Case C-424/07: Action brought on 13 September 2007 — Commission of the European Communities v Federal Republic of Germany
Date: 2007-11-24
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, competition law, electronic mail, regulation of telecommunications, telecommunications, transmission network

24.11.2007

EN

Official Journal of the European Union

C 283/19

Pleas in law and main arguments

The digital broadcasting licences
issued by the Swedish
Government are State measures which, inter alia, regulate the use
of digital broadcasting services and thus indirectly the supply of
such services in the Kingdom of Sweden. The requirement in
the currently valid licences that the licence holder is to comply
with section 2 of the cooperation agreement indirectly gives the
State company Boxer a monopoly for access control services
(including encryption), contrary to Article 2(1) of the Competi-
tion Directive. The retention of the obligation to comply with
that section of the cooperation agreement thus prevents under-
takings interested in offering a complete range of digital broad-
casting services from enjoying the rights which Article 2(2) and
(3) is intended to guarantee to them. The Commission therefore
notes that Sweden has failed correctly to implement the Compe-
tition Directive in its national legal order with regard to digital
transfer and broadcasting services over the terrestrial network.

(1) OJ 2002 L 249, p. 21.

principles of good laboratory practice on the part of the labora-
tories carrying out tests on industrial chemicals. Neither has any
authority been designated in Spain as responsible for the verifi-
cation of the compliance with the principles of good laboratory
practice on the part of those aforementioned laboratories or, in
any case, the name of that authority has not been communi-
cated to the Commission.

Consequently it can be stated that the Kingdom of Spain has
proceeded without adopting the necessary measures for the veri-
fication of compliance of good laboratory practice relating to
inspections and study checks in the industrial chemical products
sector as intended in Article 3 of the Directive.

(1) OJ L 50, 20.2.2004, p. 44.

Action brought on 13 September 2007 — Commission of
the European Communities v Federal Republic of Germany

Action brought on 13 September 2007 — Commission of
the European Communities v Kingdom of Spain

(Case C-422/07)

(2007/C 283/34)

Language of the case: Spanish

Parties

(Case C-424/07)

(2007/C 283/35)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: S. Pardo Quintillán and D. Recchia, Agents)

Applicant: Commission of the European Communities (repre-
sented by: G. Braun and A. Nijenhuis, acting as Agents)

Defendant: Federal Republic of Germany

Defendant: Kingdom of Spain

Forms of order sought

— Declare that, by not adopting the necessary measures for
verification of compliance with good laboratory practice in
relation to inspections and study checks in the industrial
chemical substances sector, the Kingdom of Spain has failed
its obligations under Article 3 of Directive
to fulfil
2004/10/EC (1) of
the
Council of 11 February 2004 on the harmonisation of laws,
regulations and administrative provisions relating to the
application of the principles of good laboratory practice and
the verification of their applications for tests on chemical
substances

the European Parliament and of

— Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission has no evidence that the necessary measures
have been adopted in Spain for study checks in accordance with

Form of order sought

— declare that, with the provisions made in paragraphs 3
No 12(b) and 9(a) of the German Law on Telecommunica-
tions (Telekommunikationsgesetz — ‘TKG’), newly inserted
into the TKG by the Law amending the laws governing tele-
communications of 18 February 2007, the Federal Republic
of Germany has infringed Articles 6, 7, 15(3), 16 and 8(1)
and (2) of Directive 2002/21/EC of the European Parliament
and of the Council of 7 March 2002 on a common regula-
tory framework for electronic communications networks
and services (1), Article 8(4) of Directive 2002/19/EC of the
European Parliament and of the Council of 7 March 2002
on access to, and interconnection of, electronic communica-
tions networks and associated facilities (2), as well as
Article 17(2) 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 (3);

— order the Federal Republic of Germany to pay the costs.

C 283/20

EN

Official Journal of the European Union

24.11.2007

Pleas in law and main arguments

The common regulatory framework for electronic communica-
tions networks introduced in 2002 sets out aims for the actions
of national regulatory authorities and lists the measures that
national regulatory authorities can take to achieve those aims.
By providing room for the exercise of discretion, this regulatory
framework allows national regulatory authorities to proceed —
following careful analysis of the market — in a manner that
takes into careful consideration the particular features of each
individual case. According to the provisions of Community law,
national regulatory authorities shall define the relevant markets
appropriate to national circumstances, in accordance with the
principles of competition law, taking the utmost account of the
Commission's recommendation and the guidelines. Therefore, it
is the national regulatory authorities that define the relevant
markets, and not the national
legislator or another national
institution. In view of the independence of national regulatory
authorities, which are under an obligation to exercise their
powers in a manner that is impartial and transparent, this is a
central structural element in the procedure leading to the defini-
tion of the market, which is not within the legislator's discre-
tion.
if necessary, national regulatory authorities
undertake an analysis of the markets and determine whether —
and, if required, which — remedies have to be imposed. There is
a mechanism for consultation as regards definition and analysis
of the market.

In addition,

In contrast to the market definition and market analysis proce-
dures under Community law, the German legislator lays down
the definition of ‘new markets’ and establishes in advance the
conditions under which the regulatory authority is entitled,
exceptionally, to regulate new markets, instead of leaving it to
the regulatory authority to conduct this assessment. In addition,
the German legislator imposes on the regulatory authority a
regulatory aim to which it must pay particular attention. Those
provisions of the German Law on Telecommunications infringe
the provisions of Directives 2002/19/EC, 2002/21/EC and
2002/22/EC, by circumventing the rules on the regulation of
the market provided for in those directives and unduly limiting
the regulatory authority's discretion.

The German rules in issue make it impossible for the national
regulatory authority to define all markets in accordance with the
principles of competition law and — by including a global
provision that, by law, certain markets cannot be regulated —
to take decisions on the merits that take into consideration each
individual case. The regulatory authority is only obliged to
follow the procedures for consultation and cooperation provided
for in the Community regulatory framework, and to inform
market participants, European regulatory authorities and the
Commission of the result of its analysis of a ‘new market’, if, at
the same time, it reaches the conclusion that additional condi-
tions are fulfilled and it therefore considers that regulation is
required. The provisions of the German Law on Telecommunica-
tions in issue could cause the German regulatory authority to
define and analyse a market and take the decision not to regu-
late it without following the intended procedures for consulta-
tion and cooperation.

Therefore,
in the Commission's view, there is a danger that
those provisions would significantly undermine the liberalisation

those markets to competition,

of the markets for electronic communication, as well as the
opening of
that have been
achieved because of the common regulatory framework. There
is a threat that some markets, such as, for example, broadband
markets — which use the fixed line networks of the former
monopoly operators and which are particularly important for
technological development — could be re-monopolised, which
would be a reversal of what has been achieved so far, also partly
thanks to the common regulatory framework.

(1) OJ L 108, 24.4.2002, p. 33.
(2) OJ L 108, 24.4.2002, p. 7.
(3) OJ L 108, 24.4.2002, p. 51.

Reference for a preliminary ruling from the Wojewódzki
Sąd Administracyjny w Białymstoku (Republic of Poland)
lodged on 14 September 2007 — Dariusz Krawczyński v
Dyrektor Izby Celnej w Białymstoku

(Case C-426/07)

(2007/C 283/36)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny w Białymstoku (Regional
Administrative Court, Białystok)

Parties to the main proceedings

Applicant: Dariusz Krawczyński

Defendant: Dyrektor Izby Celnej w Białymstoku (Director of the
Białystok Customs Chamber)

Questions referred

1. Can excise duty introduced in a Member State of

the
European Community such as that provided for in the Polish
Law of 23 January 2004 on Excise Duty (Dz. U No 29,
heading 257, as subsequently amended), which is charged on
any sale of passenger cars before their initial registration in
national territory, be characterised as a form of unlawful
turnover tax for the purposes of Article 33(1) 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 (OJ 1977 L 145, p. 1) (now
Article
2006/112/EC of
28 November 2006 on the common system of value added
tax (OJ 2006 L 347, p. 1), in force since 1 January 2007)?

of Council Directive

401

If the above question is to be answered in the negative: