Case C-426/07: 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
Date: 2007-11-24
Institutions: Court of Justice
Subjects: Poland, VAT, excise duty, interpretation of the law, motor car, sale, tax law, vehicle registration

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:

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.