Case C-365/08: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 11 August 2008 — Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft
Date: 2008-08-11
Institutions: Court of Justice
Subjects: Austria, EU law, assessment of prices, common organisation of markets, economic discrimination, farming sector, interpretation of the law, marketing, principle of proportionality, sugar

C 285/22

EN

Official Journal of the European Union

8.11.2008

(b) If the answer to Question 7(a) is in the affirmative, is
the designation of an area twenty or one hundred times
the size of the trial field proportionate having regard to
the protection of private interests (protection of firms,
including the persons and products therein) and of
public interests (prevention of sabotage for the sake of
the
in the
Netherlands)?

biotechnological

development

climate

(1) Directive 2001/18/EC of

the
Council of 12 March 2001 on the deliberate release into the environ-
ment of genetically modified organisms and repealing Council Direc-
tive 90/220/EEC (OJ L 106, p. 1).

the European Parliament and of

(2) Directive 2003/4/EC of the European Parliament and of the Council
of 28 January 2003 on public access to environmental information
and repealing Council Directive 90/313/EEC (OJ L 41, p. 26).

2. Is it relevant to the answer to question 1 that Austria, where
the divorced man remains and where he is exclusively resi-
dent and employed, grants him under certain conditions the
if the
right to family allowances (in respect of the child),
divorced wife's right no longer exists?

3. Does the regulation give the divorced wife a right to family
allowances (in respect of the child) vis-à-vis Austria, where
the divorced man and father of the child is resident and
employed,
if the circumstances as described in question 1
change so that the wife takes up employment in the new
Member State?

(1) OJ 1971 L 149, p. 2.

Reference for a preliminary ruling from the Verwaltungs-
gerichtshof (Austria) lodged on 7 August 2008 — Romana
Slanina v Unabhängiger Finanzsenat Außenstelle Wien

Reference for a preliminary ruling from the Verwaltungs-
gerichtshof (Austria) lodged on 11 August 2008 — Agrana
und
Zucker GmbH v

Land-
Forstwirtschaft, Umwelt und Wasserwirtschaft

Bundesminister

für

(Case C-363/08)

(2008/C 285/35)

(Case C-365/08)

(2008/C 285/36)

Language of the case: German

Language of the case: German

Referring court

Verwaltungsgerichtshof

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Parties to the main proceedings

Applicant: Romana Slanina

Applicant: Agrana Zucker GmbH

Defendant: Unabhängiger Finanzsenat Außenstelle Wien

Defendant: Bundesminister
Umwelt und Wasserwirtschaft

für Land- und Forstwirtschaft,

Questions referred

Questions referred

their

1. Does it follow from Regulation (EEC) No 1408/71 of the
Council of 14 June 1971 on the application of social security
schemes to employed persons, to self-employed persons and
to members of
families moving within the Com-
munity (1) (‘the regulation’) that the divorced wife, who is
not in employment, of a man who lives in Austria, and who
is not self-employed, maintains her right to family allowance
if she establishes a
(in respect of a child) vis-à-vis Austria,
permanent residence in another Member State and centres
her life there, and if she continues not to be in employment
there?

1. Must Article 16 of Council Regulation (EC) No 318/2006 of
the
20 February 2006 on the common organisation of
markets in the sugar sector (1) be interpreted as meaning that
even a sugar quota which cannot be utilised as a conse-
quence of a preventive withdrawal
in accordance with
Article 1 of Commission Regulation (EC) No 290/2007 of
16 March 2007 establishing, for the 2007/2008 marketing
year, the percentage (2) provided for in Article 19 of Regu-
lation (EC) No 318/2006, must be included in the assess-
ment of the production charge?

8.11.2008

EN

Official Journal of the European Union

C 285/23

2. In the event that the first question is answered in the affirma-

tive:

Is Article 16 of Council Regulation (EC) No 318/2006 of
20 February 2006 compatible with primary law, in particular
with the principle of proportionality and the principle of
non-discrimination derived from Article 34 EC?

inspection engineers must be established as are necessary to
ensure a ratio of at least one, and at most 30, inspection engi-
neers for every 100 000 motor vehicles and trailers registered
in that area.

(1) OJ L 58, p. 1.
(2) OJ L 78, p. 20.

Action brought on 12 August 2008 — Commission of the
European Communities v Federal Republic of Germany

(Case C-369/08)

(2008/C 285/37)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and P. Dejmek, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

— declare

2.1

that

Point

the
Straßenverkehrszulassungsordnung (German Regulation on
the Entry into Service of Motor Vehicles)
(‘the StVZO’)
infringes Article 43 EC in conjunction with Article 48 EC;

of Annex VIIIb

to

excludes dependent

such an organisation. Moreover,

It is the view of the Commission that this requirement consti-
tutes an inadmissible restriction on the right of establishment
which infringes Article 43 EC or, alternatively, Article 43 EC in
conjunction with Article 48 EC. The requirement that an organi-
sation be made up exclusively of a minimum number of inde-
pendent experts engaged in the activity in question as their
main profession represents a qualitative restriction, inasmuch as
undertakings wishing to carry out the activity in question would
be obliged to adopt a particular structure. In particular, this
requirement
employees, who cannot
the
become members of
disputed provision also represents a quantitative restriction
because it prescribes a minimum number of members for these
inspection organisations. These preconditions governing recog-
nition make it impossible for any economic operator which is
lawfully established in another Member State and has a different
legal form or internal structure to provide technical inspection
services in Germany. Finally, the requirement that, within the
area of recognition, as many inspection engineers must be estab-
lished as are necessary to ensure a ratio of at least one inspec-
tion engineer for every 100 000 motor vehicles and trailers
there registered amounts to a restriction that is contrary to
Article 43 EC (in conjunction with Article 48 EC), because that
criterion in particular places at a disadvantage legal persons
already established in other Member States and whose inspec-
tion engineers are not necessarily established in the area of
recognition.

In the present case, the Commission claims, neither Article 45 EC
nor Article 46 EC is relevant.

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Under the first paragraph of Article 43 EC, all rules which
restrict the freedom of establishment of nationals of a Member
State in the territory of another Member State are prohibited. It
follows from Article 48 EC that the Treaty provisions on the
freedom of establishment are the same for companies having
their registered office, central administration or principal place
of business within the Community as they are for natural
persons who are nationals of Member States. The provisions on
treatment prohibit not only overt discrimination by
equal
reason of nationality or, in the case of companies, their regis-
tered office, but also all covert forms of discrimination which,
by the application of other criteria of differentiation, lead in fact
to the same result.

According to Point 2.1 of Annex VIIIb to the StVZO, an inspec-
tion organisation for carrying out technical inspections or safety
checks and the inspection and approval of motor vehicles can
be recognised in Germany only if it is constituted exclusively by
at least 60 independent motor vehicle experts engaged in that
activity as their main profession;
in the defined area within
received recognition, as many
which the organisation has

According to Article 45 EC, the Treaty provisions on freedom
of establishment do not apply to activities which in a Member
State are connected, even occasionally, with the exercise of offi-
cial authority. The criteria which emerge from settled case-law
for establishing cases of direct and specific exercise of official
authority are, however, not fulfilled with regard to the activities
of the inspection organisations, in particular with regard to the
carrying out of technical inspections. Neither the fact that the
inspection organisations decide on the granting or removal of
roadworthiness certificates nor the State supervision of those
organisations proves that they exercise official authority. Firstly,
the final decision on the refusal of a roadworthiness certificate
can be made only by the competent body (that is, the licensing
in the corresponding federal Land and not by the
authority)
inspection organisation. The inspection organisation,
rather,
assists and plays a preparatory role vis-à-vis
the licensing
authority. Secondly, the conclusion may not be drawn from the
fact that the State supervises certain organisations that all tasks
performed by such organisations are connected with the exercise
of official authority. Even if isolated tasks of the inspection orga-
nisation were to be considered as amounting to an exercise of
official authority, the exclusion of the technical inspections of
motor vehicles from the application of the freedom of establish-
ment would go too far and would extend significantly beyond
the purpose of the derogation provided for by Article 45 EC.