Case C-390/08: Action brought on 5 September 2008 — Commission of the European Communities v Grand Duchy of Luxembourg
Date: 2008-09-05
Institutions: Court of Justice
Subjects: EU Member State, Luxembourg, action for failure to fulfil an obligation, diplomatic protocol, disclosure of information, greenhouse gas

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.

C 285/28

EN

Official Journal of the European Union

8.11.2008

Pleas in law and main arguments

Pursuant to Article 3(2) of Decision No 280/2004/EC, read in
the Member
combination with Decision No 166/2005/EC,
States were required to communicate to the Commission, by
15 March 2005 and every two years thereafter information on
the national measures adopted to limit and/or reduce green-
house gas emissions and implement the Kyoto Protocol.

At the date on which the present action was brought, the defen-
dant had not communicated the measures in question to the
Commission.

(1) OJ 2004 L 49, p. 1.
(2) OJ 2005 L 55, p. 57.

nature of the municipal area in which the applicant pharma-
cies are located, as a precondition for obtaining a derogation
from those prohibitions within the Municipality of Rome?

2. Is it compatible with Articles 152 EC and 153 EC to impose
on the public pharmacy service, albeit with the aim of
protecting the health of consumers, conditions — such as
those laid down in Regional Law No 26/2002 — limiting or
precluding the possibility of extending the daily, weekly or
annual opening times of individual pharmacies?

Appeal brought on 12 September 2008 by Zipcar, Inc.
against the judgment of the Court of First Instance (Eighth
Chamber) delivered on 25 June 2008 in Case T-36/07
Zipcar, Inc. v Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale del Lazio (Italy)
lodged on
10 September 2008 — Emanuela Sbarigia v Azienda USL
RM/A, Comune di Roma, Assiprofar — Associazione
Sindacale Proprietari Farmacia and Ordine dei Farmacisti
della Provincia di Roma

(Case C-394/08 P)

(2008/C 285/47)

Language of the case: English

(Case C-393/08)

(2008/C 285/46)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Emanuela Sbarigia

Parties

Appellants: Zipcar, Inc. (represented by: M. Elmslie, Solicitor, N.
Saunders, Barrister)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), Canary Islands Car
SL

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment of the Court of First Instance of

25 June 2008 in case T-36/07 in its entirety

Defendants: Azienda USL RM/A, Comune di Roma, Assiprofar —
Associazione Sindacale Proprietari Farmacia and Ordine dei
Farmacisti della Provincia di Roma

— Remit the application to the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM) to allow
it to preceed

Questions referred

1. Is it compatible with the Community principles upholding
freedom of competition and freedom to provide services, laid
down inter alia in Articles 49 EC, 81 EC, 82 EC, 83 EC,
84 EC, 85 EC and 86 EC, to impose on pharmacies the
abovementioned prohibitions — whereby they are not
allowed either to decline to take an annual holiday or to
remain open whenever they so desire, beyond the maximum
limits at present allowed under the abovementioned provi-
sions of Lazio Regional Law No 26/2002 — and the conco-
mitant additional requirement, under Article 10(2) of that
Regional Law, of a prior discretionary assessment by the
Administration (carried out in agreement with the bodies
and organisations specified in that article) as to the special

— Order that the Respondent shall pay the Appellant's costs of
this Appeal and of the Appeal before the Court of First
Instance

Pleas in law and main arguments

The Appellant submits that the contested judgment should be
set aside on the following grounds:

1) Improper extension of the factual and legal context of the
review of the legality of the decision under appeal.
It is
submitted that the Court of First Instance in its judgment
changed the subject matter of the proceedings before the
Board of Appeal of the OHIM and took into account facts
and matters which extended the factual and legal context of
the dispute before the OHIM.