Case C-314/08: 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
Date: 2008-07-14
Institutions: Court of Justice
Subjects: health insurance, interpretation of the law, personal income tax, primacy of EU law, social security, tax on income, tax relief

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

27.9.2008

EN

Official Journal of the European Union

C 247/9

Parties to the main proceedings

Claimant: Krzysztof Filipiak

Defendant: Dyrektor Izby Skarbowej w Poznaniu

Questions referred

1. Must Article 43(1) and (2) EC be construed as precluding the
provisions of Polish national law in Article 26(1)(2) of the
ustawa o podatku dochodowym od osób fizychznych (Law
on income tax payable by natural persons) of 26 July 1991
…, under which the right to a reduction of the basis of
assessment for income tax by the amount of compulsory
social insurance contributions is restricted to contributions
paid on the basis of provisions of national
law, and in
Article 27b(1) of the Law of 26 July 1991 on income tax
payable by natural persons, under which the right to a reduc-
tion of income tax by the amount of compulsory health
insurance contributions is restricted to contributions paid on
the basis of provisions of national law, in the case where a
Polish national, subject to unlimited liability to tax in Poland
on income taxed there, also pays in another Member State
compulsory social and health insurance contributions in
respect of an economic activity carried on in that other State,
and those contributions have not been deducted from
income or from tax there?

precedence

2. Must the principle of the primacy of Community law and
Article 10 and Article 43(1) and (2) EC be construed as
in
taking
provisions
the
the
Article 91(2) and (3) and Article 190(1) and (3) of
Constitution of the Republic of Poland (Dz. U. (Journal of
Laws) 1997 No 14, heading 176, as amended) in so far as
the entry into force of a judgment of the Constitutional
Court has been deferred on the basis of those provisions?

national

over

Reference for a preliminary ruling from the Cour de
cassation (France) lodged on 17 July 2008 — Olympique
Lyonnais v Olivier Bernard, Newcastle United FC

(Case C-325/08)

(2008/C 247/15)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Olympique Lyonnais

Defendants: Olivier Bernard, Newcastle United FC

Questions referred

1. Does the principle of the freedom of movement for workers
laid down in [Article 39 EC] preclude a provision of national

law pursuant to which an espoir player who at the end of his
training period signs a professional player's contract with a
club of another Member State of the European Union may
be ordered to pay damages?

2. If so, does the need to encourage the recruitment and
training of young professional players constitute a legitimate
objective or an overriding reason in the general
interest
capable of justifying such a restriction?

Action brought on 29 July 2008 — Commission of the
European Communities v Republic of Lithuania

(Case C-350/08)

(2008/C 247/16)

Language of the case: Lithuanian

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Steiblytė and M. Šimerdová, acting as Agents)

Defendant: Republic of Lithuania

Form of order sought

— declare that, by retaining in force the national authorisation
for the marketing of the medicinal product ‘Grasalva’, the
its obligations
Republic of Lithuania has failed to meet
under Article 6(1) of and Section 4 of Part II of Annex I to
Directive
by Directive
as
2003/63/EC (2), under Article 3(1) of Regulation (EEC)
No 2309/93 (3) and under Article 3(1) of Regulation (EC)
No 726/2004 (4);

2001/83/EC (1),

amended

— order the Republic of Lithuania to pay the costs.

Pleas in law and main arguments

(i) The Republic of Lithuania is required, under Article 6(1) of
Directive 2001/83/EC,
to examine whether marketing
authorisations issued prior to accession comply with the
requirements of the Community legislation on pharmaceu-
tical products in force at the time of accession and, as from
1 May 2004, to ensure that only medicinal products the
authorisations for which comply with those requirements
are placed on the market.

(ii) The medicinal product

is not mentioned in
‘Grasalva’
Appendix A to Annex IX to the 2003 Act of Accession and
for that reason the provisions relating to the transitional
period cannot be applied to it and, as from 1 May 2004,
this medicinal product could be marketed only if
it
complied with all of the Community-law requirements in
force for similar biological medicinal products with regard