIM) of 29 October 2004;

— order OHIM to pay the costs of the proceedings before
OHIM and also of the proceedings before the Court of First
Instance and the Court of Justice.

Pleas in law and main arguments

The appellant's appeal against the judgment of the Court of First
Instance referred to above is based on an infringement of the
provisions of Regulation (EC) No 40/94 of 20 December 1993
on the Community trade mark since, on a correct assessment,
there is no likelihood of confusion within the meaning of
Article 8(1)(b) of the Regulation between the conflicting marks.

First, it is not the case that the goods and services covered by
the trade mark applied for and those covered by the opposing
mark are completely identical.

Second, the members of the public concerned are professionals,
namely banking experts, property owners etc, rather than the
average German consumer.

Third, the ‘terra’ element of the opponent's mark is not very
distinctive. The Court of First Instance failed to take any account
at all of that crucial aspect. It failed to consider the distinctive-
ness of the opposing mark. That is important, however, because
if the earlier mark is not very distinctive, there is no likelihood
of confusion in circumstances where, as a rule, such a likelihood
would otherwise exist. The less distinctive a sign, the lesser the
scope of protection of the mark. Where trade marks are not
very distinctive, a likelihood of confusion in legal terms cannot
be based on even an actual (and extreme) likelihood of confu-
sion.