Case C-199/08: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 15 May 2008 — Dr. Erhard Eschig v UNIQA Sachversicherung AG
Date: 2008-05-15
Institutions: Court of Justice
Subjects: collective interest, contract terms, insurance, insurance claim, interpretation of the law, lawyer, right to justice

C 197/10

EN

Official Journal of the European Union

2.8.2008

Action brought on 14 May 2008 — Commission of the
European Communities v Republic of Austria

(Case C-198/08)

(2008/C 197/15)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: W. Mölls, Agent)

Defendant: Republic of Austria

Form of order sought

— Declare that the Republic of Austria has infringed its obliga-
tions under Article 9(1) of Council Directive 95/59/EC of
27 November 1995 (1) by adopting and maintaining legal
provisions according to which minimum selling prices for
cigarettes and fine-cut tobacco for the rolling of cigarettes
are fixed by the State;

— Order the Republic of Austria to bear the costs.

Pleas in law and main arguments

Manufactured tobacco products are one of the three groups of
products which are subject to harmonised Community rules on
excise duties. Directive 95/59/EC contains a number of general
provisions applicable to all manufactured tobacco products and
also regulates
the structure of excise duty on cigarettes.
Article 9(1) enshrines the principle that both the manufacturer
and the importer are free to determine the maximum prices for
manufactured tobacco products. That provision guarantees not
only that the tax base is subject in all Member States to the
same principles; it also prevents the achievement of the goals of
the directive from being frustrated by State price rules which
harm competition and the internal market.

The rule introduced in Austria in 2006, according to which
minimum prices for cigarettes and fine-cut
tobacco for the
rolling of cigarettes are laid down by State bodies, infringes the
abovementioned provision of Directive 95/59/EC. The fixing of
minimum prices eliminates
the price differences between
various products which can exist owing to the different factors
influencing price formation, by immediately raising the retail
prices in the lower price range to a minimum level. Such a
mechanism leads unquestionably to distortions in the flow of
goods between the Member States, even if the minimum price,
as in Austria, is derived from the average market prices.

Among the interests which the Member States can pursue by
means of their trade and taxation policies is of course also the
protection of public health. That also includes the aim of

keeping the price of tobacco products at a high level. As the
Member States can however use taxation mechanisms in order
take this objective fully into account, it is not possible for them
to rely on such interests in order to depart from the provision
of the directive in question, since they would thereby harm the
functioning of the internal market.

According to the Commission, taxation is an effective and suffi-
cient mechanism of price regulation. Examples from other
the price of manufactured
Member States also show that
tobacco products can be raised by the pressure of
taxation
alone, since the tax level can be increased as much as desired in
order to push up the final price, regardless of the exact profit
margin of the manufacturers concerned and/or the extent to
which they are prepared to sell without making a profit or even
at a loss. That approach, according to which taxation functions
as an objective cost factor, not only avoids the negative conse-
quences of minimum prices on competition and the internal
market but
associated with
minimum prices, namely the protection of the margins of the
manufacturers of
is a result which
tobacco products. That
makes no contribution whatsoever to health protection but is in
fact counter-productive. The Commission is therefore convinced
that the desired protection of public health can be guaranteed
by means of a dynamic and successful State taxation policy,
without it being necessary to resort to minimum prices which
are incompatible with Article 9 of Directive 95/59/EC.

further disadvantage

also a

(1) OJ 1995 L 291, p. 40.

Reference for a preliminary ruling from the Oberster
lodged on 15 May 2008 —
Gerichtshof

(Austria)

Dr. Erhard Eschig v UNIQA Sachversicherung AG

(Case C-199/08)

(2008/C 197/16)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Dr. Erhard Eschig

Defendant: UNIQA Sachversicherung AG

2.8.2008

EN

Official Journal of the European Union

C 197/11

Questions referred

that

1. Is Article 4(1) of Council Directive 87/344/EC of 22 June
1987 on the coordination of laws, regulations and adminis-
trative provisions relating to legal expenses insurance (1) to
be interpreted to the effect
it precludes a clause,
contained in the standard terms and conditions of insurance
in
of a legal expenses insurer, which entitles the insurer,
respect of insurance claims concerning losses suffered by a
large number of insured persons as a result of the same
event (for example the insolvency of an investment services
undertaking),
to select a legal representative and which
thereby restricts the right of the individual insured person to
choose his own lawyer (so-called ‘mass torts clause’)?

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

What are the requirements for the existence of a ‘mass tort’
which, in accordance with (or as a complement to) Directive
87/344/EEC, confers on the insurer instead of the insured
person the right to select the legal representative?

(1) OJ 1987 L 185, p. 77.

licence has already been granted in another Member State to
provide those services via the internet from also offering
those services via the internet in the first Member State?

2. Is the interpretation which the Court of Justice has given to
Article 49 EC, and in particular to the principle of equality
and the duty of transparency arising therefrom, in a number
of individual cases concerning concessions applicable to the
procedure for the granting of a licence to offer services
relating to games of chance under a statutorily established
single-licence system?

3.

(a). Under a statutorily established single-licence system, can
the existing licence-
the extension of
the licence of
holder, without potential applicants being given an
opportunity to compete for that licence, be a suitable
and proportionate means of meeting the imperative
requirements in the general interest which the Court of
Justice has recognised as justifying restriction of
the
freedom to provide services in respect of games of
chance? If so, under what conditions?

(b). Does it make a difference to the answer to Question 3(a)
whether Question 2 is answered in the affirmative or
the negative?

Reference for a preliminary ruling from the Raad van State
(Netherlands) lodged on 16 May 2008 — The Sporting
Exchange
‘Betfair’;
other parties: Minister for Justice, Stichting de Nationale
Sporttotalisator and Scientific Games Racing

trading

under

name

Ltd,

the

(Case C-203/08)

(2008/C 197/17)

Language of the case: Dutch

Reference for a preliminary ruling from the Bundes-
gerichtshof (Germany) lodged on 19 May 2008 — Peter
Rehder v Air Baltic Corporation

(Case C-204/08)

(2008/C 197/18)

Language of the case: German

Referring court

Raad van State

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellant: The Sporting Exchange Ltd, trading under the name
‘Betfair’

Parties to the main proceedings

Applicant: Peter Rehder

Defendant: Air Baltic Corporation

Other parties: Minister for Justice, Stichting de Nationale Sportto-
talisator and Scientific Games Racing

Questions referred

Questions referred

1. Should Article 49 EC be interpreted as meaning that, where
a closed licensing system is applied in a Member State to the
provision of services relating to games of chance, the applica-
tion of that article precludes the competent authority of that
Member State from prohibiting a service provider to whom a

1. Is the second indent of Article 5(1)(b) of Council Regulation
(EC) No 44/2001 of 22 December 2000 on jurisdiction and
the recognition and enforcement of judgments in civil and
commercial matters (1) to be interpreted as meaning that in
journeys by air from one Member State to
the case of
another the single place of performance for all contractual
obligations must be taken to be the place of the main provi-
sion of services, determined according to economic criteria?