Case C-547/07: Action brought on 7 December 2007 — Commission of the European Communities v Republic of Poland
Date: 2007-12-07
Institutions: Court of Justice
Subjects: European Commission, Poland, action for failure to fulfil an obligation, bird, protected area, protection of animal life

23.2.2008

EN

Official Journal of the European Union

C 51/35

Reference for a preliminary ruling from the Sofiyski
lodged on 4 December 2007 —
gradski sad (Bulgaria)

Apis-Hristovich EOOD v Lakorda AD

(Case C-545/07)

(2008/C 51/57)

Language of the case: Bulgarian

Referring court

Sofiyski gradski sad

Parties to the main proceedings

Claimant: Apis-Hristovich EOOD

Defendant: Lakorda AD

Questions referred

links and editorial text and these elements are also found in
the database of the person who has committed the alleged
infringement? In the carrying out of this assessment, are the
two
various original organisational
opposing databases relevant?

structures of

the

5. When determining whether extraction has taken place, is the
computer program/the system for database management
material if it is not part of the database?

6. Since, according to Directive 96/9/EC and the case-law of the
Court of Justice of the European Communities, ‘a substantial
part of the database from a quantitative and qualitative point
of view’ is linked to substantial investment in the obtaining,
verification or presentation of a database: how are these
concepts to be interpreted in relation to legislative measures,
and measures having individual application, which have been
adopted by executive State bodies and are publicly accessible,
to their official translations and to case-law?

(1) Directive 96/9/EC of the European Parliament and the Council of
11 March 1996 on the legal protection of databases (OJ 1996 L 77,
p. 20).

1. How are the terms ‘permanent

transfer’ and ‘temporary
transfer’ to be interpreted and to be delimited in relation to
each other for the purpose of:

— determining whether extraction within the meaning of
Article 7(2)(a) of Directive 96/9/EC (1) from a database
accessible by electronic means has taken place,

— at what point in time is it to be assumed that extraction
within the meaning of Article 7(2)(a) of Directive
96/9/EC from a database accessible by electronic means
has taken place,

Action brought on 7 December 2007 — Commission of
the European Communities v Republic of Poland

(Case C-547/07)

(2008/C 51/58)

Language of the case: Polish

— what is the significance, for the assessment of extraction,
of the fact that the content of a database extracted in this
way has served to create a new and amended database?

Parties

2. Which criterion is to be applied in interpreting the concept
‘extraction of a substantial part, evaluated quantitatively’
if
the databases are divided into separate subgroups and are
used in these subgroups, which are independent commercial
products? Is the size of the databases in the entire commer-
cial product or the size of the databases in the relevant
subgroup to be used as the criterion?

3. In interpreting the concept

‘a substantial part, evaluated
qualitatively’, is the fact that a certain type of data allegedly
extracted was obtained by the database maker from a source
which is not generally accessible, so that it was possible to
procure the data only by extracting them from the databases
of that very database maker, to be used as a criterion?

4. What criteria are to be applied when determining whether
extraction from a database accessible by electronic means
has taken place? Can it be regarded as an indication that
extraction has taken place if the maker's database has a par-
ticular structure, notes, references, commands, fields, hyper-

Applicant: Commission of the European Communities (repre-
sented by: D. Recchia and K. Herrmann, Agents)

Defendant: Republic of Poland

Form of order sought

— by failing to classify as special protection areas (SPAs) for
birds all areas which, on the application of ornithological
criteria, appear to be the most appropriate for the conserva-
tion of bird species, the Republic of Poland has failed to
fulfil its obligations under Article 4(1) and (2) of Directive
79/409/EEC (1) of 2 April 1979 on the conservation of wild
birds;

— order the Republic of Poland to pay the costs.

C 51/36

EN

Official Journal of the European Union

23.2.2008

Pleas in law and main arguments

The obligation to carry out the classification of special protec-
tion areas for birds (SPAs) was imposed on the Republic of
Poland at the time of its accession to the European Union.

In December 2004 an ornithological inventory was published
which detailed the situation of birds of European significance in
Poland (IBA 2004) and designated, on the basis of ornitholo-
gical criteria, 140 areas of crucial importance for the conserva-
tion of birds.

Of the areas included on the IBA 2004 list, 15 were not classi-
fied by the Republic of Poland as SPAs, notwithstanding the fact
that
the Polish authorities failed to produce any scientific
evidence to justify that failure to designate them.

Furthermore, the areas of 8 SPAs are much smaller than their
equivalents on the IBA 2004 inventory, with the result that
outside their limits there are areas which, according to IBA
2004, would appear to be most suitable for the conservation of
bird species.

comply with its obligations under Articles 2, 9 and 13 of
Council Directive 2006/112/EC of 28 November 2006 on
the common system of value added tax (1);

— order Ireland to pay the costs.

Pleas in law and main arguments

In Ireland, the State and local authorities are treated as taxable
persons only in so far as a specific order to that effect has been
made by the Minister for Finance. In the Commission's view
that situation is contrary to the scheme laid down in Article 13
of the VAT directive in several respects. First, no provision is
made for the taxation of public bodies where they act other
than in their capacity as public authorities. Secondly, no general
provision is made for the taxation of public bodies where they
act in their capacity as public authorities but engage in an
economic activity whose non-taxation would result in a signifi-
cant distortion of competition. The taxation of public bodies is
wholly at the discretion of the Minister for Finance; no criteria
for his decision are contained in the relevant provisions. Thirdly,
no provision is made for taxation of the activities listed in
Annex I to the VAT directive.

In addition, in September 2007 the Polish authorities, without
notifying the Commission, reduced the areas of 5 designated
SPAs in a manner impacting significantly on bird conservation.

(1) OJ L 347, p. 1.

(1) OJ 1979 L 103, p. 1.

Action brought on 11 December 2007 — Commission of
the European Communities v Ireland

(Case C-554/07)

(2008/C 51/59)

Language of the case: English

Parties

Reference for a preliminary ruling from the High Court of
Justice (Queen's Bench Division) Administrative Court
(United Kingdom) made on 17 December 2007 — The
Queen on the application of S.P.C.M. SA, C.H. Erbslöh KG,
Lake
Limited, Hercules
and Minerals
Incorporated v Secretary of State for Environment, Food
and Rural Affairs

Chemicals

(Case C-558/07)

(2008/C 51/60)

Language of the case: English

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal and M. Afonso, Agents)

Referring court

Defendant: Ireland

High Court of Justice (Queen's Bench Division) Administrative
Court

The applicant claims that the Court should:

Parties to the main proceedings

— declare that by failing to transpose correctly into Irish legis-
lation Article 13 of Directive 2006/112 (including Annex I
to the directive) and consequently by excluding from the
scope of the tax all economic activities in which the State,
local authorities and other bodies governed by public law
engage, with certain limited exceptions, Ireland has failed to

Applicants: S.P.C.M. SA, C.H. Erbslöh KG, Lake Chemicals and
Minerals Limited, Hercules Incorporated

Defendant: Secretary of State for Environment, Food and Rural
Affairs