Case C-309/08: Action brought on 11 July 2008 — Commission of the European Communities v Republic of Poland
Date: 2008-07-11
Institutions: Court of Justice
Subjects: European Commission, Poland, action for failure to fulfil an obligation, administrative transparency, electronic mail, regulation of telecommunications, transmission network

27.9.2008

EN

Official Journal of the European Union

C 247/7

Parties to the main proceedings

Applicant: Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

Defendant: Plus Warenhandelsgesellschaft mbH

Question referred

Is Article 5(2) of Directive 2005/29/EC of
the European
Parliament and of the Council of 11 May 2005 concerning
unfair business-to-consumer commercial practices in the internal
market and amending Council Directive 84/450/EEC, Directives
97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament
and of the Council and Regulation (EC) No 2006/2004 of the
European
Council Directive
2005/29/EC (1) on unfair commercial practices to be interpreted
as meaning that that provision precludes a national provision
which states that a commercial practice whereby the participa-
tion of consumers in a prize competition or lottery is made
conditional on the purchase of goods or the supply of services
is in principle unlawful, irrespective of whether, in any particular
case, the advertising in question affects consumers' interests?

Parliament

and

the

of

(1) OJ 2005 L 149, p. 22.

Reference for a preliminary ruling from the Consiglio di
Stato (Italy) lodged on 4 July 2008 — CoNISMa (Consorzio
Nazionale Interuniversitario per le Scienze del Mare) v
Regione Marche

(Case C-305/08)

(2008/C 247/11)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: CoNISMa (Consorzio Nazionale Interuniversitario per
le Scienze del Mare)

Defendant: Regione Marche

Questions referred

1. Must the provisions of Directive 2004/18/EC (1) on the coor-
the award of public works
dination of procedures for
contracts, public
service
and public
contracts that are referred to in section 1 above be inter-
preted as precluding a consortium made up solely of Italian

supply contracts

universities and state bodies, as described in section 8 above,
from taking part in a tendering procedure for the award of a
service contract such as that for the acquisition of geophy-
sical data and marine samples?

2. Are the provisions of Italian law contained in Article 3(22)
and (19) and Article 34 of
the Public Contracts Code,
enacted by Legislative Decree No 163/2006, which provide,
respectively: that ‘the term “economic operator” shall include
a contractor, supplier, service provider or a group or consor-
tium of these’ and ‘the terms “contractor”, “supplier” and
“service provider” shall mean any natural or legal person, or
including a European
body without
Economic Interest Group (EEIG) formed pursuant to Legisla-
tive Decree No 240 of 23 July 1991, which “offers on the
market”, respectively, the execution of works or a work, the
supply of products or the provision of services’, contrary to
Directive 2004/18/EC if interpreted as restricting participa-
tion in tendering procedures to professional providers of
such services and excluding entities whose primary objects
are not-for-profit, such as research?

legal personality,

(1) OJ L 2004 134, p. 114.

Action brought on 11 July 2008 — Commission of the
European Communities v Republic of Poland

(Case C-309/08)

(2008/C 247/12)

Language of the case: Polish

Parties

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

Defendant: Republic of Poland

Form of order sought

— declare that, by failing to ensure the proper implementation
law of Directive 2002/21/EC of the European
in national
Parliament and of
the Council of 7 March 2002 on a
common regulatory framework for electronic communica-
tions networks and services (Framework Directive) (1),
in
particular Article 3(2) and (3) concerning the requirements
that national regulatory authorities be independent and that
they exercise their powers impartially and transparently, the
Republic of Poland has failed to fulfil its obligations under
that directive;

— order the Republic of Poland to pay the costs.

C 247/8

EN

Official Journal of the European Union

27.9.2008

Pleas in law and main arguments

Poland has failed to ensure an effective separation of regulatory
functions from activities linked to the exercise of rights of
property or control.

The Polish State has extensive shareholdings in numerous tele-
communications undertakings. At the same time, the national
regulatory authority in Poland is appointed by the Prime
Minister, who is entitled freely to dismiss it at any time without
providing reasons and on whom the Minister for Finance and
the Minister for Infrastructures are also fully dependent.

The absence of provisions defining the duration of the term of
the national regulatory authority and the lack of an exhaustive
list of conditions allowing for its dismissal results in its being
dependent to a significant extent on the Prime Minister and fails
to guarantee that those market participants in which the State
holds shares will be treated in the same way as other market
participants.

(1) OJ L 108, 24.4.2002, p. 33-50.

Reference for a preliminary ruling from Court of Appeal
(Civil Division) (England and Wales) lodged on 11 July
2008 — London Borough of Harrow v Nimco Hassan
Ibrahim and Secretary of State for the Home Department

(Case C-310/08)

(2008/C 247/13)

Language of the case: English

Referring court

Court of Appeal (Civil Division) (England and Wales)

Parties to the main proceedings

Applicant: London Borough of Harrow

Defendants: Nimco Hassan Ibrahim, Secretary of State for the
Home Department

Questions referred

In circumstances where (i) a non-EU national spouse and her EU
national children accompanied an EU national who came to the
United Kingdom (ii) the EU national was in the United Kingdom
as a worker (iii) the EU national then ceased to be a worker and
subsequently left the United Kingdom (iv) the EU national, the
non-EU national spouse and children are not self-sufficient and
are dependent upon social assistance in the United Kingdom
(v) the children commenced primary education in the United

Kingdom shortly after their arrival there while the EU national
was a worker:

(1) do the spouse and children only enjoy a right of residence
in the United Kingdom if they satisfy the conditions set out
in Directive 2004/38 of the European Parliament and of the
Council of 29 April 2004 (1)?;

OR

(2)

(i) do they enjoy a right to reside derived from Article 12
of Regulation (EEC) No 1612/68 of 15 October
1968 (2), as interpreted by the Court of Justice, without
being required to satisfy the conditions set out in Direc-
tive 2004/38 of the European Parliament and of the
Council of 29 April 2004;

and

(ii) if so, must they have access to sufficient resources so as
not to become a burden on the social assistance system
of the host Member State during their proposed period
of residence and have comprehensive sickness insurance
cover in the host Member State?;

(3) if the answer to question 1 is yes, is the position different in
circumstances such as the present case where the children
commenced primary education and the EU-national worker
ceased working prior
to the date by which Directive
2004/38 of the European Parliament and of the Council of
29 April 2004 was to be implemented by the Member
States?

(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 L 158, p. 77).

64/221/EEC,

68/360/EEC,

(2) Regulation (EEC) No 1612/68 of the Council of 15 October 1968
for workers within the Community

on freedom of movement
(OJ L 257, p. 2).

Reference for a preliminary ruling from the Wojewódzki
Sąd Administracyjny (Republic of Poland) lodged on 14 July
2008 — Krzysztof Filipiak v Dyrektor Izby Skarbowej w
Poznaniu

(Case C-314/08)

(2008/C 247/14)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny