Case C-429/08: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 29 September 2008 — Karen Murphy v Media Protection Services Limited
Date: 2008-09-29
Institutions: Court of Justice
Subjects: EU Member State, United Kingdom, audiovisual industry, free movement of workers, interpretation of the law, political discrimination, sporting event

C 301/26

EN

Official Journal of the European Union

22.11.2008

— order United Kingdom of Great Britain and Northern Ireland

to pay the costs.

Action brought on 24 September 2008 — Commission of
the European Communities v Republic of Austria

Pleas in law and main arguments

The period within which the directive had to be transposed
expired on 30 April 2007.

(Case C-422/08)

(2008/C 301/41)

Language of the case: German

(1) OJ L 143, p. 56.

Parties

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

Defendant: Republic of Austria

Action brought on 22 September 2008 — Commission of
the European Communities v Ireland

Form of order sought

(Case C-418/08)

(2008/C 301/40)

Language of the case: English

Parties

— Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to implement Directive
2004/35/CE 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 (1),
or by failing to notify the Commission thereof, the Republic
of Austria has failed to fulfil its obligations under that direc-
tive.

— Order the Republic of Austria to pay the costs.

Applicant: Commission of the European Communities (repre-
sented by: U. Wölker and A.A. Gilly, Agents)

Pleas in law and main arguments

Defendant: Ireland

The period prescribed for
expired on 30 April 2007.

implementation of

the Directive

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

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2004/35/EC of the European Parliament and of the Council
of 21 April 2004 concerning environmental liability with
regard to the prevention and remedying of environmental
damage (1), or in any event by failing to communicate them
to the Commission, Ireland has failed to fulfil its obligations
under the Directive;

— order Ireland to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed
expired on 30 April 2007.

Reference for a preliminary ruling from High Court of
(England & Wales), Queen's Bench Division
Justice
(Administrative Court)
(United Kingdom) made on
29 September 2008 — Karen Murphy v Media Protection
Services Limited

(Case C-429/08)

(2008/C 301/42)

Language of the case: English

(1) OJ L 143, p. 56.

Referring court

High Court of Justice (England & Wales), Queen's Bench Divi-
sion (Administrative Court)

22.11.2008

EN

Official Journal of the European Union

C 301/27

Parties to the main proceedings

(a) for the reason that it is discriminatory and/or dispropor-

tionate; and/or

Applicant: Karen Murphy

Defendant: Media Protection Services Limited

Questions referred

1. In what circumstances is a conditional access device an ‘illicit
device’ within the meaning of Article 2(e) of Directive
98/84/EC (1)?

2. In particular, is a conditional access device an ‘illicit device’ if

it is acquired in circumstances where:

(i) the conditional access device was made by or with the
consent of a service provider and originally supplied
subject to limited contractual authorisation to use the
device to gain access to a protected service only in a first
Member State and was used to gain access to that
protected service received in another Member State?
and/or

(b) for the reason that it conflicts with free movement rights

under the Treaty; and/or

(c) for any other reason?

5. If the answer to Question 2 is ‘yes’, are Articles 3(1) and 4 of
that Directive invalid for the reason that they purport to
require the Member States to impose restrictions on the
importation from other Member States of and other dealings
with ‘illicit devices’
in circumstances where those devices
may lawfully be imported and/or used to receive cross
border satellite broadcasting services by virtue of the rules
on the free movement of goods under Articles 28 and 30 of
the EC Treaty and/or the freedom to provide and receive
services under Article 49 of the EC Treaty?

On the interpretation of Articles 12, 28, 30 and 49 of the
EC Treaty

(ii) the conditional access device was made by or with the
consent of a service provider and was originally
procured and/or enabled by the provision of a false
name and residential address in the first Member State
thereby overcoming contractual
territorial restrictions
imposed on the export of such devices for use outside
the first Member State? and/or

6. Do Articles 28, 30 and/or 49 EC preclude enforcement of a
national law (such as section 297 of the Copyright Designs
and Patents Act 1988) which makes it a criminal offence
dishonestly to receive a programme included in a broad-
casting service provided from a place in the United Kingdom
with intent to avoid payment of any charge applicable to the
reception of the programme, in any of the following circum-
stances:

(iii) the conditional access device was made by or with the
consent of a service provider and was originally supplied
subject to a contractual condition that it be used only
for domestic or private use rather than commercial use
(for which a higher subscription charge is payable), but
was used in the United Kingdom for commercial
purposes, namely showing live football broadcasts in a
public house?

3. If

the answer

to any part of Question 2 is ‘no’, does
Article 3(2) of that Directive preclude a Member State from
invoking a national law that prevents use of such conditional
access devices in the circumstances set out in Question 2
above?

4. If the answer to any part of Question 2 is ‘no’, is Article 3(2)

of that Directive invalid:

(i) where the conditional access device was made by or
with the consent of a service provider and originally
supplied subject to limited contractual authorisation to
use the device to gain access to a protected service only
in a first Member State and was used to gain access to
that protected service received in another Member State
(in this case the UK)? and/or

(ii) where the conditional access device was made by or
with the consent of a service provider and was originally
procured and/or enabled by the provision of a false
name and residential address in the first Member State
thereby overcoming contractual
territorial restrictions
imposed on the export of such devices for use outside
the first Member State? and/or

C 301/28

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Official Journal of the European Union

22.11.2008

(iii) where the conditional access device was made by or
with the consent of a service provider and was originally
supplied subject to a contractual condition that it be
than
used only for domestic or private use rather
commercial use (for which a higher subscription charge
is payable), but was used in the United Kingdom for
commercial purposes, namely showing live football
broadcasts in a public house?

Action brought on 30 September 2008 — Commission of
the European Communities v Republic of Poland

(Case C-435/08)

(2008/C 301/43)

Language of the case: Polish

7. Is enforcement of the national law in question in any event
precluded on the ground of discrimination contrary to
Article 12 EC or otherwise, because the national law applies
to programmes included in a broadcasting service provided
from a place in the United Kingdom but not from any other
Member State?

Parties

On the interpretation of Article 81 of the EC Treaty

8. Where a programme content provider enters into a series of
exclusive licences each for the territory of one or more
Member States under which the broadcaster is licensed to
broadcast the programme content only within that territory
(including by satellite) and a contractual obligation is
included in each licence requiring the broadcaster to prevent
its satellite decoder cards which enable reception of
the
licensed programme content from being used outside the
licensed territory, what legal test should the national court
apply and what circumstances should it take into considera-
tion in deciding whether the contractual restriction contra-
venes the prohibition imposed by Article 81(1)?

In particular:

(a) must Article 81(1) be interpreted as applying to that
obligation by reason only of it being deemed to have the
object of preventing, restricting or distorting competi-
tion?

(b) if so, must it also be shown that the contractual obliga-
tion appreciably prevents, restricts or distorts competi-
tion in order to come within the prohibition imposed by
Article 81(1)?

(1) Directive 98/84/EC of the European Parliament and of the Council
of 20 November 1998 on the legal protection of services based on,
or consisting of, conditional access (OJ L 320, p. 54).

Applicant: Commission of the European Communities (repre-
sented by K. Simonsson and M. Owsiany-Hornung, acting as
Agents)

Defendant: Republic of Poland

Form of order sought

for

the regulation of

— declare that, by excluding all recreation craft from the scope
of
Infrastructure of
the Minister
13 December 2002 on detailed conditions for the safety of
navigation by marine vessels, which transposed into national
law certain provisions of Directive 2002/59/EC of
the
European Parliament and of the Council of 27 June 2002
traffic monitoring and
establishing a Community vessel
repealing Council Directive
information system and
93/75/EEC (1), and by adopting the provisions in para-
graph 3.3 of the regulation of the Minister for Infrastructure
of 12 May 2003 on the transmission of information by the
owner of a vessel carrying dangerous or polluting cargo,
which transposed into national law Article 13 of Directive
2002/59/EC and enables owners of vessels sailing from
Polish ports, if at the time of leaving port the name of the
port of destination or the anchorage is not known, not to
transmit the general information concerning the vessel and
information on its cargo (specified in Annex I(3) to Directive
2002/59/EC) until the time of fixing the vessel's route, the
Republic of Poland has failed to fulfil its obligations under
Articles 2 and 13 of that directive;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Republic of Poland has failed to fulfil its obligations under
Articles 2 and 13 of Directive 2002/59/EC of the European
Parliament and of the Council of 27 June 2002 establishing a
Community vessel traffic monitoring and information system
and repealing Council Directive 93/75/EEC.

The Republic of Poland has incorrectly implemented Article 2
of Directive 2002/59/EC, which excludes from its scope ‘fishing
vessels, traditional ships and recreational craft with a length of
less than 45 metres’.