Case C-457/07: Action brought on 9 October 2007 — Commission of the European Communities v Portuguese Republic
Date: 2007-12-08
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, approval, building materials, technical specification

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.

C 297/30

EN

Official Journal of the European Union

8.12.2007

The Portuguese Republic still has not adopted the measures that
it ought to have adopted in relation to the economic traders to
whom the law contrary to Articles 28 and 30 of the EC Treaty
was applied.

Reference for a preliminary ruling from the Unabhängiger
lodged on
Finanzsenat, Außenstelle Graz (Österreich)

9 October 2007 — Veli Elshani v Hauptzollamt Linz

(Case C-459/07)

(2007/C 297/49)

Language of the case: German

Action brought on 10 October 2007 — Commission of the
European Communities v Portuguese Republic

(Case C-458/07)

(2007/C 297/48)

Referring court

Unabhängiger Finanzsenat, Außenstelle Graz

Language of the case: Portuguese

Parties to the main proceedings

Parties

Applicant: Veli Elshani

Defendant: Hauptzollamt Linz

Applicant: Commission of the European Communities (repre-
sented by: P. Andrade and G. Braun, Agents)

Questions referred

Defendant: Portuguese Republic

Form of order sought

— a declaration that the Portuguese Republic, by failing to
ensure in practice that at least one comprehensive telephone
directory and at least one comprehensive telephone directory
enquiry service are available to all end-users, as laid down in
Articles 5(1) and (2) and 25(1) and (3) of Directive
2002/22/EC of the European Parliament and of the Council
of 7 March 2002 on universal service and users' rights
relating
and
to electronic
services (1), has failed to fulfil
its obligations under that
directive;

communications networks

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

Pleas in law and main arguments

In Portugal, subscribers to Vodafone who expressed their wish
to have their names included in the universal service directory
are still not included in it.

The regulator, ANACOM, has not yet decided on the form and
procedure for
supplying the information in question. The
present legal situation is the responsibility of the Portuguese
Republic.

(1) OJ L 108, p. 51.

1. The criterion for extinction laid down in point (d) of the first
paragraph of Article 233 of Council Regulation (EEC)
No 2913/92 (1) establishing the Community Customs Code
(‘the Customs Code’) does not refer to the time at which the
customs debt is incurred but to a time after the customs
is incurred, because it presupposes a customs debt
debt
‘incurred’
in accordance with Article 202 of the Customs
Code.

Is the expression ‘upon their unlawful introduction’ within
the meaning of point (d) of the first paragraph of Article 233
of the Customs Code to be interpreted as meaning that:

— the introduction into the customs territory of the Com-
munity of goods in respect of which a customs debt is
incurred in accordance with Article 202 of the Customs
Code ends when they are introduced at
the border
customs office or at any other place designated by the
customs authorities, but at the latest when they leave the
premises of the border customs office or of the otherwise
designated place, because the goods have thus entered
the customs territory, with the result that seizure and
confiscation of
time no longer
the goods after that
results in the extinction of the customs debt,

or as meaning that:

— the introduction into the customs territory of the Com-
munity of goods in respect of which a customs debt is
incurred in accordance with Article 202 of the Customs
Code continues, adopting an economic approach, for as
long as their transport continues as a single process
following the introduction of the goods into the customs
territory, and the goods in the customs territory have not
yet therefore reached their first destination and come to
rest there, with the result that seizure and confiscation of
the goods up to that time results in the extinction of the
customs debt?