Case C-438/07: Action brought on 19 September 2007 — Commission of the European Communities v Kingdom of Sweden
Date: 2007-11-24
Institutions: Court of Justice
Subjects: European Commission, Sweden, action for failure to fulfil an obligation, eutrophication, sensitive area, urban area, wastewater, water treatment

24.11.2007

EN

Official Journal of the European Union

C 283/21

2. Is excise duty such as that at issue in these proceedings
pending before the Wojewódzki Sąd Administracyjny w
Białymstoku, which is charged on any sale of passenger cars
before their initial registration in national territory, contrary
to Article 90 EC — which prohibits discrimination and the
protectionist application of a domestic tax system in favour
of similar domestic products — where such duty is not
charged on the sale of second hand cars previously registered
in the Republic of Poland?

If Question 2 is to be answered in the affirmative:

3. Must Article 5(3) of Regulation (EC) No 261/2004 be inter-
preted as meaning that technical problems with a plane and
the resulting changes to the flight schedule represent extraor-
dinary circumstances (which could not have been avoided
even if all reasonable measures had been taken)?

(1) OJ L 46, 17.2.2004, p. 1.

Reference for a preliminary ruling from the Handelsgericht
Wien (Austria) lodged on 18 September 2007 — Stefan
Böck and Cornelia Lepuschitz v Air France SA

Action brought on 19 September 2007 — Commission of
the European Communities v Kingdom of Sweden

(Case C-432/07)

(2007/C 283/37)

(Case C-438/07)

(2007/C 283/38)

Language of the case: German

Language of the case: Swedish

Referring court

Handelsgericht Wien

Parties

Applicant: Commission of the European Communities (repre-
sented by: L. Parpala, M. Patakia and S. Pardo Quintillán)

Parties to the main proceedings

Defendant: Kingdom of Sweden

Applicants: Stefan Böck and Cornelia Lepuschitz

Form of order sought

Defendant: Air France SA

Questions referred

1. Must Article 5, read in conjunction with Articles 2(l) and 6,
of Regulation (EC) No 261/2004 of the European Parliament
and of
the Council of 11 February 2004 establishing
common rules on compensation and assistance to passengers
in the event of denied boarding and of cancellation or
flights, and repealing Regulation (EEC)
long delay of
No 295/91 (1), be interpreted as meaning that a 22-hour
delay in the time of departure constitutes a ‘delay’ within the
meaning of Article 6?

2. Must Article 2(l) of Regulation (EC) No 261/2004 be inter-
preted as meaning that instances in which passengers are
transported significantly later (22 hours later) on a flight
operating under a longer
flight
number supplemented by an ‘A’) and carrying only an —
albeit large — proportion of the passengers booked on the
initial flight, but also additional passengers not booked on
the initial flight, constitute ‘cancellations’ rather than ‘delays’?

flight number

(original

— Declare that the defendant has breached Article 5(2), (3) and
(5) of Council Directive 91/271/EEC of 21 May 1991
concerning urban waste-water treatment (1), as amended by
Commission Directive 98/15/EC of 27 February 1998 (2).
The breach consists in the failure to order, at the latest by
from urban
31 December 1998,
waste-water treatment plants with a population equivalent
of over 10 000 discharging directly into sensitive areas or
their catchment areas fulfil the applicable requirements in
Annex I to Council Directive 91/271/EEC, and

emissions

that

all

— Order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

In 1994, Sweden classified all its waters as sensitive areas. In
1998 and 2000, Sweden confirmed that classification for the
Commission of the European Communities (the Commission)
and stated that eutrophication was used as a criterion and that it
is the bodies of water affected which determine the type of
tertiary treatment necessary.

C 283/22

EN

Official Journal of the European Union

24.11.2007

The Swedish authorities take the view that nitrogen treatment is
not necessary for emissions into the Baltic Sea from agglomera-
tions with a population equivalent (p.e.) of over 10 000 in the
the commune of Norrtälje.
area situated to the north of
Nitrogen treatment therefore takes place only in coastal areas
between the commune of Norrtälje and the Norwegian border.
They also take the view that nitrogen emissions from urban
areas with a pe of over 10 000 in central South Sweden do not
contribute to the eutrophication of coastal water, since there is
adequate natural retention of nitrogen in transit through the
catchment area from the source of the pollution to the sea.

The Commission takes the view that there is scientific evidence
that phosphor and nitrogen are the main causes of the eutrophi-
cation of the Baltic Sea. Phosphor and nitrogen emissions into
coastal water are spread to other parts of the Baltic Sea and
emissions into inland waters should which lie in the Baltic Sea's
catchment area contribute to its eutrophication.

Form of order sought

The appellant claims that the Court should:

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

11 July 2007 in Case T-170/06;

— give final judgment in the matter by dismissing the applica-

tion for annulment in Case T-170/06 as unfounded;

— order the Applicant in Case T-170/06 to pay the costs of
the Commission arising from that case and from the present
appeal.

Therefore, general nitrogen treatment of wastewater from urban
areas with a population equivalent (p.e.) of over 10 000 which
runs out directly into sensitive areas or their catchment areas
must be introduced at affected treatment plants.

Pleas in law and main arguments

Pleas on the substance:

The failure to take such measures constitutes a breach of Direc-
amended by Commission Directive
tive 91/271/EEC,
98/15/EC, in particular of Article 5(2), (3) and (5) (of Directive
91/271).

as

(1) OJ 1991 L 135, p. 40.
(2) OJ L 67, 7.3.1998, p. 29.

Appeal brought on 26 September 2007 by Commission of
the European Communities against the judgment of the
(Fourth Chamber, Extended
Court of First
Composition) delivered on 11 July 2007 in Case T-170/06:
the European
Alrosa Company Ltd v Commission of

Instance

Communities

(Case C-441/07 P)

(2007/C 283/39)

Language of the case: English

Parties

Appellant: Commission of the European Communities (repre-
sented by: F. Castillo de la Torre and R. Sauer, Agents)

Other party to the proceedings: Alrosa Company Ltd

the judgment under appeal
The Commission considers that
misinterprets Article 9 of regulation 1/2003 (1), and the way in
which the principle of proportionality is applicable in the
context of that provision. Secondly, the Commission submits
that, when examining whether the commitment was propor-
tionate, the judgment under appeal misapplies Article 9, errs in
law as regards the interpretation of Article 82 EC, ignores the
proper scope of
the
contested decision and the factual record, and lacks reasoning at
several stages.

judicial review, distorts the content of

Pleas on the procedure:

The Commission submits that the CFI's finding as regards the
alleged violation of the applicant's right to be heard lacks suffi-
cient reasoning and remains unclear, given that the CFI provided
no unequivocal explanation as to why the applicant would have
been unable to prepare an ‘effective’ reply or to ‘fully’ exercise
its rights. In addition, it is submitted that the CFI applied the
wrong legal standard when likening the applicant to an ‘under-
taking concerned’. The CFI also misinterpreted the law by
assuming that the applicant should have been given the oppor-
tunity to prepare new joint commitments together with De
Beers, or to comment on the outcome of the market test before
De Beers submitted individual commitments. In addition, the
CFI failed to examine whether the applicant actually had this
opportunity after receiving the summary of
the market test
observations. Finally, the Commission maintains that the CFI
committed an error in law by considering the applicant's first
plea well founded while leaving open to what extent the alleged
violation of its right to be heard actually affected the Commis-
sion's decision.

(1) Council Regulation (EC) of 16 December 2002 on the implementa-
tion of the rules on competition laid down in Articles 81 and 82 of
the Treaty (OJ L 1, p. 1).