Case C-153/08: Action brought on 15 April 2008 — Commission of the European Communities v Kingdom of Spain
Date: 2008-04-15
Institutions: Court of Justice
Subjects: EU Member State, Spain, action for failure to fulfil an obligation, game of chance, national law, restriction on competition, tax exemption

C 142/20

EN

Official Journal of the European Union

7.6.2008

2. Does the fact that that Regulation is subject to that Protocol
mean that that Regulation does not form part of the body of
Community law in that country?

3. Does the fact that Regulation No 1346/2000 is not binding
on and is not applicable in Denmark mean that other
Member States are not to apply that Regulation in respect of
the recognition and enforcement of judicial declarations of
insolvency handed down in that country, or, on the other
hand, that other Member States are obliged, unless they have
made derogations, to apply that Regulation when the judicial
declaration of insolvency is handed down in Denmark and is
presented for recognition and enforcement in other Member
States, in particular, in Spain?

(1) Regulation (EC) No 1346/2000 of the Council, of 29 May 2000

(OJ L 160, p. 1).

Reference for a preliminary ruling from the Simvoulio tis
lodged on 11 April 2008 — Aktor
Epikratias (Greece)
(Αktor A.T.E.) v Ethniko
Anonimi Tekhniki Etairia

Simvoulio Radiotileorasis

(Case C-149/08)

(2008/C 142/32)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Claimant: Aktor Anonimi Tekhniki Etairia (Αktor A.T.E.)

Defendant: Ethniko Simvoulio Radiotileorasis

Intervener: Mikhaniki A.E.

Questions referred

1. Accepting that a national provision in accordance with
which only all the members of a consortium without legal
personality which has participated unsuccessfully in a public
procurement procedure can bring a legal action against the
act awarding the contract, and not consortium members
individually, is not in principle contrary to Community law
that still
and specifically to Directive 89/665, and that
applies where the legal action has initially been brought by
all the members of the consortium but ultimately proves, as
regards some of them, to be inadmissible, is it in addition
necessary, from the viewpoint of application of that directive,
to examine, in order to make a declaration of inadmissibility,
whether those individual members thereafter retain the right
to claim before another national court any damages which
may be envisaged by a provision of national law?

2. When it has been held by settled case-law of a national court
that an individual member of a consortium may also bring
an admissible legal action against an act falling within a
public procurement procedure, is it compatible with Direc-
tive 89/665/EEC, interpreted in the light of Article 6 of the
European Convention on Human Rights as a general prin-
ciple of Community law, to dismiss a legal action as inadmis-
sible, because of a change to that settled case-law, without
the person who has brought that legal action first being
given either the opportunity to cure the inadmissibility or, in
any event, the opportunity to set out, pursuant to the adver-
sarial principle, his views relating to that issue?

Action brought on 15 April 2008 — Commission of the
European Communities v Kingdom of Spain

(Case C-153/08)

(2008/C 142/33)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal and L. Lozano Palacios, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

The applicant claims that the Court should:

— declare that, by maintaining in force fiscal legislation taxing
winnings from all types of lotteries, games and betting orga-
nised outside the Kingdom of Spain, whereas winnings
obtained from certain lotteries, games and betting organised
within the Kingdom of Spain are exempted from income
tax, the Kingdom of Spain has failed to fulfil its obligations
under Community law and, in particular, under Article 49 EC
and Article 36 of the Agreement on the European Economic
Area;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Under Spanish legislation, winnings from lotteries and betting
organised by Loterías y Apuestas del Estado (the Spanish public-
law body in charge of lotteries and betting) or by bodies or enti-
ties of the Comunidades Autónomas (Autonomous Commu-
nities), and winnings from lotteries organised by the Spanish
Red Cross or the Organización Nacional de Ciegos Españoles
(Spanish national association for the blind) are exempt from
income tax. However, income from lotteries, games or betting
organised by other national bodies or by foreign bodies,
including those established in Member States of the European
Union or the European Economic Area, is added to the taxable
amount and subject to progressive rates of taxation.

7.6.2008

EN

Official Journal of the European Union

C 142/21

Relying in particular on Lindman and Safir, the Commission
points out that, according to that line of authority, the orga-
nising of
for the
lotteries is to be regarded as a ‘service’
the Treaty. Also according to that case-law,
purposes of
Article 49 EC prohibits any restriction on the freedom to
provide services, or any obstacle to that freedom — even where
such a restriction or obstacle applies equally to national provi-
ders of services and to those of the other Member States — and
precludes the application of any rule of national law the effect
of which is to make it more difficult
to provide services
between Member States than to provide services wholly within a
particular Member State. Given the particular features of the
gaming sector, the case-law accepts certain restrictions imposed
by Member States, provided that such measures can be shown
to be appropriate and proportionate, as well as non-discrimina-
tory.

The Commission maintains that the Spanish legislation is discri-
minatory because the exemption is reserved for certain entities
which that legislation defines precisely, and entities of other
Member States, albeit of the same nature and in pursuit of the
same objectives as the Spanish entities specified in the exemp-
tion rule, are excluded from the benefit of
that exemption.
Accordingly, even if the Spanish authorities had shown, in the
course of the infringement proceedings, that the legislation at
issue is a measure which is appropriate and proportionate to
the stated objective of protecting consumers and public order
— which they have failed to do — the legislation at issue could
not in any circumstances be regarded as compatible with Com-
munity law, in so far as it is wholly discriminatory.

Order of the President of the Court of 1 April 2008
(reference for a preliminary ruling from the Corte Suprema
Di Cassazione — Italy) — Ministero dell'Economia e delle
Finanze and Agenzie delle Entrate v Porto Antico di
Genova SpA

(Case C-149/06) (1)

(2008/C 142/35)

Language of the case: Italian

The President of
removed from the register.

the Court has ordered that

the case be

(1) OJ C 310, 16.12.2006.

Order of the President of the Court of 10 March 2008 —
the European Communities v Federal
Commission of
Republic of Germany

(Case C-44/07) (1)

(2008/C 142/36)

Language of the case: German

The President of
removed from the register.

the Court has ordered that

the case be

(1) OJ C 69, 24.3.2007.

Order of the President of the Court of 10 March 2008
(reference for a preliminary ruling from the Sozialgericht
Berlin — Germany) — Irene Werich v Deutsche Renten-
versicherung Bund

(Case C-111/06) (1)

(2008/C 142/34)

Language of the case: German

Order of the President of the Court of 27 February 2008
— Commission of the European Communities v Kingdom
of the Netherlands

(Case C-120/07) (1)

(2008/C 142/37)

Language of the case: Dutch

The President of
removed from the register.

the Court has ordered that

the case be

The President of
removed from the register.

the Court has ordered that

the case be

(1) OJ C 326, 30.12.2006.

(1) OJ C 95, 28.4.2007.