Case C-435/08: Action brought on 30 September 2008 — Commission of the European Communities v Republic of Poland
Date: 2008-09-30
Institutions: Court of Justice
Subjects: Poland, action for failure to fulfil an obligation, carriage of goods, environmental liability, fishing vessel, pollution, territorial waters, transport safety, vessel

C 301/28

EN

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’.

22.11.2008

EN

Official Journal of the European Union

C 301/29

Point 2 of paragraph 2.1 of the regulation of the Minister for
Infrastructure of 13 December 2002 on detailed conditions for
the safety of navigation by marine vessels, which transposed
into national law certain provisions of the directive, goes further
in this respect, excluding all recreational craft from its scope.
The Commission considers that such a limitation of the scope
of the directive is contrary to the provisions of Article 2.

The Republic of Poland has further failed to fulfil its obligations
under Article 13 of Directive 2002/59/EC. Article 13(1) of the
directive lays down that the ‘operator, agent or master of a ship,
irrespective of its size, carrying dangerous or polluting goods
and leaving a port of a Member State shall, at the latest at the
moment of departure, notify the information indicated in
Annex I(3)
to the competent authority designated by that
Member State’.

A similar obligation is laid down by paragraph 3.1 of the regu-
lation 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. However, paragraph 3.3 of that
regulation states that ‘if at the time of leaving port the name of
the port of destination or the anchorage is not known, the
information … is to be transmitted at the latest at the time of
fixing the vessel's route’.

That possibility is not limited to the specific case mentioned in
Article 13(2) of the directive (‘a ship … coming from a port
located outside the Community and bound for a port of a
Member State or an anchorage located in a Member State's terri-
torial waters’). The divergence relating to the time of transmis-
sion of the information is in the Commission's view contrary to
Article 13 of the directive.

(1) OJ L 208, 5.8.2002, p. 10.

Order of the President of the Court of 4 August 2008 —
Commission of the European Communities v Republic of
Cyprus

(Case C-490/07) (1)

(2008/C 301/44)

Language of the case: Greek

The President of
removed from the register.

the Court has ordered that

the case be

(1) OJ C 315, 22.12.2007.

Order of the President of the Court of 10 July 2008 —
the European Communities v Hellenic
Commission of

Republic

(Case C-117/08) (1)

(2008/C 301/45)

Language of the case: Greek

The President of
removed from the register.

the Court has ordered that

the case be

(1) OJ C 116, 9.5.2008.