Case C-285/08: Reference for a preliminary ruling from the Cour de cassation (France) lodged on 30 June 2008 — Société Moteurs Leroy Somer v Société Dalkia France, Société Ace Europe
Date: 2008-06-30
Institutions: Court of Justice
Subjects: approximation of laws, consumer protection, defective product, interpretation of the law, producer's liability

C 236/8

EN

Official Journal of the European Union

13.9.2008

As is apparent from the wording of Article 23(2)(a) of the
Directive, that article requires a system of advance approval of
network tariffs or, in any event, of the methodologies used to
calculate them. Sweden has expressly stated that the present
Swedish rules on the calculation of network tariffs and the
criteria which network tariffs must satisfy are based on a system
in which supervision is carried out after the event, but that
inquiries are presently taking place regarding the introduction of
a new system of advance approval and that a proposal would
probably be put before parliament in June 2008.

In the abovementioned circumstances, the Commission takes
the view that Sweden has not correctly implemented Directive
2003/54/EC in its national law, in particular Articles 15(2)(b)
and (c) and 23(2)(a) thereof.

(1) OJ 2003 L 176, p. 37.

Reference for a preliminary ruling from the Tribunal
administratif (Luxembourg) lodged on 26 June 2008 —
Miloud Rimoumi and Gabrielle Suzanne Marie Prick v
Ministre des Affaires étrangères et de l'Immigration

(Case C-276/08)

(2008/C 236/11)

Language of the case: French

Referring court

Tribunal administratif

75/35/EEC,

90/365/EEC

90/364/EEC,

move and reside freely within the territory of
the Member
States, amending Regulation (EEC) No 1612/68 and repealing
Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC,
and
75/34/EEC,
93/96/EEC (1) to be interpreted as applying only to those family
members who acquired that status prior to the date on which
the Union citizen, whom they intend to accompany or join,
exercised his/her right of free movement conferred by Article
39 of the EC Treaty, or, on the contrary, is any citizen of the
Union who has exercised his/her right of free movement and
become established in a Member State other than that of which
that person is a national entitled to be joined by a family
member, without the latter having to satisfy a condition as to
the time at which he/she acquired that status?

(1) Directive 2004/38/EC of

the European Parliament and of

the
Council of 29 April 2004 on the right of citizens of the Union and
their family members to move and reside freely within the territory
of the Member States, amending Regulation (EEC) No 1612/68 and
repealing Directives
72/194/EEC,
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and
93/96/EEC (OJ 2004 L 158, p. 77).

64/221/EEC,

68/360/EEC,

Reference for a preliminary ruling from the Cour de
lodged on 30 June 2008 — Société
cassation (France)
Moteurs Leroy Somer v Société Dalkia France, Société
Ace Europe

(Case C-285/08)

(2008/C 236/12)

Language of the case: French

Parties to the main proceedings

Applicants: Miloud Rimoumi and Gabrielle Suzanne Marie Prick

Defendant: Ministre des Affaires étrangères et de l'Immigration

Referring court

Cour de cassation

Parties to the main proceedings

Question referred

Appellant: Société Moteurs Leroy Somer

Are Articles 2(2)(a), 3(1) and 7(2) of Directive 2004/38/EC on
the right of citizens of the Union and their family members to

Respondents: Société Dalkia France, Société Ace Europe

13.9.2008

EN

Official Journal of the European Union

C 236/9

Question referred

Do Articles 9 and 13 of Council Directive 85/374/EEC of
25 July 1985 on the approximation of the laws, regulations and
administrative provisions of the Member States concerning liabi-
lity for defective products (1) preclude the interpretation of
domestic law or settled domestic case-law such that it enables
the victim to seek compensation for damage to an item of prop-
erty intended for professional use and employed for that use,
where that victim simply proves damage,
in the
product and the causal
link between that defect and the
damage?

the defect

(1) OJ 1985 L 210, p. 29.

Reference for a preliminary ruling from the Tribunale
ordinario di Milano (Italy) lodged on 30 June 2008 —
Crocefissa Savia and Others v Ministero dell'Istruzione,
dell'Università e della Ricerca and Others

(Case C-287/08)

(2008/C 236/13)

Language of the case: Italian

Referring court

Tribunale ordinario di Milano (Italy)

Parties to the main proceedings

Applicants: Crocefissa Savia, Monica Maria Porcu,
Randazzo, Daniela Genovese and Mariangela Campanella

Ignazia

Defendants: Ministero dell'Istruzione, dell'Università
e della
Ricerca, Direzione Didattica II Circolo — Limbiate, Ufficio
Scolastico Regionale per la Lombardia, Direzione Didattica III
Circolo — Rozzano, Direzione Didattica IV Circolo — Rho, Isti-
tuto Comprensivo — Castano Primo, Istituto Comprensivo A.
Manzoni — Rescaldina

Questions referred

1. Is it permissible for the legislature of a Member State of the
European Union to adopt a rule which purports to provide
an authentic interpretation but which in reality introduces
substantive innovation and,
in particular, attributes to the
legislation purportedly interpreted effects other than those
previously attributed to it in the majority of judicial decisions
concerning the substance and by the consolidated case-law
of the supreme courts?

2. Can the answer to Question 1 be affected by the possibility
that the rule referred to may be classed as genuinely interpre-

tative — rather than as introducing innovation with retroac-
tive effect — in that it reflects the way in which the original
legislation was construed in a minority series of judicial deci-
sions concerning the substance even though that has repeat-
edly been contradicted by the supreme courts?

3. If the answer is affirmative, what — for the purposes of
appraising the compatibility of such a rule with Community
law and, in particular, with the principles governing the ‘fair-
ness’ of judicial proceedings — are the implications in either
case of the fact that the Member State itself is a party to the
proceedings and application of
the rule de facto in force
requires the court seised to dismiss the forms of order
sought against that State?

4. What guidance can be given as regards the ‘overriding reasons
of public interest’ capable of justifying — as the case may be,
even in derogation from the answer which should in prin-
ciple be given to Questions 1, 2 and 3 — recognition of the
retroactive effects of a statutory provision concerning civil
law matters as well as private law relationships, albeit estab-
lished with a body governed by public law?

in

Judgments Nos

5. Could those reasons include organisational considerations
analogous to those referred to by the Italian Court of Cassa-
tion
and
11922/2008 in order to justify — on grounds, in particular,
of the need to ‘regulate a wide-ranging organisational restruc-
turing operation’ — adoption of the rule intended to regulate,
six years after it had taken place, the transfer to the State of
the ATAs employed by the local authorities?

618/2008,

677/2008

6. In any event, is it for the national courts to identify, where
the national law is silent on the point, the ‘overriding reasons
of public interest’ which — in the case of proceedings pending
and in derogation from the principle of equality of arms —
could justify the adoption of a retroactive rule capable of
reversing the outcome of
the
national courts confine themselves to assessing the compat-
ibility with Community law of the reasons expressly invoked
by the legislature of the State as a basis for its choices?

the proceedings, or must

Reference for a preliminary ruling from the Cour de
cassation (Luxembourg) lodged on 7 July 2008 — Irène
Bogiatzi, married name Ventouras v Deutscher Luftpool,
Luxair SA, European Communities, State of the Grand
Duchy of Luxembourg, Foyer Assurances SA

(Case C-301/08)

(2008/C 236/14)

Language of the case: French

Referring court

Cour de cassation