Case C-296/08 PPU: Judgment of the Court (Third Chamber) of 12 August 2008 (reference for a preliminary ruling from the Cour d'appel de Montpellier — France) — Criminal proceedings of extradition v Ignacio Pedro Santesteban Goicoechea (Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — Articles 31 and 32 — European arrest warrant and the surrender procedures between Member States — Possibility for the State executing an extradition request to apply a convention adopted before 1 January 2004 but applicable in that State from a later date)
Date: 2008-08-12
Institutions: Court of Justice
Subjects: European arrest warrant, European judicial area, extradition, interpretation of the law, judicial cooperation, mutual recognition principle

C 260/4

EN

Official Journal of the European Union

11.10.2008

Parties to the main proceedings

Applicant: Alicja Sosnowska

Defendant: Dyrektor Izby Skarbowej we Wrocławiu Ośrodek
Zamiejscowy w Wałbrzychu

Re:

Reference for a preliminary ruling — Wojewódzki Sąd Adminis-
tracyjny we Wrocławiu — Interpretation of the third paragraph
of Article 5 EC, Article 2 of Council Directive 67/227/EEC of
11 April 1967 on the harmonisation of legislation of Member
States concerning turnover taxes (OJ, English Special Edition,
1967, p. 14), and Articles 18(4) and 27(1) of Sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation of
the laws of the Member States relating to turnover taxes —
Common system of value added tax: uniform basis of assess-
ment (OJ 1977 L 145, p. 1) — National VAT legislation laying
down, in relation to the period for refunding overpayments, less
favourable rules for taxpayers beginning to carry out taxable
operations and registered as taxpayers making intra-Community
supplies — Principles of fiscal neutrality and proportionality

Judgment of the Court (Third Chamber) of 12 August 2008
(reference for a preliminary ruling from the Cour d'appel
de Montpellier — France) — Criminal proceedings of extra-
dition v Ignacio Pedro Santesteban Goicoechea

(Case C-296/08 PPU) (1)

(Police and judicial cooperation in criminal matters — Frame-
work Decision 2002/584/JHA — Articles 31 and 32 —
European arrest warrant and the
surrender procedures
between Member States — Possibility for the State executing
an extradition request to apply a convention adopted before
1 January 2004 but applicable in that State from a later date)

(2008/C 260/05)

Language of the case: French

Referring court

Cour d'appel de Montpellier

Party in the main proceedings

Ignacio Pedro Santesteban Goicoechea

Operative part of the judgment

Re:

1. Article 18(4) of

the Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes — Common system of value
added tax: uniform basis of assessment, as amended by Council
Directive 2005/92/EC of 2 December 2005, and the principle of
proportionality preclude national legislation, such as that at issue
in the main proceedings, which,
in order to allow investigations
required to prevent tax evasion and avoidance, extends from 60 to
180 days, as from the date of submission of the taxable person's
VAT return, the period available to the national tax office for
repayment of excess VAT to a category of taxable persons, unless
those persons lodge a security deposit to a value of PLN 250 000;

2. Provisions such as those at issue in the main proceedings do not
constitute ‘special measures for derogation’
intended to prevent
certain types of tax evasion or avoidance within the meaning of
Article 27(1) of
the Sixth Directive 77/388, as amended by
Directive 2005/92.

(1) OJ C 69, 24.3.2008.

for

Reference
a preliminary ruling — Cour d'appel de
Montpellier (France) — Interpretation of Articles 31 and 32 of
the Council Framework Decision 2002/584/JHA of 13 June
2002 on the European arrest warrant and the surrender proce-
dures between Member States (OJ 2002 L 190, p. 1) — Power
of a Member State to use in its relations with another Member
State procedures other than those provided for in the Frame-
work Decision, in particular, those provided for by the Dublin
Convention of 27 September 1996 relating to extradition
between the Member States of the European Union — Effect of
the failure of the Member State issuing the arrest warrant to
give notification of the agreements and arrangements which it
wishes to continue to apply — Possibility, for the Member State
executing the arrest warrant, to apply a convention adopted
prior to 1 January 2004, but which entered into force in that
Member State after that date

Operative part of the judgment

1. Article 31 of Council Framework Decision 2002/584/JHA of
13 June 2002 on the European arrest warrant and the surrender
procedures between Member States must be interpreted as referring
only to the situation in which the European arrest warrant system
is applicable, which is not the case where a request for extradition
relates to acts committed before a date specified by a Member State
in a statement made pursuant to Article 32 of that Framework
Decision;

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