Case C-262/08: Reference for a preliminary ruling from the Østre Landsret (Eastern Regional Court) (Denmark) lodged on 19 June 2008 — CopyGene A/S v Skatteministeriet
Date: 2008-06-19
Institutions: Court of Justice
Subjects: early childhood, health control, hospitalisation, interpretation of the law, organ transplantation, provision of services, social security, stem cell

15.8.2008

EN

Official Journal of the European Union

C 209/33

4. The Commission maintains in addition that Article 4(1) of
Directive 79/409/EEC has not been transposed correctly
because no formal procedure for designating areas as SPAs
has been provided for, there is no express reference and link
between the species in Annex I and the requirement to desig-
nate SPAs and there is no reference to the requirement to
take into account trends and variations in population levels
of protected species.

5. The Commission then finds that Article 5 of Directive
79/409/EEC has not been transposed fully and correctly
because the Greek legislation contains no general require-
ment of species protection as laid down by the directive but
is oriented towards hunting. Furthermore, the prohibition of
deliberate killing of protected species and deliberate taking of
their eggs has not been transposed.

6. Lastly, the Commission considers that Article 8(1) of Direc-
tive 79/4409/EEC has not been transposed correctly, because
in the Greek legislation there is no general prohibition of the
use of all means, arrangements or methods used for the
large-scale or non-selective capture or killing of birds or
capable of causing the local disappearance of a species.

7. The Commission accordingly considers that

the Hellenic
Republic has not
transposed fully and/or correctly the
requirements resulting from Articles 3(1) and (2), 4(1), 5
and 8(1) of Directive 79/409/EEC on the conservation of
wild birds.

(1) OJ L 103 of 25.4.1979, p. 1.

Question referred

Should Article 62(1) and (2)(a) of the Treaty Establishing the
European Community and Articles 5, 11 and 13 of Regulation
(EC) No 562/2006 (1) of the European Parliament and of the
Council of 15 March 2006 establishing a Community Code on
the rules governing the movement of persons across borders
(Schengen Borders Code) be interpreted as precluding national
legislation, and the case-law which interprets it, which permits
the substitution of the expulsion of any ‘third country national’
who does not have documentation authorising him to enter and
remain in the territory of the European Union by the imposition
of a fine?

(1) OJ L 105, p. 1.

Reference for a preliminary ruling from the Østre Landsret
(Eastern Regional Court) (Denmark) lodged on 19 June
2008 — CopyGene A/S v Skatteministeriet

(Case C-262/08)

(2008/C 209/50)

Language of the case: Danish

Reference for a preliminary ruling from the Tribunal
Superior de Justicia de Murcia (Spain) lodged on 19 June
2008 — María Julia Zurita García v Delegado del Gobierno
en la Región de Murcia

(Case C-261/08)

(2008/C 209/49)

Language of the case: Spanish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: CopyGene A/S

Defendant: Skatteministeriet

Questions referred

Referring court

Tribunal Superior de Justicia de Murcia

Parties to the main proceedings

Applicant: María Julia Zurita García

Defendant: Delegado del Gobierno en la Región de Murcia

1. Is the term activity ‘closely related’

to hospital care in
Article 13A(1)(b) of the Sixth Directive (1) to be interpreted
as implying a temporal requirement so that the hospital care
to which the service is closely related must exist or be specifi-
cally performed, commenced or envisaged, or is it sufficient
that the service will potentially be closely related to possible,
but as yet non-existent or undetermined future hospital care,
so that the services supplied by a stem cell bank, consisting
in the collection,
transportation, analysis and storage of
umbilical cord blood from newborns for autologous use, are
covered by it?

In that connection, is it relevant that the services described
cannot be performed at a later time than the time of
delivery?

C 209/34

EN

Official Journal of the European Union

15.8.2008

2. Is Article 13A(1)(b) of the Sixth Directive to be interpreted
as covering general preventative services where the services
are supplied before the hospital or medical care takes place
and before the hospital or medical care is required in both
temporal and health terms?

Reference for a preliminary ruling from the Högsta
lodged on 19 June 2008 —
domstolen (Sweden)
v
Djurgården-Lilla

Miljöskyddsförening
Stockholms kommun genom dess marknämnd

Värtans

(Case C-263/08)

(2008/C 209/51)

Language of the case: Swedish

3. Is the term ‘other duly recognised establishments of a similar
nature’ in Article 13A(1)(b) of the Sixth Directive to be inter-
preted as covering private stem cell banks where the services
— which are performed and supplied by professional health
personnel in the form of nurses, midwives and bioanalysts
— consists in the collection, transportation, analysis and
storage of umbilical cord blood from newborns with a view
to autologous use in connection with possible future hospital
care where the stem cell banks concerned do not receive
support from the public heath insurance scheme and where
the expenditure on the services provided by these stem cell
banks is not covered by the public health insurance scheme?

Referring court

Högsta domstolen

In that connection, is it relevant whether or not a private
stem cell bank has obtained authorisation from a Member
State's competent health authorities to handle tissue and cells
— in the form of processing, preserving and storing stem
cells from umbilical cord blood for autologous use —
pursuant to national legislation which implements Directive
2004/23/EC of the European Parliament and of the Council
of 31 March 2004 on setting standards of quality and safety
for the donation, procurement, testing, processing, preserva-
tion, storage and distribution of human tissues and cells (2)?

4. Is the answer to Questions 1 to 3 affected by whether the
above services are supplied with a view to possible allogeneic
use or provided by a private stem cell bank which has
obtained authorisation from a Member State's competent
health authorities to handle tissue and cells — in the form of
processing, preserving and storing stem cells from umbilical
cord blood for autologous use — pursuant to national legis-
lation which implements Directive 2004/23/EC of the Euro-
pean Parliament and of the Council of 31 March 2004 on
setting standards of quality and safety for the donation,
procurement, testing, processing, preservation, storage and
distribution of human tissues and cells?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment
(OJ 1977 L 145, p. 1).
(2) OJ 2004 L 102, p. 48.

Parties to the main proceedings

Applicant: Djurgården-Lilla Värtans Miljöskyddsförening

Defendant: Stockholms kommun genom dess marknämnd

Questions referred

1. Is point 10 of Annex II to Directive 85/337 (1) to be inter-
preted as meaning that it encompasses water-related works
which involve the drawing off
for power
cables of groundwater leaking into it and infiltration (supply)
of water into the ground or hill to compensate for any reduc-
tion in the groundwater, and the construction and mainte-
nance of installations for the drawing off and infiltration?

from a tunnel

2. If the answer to Question 1 is affirmative: Does the provision
in Article 10a of Directive 85/337 — that under certain
circumstances the public concerned is to have access to a
review procedure before a court of law or another indepen-
dent and impartial body established by law to challenge the
substantive or procedural legality of a decision — imply that
there is also a requirement that the public concerned is to be
entitled to challenge a decision of a court
in planning
consent proceedings in a case where the public concerned
has had the opportunity of participating in the court's exami-
nation of the question of planning consent and of submitting
its views to that court?

3. If the answers to Questions 1 and 2 are affirmative: Are Arti-
cles 1(2), 6(4) and 10a of Directive 85/337 to be interpreted
as meaning that different national requirements can be laid
down with regard to the public concerned referred to in Arti-
cles 6(4) and 10a, with the result that small, locally estab-
lished environmental protection associations have a right to