Case C-226/08: Reference for a preliminary ruling from the Verwaltungsgericht Oldenburg (Germany) lodged on 26 May 2008 — Stadt Papenburg v Bundesrepublik Deutschland
Date: 2008-05-26
Institutions: Court of Justice
Subjects: EU law - national law, countryside conservation, environmental protection, interpretation of the law, national implementing measure

C 209/24

EN

Official Journal of the European Union

15.8.2008

The applicant claims that the Court should:

Defendant: Kingdom of Belgium

— declare that by imposing minimum and maximum retail
prices for cigarettes, Ireland has failed to comply with its
obligations under Article 9(1) of Council Directive
95/59/EC (1) of 27 November 1995 on taxes other than
turnover taxes which affect the consumption of manufac-
tured tobacco;

— declare that by failing to provide the necessary information
on the applicable Irish legislation in order to enable the
Commission to fulfil its duty to monitor compliance with
Directive 95/59, Ireland has failed to comply with its obliga-
tions under Article 10 EC;

Form of order sought

— Declare that, by virtue of the transposition into national law
of the provisions on the costing and financing of universal
service obligations, the Kingdom of Belgium has failed to
fulfil
its obligations under Articles 12(1), 13(1), and
Annex IV, part A, of Directive 2002/22/EC;

— order Kingdom of Belgium to pay the costs.

— order Ireland to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

By virtue of
the Tobacco Products (Control of Advertising,
Sponsorship and Sales Promotion) (No 2) Regulations 1986 and
the arrangements made in implementation of those regulations
with tobacco manufacturers and importers, Ireland imposes a
minimum price for cigarettes corresponding to a level no more
than 3 % below the weighted average price for cigarettes in the
category in question. Moreover, in so far as manufacturers and
importers may not set prices more than 3 % above that
weighted average price, Ireland also imposes a maximum price
for cigarettes. Such a system is contrary to Article 9(1) of direc-
tive 95/59, under which tobacco manufacturers are ‘free to
determine the maximum retail selling price for each of their
products’.

Pursuant to Article 10 EC, the Member States have a duty to
in particular by complying
facilitate the Commission's tasks,
with requests for information made in the course of infringe-
ment proceedings. The Commission submits that by failing to
provide any information on the applicable Irish legislation,
despite the Commission's repeated requests, Ireland has failed to
comply with its obligations under Article 10 EC.

(1) OJ L 291, p. 40.

The objective of Directive 2002/22 is, inter alia, to define the
situations in which the market does not satisfactorily meet the
needs of end-users and the directive contains provisions
regarding the availability of the universal service. Article 12(1)
of the directive provides that where national regulatory authori-
ties consider that the provision of universal service may repre-
sent an unfair burden on undertakings designated to provide
universal service, they are to calculate the net costs of its provi-
sion in the manner set out in that article. Annex IV, part A,
contains provisions concerning the calculation of the net costs.
Article 13(1) provides that where, on the basis of the net cost
calculation referred to in Article 12, national regulatory authori-
ties find that an undertaking is subject to an unfair burden, the
Member States are, upon request from a designated undertaking,
to decide to introduce a compensation mechanism.

According to the Commission, Belgium has not correctly trans-
posed the provisions of Article 12(1), Article 13(1) and
the directive. The Belgian legislation
Annex IV, part A, of
provides for no assessment of the question whether the provi-
sion of social tariffs in the course of performing the universal
service represents an unfair burden for
the undertakings
concerned. Furthermore the Belgian legislation does not satisfy
the requirement concerning the costing of net costs set out
more particularly in the last section of Annex IV, part A, to the
directive.

Action brought on 21 May 2008 — Commission of the
European Communities v Kingdom of Belgium

Reference for a preliminary ruling from the Verwaltungs-
gericht Oldenburg (Germany) lodged on 26 May 2008 —
Stadt Papenburg v Bundesrepublik Deutschland

(Case C-222/08)

(2008/C 209/35)

Language of the case: Dutch

(Case C-226/08)

(2008/C 209/36)

Language of the case: German

Parties

Referring court

Applicant: Commission of the European Communities (repre-
sented by: H. van Vliet and A. Nijenhuis, acting as Agents)

Verwaltungsgericht Oldenburg

15.8.2008

EN

Official Journal of the European Union

C 209/25

Parties to the main proceedings

Action brought on 29 May 2008 — Commission of the
European Communities v Kingdom of the Netherlands

Applicant: Stadt Papenburg

Defendant: Bundesrepublik Deutschland

(Case C-232/08)

(2008/C 209/37)

Language of the case: Dutch

Questions referred

1. Does the first subparagraph of Article 4(2) of Council Direc-
tive 92/43/EEC of 21 May 1992 on the conservation of
natural habitats and of wild fauna and flora (1) allow a
Member State to refuse to agree to the Commission's draft
list of sites of Community importance, in relation to one or
more sites, on grounds other
than nature conservation
grounds?

2. If Question 1 is answered in the affirmative: Do those
grounds include the interests of municipalities and associa-
in particular their plans, planning
tions of municipalities,
intentions and other interests with regard to the further
development of their area?

3. If Questions 1 and 2 are answered in the affirmative: Do the
third recital
in the preamble to Directive 92/43/EEC,
Article 2(3) of the directive or other provisions of Com-
munity law even require that such grounds be taken into
account by the Member States and the Commission when
giving agreement and establishing the list of sites of Com-
munity importance?

4. If Question 3 is answered in the affirmative: Would it be
possible — under Community law — for a municipality
which is affected by the inclusion of a particular site in the
list to claim in legal proceedings after final adoption of the
list that the list infringes Community law, because its inter-
ests were not, or not sufficiently, taken into account?

5. Must ongoing maintenance works in the navigable channels
estuaries, which were definitively authorised under
of
national law before the expiry of the time-limit for transposi-
tion of Directive 92/43/EEC, undergo an assessment of their
implications pursuant to Article 6(3) or (4) of the directive
where they are continued after inclusion of the site in the list
of sites of Community importance?

(1) OJ 1992 L 206, p. 7.

Parties

Applicant: Commission of the European Communities (repre-
sented by: T. van Rijn and K. Banks, acting as Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

— Declare that, by allowing fishing vessels to have a higher
engine power than permitted under Article 29(2) of Regu-
lation (EC) No 850/98 (1), has failed to fulfil its obligations
under Article 23 of Regulation (EC) No 2371 (2) and
Article 2(1) of Regulation (EEC) No 2847/93 (3);

— order Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The Commission considers that the Netherlands Government
has failed to fulfil its obligations, as it has consciously allows
infringements of the rule regarding the maximum engine power
with which fishing may be carried out in the ‘plaice box’.

First, it is apparent from the information provided by the Neth-
erlands Government that it permits Netherlands ‘Eurokotters’
participating in the private arrangement to satisfy the maximum
permitted engine power of 300 hp only with effect from 1 May
2009. Second, it is apparent from this information that when
monitoring compliance with this rule a margin of tolerance of
12,5 % is applied systematically and therefore penalties are not
imposed on infringements of the maximum permitted engine
power within that margin.

(1) Council Regulation (EC) No 850/98 of 30 March 1998 for the
conservation of fishery resources through technical measures for the
protection of juveniles of marine organisms (OJ 1998 L 125, p. 1).
(2) Council Regulation of 20 December 2002 on the conservation and
sustainable exploitation of fisheries resources under the Common
Fisheries Policy (OJ 2002 L 358, p. 59).

(3) Council Regulation (EEC) No 2847/93 of 12 October 1993 estab-
lishing a control system applicable to the common fisheries policy
(OJ 1993 L 261, p. 1).