Case C-207/07: Judgment of the Court (Third Chamber) of 17 July 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Articles 43 EC and 56 EC — National law making the acquisition of shareholdings in undertakings which carry on regulated activities in the energy sector and of the assets necessary to carry on those activities subject to prior approval)
Date: 2008-07-17
Institutions: Court of Justice
Subjects: European Commission, Spain, action for annulment (EU), capital movement, energy industry, undisclosed partnership

C 223/14

EN

Official Journal of the European Union

30.8.2008

Operative part of the judgment

Re:

1. Article 12(7) of Directive 97/33/EC of the European Parliament
and of the Council of 30 June 1997 on interconnection in telecom-
munications with regard to ensuring universal service and interoper-
ability through application of the principles of open network provi-
sion (ONP), as amended by Directive 98/61/EC of the European
the Council of 24 September 1998, and
Parliament and of
Article 4c of Commission Directive 90/388/EEC of 28 June
1990 on competition in the markets
telecommunications
services, as amended by Commission Directive 96/19/EC of
13 March 1996, the latter article read in conjunction with recitals
5 and 20 in the preamble to Directive 96/19, must be interpreted
as precluding a national regulatory authority from requiring an
operator of a network interconnected with a public network to pay
to the market-dominant subscriber network operator a connection
charge which is additional to an interconnection charge and is
intended to compensate the latter operator for the deficit incurred as
a result of providing the local loop for the year 2003.

for

2. Article 4c of Directive 90/388, as amended by Directive 96/19,
and Article 12(7) of Directive 97/33, as amended by Direc-
tive 98/61, produce direct effect and can be relied on directly before
a national court by individuals to challenge a decision of
the
national regulatory authority.

(1) OJ C 140, 23.6.2008.

for

a preliminary ruling — Oberlandesgericht
Reference
Frankfurt am Main –Interpretation of Article 3(1)(a) of Regu-
lation (EC) No 261/2004 of the European Parliament and of the
Council of 11 February 2004 establishing common rules on
compensation and assistance to passengers in the event of
denied boarding and of cancellation or long delay of flights, and
repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1) —
Concept of ‘departure’ — Outward and return ticket from a
Member State to a non-member country — Cancellation of the
return flight

Operative part of the judgment

Article 3(1)(a) of Regulation (EC) No 261/2004 of the European
Parliament and of
the Council of 11 February 2004 establishing
common rules on compensation and assistance to passengers in the
event of denied boarding and of cancellation or long delay of flights,
and repealing Regulation (EEC) No 295/91, must be interpreted as
not applying to the case of an outward and return journey in which
passengers who have originally departed from an airport located in the
territory of a Member State to which the EC Treaty applies travel back
to that airport on a flight from an airport located in a non-member
country. The fact that the outward and return flights are the subject of
a single booking has no effect on the interpretation of that provision.

(1) OJ C 155, 7.7.2007.

for

Judgment of the Court (Fourth Chamber) of 10 July 2008
(reference
from the
preliminary
Oberlandesgericht Frankfurt am Main — Germany) —
Emirates Airlines Direktion für Deutschland v Diether
Schenkel

ruling

a

(Case C-173/07) (1)

(Carriage by air — Regulation (EC) No 261/2004 —
Compensation for passengers in the event of cancellation of a
flight — Scope — Article 3(1)(a) — Concept of ‘flight’)

(2008/C 223/21)

Language of the case: German

Judgment of the Court (Third Chamber) of 17 July 2008 —
Commission of the European Communities v Kingdom of
Spain

(Case C-207/07) (1)

of a Member State

(Failure
obligations —
Articles 43 EC and 56 EC — National law making the acqui-
sition of shareholdings in undertakings which carry on regu-
lated activities in the energy sector and of the assets necessary
to carry on those activities subject to prior approval)

fulfil

to

(2008/C 223/22)

Language of the case: Spanish

Referring court

Oberlandesgericht Frankfurt am Main

Parties

Parties to the main proceedings

Applicant: Emirates Airlines Direktion für Deutschland

Defendant: Diether Schenkel

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and R. Vidal Puig, acting as Agents)

Defendant: Kingdom of Spain (represented by: N. Díaz Abad,
acting as Agent)

30.8.2008

EN

Official Journal of the European Union

C 223/15

Re:

Re:

Failure of a Member State to fulfil obligations — Breach of Arti-
cles 43 EC and 56 EC — National law making the acquisition
of certain shareholdings in undertakings which carry on regu-
lated activities in the energy sector subject to prior approval of a
special commission

Operative part of the judgment

The Court:

1. Declares that, by adopting the first indent of the second paragraph
of the single article of the fourteenth function of the National
Energy Commission provided for
in Supplementary Provision
No 11, part 3, point 1 of Law 34/1998 of 7 October 1998 on
the hydrocarbon sector (Ley 3471998, del sector de hidrocarburos),
as amended by Royal Decree-Law 4/2006 of 24 February 2006
(Real Decreto-Ley 4/2006),
in order to make the acquisition of
certain shareholdings in undertakings which carry on certain regu-
lated activities in the energy sector and the acquisition of the assets
necessary to carry on such activities subject to the prior approval of
the National Energy Commission, the Kingdom of Spain has failed
to fulfil its obligations under Articles 43 EC and 56 EC;

2. Orders the Kingdom of Spain to pay the costs.

Reference for a preliminary ruling — Finanzgericht Düsseldorf
— Interpretation of Article 14(1)(a) of Council Directive
2003/96/EC of 27 October 2003 restructuring the Community
framework for the taxation of energy products and electricity
(OJ 2003 L 283, p. 51) — Direct effect — National legislation
not exempting gas oil used to produce electricity from mineral
oil tax

Operative part of the judgment

Article 14(1)(a) of Council Directive 2003/96/EC of 27 October
2003 restructuring the Community framework for the taxation of
energy products and electricity, in so far as it provides for the exemp-
tion from taxation under that directive of energy products used to
produce electricity, has direct effect in the sense that it may be relied
upon by an individual before national courts — in relation to a period
of time during which the Member State concerned was in default of its
obligation to transpose that directive into its national law within the
prescribed period — in a dispute, such as that in the main proceedings,
between that individual and the customs authorities of that State, for
the purpose of having national legislation which is incompatible with
that provision disapplied and, consequently, obtaining a refund of tax
which infringed that provision.

(1) OJ C 140, 23.6.2007.

(1) OJ C 155, 7.7.2007.

Judgment of the Court (Third Chamber) of 17 July 2008
(reference for a preliminary ruling from the Finanzgericht
Düsseldorf — Germany) — Flughafen Köln/Bonn GmbH v
Hauptzollamt Köln

Judgment of the Court (Sixth Chamber) of 10 July 2008 —
Commission of the European Communities v Portuguese
Republic

(Case C-226/07) (1)

(Case C-307/07) (1)

(Directive 2003/96/EC — Community framework for the
taxation of energy products and electricity — Article 14(1)(a)
— Exemption for energy products used to produce electricity
— Option to impose taxation for reasons of environmental
policy — Direct effect of the exemption)

(Failure of a Member State to fulfil its obligations — Directive
89/48/EEC — Recognition of diplomas awarded on comple-
tion of professional education and training of at least three
years' duration — Failure to recognise diplomas which give
access to the profession of pharmacist specialising in medical
biology — Failure to transpose)

(2008/C 223/23)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Flughafen Köln/Bonn GmbH

Defendant: Hauptzollamt Köln

(2008/C 223/24)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and P. Andrade, acting as Agents)

Defendant: Portuguese Republic (represented by: L. Fernandes,
Agent)