Case C-455/07 P: Appeal brought on 9 October 2007 by Ente per le Ville Vesuviane against the judgment delivered on 18 July 2007 in Case T-189/02 Ente per le Ville Vesuviane v Commission of the European Communities
Date: 2007-12-08
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), financial aid, heritage protection, regional policy

C 297/28

EN

Official Journal of the European Union

8.12.2007

Questions referred

1. Is the ‘date on which the authorisation referred to in
Article 3(b) to place the product on the market as a medic-
inal product was granted’, referred to in Article 7(1) of the
Regulation (1), determined according to Community law or
does that rule refer to the date on which the authorisation
takes effect under the law of the Member State in question?

2. If the Court's answer is that the date referred to in Question 1
is determined by Community law, which date must be taken
into account for that purpose?

(1) OJ L 182, p. 1.

years after leaving school, apart from an alleged single day of
work on a trial basis, he has at no time been in employment,
drops out of all government support schemes designed to
promote the taking-up of employment and does not himself
make serious efforts to take up employment, instead living by
turns on social security benefits,
financial support from his
mother living in Germany and means of unknown origin?

Appeal brought on 9 October 2007 by Ente per le Ville
Vesuviane against the judgment delivered on 18 July 2007
in Case T-189/02 Ente per le Ville Vesuviane v Commission
of the European Communities

Reference for a preliminary ruling from the Verwaltungs-
gericht Giessen (Germany) lodged on 4 October 2007 —
Hakan Er v Wetteraukreis

(Case C-453/07)

(2007/C 297/45)

Language of the case: German

Parties

(Case C-455/07 P)

(2007/C 297/46)

Language of the case: Italian

Referring court

Verwaltungsgericht Giessen

Appellant: Ente per
Soprano, avvocato)

le Ville Vesuviane (represented by: E.

Other party to the proceedings: Commission of
Communities

the European

Parties to the main proceedings

Form of order sought

Applicant: Hakan Er

Defendant: Wetteraukreis

Question referred

Does a Turkish national who, as a member of
the family,
received authorisation to join his father living in Germany who
as a Turkish worker was duly registered as belonging to the
labour force of
the Federal Republic of Germany, and who
acquired, by virtue of previously living together legally with his
father for five years, the legal status as referred to in the second
indent of the first sentence of Article 7 of Decision No 1/80 of
the EEC-Turkey Association Council on the development of the
association (‘Association Council Decision 1/80’), lose that legal
status as a consequence of the fact that, for more than seven

— set aside in part, in accordance with the pleas set out below,
the judgment under appeal and, consequently, declare void
Decision D(2002) 810111, prot. 102504 of 13 March
2002 of the Directorate General for Regional Policy of the
European Commission, and if necessary and in so far as is
reasonable, Memorandum No Gt/SF/MF D(01) 810542,
prot. 109720 of 12 October 2001 of
the Directorate
General for Regional Policy of the European Commission;

— in the alternative, annul

in accordance with the
in part,
pleas set out below, the judgment under appeal and refer the
case back to the Court of First Instance for a ruling on the
substance of the dispute in the light of the directions which
the Court sees fit to give for that purpose;

— order the European Commission to pay the costs of both
the present proceedings and the proceedings at first instance
in Case T-189/02.

8.12.2007

EN

Official Journal of the European Union

C 297/29

Pleas in law and main arguments

Action brought on 9 October 2007 — Commission of the
European Communities v Portuguese Republic

(1) Error of law, failure to make inquiries and failure to state
of Regulation

to Article

12

reasons with
No 4254/88 (1) as amended

regard

The assistance acquired by the appellant and financed by the
ERDF was uniform in nature, as confirmed by the wording
of both the Commission decision of 18 December 1986, by
which the contribution which is the subject-matter of the
present proceedings was granted, and Article 12 of Council
Regulation (EEC) No 2083/93 (2) (Article 12 of Regulation
No 4254/88 as amended).

Parties

(Case C-457/07)

(2007/C 297/47)

Language of the case: Portuguese

Accordingly, it follows that the assistance in question could
not be divided into functional portions — as held, wrongly,
by the Court of First Instance — and that therefore the
suspension for judicial reasons even of just one part of that
assistance, shown in the completion times for the same,
required the entitlement
introduced by Article 12 to be
extended to the entire project financed by the decision of
18 December 1986.

(2) Error of law, failure to make inquiries and infringement of
the rights of the defence with regard to Article 4 of the
Commission decision of 18 December 1986

first

instance the Ente per

Contrary to what is stated in the judgment under appeal, in
the proceedings at
le Ville
Vesuviane had documentary evidence that the works being
carried out at the Villa Ruggiero (one of the three villas
which are the subject-matter of the financial assistance in the
decision of 18 December 1986) had been suspended for
judicial reasons from 1989 through the whole of 1996, and
therefore had not been completed in 1992, as maintained by
the Italian State authorities.

In that regard, as indeed earlier before the Court of First
Instance, the participation of the Ente in the proceedings
the measure challenged at first
prior to the adoption of
instance would therefore certainly have been decisive, given
that the Commission, faced with the documentary evidence
referred to above — which would of course have been
provided, if necessary, by the appellant — and in considera-
tion of the uniform nature of the assistance realised by the
latter, would certainly have recognised that the exception
provided for in Article 12 of Regulation No 4254/88 as
amended applied to the assistance in question, amd that the
assistance granted in 1986 could not be ended early.

(1) Council Regulation (EEC) No 4254/88 of 19 December 1988, laying
down provisions for implementing Regulation (EEC) No 2052/88 as
regards the European Regional Development Fund (OJ L 374,
31.12.1988, p. 15).

(2) Council Regulation (EEC) No 2083/93 of 20 July 1993 amending
Regulation (EEC) No 4254/88 laying down provisions for imple-
menting Regulation (EEC) No 2052/898 as regards the European
Regional Development Fund (OJ L 193, 31.7.1993, p. 34).

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

Defendant: Portuguese Republic

Form of order sought

— a declaration that the Portuguese Republic has not complied
with the judgment of the Court of Justice (First Chamber) of
10 November 2005 in Case C-432/03 Commission v
Portuguese Republic;

— an order that the Portuguese Republic should make penalty
payments of 37 400 euro a day until the Court shall have
given judgment;

— an order that the Portuguese Republic should pay a fine of
5 280 euro a day from 10 November 2005, the date on
which the judgment declaring the infringement was deliv-
ered, until the date on which the Portuguese State shall have
complied with the judgment or until the Court shall have
given judgment in accordance with Article 228 EC;

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

Pleas in law and main arguments

The Commission argues that the Portuguese Republic continues
to restrict access to the market by requiring prior approval
attesting to their fitness for a given use of new construction
materials for which there exist no technical specifications or
mutual recognition. The Portuguese Republic also continues to
restrict access to the market by refusing to recognise the equiva-
lence of certificates issued by other Member States, for new
materials for which there exist no technical specifications,
if
recognition has been sought by economic operators other than
the manufacturers of the products or their agents.

The Portuguese legislation still does not state what criteria are
to be applied by the authorities in assessing applications for
approval so that that assessment is not made arbitrarily. Where
there are no technical specifications, the Portuguese law lays
down criteria to be applied in recognition decisions that are not
objective but are discriminatory.