Case C-130/08: Action brought on 31 March 2008 — Commission of the European Communities v Hellenic Republic
Date: 2008-03-31
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, admission of aliens, foreign national, migration policy, refugee, right of asylum

24.5.2008

EN

Official Journal of the European Union

C 128/25

Parties to the main proceedings

maintenance and development programme in the form of the
tax which has been described earlier in this order?

Applicant: Transportes Urbanos y Servicios Generales, SAL

Defendant: Administración del Estado

Question referred

the Tribunal Supremo of

Is it contrary to the principles of equivalence and effectiveness
the
to apply differing case-law of
Kingdom of Spain in the judgments of 29 January 2004 and
24 May 2005 to actions for financial liability against the State
qua legislature in respect of administrative acts adopted pursuant
to a law which has been declared unconstitutional and to such
actions in respect of administrative acts adopted pursuant to a
measure which has been held to be contrary to Community
law?

(1) First Council Directive of 11 April 1967 on the harmonisation of
legislation of Member States concerning turnover taxes (OJ, English
Special Edition 1967, p. 14).

(2) Sixth Council Directive of 17 May 1977 on the harmonisation of
taxes —
the laws of
Common system of value added tax: uniform basis of assessment
(OJ 1977 L 45, p. 1).

the Member States relating to turnover

Action brought on 31 March 2008 — Commission of the
European Communities v Hellenic Republic

(Case C-130/08)

(2008/C 128/46)

Language of the case: Greek

Reference for a preliminary ruling from the Lietuvos
vyriausiasis administracinis teismas (Lithuania) lodged on
18 March 2008 — Mechel Nemunas UAB v Valstybinė
mokesčių inspekcija prie Lietuvos Respublikos finansų
ministerijos

(Case C-119/08)

(2008/C 128/45)

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Kontou-Durande)

Defendant: Hellenic Republic

Language of the case: Lithuanian

Form of order sought

Referring court

Lietuvos vyriausiasis administracinis teismas (Supreme Adminis-
trative Court of Lithuania)

Parties to the main proceedings

Claimant: Mechel Nemunas UAB

Defendant: Valstybinė mokesčių inspekcija prie Lietuvos Respu-
blikos finansų ministerijos (State Tax Inspectorate attached to
the Ministry of Finance of the Republic of Lithuania)

Question referred

Are First Council Directive 67/227/EEC (1) and/or Article 33 of
Sixth Council Directive 77/388/EEC (2)
to be interpreted as
having prohibited a Member State from maintaining, and
levying, deductions from income in accordance with the Law
the road
of

the Republic of Lithuania on the financing of

— declare that, by failing to adopt the laws, regulations and
administrative measures necessary to ensure, in every case,
the merits of applications for asylum of
examination of
third-country
accordance with
in
nationals who,
Article 16(1)(d) of Regulation (EC) No 343/2003, are trans-
ferred to Greece so as to be taken back for examination of
their applications, the Hellenic Republic has failed to fulfil its
obligations under Article 3(1) of Regulation No 343/2003;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

1. The United Nations High Commissioner for Refugees drew
the Commission's attention to the question whether Greek
legislation relating to the procedure for recognising foreign
nationals
compatible with Regulation
No 343/2003 in cases where the foreign national arbitrarily
has left the country and a decision discontinuing the proce-
dure for consideration of asylum has been made in his
regard.

refugees

as

is

2. This problem results from Article 2(8) of Presidential Decree
No 61/99 (FEK (Official Gazette) A 63) of 6 April 1999,
which concerns discontinuance of the procedure for consid-
arbitrary
eration

provision

asylum.

treats

That

of

C 128/26

EN

Official Journal of the European Union

24.5.2008

departure of the applicant for asylum without his giving
notice as a withdrawal and the procedure for examination of
the application is discontinued by a decision of the Secretary
General of the Ministry of Public Order that is notified to the
person concerned as a person whose whereabouts are
unknown. That decision can be set aside only if the applicant
presents himself to the competent authorities again no later
than three months from notification of the decision, and
provided that he adduces evidence showing that his absence
was due to force majeure.

3. The passage of an applicant for asylum, without his giving
notice, from the Member State in which he has submitted
the application for asylum to another Member State is one of
the typical situations that Regulation No 343/2003 seeks
specifically to regulate so as to ensure that the merits of his
application are examined by the State considered responsible
for examining the application, under Article 16(1) of the
regulation.

4. However, the requirements imposed by Article 2(8) of the
presidential decree have the combined effect of making it
impossible in practice to challenge a discontinuance decision
before the courts and to have real access to the procedure
for determining a refugee's status.

5. The Hellenic Republic acknowledged that Greek legislation
may create a problem in relation to Regulation No 343/2003
and displayed willingness to take measures in that regard.
the
it proposed solving the problem by means of
Thus,
adoption of a presidential decree which would transpose
Council Directive 2005/85/EC into national law and would
specify that the provisions at issue would not apply in cases
where Regulation No 343/2003 applied.

6. At the same time it gave assurances that it would examine
the merits of every application for asylum of persons who
are transferred for re-examination within the framework of
it would revoke any
Regulation No 343/2003 and that
discontinuance decisions that had been adopted.

7. The Commission takes account of those assurances given by
the Hellenic Republic. None the less, it considers that they
are not sufficient to guarantee the required legal certainty
regarding the correct
in all cases of an
application for asylum, of the regulation's provisions and in
particular of the examination of the merits of every applica-
tion for asylum, in such a way as to ensure actual and effec-
tive access for refugees to the procedures for making deter-
minations.

implementation,

8. On the basis of the foregoing, the Commission considers
that, by failing to adopt the necessary measures to ensure
that it examines the merits of applications for asylum of
third-country nationals in respect of whom a discontinuance
decision has been issued on the ground of arbitrary depar-
in accordance with
ture and whom it has taken back,
Article 3(1) of Regulation No 343/2003,
the Hellenic
Republic has failed to fulfil its obligations under that provi-
sion.

Order of the President of the Court of 20 February 2008
(reference for a preliminary ruling from the Bayerisches
Landessozialgericht, Germany) — Grete Schlepps v
Deutsche Rentenversicherung Oberbayern

(Case C-60/06) (1)

(2008/C 128/47)

Language of the case: German

The President of
removed from the register.

the Court has ordered that

the case be

(1) OJ C 131, 3.6.2006.

Order of the President of the First Chamber of the Court
of 27 February 2008 (reference for a preliminary ruling
from the Oberlandesgericht Stuttgart, Germany) —
Raiffeisenbank Mutlangen eG v Roland Schabel

(Case C-99/06) (1)

(2008/C 128/48)

Language of the case: German

The President of the First Chamber of the Court has ordered
that the case be removed from the register.

(1) OJ C 96, 22.4.2006.

Order of the President of the Seventh Chamber of the
Court of 11 March 2008 (reference for a preliminary ruling
from the Tribunale di Genova, Italy) — Consel Gi. Emme
Srl v Sistema Logistico dell'Arco Ligure e Alessandrino Srl
(SLALA)

(Case C-467/06) (1)

(2008/C 128/49)

Language of the case: Italian

The President of the Court (Seventh Chamber) has ordered that
the case be removed from the register.

(1) OJ C 326, 30.12.2006.