Case C-393/08: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 10 September 2008 — Emanuela Sbarigia v Azienda USL RM/A, Comune di Roma, Assiprofar — Associazione Sindacale Proprietari Farmacia and Ordine dei Farmacisti della Provincia di Roma
Date: 2008-05-21
Institutions: Court of Justice
Subjects: Italy, discretionary power, free competition, interpretation of the law, paid leave, pharmacy, provision of services, public service, trading hours

C 285/28

EN

Official Journal of the European Union

8.11.2008

Pleas in law and main arguments

Pursuant to Article 3(2) of Decision No 280/2004/EC, read in
the Member
combination with Decision No 166/2005/EC,
States were required to communicate to the Commission, by
15 March 2005 and every two years thereafter information on
the national measures adopted to limit and/or reduce green-
house gas emissions and implement the Kyoto Protocol.

At the date on which the present action was brought, the defen-
dant had not communicated the measures in question to the
Commission.

(1) OJ 2004 L 49, p. 1.
(2) OJ 2005 L 55, p. 57.

nature of the municipal area in which the applicant pharma-
cies are located, as a precondition for obtaining a derogation
from those prohibitions within the Municipality of Rome?

2. Is it compatible with Articles 152 EC and 153 EC to impose
on the public pharmacy service, albeit with the aim of
protecting the health of consumers, conditions — such as
those laid down in Regional Law No 26/2002 — limiting or
precluding the possibility of extending the daily, weekly or
annual opening times of individual pharmacies?

Appeal brought on 12 September 2008 by Zipcar, Inc.
against the judgment of the Court of First Instance (Eighth
Chamber) delivered on 25 June 2008 in Case T-36/07
Zipcar, Inc. v Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale del Lazio (Italy)
lodged on
10 September 2008 — Emanuela Sbarigia v Azienda USL
RM/A, Comune di Roma, Assiprofar — Associazione
Sindacale Proprietari Farmacia and Ordine dei Farmacisti
della Provincia di Roma

(Case C-394/08 P)

(2008/C 285/47)

Language of the case: English

(Case C-393/08)

(2008/C 285/46)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Emanuela Sbarigia

Parties

Appellants: Zipcar, Inc. (represented by: M. Elmslie, Solicitor, N.
Saunders, Barrister)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), Canary Islands Car
SL

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment of the Court of First Instance of

25 June 2008 in case T-36/07 in its entirety

Defendants: Azienda USL RM/A, Comune di Roma, Assiprofar —
Associazione Sindacale Proprietari Farmacia and Ordine dei
Farmacisti della Provincia di Roma

— Remit the application to the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM) to allow
it to preceed

Questions referred

1. Is it compatible with the Community principles upholding
freedom of competition and freedom to provide services, laid
down inter alia in Articles 49 EC, 81 EC, 82 EC, 83 EC,
84 EC, 85 EC and 86 EC, to impose on pharmacies the
abovementioned prohibitions — whereby they are not
allowed either to decline to take an annual holiday or to
remain open whenever they so desire, beyond the maximum
limits at present allowed under the abovementioned provi-
sions of Lazio Regional Law No 26/2002 — and the conco-
mitant additional requirement, under Article 10(2) of that
Regional Law, of a prior discretionary assessment by the
Administration (carried out in agreement with the bodies
and organisations specified in that article) as to the special

— Order that the Respondent shall pay the Appellant's costs of
this Appeal and of the Appeal before the Court of First
Instance

Pleas in law and main arguments

The Appellant submits that the contested judgment should be
set aside on the following grounds:

1) Improper extension of the factual and legal context of the
review of the legality of the decision under appeal.
It is
submitted that the Court of First Instance in its judgment
changed the subject matter of the proceedings before the
Board of Appeal of the OHIM and took into account facts
and matters which extended the factual and legal context of
the dispute before the OHIM.