Case C-147/08: Reference for a preliminary ruling from the Arbeitsgericht Hamburg (Germany) lodged on 10 April 2008 — Jürgen Römer v Freie und Hansestadt Hamburg
Date: 2008-04-10
Institutions: Court of Justice
Subjects: equal treatment, interpretation of the law, life assurance, social-security benefit, supplementary pension

5.7.2008

EN

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

C 171/16

EN

Official Journal of the European Union

5.7.2008

of all other pensioners are calculated on the basis of the
notional application of tax category I (less favourable to a
taxable person), constitute an infringement of Article 1 in
conjunction with Article 2 and with Article 3(1)(c) of the
Directive?

4. If Question 1 or Question 2(2) is answered in the affirmative

or Question 3 is answered in the negative:

10(6)

Paragraph

Does
First RGG infringe
of
Article 141 EC or a general principle of Community law by
reason of the provision or legal effect described in Ques-
tion 3?

the

5. If Question 3 or Question 4 is answered in the affirmative:

Does it follow that — until such time as Paragraph 10(6) of
the First RGG is amended to remove the unequal treatment
complained of — in relation to the calculation of his
pension entitlement a pensioner who has formed a civil part-
nership and is not permanently separated from his partner is
entitled to insist that the defendant treats him in the same
manner as it does as a married, not permanently separated,
pensioner? If so — if the Directive is applicable and Ques-
tion 3 is answered in the affirmative — does this entitlement
apply even before the expiry of
the transposition period
prescribed in Article 18(1) of the Directive?

6. If Question 5 is answered in the affirmative:

Is that subject to the qualification — in accordance with the
grounds of the Court's judgment in Case C-262/88 Barber
— that in the calculation of pension entitlement the prin-
ciple of equal treatment is to be applied only in respect of
that proportion of pension entitlement earned by the
pensioner for the period from 17 May 1990?

(1) OJ 2000 L 303, p. 16.

heading 2206 of
the Combined Nomenclature (CN) be
classified under that heading if the beverage in question is a
fermented beverage which, as a result of the addition of
water and particular ingredients, has lost the taste, smell
and/or appearance of a beverage produced from a particular
fruit or natural product?

2. In the event of a positive answer to Question 1, what
criterion should govern the determination as to whether the
beverage is nevertheless to be classified under heading 2208
of the CN on the ground that it contains distilled alcohol?

Reference for a preliminary ruling from the Tribunal
Superior de Justicia de Madrid (Spain) lodged on 15 April
2008 — Real Sociedad de Fútbol SAD and Nihat Kahveci v
and Real Federación
Consejo Superior de Deportes

Española de Fútbol

(Case C-152/08)

(2008/C 171/28)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Madrid

Parties to the main proceedings

Applicants: Real Sociedad de Fútbol SAD and Nihat Kahveci

Defendants: Consejo Superior de Deportes and Real Federación
Española de Fútbol

Reference for a preliminary ruling from the Hoge Raad der
Nederlanden lodged on 14 April 2008 — Siebrand BV,
other party: Staatssecretaris van Financiën

Question referred

(Case C-150/08)

(2008/C 171/27)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden (Netherlands)

Parties to the main proceedings

Appellant in cassation: Siebrand BV

Other party to the proceedings: Staatssecretaris van Financiën

Questions referred

1. Can a beverage which contains a certain amount of distilled
alcohol but which otherwise corresponds to the definition of

Does Article 37 of the EEC-Turkey Association Agreement (1),
signed in Ankara on 12 September 1963 and approved by
Council Decision 64/732/EEC, and its Additional Protocol of
23 November 1970 (2), preclude a sporting federation from
applying a rule to a professional sportsman of Turkish nation-
ality, lawfully employed by a Spanish football club, as in the
main proceedings, under which clubs may use only a limited
number of players from non-member States not belonging to
the European Economic Area in national competitions?

(1) Agreement establishing an Association between the European
Economic Community and Turkey, signed on 12 September 1963 in
Ankara, and concluded, approved and confirmed on behalf of the
Community by Council Decision 64/732/EEC of 23 December 1963
(OJ 1964 217, p. 3685).

(2) Additional Protocol, signed on 23 November 1970 in Brussels and
concluded, approved and confirmed on behalf of the Community by
Council Regulation (EEC) No 2760/72 of 19 December 1972
(OJ L 293, p. 1).