Case C-311/08: Reference for a preliminary ruling from the Tribunal de Première Instance de Mons (Belgium) lodged on 14 July 2008 — Societe De Gestion Industrielle (SGI) v Belgian State
Date: 2008-07-14
Institutions: Court of Justice
Subjects: Belgium, interpretation of the law, national law, production policy, tax relief, tax system

11.10.2008

EN

Official Journal of the European Union

C 260/5

2. Article 32 of Framework Decision 2002/584 must be interpreted
as not precluding the application by an executing Member State of
the Convention relating to extradition between the Member States
of the European Union drawn up by Council Act of 27 September
1996 and signed on that date by all the Member States, even
where that convention became applicable in that Member State
only after 1 January 2004.

(1) OJ C 223, 30.8.2008.

Appeal brought on 27 June 2008 by Landtag Schleswig-
Holstein against the order lodged on 3 April 2008 by the
Court of First
in Case
T-236/06, Landtag Schleswig-Holstein v Commission of the
European Communities

Instance (Second Chamber)

(Case C-281/08 P)

(2008/C 260/06)

Language of the case: German

Parties

Appellant:
Laskowski and J. Caspar, acting as Agents)

Landtag

Schleswig-Holstein (represented by:

S.

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— declare the appeal to be admissible and well founded;

— annul the order of the Court of First Instance of 3 April

2008;

— uphold the appellant's application at

instance and
declare the application in Case T-236/06 to be admissible
and well founded;

first

The appellant bases its appeal against the contested order of the
Court of First Instance on two grounds.

it alleges that the Court of First Instance infringed the audi
First,
alteram partem rule
in judicial proceedings. This principle is
designed, inter alia, as an expression of the guarantee of a fair
hearing and effective legal protection, to prevent judicial deci-
sions from being potentially influenced by arguments which the
parties have not been given the opportunity to discuss. As a
result, a decision causing surprise to the parties should be
avoided. In order to avoid a judgment of such a kind, the Court
of First Instance should have given the appellant the opportu-
nity to obtain clarification.

Secondly, the appellant submits that Court of First Instance infringed
Community law by misinterpreting the constituent element ‘legal
fourth paragraph of
person’ within the meaning of
Article 230 EC, and erred in law by denying the status of legal
person, and, in consequence, locus standi to the appellant.

the

The Court of First Instance proceeded on the basis that the
President of the Schleswig-Holstein Landtag (Land Parliament)
represents, in the context of his powers as legal representative,
not the appellant, but rather ‘the Land directly’, as a result of
which it concluded that the appellant does not have legal capa-
city and thus also does not have locus standi before the Com-
munity Courts. It can be deduced from this that the Court of
First Instance would have regarded the application as admissible
had it been brought by the ‘Land Schleswig-Holstein’ rather than
by the appellant. This view is not only incorrect in law, inas-
much as it is at odds with the Constitution of the Land of
Schleswig-Holstein, but also inasmuch as it constitutes, in the
appellant's view, a surprising decision which the latter should
not have had to expect. The order of the Court of First Instance
first, because it failed to recognise that the
is wrong in law,
the Land of
Landtag is, according to the Constitution of
Schleswig-Holstein, the ‘highest body of political aspiration elected
by the people’, and, secondly, because the Court of First Instance
did not realise that the President of the Landtag represents the
Landtag in its entirety with regard to constitutional disputes
affecting it. The term ‘Land’ is used, legally, in an extensive and
non-specific way, and may refer, depending on the legal context,
to both the Land Government and the Land Parliament.

— in the alternative, refer the case back to the Court of First
Instance, for the latter to admit the original application and
the prior proceedings to be continued;

— rule on costs and order the Commission to pay all of the

costs of the present proceedings.

Pleas in law and main arguments

The Court of First Instance rejected as inadmissible the appel-
lant's application for annulment brought against the Commis-
sion of the European Communities on the ground that the
appellant is not a legal person within the meaning of the fourth
paragraph of Article 230 EC. The application for annulment
was brought against the Commission decisions of 10 March
2006 and 23 June 2006, by which the appellant was refused
access to document SEK(2005) 420 containing a legal analysis
of a draft framework decision, under discussion in the Council,
on the retention of data for purposes of the prevention, investi-
gation, detection and prosecution of crime and criminal
offences, including terrorism.

Reference for a preliminary ruling from the Tribunal de
Première Instance de Mons (Belgium) lodged on 14 July
2008 — Societe De Gestion Industrielle (SGI) v Belgian
State

(Case C-311/08)

(2008/C 260/07)

Language of the case: French

Referring court

Tribunal de Première Instance de Mons

C 260/6

EN

Official Journal of the European Union

11.10.2008

Parties to the main proceedings

Questions referred

Applicant: Societe De Gestion Industrielle

Defendant: Belgian State

Questions referred

1. Does Article 43 of

the EC Treaty in conjunction with
the Treaty,
Article 48 and, as appropriate, Article 12 of
like that at
preclude legislation of a Member State which,
issue, results in taxation of a company resident in Belgium
on an exceptional or gratuitous advantage which it granted
to a company established in another Member State with
which the Belgian company is, directly or indirectly, in a rela-
interdependence, whereas in identical circum-
tionship of
stances the company resident in Belgium may not be taxed
on an exceptional or gratuitous advantage where that advan-
tage is granted to another company established in Belgium
with which the Belgian company is, directly or indirectly, in
a relationship of interdependence?

2. Does Article 56 of

the EC Treaty,

in conjunction with
the Treaty,
Article 48 and, as appropriate, Article 12 of
preclude legislation of a Member State which,
like that at
issue, results in taxation of the company resident in Belgium
on an exceptional or gratuitous advantage which it granted
to a company established in another Member State with
which the Belgian company is, directly or indirectly, in a rela-
interdependence, whereas in identical circum-
tionship of
stance the resident Belgian company cannot be taxed on an
exceptional or gratuitous advantage where that advantage is
granted to another company established in Belgium with
which the Belgian company is, directly or indirectly, in a rela-
tionship of interdependence?

Reference for a preliminary ruling from the Consiglio di
Stato (Italy) lodged on 15 July 2008 — Angelo Grisoli v
Regione Lombardia and Comune di Roccafranca

(Case C-315/08)

(2008/C 260/08)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Angelo Grisoli

Defendant: Regione Lombardia

1. Is it compatible with Articles 152 and 153 of the Treaty on
there is a single pharmacy in
the European Union that
communes with a population of less than 4 000 inhabitants?

2. Is it compatible with Articles 152 and 153 of the Treaty on
European Union to make the establishment of the second
in communes with a population of over
pharmacy
4 000 inhabitants subject to conditions such as population
over that amount of at
the levels,
distance of at least 3 000 metres from the existing phar-
macy, and existence of particular requirements of the phar-
macy service in relation to the topographical and road condi-
tions, to be assessed by both the health units (local health
companies) and the local association of pharmacists or in
any event by the authorities competent for matters of organi-
sation and review of the pharmacy service?

least 50 per cent of

Reference for a preliminary ruling from the Corte Suprema
di Cassazione (Italy) lodged on 15 July 2008 — Latex Srl v
Agenzie delle Entrate, Amministrazione Dell'Economia e
delle Finanze

(Case C-316/08)

(2008/C 260/09)

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicant: Latex Srl

Defendants: Agenzie delle Entrate, Amministrazione Dell'Eco-
nomia e delle Finanze

Questions referred

1. Does Article 18(4) of

the Sixth Directive (1), given the
neutrality of the VAT system, permit the Member States to
completely exclude the right to deduct, also in the period
following the years concerned, providing only for a refund?

2. If the answer is in the affirmative, do Article 18(4) and the
principle of
the protection of rights
arising under the Community legal system impose an obliga-
tion on the Member States nonetheless to ensure that those
refunds are made within a reasonable period of time?

the effectiveness of

(1) Directive 388/77/EEC, OJ L 145, p. 1.