Joined Cases C-152/07 to C-154/07: Judgment of the Court (Grand Chamber) of 17 July 2008 (references for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Arcor AG & Co. KG (C-152/07), Communication Services TELE2 GmbH (C-153/07), Firma 01051 Telekom GmbH (C-154/07) v Bundesrepublik Deutschland (Telecommunications — Networks and services — Tariff rebalancing — Article 4c of Directive 90/388/EEC — Article 7(2) of Directive 97/33/EC — Article 12(7) of Directive 98/61/EC — Regulatory authority — Direct effect of directives — Triangular situation)
Date: 2008-07-17
Institutions: Court of Justice
Subjects: Germany, competition law, interpretation of the law, public service, systems interconnection, telecommunications

30.8.2008

EN

Official Journal of the European Union

C 223/13

Parties to the main proceedings

Applicant: Andrea Raccanelli

Defendant: Max-Planck-Gesellschaft
Wissenschaften eV

zur

Förderung

der

Re:

Preliminary ruling — Arbeitsgericht Bonn — Interpretation of
Article 7 of Regulation (EEC) No 1612/68 of the Council of
15 October 1968 on freedom of movement for workers within
the Community (OJ English Special Edition 1968(II), p. 475) —
Capacity as a worker of a doctoral student engaged as a grant
recipient by a non-profit-making association established under
private law in another Member State which offers most national
doctoral students the possibility of concluding a contract of
employment — Need to make it possible for doctoral students
who are nationals of
the other Member States to choose
between a grant and a contract of employment — Concept of
‘worker’

Operative part of the judgment

a

of

the

basis

grant

contract

concluded with

1. A researcher in a similar situation to that of the applicant in the
main proceedings, that is, a researcher preparing a doctoral thesis
on
the
Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV,
must be regarded as a worker within the meaning of Article 39 EC
only if his activities are performed for a certain period of time
under the direction of an institute forming part of that association
and if, in return for those activities, he receives remuneration. It is
for the referring court to undertake the necessary verification of the
facts in order to establish whether such is the case in the dispute
before it.

2. A private-law association, such as the Max-Planck-Gesellschaft zur
Förderung der Wissenschaften eV, must observe the principle of
non-discrimination in relation to workers within the meaning of
Article 39 EC. It is for the referring court to establish whether, in
circumstances such as those of the case in the main proceedings,
there has been inequality in the treatment of domestic and foreign
doctoral students.

3. In the event that the applicant in the main proceedings is justified
in relying on damage caused by the discrimination to which he has
been subject, it is for the referring court to assess, in the light of
the national
legislation applicable in relation to non-contractual
liability, the nature of the compensation which he would be entitled
to claim.

(1) OJ C 117, 26.5.2007.

a

for

Judgment of the Court (Grand Chamber) of 17 July 2008
(references
from the
preliminary
Bundesverwaltungsgericht — Germany) — Arcor AG &
Co. KG (C-152/07), Communication Services TELE2 GmbH
(C-153/07), Firma 01051 Telekom GmbH (C-154/07) v
Bundesrepublik Deutschland

ruling

(Joined Cases C-152/07 to C-154/07) (1)

(Telecommunications — Networks and services — Tariff reba-
lancing — Article 4c of Directive 90/388/EEC — Article 7(2)
of Directive 97/33/EC — Article 12(7) of Directive 98/61/EC
— Regulatory authority — Direct effect of directives —
Triangular situation)

(2008/C 223/20)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicants: Arcor AG & Co. KG (C-152/07), Communication
Services TELE2 GmbH (C-153/07), Firma 01051 Telekom
GmbH (C-154/07)

Defendant: Bundesrepublik Deutschland

Intervening Party: Deutsche Telekom AG

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht
— Interpretation of Commission Directive 90/388/EEC of
28 June 1990 on competition in the markets for telecommuni-
cations services (OJ 1990 L 192, p. 10) and Directive 97/33/EC
of the European Parliament and of the Council of 30 June 1997
on interconnection in telecommunications with regard to
ensuring universal service and interoperability through applica-
the principles of Open Network Provision (ONP)
tion of
(OJ 1997 L 199, p. 32) — National legislation prescribing, in
addition to interconnection charges calculated on the basis of
the cost of
the service, a financial contribution from other
operators to cover the ‘connection cost deficit’ incurred by the
incumbent operator as a result of providing the local loop —
Obligation of the Member States to remove obstacles to the
rebalancing of tariffs by former telecommunications organisa-
tions following the interconnection of networks — Ability of an
individual to rely on the direct effect of a directive before the
courts of a Member State in order to secure the annulment of
an administrative decision laying down a financial obligation in
favour of another individual

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)