Case C-146/08 P: Appeal brought on 3 April 2008 by Efkon AG against the order of the Court of First Instance (Fifth Chamber) of 22 January 2008 in Case T-298/04, Efkon AG v European Parliament and Council of the European Union
Date: 2008-04-03
Institutions: Court of Justice
Subjects: General Court (EU), action for annulment (EU), admissibility, competition law, intellectual property, new technology, patent, toll

C 171/14

EN

Official Journal of the European Union

5.7.2008

If the answer is in the affirmative, would the answer be
different if in determining the amount of the transitional
stock and surplus stock it were possible also to take into
account the growth of the operator's production, proces-
sing or sales volume, the maturation period of the agri-
cultural product, the time when the stocks were built
up,
the
operator?

independent of

circumstances

and other

2.2 Is it compatible with the objective of Commission Regu-
lation (EC) No 1972/2003 to levy the surplus stock
charge where the operator is found to have a surplus
stock as at 1 May 2004 but the operator shows that he
has not obtained a real advantage in terms of a price
difference from marketing the surplus stock after 1 May
2004?

(1) OJ L 139, 30.4.2004, p. 55.
(2) OJ L 256, 7.9.1987, p. 1.
(3) Commission Regulation (EC) No 1972/2003 of 10 November 2003
on transitional measures to be adopted in respect of trade in agri-
cultural products on account of the accession of the Czech Republic,
Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia
and Slovakia (OJ L 293, 11.11.2003, p. 3).

Action brought on 8 April 2008 — Commission of the
European Communities v Republic of Finland

Pleas in law and main arguments

For the purpose of determining tax exemptions, Article 7(1) of
Directive 83/182/EEC governs normal residence, which deter-
mines the Member State under whose rules on temporary
imports the vehicle in question falls, and the Member State
which is entitled to charge tax on that vehicle. Article 7(1) of
Directive 83/182/EEC governs certain exceptions to the rule
according to which normal residence means the place where a
person usually lives for at least 185 days in each calendar year.
In particular, the second subparagraph of Article 7(1) states that
if the normal residence of a person whose occupational ties are
in a different place from his personal ties and who consequently
lives in turn in different places situated in two or more Member
States shall be regarded as being the place of his personal ties,
provided that such person returns there regularly. However, it is
expressly stated that the last condition need not be met where
the person is living in a Member State in order to carry out a
task of a definite duration.

However, Finnish legislation imposes a requirement
for the
person concerned to return to the place of normal residence
also in the case where he is living in Finland in order to carry
out a task of a definite duration. Therefore, Finland has failed to
correctly transpose Article 7(1) of Directive 83/182/EEC into
national law.

(1) OJ 1998 L 105, p. 59.

(Case C-144/08)

(2008/C 171/24)

Language of the case: Finnish

Appeal brought on 3 April 2008 by Efkon AG against the
order of the Court of First Instance (Fifth Chamber) of
22 January 2008 in Case T-298/04, Efkon AG v European
Parliament and Council of the European Union

Parties

Applicant: Commission of the European Communities (repre-
sented by: I. Koskinen and D. Triantafyllou)

Defendant: Republic of Finland

Parties

(Case C-146/08 P)

(2008/C 171/25)

Language of the case: German

Form of order sought

— declare that, by using an incomplete definition of normal
residence in order to determine whether the temporary
import of certain forms of
to tax
exemptions, the Republic of Finland has failed to fulfil its
obligations under Article 7(1) of Council Directive
No 83/182/EEC (1) of 28 March 1983 on tax exemptions
transport
within the Community for certain means of
temporarily imported into one Member State from another;

is subject

transport

— order Republic of Finland to pay the costs.

Appellant: Efkon AG (represented by: M. Novak, Rechtsanwalt)

Other parties to the proceedings: European Parliament, Council of
the European Union, Commission of the European Commu-
nities

Form of order sought

— Set aside the order of

Instance of
22 January 2008 under appeal (T-298/04) as unlawful, and
direct the Court to follow due process of law and to reach a
decision on the merits;

the Court of First

5.7.2008

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Official Journal of the European Union

C 171/15

— in the alternative, annul the contested directive as unlawful,
as applied for in the application, and order the defendants
to pay the costs;

Reference for a preliminary ruling from the Arbeitsgericht
Hamburg (Germany) lodged on 10 April 2008 — Jürgen
Römer v Freie und Hansestadt Hamburg

— declare

that,

furthermore

inasmuch as

the order of
22 January 2008 determines an action which was brought
on 21 July 2004,
the order amounts to a violation of
Article 6 of the ECHR owing to the excessive duration of
the proceedings and that, on that ground alone, the appli-
cant is to be granted legal redress.

Pleas in law and main arguments

The appellant's appeal against the order of the Court referred to
above is based on the erroneous interpretation of the fourth
paragraph of Article 230 EC and on the procedural irregularities
which occurred in the course of the proceedings.

The Court of First Instance dismissed the application as inadmis-
sible on the ground that the appellant was not directly and indi-
vidually concerned by the contested measure within the
meaning of the fourth paragraph of Article 230 EC.

That view is incorrect in law. The Court fails to recognise that
interference with intellectual property in itself gives rise to an
individual and direct concern, which results in an individual and
direct concern within the meaning of the fourth paragraph of
Article 230 EC. The nature of a patent is such that a particular
person is granted an exclusive right for a limited period of time.
Such a right can necessarily be conferred only on a particular
person. No one else may exercise those rights; therefore interfer-
ence with that right through a Community law measure neces-
sarily has
the effect of establishing individual and direct
concern.

The Court's argument that there are also other providers of elec-
tronic road toll systems besides the appellant who, in certain
circumstances, would be affected in the same way as the appel-
lant, and that therefore the appellant is not directly and indivi-
is not convincing. Direct and individual
dually concerned,
concern within the meaning of
the fourth paragraph of
Article 230 EC cannot be ruled out by the fact that there are
other persons affected by the contested measure if such persons
do not in fact have a patent.

The rejection of
from which it
the appellant's statement,
emerges that the appellant is developing an ISO-CALM Infrared
standard for which it has won the State Prize, is invoked as an
infringement of the right to a fair hearing. Finally, the four-year
duration of the proceedings is also unacceptable and in itself
constitutes a serious procedural irregularity.

(Case C-147/08)

(2008/C 171/26)

Language of the case: German

Referring court

Arbeitsgericht Hamburg

Parties to the main proceedings

Applicant: Jürgen Römer

Defendant: Freie und Hansestadt Hamburg

Questions referred

1. Are supplementary pension payments, governed by the
Erstes Ruhegeldgesetz (First law on retirement pensions or
‘First RGG’) of the Freie und Hansestadt Hamburg, to former
employees of the Freie und Hansestadt Hamburg and their
survivors ‘payments of any kind made by state schemes or
similar,
including state social security or social protection
schemes’ within the meaning of Article 3(3) of Council
Directive 2000/78/EC establishing a general framework for
equal treatment in employment and occupation (1), with the
consequence that the matters governed by the First RGG fall
outside the scope of that directive (‘the Directive’)?

2. If the above question is answered in the negative:

2.1 Are the provisions of the First RGG which differentiate,
in calculating the amount of pension payable, between
married pensioners and all other pensioners, that is,
which treat married pensioners more favourably than,
specifically, persons who have formed a civil partnership
(Lebenspartnerschaft) with a person of the same sex in
accordance with the Lebenspartnerschaftsgesetz (Law on
civil partnership) of the Federal Republic of Germany,
‘laws on marital status and the benefits dependent
recital 22 in the
thereon’ within the meaning of
preamble to the Directive?

2.2 If the above question is answered in the affirmative:

Does it follow that the Directive does not apply to those
provision of the First RGG, even though the Directive
itself contains no limitation of its scope corresponding
to recital 22 in the preamble?

3. If Question 2.1 or Question 2.2 is answered in the negative:

In relation to a person who has a formed a civil partnership
with a person of the same sex and who is not permanently
separated from the latter, does Paragraph 10(6) of the First
RGG, under which the pension entitlements of married, not
permanently separated, pensioners are calculated on the basis
of
tax category III/0 (more
favourable to a taxable person) but the pension entitlements

the notional application of