Case C-434/07: Action brought on 18 September 2007 — Commission of the European Communities v Portuguese Republic
Date: 2007-11-10
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, motor vehicle, safety device, technical regulations

C 269/38

EN

Official Journal of the European Union

10.11.2007

By their second plea, the applicants then claim that the Court
erred in law in considering that the Commission was not under
an obligation to initiate the formal investigation procedure on
the sole ground that the examination of the substance of the
case showed, in its view, that an advantage for Orange and SFR
had not been proven.
investigation
Initiation of
procedure under Article 88(2) EC is in fact justified each time
the Commission is unable to ascertain,
the
evidence in its possession during the preliminary examination
phase, whether or not a measure is compatible with the rules of
the Treaty.

in the light of

the formal

By their third plea, the applicants criticise three errors made by
the Court relating to the legal assessment of
the facts, as
regards, first, the alleged unicity of the procedures for awarding
UMTS licences, secondly, the so-called uncertain nature of the
debts waived by the State, and thirdly, the wording of the minis-
terial letter of 22 February 2001, which contained the assurance
that the economic operators would be treated fairly but not
equally.

By their fourth plea, the applicants maintain that the Court
committed several errors of law in applying Article 87(1) EC.
Those errors relate, respectively, to the application of the excep-
tion based on the logic of the scheme, the appraisal of the (in)
existence of a competitive advantage and the application of the
principle of non-discrimination.

Commission Directive 2005/30/EC (1) of 22 April 2005
amending, for the purposes of their adaptation to technical
progress, Directives 97/24/EC and 2002/24/EC of
the
the Council, relating to the
European Parliament and of
type-approval of two or three-wheel motor vehicles or, in
any case, by failing to communicate them to the Commis-
sion, the Portuguese Republic has failed to fulfil its obliga-
tions under that directive;

— order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The period allowed for
domestic law expired on 17 May 2006.

transposition of

the directive into

(1) OJ 2005 L 106, p. 17.

Action brought on 18 September 2007 — Commission of
the European Communities v Portuguese Republic

Action brought on 18 September 2007 — Commission of
the European Communities v Portuguese Republic

(Case C-433/07)

(2007/C 269/64)

Parties

(Case C-434/07)

(2007/C 269/65)

Language of the case: Portuguese

Language of the case: Portuguese

Applicant: Commission of the European Communities (repre-
sented by: C. Zadra and M. Telles Romão, Agents)

Parties

Applicant: Commission of the European Communities (repre-
sented by: C. Zadra and M. Telles Româo, Agents)

Form of order sought

Defendant: Portuguese Republic

Defendant: Portuguese Republic

Form of order sought

— declaration that, by failing to adopt the laws, regulations and
comply with

administrative

provisions

necessary

to

— declaration that, by failing to bring into force the laws, regu-
lations and administrative provisions necessary to comply
with Directive 2005/41/EC (1) of the European Parliament
and of the Council of 7 September 2005 amending Council
Directive 76/115/EEC on the approximation of the laws of
the Member States relating to anchorages for motor-vehicle
safety belts or, in any case, by failing to communicate them
to the Commission, the Portuguese Republic has failed to
fulfil its obligations under that directive;

— an order that the Portuguese Republic should pay the costs.

10.11.2007

EN

Official Journal of the European Union

C 269/39

Pleas in law and main arguments

The period prescribed for transposition of the Directive into
domestic law expired on 19 April 2006.

Appeal brought on 14 September 2007 by the Commission
of the European Communities against the judgment deliv-
ered on 12 July 2007 in Case T-312/05 Commission of the
European Communities v Efrosini Alexiadou

(1) OJ 2005 L 255, p. 149.

Action brought on 18 September 2007 — Commission of
the European Communities v Portuguese Republic

(Case C-435/07)

(2007/C 269/66)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (repre-
sented by: C. Zadra and M. Telles Romão, Agents)

Defendant: Portuguese Republic

Form of order sought

— a declaration that, by failing to bring into force the laws,
and administrative provisions necessary to
regulations
comply with Directive 2005/39/EC (1) of
the European
Parliament and of
the Council of 7 September 2005
amending Council Directive 74/408/EEC relating to motor
vehicles with regard to the seats, their anchorages and head
restraints or, in any case, by failing to communicate them to
the Commission, the Portuguese Republic has failed to fulfil
its obligations under that directive;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the Directive into
domestic law expired on 19 April 2006.

(1) OJ 2005 L 255, p. 143.

(Case C-436/07 P)

(2007/C 269/67)

Language of the case: Greek

Parties

Appellant: Commission of the European Communities (repre-
sented by: D. Triandafillou)

Other party to the proceedings: Evfrosini Alexiadou

Form of order sought

The appellant asks the Court to:

— set aside the judgment of the Court of First Instance of
12 July 2007 in Case T-312/05 Commission of the European
Communities v Alexiadou which was notified to the Commis-
sion on 18 July 2007;

— uphold the Commission's claims in its action;

— order the respondent to pay the costs of the appeal and of

the proceedings before the Court of First Instance.

Pleas in law and main arguments

The Court of First Instance misinterpreted the general conditions
of the contract (law of the parties) and in particular the provi-
sion concerning financial audit which refers to audit in a loose
way as a mere possibility. Another provision which was relied
upon of its own motion by the Court of First Instance does not
even refer to audit, although it concerns defective performance
of a contract. The requirement to carry out an audit thus proves
to be independent of the contractual provision relied upon.

In any event, financial audit could not be required if there was
nothing to audit, since nobody is bound to do the impossible
and contractual provisions must be construed in such a way as
to ensure practical effectiveness.

The principle of sound budgetary management requires that the
Commission should not carry out audits without reason. The
Court of First Instance excluded at the outset application of the
principles of good faith and commercial usage which could have
offered guidance in its interpretation.

Since it gave judgment by default, the Court of First Instance
cannot blame the Commission for not explaining some of its
arguments
above),
without infringing the principle of judicial protection.

the preceding argument

(in particular