Case C-369/08: Action brought on 12 August 2008 — Commission of the European Communities v Federal Republic of Germany
Date: 2008-08-12
Institutions: Court of Justice
Subjects: EU Member State, Germany, action for failure to fulfil an obligation, commercial vehicle, ethnic discrimination, free movement of persons, legislation, motor car, road safety, roadworthiness tests

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.

C 285/24

EN

Official Journal of the European Union

8.11.2008

Vehicle inspection is a purely technical task which, although it
may have legal consequences, cannot be regarded as constituting
a direct exercise of official authority.

So far as concerns Article 46 EC, which provides for the possi-
bility of justification for unequal treatment on grounds of public
policy, public security or public health, the case-law of
the
Court of Justice provides that, in order for reliance to be placed
on this ground of justification, there must be a genuine and
sufficiently serious threat affecting one of the aforementioned
interests. As the German authorities have not
fundamental
provided evidence of any such threat,
for
invoking the derogating rule under Article 46 EC have not been
met. The Commission is satisfied that
the objective being
pursued by the measures under challenge, namely the mainte-
nance of road safety, could also be achieved by less restrictive
measures, such as,
for instance, an appropriate monitoring
system for all inspection engineers and inspection organisations
in Germany.

the conditions

Reference for a preliminary ruling from the Bundes-
finanzhof (Germany) lodged on 13 August 2008 — Data
I/O GmbH v Bundesfinanzdirektion Südost

to be programmed, to be classified under heading 8471 of
the Combined Nomenclature?

2. If this question is answered in the negative: is the aforemen-
tioned adapter then to be classified under heading 8471 of
the Combined Nomenclature if
it contains a so-called
memory-chip, on which the programming process is stored
and from which it can be retrieved?

(1) OJ 1987 L 256, p. 1.
(2) OJ 2004 L 327, p. 1.

Reference for a preliminary ruling from the Verwal-
lodged
tungsgerichtshof Baden-Württemberg (Germany)
on 14 August 2008 — Nural Örnek v Land Baden-
Württemberg

(Case C-371/08)

(2008/C 285/39)

Language of the case: German

(Case C-370/08)

(2008/C 285/38)

Referring court

Language of the case: German

Verwaltungsgerichtshof Baden-Württemberg

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Data I/O GmbH

Respondent: Bundesfinanzdirektion Südost

Questions referred

1. Is Note 5(B) to Chapter 84 of the Combined Nomenclature
of the Common Customs Tariff in Annex I to Council Regu-
lation (EEC) No 2658/87 of 23 July 1987 on the tariff and
statistical nomenclature and on the Common Customs
Tariff (1), as amended by the Annex to Commission Regu-
lation (EC) No 1810/2004 of 7 September 2004 (2), to be so
interpreted that
it allows an electrical adapter, which is
designed to provide the electrical connection between an
automatic programming machine and electrical components

Parties to the main proceedings

Appellant: Nural Örnek

Respondent: Land Baden-Württemberg

Question referred

Is the protection against expulsion provided for in Article 14(1)
of Decision No 1/80 of the EEC-Turkey Association Council and
enjoyed by a Turkish national, whose legal status derives from
the second indent of the first paragraph of Article 7 of Decision
No 1/80 and who has resided for the previous ten years in the
Member State in respect of which this legal status applies, to be
determined in accordance with Article 28(3)(a) of Directive
2004/38/EC (1), as implemented by the relevant Member State,
with the result that expulsion is permitted only on imperative
grounds of public security, as defined by Member States?

(1) OJ 2004 L 158, p. 77.