Case C-100/08: Action brought on 3 March 2008 — Commission of the European Communities v Kingdom of Belgium
Date: 2008-03-03
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, bird, import restriction, protection of animal life, quantitative restriction, trade restriction

C 128/22

EN

Official Journal of the European Union

24.5.2008

First

Appeal brought on 3 March 2008 by Akzo Nobel NV,
Akzo Nobel Nederland BV, Akzo Nobel Chemicals
International BV, Akzo Nobel Chemicals BV, Akzo Nobel
Functional Chemicals BV against the judgment of the Court
of
delivered on
12 December 2007 in Case T-112/05: Akzo Nobel NV,
Akzo Nobel Nederland BV, Akzo Nobel Chemicals
International BV, Akzo Nobel Chemicals BV, Akzo Nobel
Functional Chemicals BV v Commission of the European
Communities

(Second Chamber)

Instance

(Case C-97/08 P)

(2008/C 128/38)

Language of the case: English

Parties

Appellants: Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo
Nobel Chemicals International BV, Akzo Nobel Chemicals BV,
Akzo Nobel Functional Chemicals BV (represented by: Mr C.
Swaak, advocaat, Mr M. van der Woude, avocat, Ms M. Mollica,
avvocato)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

The appellants claim that the Court should rule:

— that

the judgment of

Instance of
12 December 2007 in Case T-112/05 be set aside, insofar as
it rejected the plea that responsibility was wrongfully attrib-
uted — jointly and severally — to Akzo Nobel NV;

the Court of First

— that the Contested Decision be annulled, in as far as it attrib-

uted responsibility to Akzo Nobel NV;

— that the Commission pay the costs of this appeal and of the
proceedings before the Court of First Instance in as far as
they concern the plea raised in the present appeal.

Pleas in law and main arguments

The applicants consider that the Court of First Instance has
misapplied the concept of ‘undertaking’ within the meaning of
Article 81 EC and Article 23(2) of Regulation 1/2003 (1), as
interpreted by the Court in its case-law on the imputation of
the unlawful conduct of a subsidiary to its parent company.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ L 1, p. 1).

Reference for a preliminary ruling from the Juzgado de lo
Mercantil no 7 de Madrid (Spain) lodged on 4 March 2008
— Asociación de Gestión de Derechos
Intelectuales
Intérpretes o
(AGEDI)
Ejecutantes — Sociedad de Gestión de España (AIE) v
Sogecable S.A. and Canal Satélite Digital S.L.

and Asociación de Artistas

(Case C-98/08)

(2008/C 128/39)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil no 7 de Madrid

Parties to the main proceedings

Applicants: Asociación de Gestión de Derechos Intelectuales
(AGEDI) and Asociación de Artistas Intérpretes o Ejecutantes —
Sociedad de Gestión de España (AIE)

Defendants: Sogecable S.A. and Canal Satélite Digital S.L.

Question referred

in particular, Council Directive
Does Community law and,
92/100/EEC (1) of 19 November 1992 on rental right and
lending right and on certain rights related to copyright in the
field of intellectual property permit the Member States to adopt
a provision like Article 109.1 of Law 22/1987 of 11 November
on Intellectual Property, which recognises the exclusive right of
producers of phonograms published for commercial purposes
to authorise the public communication of those phonograms
and copies thereof?

(1) OJ 1992 L 346, p. 61.

Action brought on 3 March 2008 — Commission of the
European Communities v Kingdom of Belgium

(Case C-100/08)

(2008/C 128/40)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (repre-
sented by: S. Pardo Quintillan and R. Troosters, acting as
Agents)

Defendant: Kingdom of Belgium

24.5.2008

EN

Official Journal of the European Union

C 128/23

Form of order sought

Action brought on 6 March 2008 — Commission of the
European Communities v Hellenic Republic

The Commission claims that the Court should,

1. Declare that the Kingdom of Belgium has failed to fulfil its
obligations under Article 28 of the Treaty establishing the
European Community by

— making the import, keeping and sale of specimens of
birds born and bred in captivity that were brought to the
market legally in other Member States subject to restric-
tive conditions
require the market participants
concerned to alter the marking of the birds so as to
comply with the special Belgian requirements, and failing
to recognise the marking recognised in other Member
States or the certificates issued for this purpose by the
CITES authorities;

that

— denying traders the possibility to receive exemptions
from the prohibition to keep indigenous European birds
legally in other
which were brought
Member State.

to the market

2. Order the Kingdom of Belgium to pay the costs.

(Case C-106/08)

(2008/C 128/41)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Zavvos and N. Yerrell)

Defendant: Hellenic Republic

Form of order sought

Pleas in law and main arguments

The Court is asked to:

The Royal Decree of 9 September 1981 on the protection of
birds in the Flemish Region and the Royal Decree of 26 October
2001 on measures concerning the import, export and transit of
certain species of non-indigenous wild birds contain provisions
pursuant to which (1) the import, keeping and sale of specimens
of birds born and bred in captivity that were brought to the
market legally in other Member States are subject to restrictive
conditions, and (2) traders are denied the possibility to receive
exemptions from the prohibition to keep indigenous European
birds that were brought to the market legally in other Member
States.

those measures

The Commission submits
constitute
that
measures having equivalent effect to quantitative restrictions and
are therefore, as a matter of principle, prohibited under
Article 28 EC. First, the conditions created by the Belgian legal
provisions have the effect of requiring changes to the manner in
which specimens of birds that were brought to the market
legally in other Member States are presented and, second, trade
is also restricted as a result of the prohibition on traders to keep
certain birds that were brought to the market legally in other
Member States.

The Commission does not exclude in general that certain restric-
tions on trade can be justified in this context under Article 30 EC
if they aim to protect rare species with specific characteristics.
However, this is not what the Belgian legal provisions aim to
do. In addition, the Belgian provisions are neither necessary nor
proportionate to, where required, achieve such a legitimate aim.

— declare that, by failing to take all the measures necessary to
ensure that vehicles put into service for the first time from
1 May 2006 must be fitted with recording equipment in
accordance with the requirements of Annex IB to Regulation
(EEC) No 3821/85 and to issue the corresponding driver
cards, the Hellenic Republic has failed to fulfil its obligations
under Article 2(1)(a) and (2) of Council Regulation (EC)
No 2135/98, as amended by Regulation (EC) No 561/2006
of the European Parliament and of the Council of 15 March
2006;

— order Hellenic Republic to pay the costs.

Pleas in law and main arguments

Article 2(2) of the Regulation states that ‘Member States shall
take the necessary measures to ensure that they are able to issue
driver cards at the latest on the 20th day following the day of
publication of Regulation (EC) No 561/2006’.

Regulation No 561/2006 was published in the Official Journal of
the European Union on 11 April 2006 and it follows that the
mandatory requirement of installation of a digital tachograph in
all vehicles put into circulation in the European Union for the
first time became applicable on 1 May 2006.

The Hellenic Republic responded to the Commission's reasoned
opinion on 30 May 2007 and explained to the Commission
that, taking into account every possible delay completing the
procedure, issue of the digital tachograph cards to drivers would
be possible by the end of 2007.