Case C-386/08: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 1 September 2008 — Brita GmbH v Hauptzollamt Hamburg-Hafen
Date: 2008-09-01
Institutions: Court of Justice
Subjects: EU Member State, Germany, Israel, Palestine question, Union for the Mediterranean, West Bank question, carriage of goods, customs, import, interpretation of the law

C 285/26

EN

Official Journal of the European Union

8.11.2008

Reference for a preliminary ruling from the Unabhängiger
Verwaltungssenat des Landes Oberösterreich (Austria)
lodged on 25 August 2008 — Michael Neukirchinger v
Bezirkshauptmannschaft Grieskirchen

Reference for a preliminary ruling from the Finanzgericht
Hamburg (Germany) lodged on 1 September 2008 — Brita
GmbH v Hauptzollamt Hamburg-Hafen

(Case C-382/08)

(2008/C 285/42)

Language of the case: German

(Case C-386/08)

(2008/C 285/43)

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat des Landes Oberösterreich

Parties to the main proceedings

Applicant: Michael Neukirchinger

Defendant: Bezirkshauptmannschaft Grieskirchen

Questions referred

1. Is Article 49 et seq. of the Treaty establishing the European
Community to be interpreted as precluding a national provi-
sion which requires a person who is established in another
Member State, and who is licensed, pursuant to the legal
order of that Member State, to operate commercial balloon
flights, to have a registered office or place of residence in
Austria in order to be able to operate balloon flights in that
the Luftfahrtgesetz
(Paragraph 106 of
Member State
(Austrian Law on Aviation) BGBl No 253/1957,
last
amended by BGBl I No 83/2008)?

2. Is Article 49 et seq. of the Treaty establishing the European
Community to be interpreted as precluding a national provi-
sion under which the holder of a licence to operate commer-
cial balloon flights who is established in another Member
State and recognised under the legal order of that Member
State is required to obtain a further licence for the operation
of balloon flights in another Member State, where the test
requirements in respect of that licence prove to be identical
in substance to those of the licence already granted in the
country of origin, albeit with the additional proviso that the
applicant for the licence must have his registered office or
place of residence within the territory of the country (in this
case, in Austria)?

3. Are the provisions of Paragraph 102,

in conjunction with
the Austrian Luftfahrtgesetz
Paragraphs 104 and 106, of
incompatible with Article 49 EC if a licence-holder estab-
lished in Germany is prosecuted in Austria under administra-
tive criminal law for operating pursuant to his licence and, as
a result, his access to the market is hindered, the background
hereto being that under Paragraph 106(1) of the Luftfahrtge-
setz it is impossible to obtain such a licence or an operating
licence (‘Betriebsaufnahmebewilligung’) without establishing a
separate place of business and/or residence, and without re-
registering in Austria a hot-air balloon that is already regis-
tered in Germany?

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Brita GmbH

Defendant: Hauptzollamt Hamburg-Hafen

Questions referred

the fact

treatment

in light of

that preferential

1. Should the importer of goods which originate in the West
Bank be granted the preferential treatment requested in any
is
event
provided under two agreements which come under consid-
eration in the present case — namely the ‘Euro-Mediterra-
nean Agreement establishing an association between the
European Communities and their Member States, of the one
part, and the State of Israel, of the other part’ (EMA) (1) and
the ‘Euro-Mediterranean Interim Association Agreement on
trade and cooperation between the European Community, of
the one part, and the Palestine Liberation Organisation (PLO)
for the benefit of the Palestinian Authority of the West Bank
and the Gaza Strip, of the other part’ (EMI-PLO) (2) — for
goods originating in the territory of the State of Israel or in
the West Bank, even if only a formal certificate of origin
from Israel is submitted?

If Question 1 is to be answered in the negative:

2. Is the customs authority of a Member State bound under the
EMA, vis-à-vis an importer who is requesting preferential
treatment for goods which have been imported into Com-
munity territory, by a proof-of-origin certificate issued by the
Israeli authority — and the verification procedure under
Article 32 of Protocol 4 to the EMA has not been opened —
as long as the customs authority has no doubt as to the
originating status of the goods other than that as to whether
the goods originate in an area which is merely under Israeli
control — that is, pursuant to the terms of the Israeli-Palesti-
nian Interim Agreement of 1995 — and as long as no
dispute-settlement procedure was carried out pursuant to
Article 33 of Protocol 4 to the EMA?

If Question 2 is to be answered in the negative:

8.11.2008

EN

Official Journal of the European Union

C 285/27

3. May the customs authority of the country of importation
refuse automatically to grant preferential treatment for the
following reason alone, namely that, pursuant to its request
for verification under Article 32(2) of Protocol 4 to the
EMA, it was confirmed by the Israeli authorities (only) that
the goods were manufactured in an area which is subject to
Israeli customs jurisdiction and that
that
reason of Israeli origin, and where the subsequent request by
importation for
the customs authority of
further specification by the Israeli authorities remained unan-
swered, in particular without the actual origin of the goods
having to be taken into account?

the country of

they were for

If Question 3 is to be answered in the negative:

4. May the customs authority refuse automatically to grant
preferential treatment under the EMA in the case where —
as has become clear in the meantime — the goods originate
in the West Bank, or should preferential treatment also be
granted under the EMA for goods originating in that area, in
any event as long as no dispute-settlement procedure has
been carried out under Article 33 of Protocol 4 to the EMA
concerning the interpretation of the expression ‘territory of
the State of Israel’ used in the EMA?

(1) OJ 2000 L 147, p. 3.
(2) OJ 1997 L 187, p. 3.

Question referred

Can Article 12 of Directive 2002/22/EC of the European Parlia-
ment and of the Council of 7 March 2002 on universal service
and users' rights relating to electronic communications networks
and services (Universal Service Directive) (1) be interpreted as
allowing the competent legislature of a Member State, acting in
the capacity of the national regulatory authority, to determine
generally and on the basis of the calculation of the net costs of
the universal service provider — previously the sole provider —
that the provision of universal service may represent an ‘unfair
burden’ for those undertakings designated as universal service
providers?

(1) OJ 2002 L 108, p. 51.

Action brought on 5 September 2008 — Commission of
the European Communities v Grand Duchy of Luxembourg

(Case C-390/08)

(2008/C 285/45)

Language of the case: French

Reference for a preliminary ruling from the Grondwettelijk
Hof (Belgium) lodged on 8 September 2008 — Base NV,
Euphony Benelux NV, Mobistar NV, Uninet International
NV, T2 Belgium NV and KPN Belgium NV v Ministerraad,
other party: Belgacom NV

Parties

(Case C-389/08)

(2008/C 285/44)

Language of the case: Dutch

Referring court

Grondwettelijk Hof

Parties to the main proceedings

Applicants: Base NV, Euphony Benelux NV, Mobistar NV, Uninet
International NV, T2 Belgium NV and KPN Belgium NV

Defendant: Ministerraad

Applicant: Commission of the European Communities (repre-
sented by: U. Wölker and J.-P. Keppenne, Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

— Declare that by failing to communicate the information
required by Article 3(2) of Decision No 280/2004/EC of the
European Parliament and of the Council of 11 February
2004 concerning a mechanism for monitoring Community
greenhouse gas emissions and for implementing the Kyoto
Protocol (1), read in conjunction with Articles 8, 9, 10
and 11 of Commission Decision No 166/2005/EC of
10 February 2005 laying down rules implementing Decision
No 280/2004/EC of the European Parliament and of the
Council concerning a mechanism for monitoring Com-
munity greenhouse gas emissions and for implementing the
Kyoto Protocol (2), the Grand Duchy of Luxembourg has
failed to fulfil its obligations under Article 3(2) of Decision
No 280/2004/EC, read in conjunction with Articles 8, 9, 10
and 11 of Decision No 166/2005/EC;

Other Party: Belgacom NV

— Order the Grand Duchy of Luxembourg to pay the costs.