Case C-301/08: 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
Date: 2008-07-07
Institutions: Court of Justice
Subjects: air transport, carrier, interpretation of the law, liability, transport accident

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

C 236/10

EN

Official Journal of the European Union

13.9.2008

Parties to the main proceedings

Parties to the main proceedings

Applicant: Irène Bogiatzi, married name Ventouras

Applicant: Rosalba Alassini

Defendants: Deutscher Luftpool, Luxair SA (a Luxembourg airline
company), European Communities, State of the Grand Duchy of
Luxembourg, Foyer Assurances SA

Defendant: Telecom Italia SpA

Questions referred

1. Does the Convention for the Unification of Certain Rules
Relating to International Carriage by Air, Signed at Warsaw
on 12 October 1929, as amended at The Hague on
(EC)
28
No 2027/97 (1) refers, form part of the rules of the Com-
munity legal order which the Court of Justice has jurisdiction
to interpret under Article 234 EC?

to which

Regulation

September

1955,

2. Must Council Regulation (EC) No 2027/97 of 9 October
1997 on air carrier liability in the event of accidents, in the
version applicable at
the accident, namely
the time of
21 December 1998, be interpreted as meaning that, with
regard to issues for which no express provision is made, the
provisions of the Warsaw Convention, in this case Article 29,
continue to apply to a flight between Member States of the
Community?

3. If the answer to the first and second questions is in the affir-
mative, is Article 29 of the Warsaw Convention, in conjunc-
tion with Regulation (EC) No 2027/97, to be interpreted as
meaning that the period of two years laid down in that
article can be suspended or interrupted or that the carrier or
its insurer can waive that time-limit, by an act deemed by
the national court to constitute recognition of liability?

Question referred

Do the Community rules in Article 6 of the European Conven-
tion for the Protection of Human Rights and Fundamental Free-
doms, Directive 2002/22/EC (1), Directive 1999/44/EC (2),
Commission Recommendation 2001/310/EC (3) and Directive
1998/257/EC (4) have direct effect and must they be interpreted
as meaning that disputes ‘in the area of electronic communications
between end-users and operators concerning non-compliance with the
rules on universal service and on the rights of end-users, as laid down
in legislation, decisions of the Regulatory Authority, contractual terms
and service charters’ (the disputes contemplated by Article 2 of
Decision No 173/07/CONS of the Regulatory Authority) must
not be made subject to a mandatory attempt at conciliation
without which proceedings in that regard may not be brought
before the courts, thus taking precedence over the rule laid
down in Article 3(1) of Decision No 173/07/CONS?

(1) OJ L 108, p. 51.
(2) OJ L 171, p. 12.
(3) Commission Recommendation.
(4) Commission Recommendation.

(1) Council Regulation (EC) No 2027/97 of 9 October 1997 on air

carrier liability in the event of accidents (OJ 1997 L 285, p. 1).

Reference for a preliminary ruling from the Giudice di
Pace di Ischia (Italy) lodged on 15 July 2008 — Filomena
Califano v Wind SpA

Reference for a preliminary ruling from the Giudice di
Pace di Ischia (Italy) lodged on 15 July 2008 — Rosalba
Alassini v Telecom Italia SpA

(Case C-317/08)

(2008/C 236/15)

Language of the case: Italian

(Case C-318/08)

(2008/C 236/16)

Language of the case: Italian

Referring court

Giudice di Pace di Ischia

Parties to the main proceedings

Referring court

Applicant: Filomena Califano

Giudice di Pace di Ischia

Defendant: Wind SpA