Case C-400/08: Action brought on 16 September 2008 — Commission of the European Communities v Kingdom of Spain
Date: 2008-09-16
Institutions: Court of Justice
Subjects: Spain, action for failure to fulfil an obligation, autonomous community, business location, consumer protection, economic discrimination, shopping centre, small retailer, trade licence

8.11.2008

EN

Official Journal of the European Union

C 285/29

2) Breach of Art 8(1)(b) of Regulation 40/94 (1). The Court of
First Instance stated in effect that the relevant public must be
considered to be solely Spanish speaking ‘even if it is accepted
in certain regions of Spain, such as the Canary Islands,
that
English is commonly spoken or that some Spanish consumers have
knowledge of English’. This amounts to an error in law because
it is in effect a ruling that in assessing the linguistic capacity
and understanding of the average consumer in any particular
case, the only question is one of determining the main or
primary language of the Member State in which the earlier
right subsists, without regard to other facts which are rele-
vant to determining the nature of the relevant consumer.

3) Further breach of Art 8(1)(b) of Regulation 40/94. Having
identified three categories of similarity between the goods
and services of the application and those of the alleged prior
right, namely ‘in part identical’, ‘in part very similar’, and ‘in
part not materially different’ the Court erred in law by failing
to consider the effect of these three different categories in
assessing whether there was a likelihood of confusion.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ L 11, 14.1.1994, p. 1).

Action brought on 16 September 2008 — Commission of
the European Communities v Kingdom of Spain

(Case C-400/08)

(2008/C 285/48)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa, R. Vidal Puig acting as Agents, and C.
Fernández Vicién and I. Moreno-Tapia Rivas, lawyers)

Defendant: Kingdom of Spain

Form of order sought

commerce and the legislation of
the Autonomous Com-
munity of Catalonia applicable in the matter (Law 18/2005
on trading establishments, Decree 378/2006 implementing
Law 18/2005, and Decree 379/2006 approving the new
sectional
the
Kingdom of Spain has failed to fulfil its obligations under
Article 43 EC;

trading establishments),

territorial plan for

— order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

issue (Law 7/1996,
The Spanish and Catalan legislation at
Catalan Law 28/2005, Catalan Decrees 378/2006 and
379/2006)
requires any operator wishing to start, extend,
change its activity, transfer or assign a large shopping centre, to
obtain a licence from the Generalidad,
in addition to the
compulsory municipal license required to start up an activity,
the latter being intended to verify that
the establishment
conforms to the urban standards in force. The issue of commer-
cial
to set of criteria, which include the
compatibility of the project with the urban plan for commercial
establishments (so that no establishment can be authorised if it
does not comply with all the decisions in the plan), the location
of the project in a consolidated urban area and the extent of
market penetration by the applicant undertaking.

licences is subject

The Commission takes the view that the Spanish and Catalan
legislation at
issue constitute unjustified restrictions on the
freedom of establishment within the meaning of Article 43 EC
for the following reasons:

1. The requirement of a commercial license — in addition to
the municipal license — issued according to certain criteria
which relate not only to planning and the environment, but
also to the potential economic repercussions of the creation
certain kinds of large scale shopping centres on the competi-
tive structure of the distribution market, and to the existence
of a ‘market requirement’, makes the establishment of certain
kinds of large scale shopping centres very difficult.

2. The national legislation concerned has a discriminatory effect
in that it facilitates the establishment of smaller shopping
centres (which correspond to the traditional commercial
distribution structure in Catalonia and,
local
commerce) as compared to the establishment of large shop-
ping centres (which correspond to the distribution model
used by companies from other Community States).

therefore,

— declare that, by imposing restrictions on the establishment
of shopping centres, deriving from Law 7/1996 on retail

The Commission takes the 46 of the EC Treaty (public policy,
public security or public health) which, moreover, have not been
relied on by the national authorities.

C 285/30

EN

Official Journal of the European Union

8.11.2008

In the Commission's opinion, the justifications relied on by the
Spanish and Catalan authorities — protection of consumers
(protection of small businesses in order to guarantee competi-
tive supply in each market, protection of the environment and
urban areas) cannot be accepted for the following reasons:

Appeal brought on 23 September2008 by Trubowest
Handel GmbH, Viktor Makarov against the judgment of the
Court of First Instance (Third Chamber) delivered on 9 July
2008 in Case T-429/04 Trubowest Handel GmbH, Viktor
Makarov v Council, Commission

1. The criteria laid down by the legislation at issue is not in fact
intended to protect consumers as the national authorities
state, but to favour the small business sector to the detriment
of the big names of commercial distribution. Therefore, the
measures are an inappropriate means of attaining the alleged
objective as in reality they have an economic purpose.

2. The measures at issue go beyond what is necessary to attain
the objectives pursued. In any event, it is for the national
authorities to prove that the objectives relied on could not
have been achieved by less restrictive measures.

Parties

(Case C-419/08 P)

(2008/C 285/50)

Language of the case: English

Appellants: Trubowest Handel GmbH, Viktor Makarov (repre-
sented by: K. Adamantopoulos, E. Petritsi, dikigoroi)

Other parties to the proceedings: Council of the European Union,
Commission of the European Communities

Action brought on 18 September 2008 — Commission of
the European Communities v Republic of Slovenia

(Case C-402/08)

(2008/C 285/49)

Form of order sought

The appellants claim that the Court should:

Language of the case: Slovene

Instance

— Set aside in its entirety the Judgment of the Court of First

Parties

Applicant: Commission of the European Communities (repre-
sented by U. Wölker and V. Kovačič, acting as Agents)

Defendant: Republic of Slovenia

— Accept, by giving a final judgment itself, the application for
compensation under Article 288 EC lodged before the Court
of First Instance (CFI), or in the alternative refer the case
back to the CFI

— Order the Council and the Commission,

in addition to
paying their own costs, to pay all the costs occasioned by
the appellants, in the course of the present proceedings and
the proceedings before the CFI

Form of order sought

Pleas in law and main arguments

— A declaration that the Republic of Slovenia, by failing to
adopt the laws, regulations and administrative provisions
necessary to comply with Directive 2004/35/EC (1) of the
European Parliament and of the Council of 21 April 2004
on environmental liability with regard to the prevention and
remedying of environmental damage, has failed to fulfil its
obligations under that directive;

— an order that the Republic of Slovenia should pay the costs.

Pleas in law and main arguments

The period prescribed for
2004/35/CE expired on 30 April 2007.

implementation of Directive

(1) OJ 2004 L 143, p. 56.

The appellants submit that the contested judgment should be
set aside for the following reasons:

1) The CFI erred in law in interpreting and applying Com-
munity law with regard to the conditions under which the
Community may incur non-contractual liability pursuant to
Article 288(2) EC. First it is submitted that the contested
judgement is vitiated by an error of law in so far as the CFI
has totally failed to consider the illegal conduct complained
of in the context of assessing the causal link and failed to
investigate it in its legal context although it ought to have
done so in order
to determine the Community's legal
responsibility. The CFI erred in law by failing to correctly
assess, in accordance with Community law, the existence of a
direct causal nexus between the conduct of the Community
Institutions and the resulting damage suffered by the appel-
lants and in finding that there was no sufficiently direct
causal link between the conduct of the Community Institu-
tions and the resulting damage on the grounds that either
the appellants failed to demonstrate reasonable diligence
and/or that the fault is attributed exclusively to the German
Authorities.