Case C-426/05: Judgment of the Court (Second Chamber) of  21 February 2008 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Tele2 Telecommunication GmbH v Telekom-Control-Kommission (Electronic communications — Networks and services — Common regulatory framework — Articles 4 and 16 of Directive 2002/21/EC (Framework Directive) — Appeals — Administrative market analysis procedure)
Date: 2008-02-21
Institutions: Court of Justice
Subjects: electronic mail, interpretation of the law, market research, regulation of telecommunications, telecommunications, transmission network

12.4.2008

EN

Official Journal of the European Union

C 92/3

Judgment of the Court (Grand Chamber) of 26 February
the European Communities v
2008 — Commission of

Germany

(Case C-132/05) (1)

(Failure of a Member State to fulfil its obligations — Regu-
lation (EEC) No 2081/92 — Protection of geographical indi-
cations and designations of origin for agricultural products
and foodstuffs — ‘Parmigiano Reggiano’ cheese — Use of the
name ‘Parmesan’ — Obligation on a Member State to proceed
on its own initiative against the abuse of a protected designa-
tion of origin)

Judgment of the Court (Second Chamber) of 21 Febru-
ary 2008 (reference for a preliminary ruling from the
Verwaltungsgerichtshof — Austria) — Tele2 Telecommuni-
cation GmbH v Telekom-Control-Kommission

(Case C-426/05) (1)

(Electronic communications — Networks and services —
Common regulatory framework — Articles 4 and 16 of Direc-
tive 2002/21/EC (Framework Directive) — Appeals —
Administrative market analysis procedure)

(2008/C 92/03)

Language of the case: German

(2008/C 92/04)

Language of the case: German

Parties

Referring court

Applicant: Commission of the European Communities (repre-
sented by: E. de March, S. Grünheid and B. Martenczuk, Agents)

Verwaltungsgerichtshof

Interveners in support of the applicant: Czech Republic (represented
(represented by: I. M.
by: T. Boček, Agent), Italian Republic,
Braguglia, Agent and G. Aiello, avvocato dello Stato)

Defendant: Federal Republic of Germany (represented by: M.
Lumma,
Loschelder,
Rechtsanwalt)

and A. Dittrich, Agents

and M.

Parties to the main proceedings

Applicant: Tele2 Telecommunication GmbH

Defendant: Telekom-Control-Kommission

Interveners in support of
the defendant: Kingdom of Denmark
(represented by: J. Molde, Agent), Republic of Austria (repre-
sented by: E. Riedl, Agent)

Re:

Re:

Failure of a Member State to fulfil obligations — Infringement
of Article 13(1)(b) of Council Regulation (EEC) No 2081/92 of
14 July 1992 on the protection of geographical indications and
designations of origin for agricultural products and foodstuffs
(OJ 1992 L 208, p. 1) — Lack of measures prohibiting the use
of the name ‘Parmesan’ for products which do not comply with
the
the protected designation of origin
specification for
‘Parmigiano Reggiano’

Reference for a preliminary ruling — Verwaltungsgerichtshof —
Interpretation of Articles 4(1)
and 16(3) of Directive
2002/21/EC of the European Parliament and of the Council of
7 March 2002 on a common regulatory framework for elec-
tronic communications networks and services
(Framework
Directive) (OJ 2002 L 108, p. 33) — Market analysis proceed-
ings — Meaning of person ‘affected’ or ‘concerned’ (‘betroffen’)
— National legislation that only an undertaking to which the
decision imposing, amending or withdrawing specific regulatory
obligations is addressed has the capacity of ‘party affected’, to
the exclusion of competitors

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs;

3. Orders the Czech Republic, the Kingdom of Denmark, the Italian

Republic and the Republic of Austria to bear their own costs.

(1) OJ C 132, 28.5.2005.

Operative part of the judgment

1) The terms user ‘affected’ or undertaking ‘affected’ for the purposes
the European
of Article 4(1) of Directive 2002/21/EC of
Parliament and of the Council of 7 March 2002 on a common
regulatory framework for electronic communications networks and
services (Framework Directive) and the term party ‘affected’ within
the meaning of Article 16(3) of that directive must be interpreted
as being applicable not only to an undertaking (formerly) having
significant power on the relevant market which is subject to a deci-
sion of a national regulatory authority taken in the context of a
market analysis procedure referred to in Article 16 of that directive
and which is the addressee of that decision, but also to users and
undertakings in competition with such an undertaking which are
not themselves addressees of that decision but the rights of which
are adversely affected by it;

C 92/4

EN

Official Journal of the European Union

12.4.2008

2) A provision of national law which, in the context of non-adver-
sarial market analysis proceedings, grants party status only to
undertakings (formerly) having significant power on the relevant
market and in respect of which specific regulatory obligations are
imposed, amended or withdrawn is not, in principle, contrary to
Article 4 of Directive 2002/21. However, it is for the national
court to ensure that national procedural law guarantees the safe-
guarding of the rights which users and undertakings in competition
with an undertaking (formerly) having significant power on the
relevant market derive from the Community legal order
in a
manner which is not less favourable than that in which comparable
domestic rights are safeguarded and which does not prejudice the
effectiveness of the legal protection of those users and undertakings
guaranteed in Article 4 of Directive 2002/21.

(1) OJ C 22, 28.1.2006.

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs;

3. Orders the Kingdom of the Netherlands to bear its own costs.

(1) OJ C 165, 15.7.2006.

Judgment of the Court (Third Chamber) of 21 February
the European Communities v
2008 — Commission of

French Republic

(Case C-201/06) (1)

(Failure of a Member State to fulfil obligations — Plant
protection products — Parallel imports — Marketing authori-
sation procedure — Conditions — Common origin of a plant
imported in parallel and the reference
protection product

product)

(2008/C 92/05)

Language of the case: French

Judgment of the Court (Fourth Chamber) of 21 Febru-
ary 2008 (reference for a preliminary ruling from the
Bundesfinanzhof — Germany) — Netto Supermarkt GmbH
& Co. OHG v Finanzamt Malchin

(Case C-271/06) (1)

(Sixth VAT Directive — Article 15(2) — Exemption for
supplies of goods for export to a destination outside the Com-
munity — Conditions for exemption not fulfilled — Proof of
export falsified by the purchaser — Supplier acting with due
commercial care)

(2008/C 92/06)

Language of the case: German

Referring court

Bundesfinanzhof

Parties

Applicant: Commission of the European Communities (repre-
sented by: B. Stromsky, acting as Agent)

Parties to the main proceedings

Applicant: Netto Supermarkt GmbH & Co. OHG

Defendant: French Republic (represented by: G. de Bergues and
R. Loosli-Surrans, acting as Agents)

Defendant: Finanzamt Malchin

Intervener in support of the defendant: Kingdom of the Netherlands
(represented by H.G. Sevenster, acting as Agent)

Re:

Re:

Failure of a Member State to fulfil obligations — Article 28 EC
— Requirement that a plant protection product imported in
parallel and a reference product have a common origin

Reference for a preliminary ruling — Bundesfinanzhof — Inter-
pretation of Community law on VAT, in particular Article 15(2)
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) — Reimbursement of
VAT on supplies of goods for export obtained on the basis of
forged documents — Exemption on grounds of fairness