Case C-432/08 P: Appeal brought on 1 October 2008 by Luigi Marcuccio against the judgment delivered on 9 July 2008 in Joined Cases T-296/05 and T-408/05 Marcuccio v Commission
Date: 2008-10-01
Institutions: Court of Justice
Subjects: European Commission, European official, action by staff, appeal, health care, health insurance, redemption

6.12.2008

EN

Official Journal of the European Union

C 313/17

Applicant: Monsanto Technology LLC

Defendants:

1. Vopak Agencies Rotterdam BV,

2. Alfred C. Toepfer International GmbH

Questions referred

1. Must Article 9 of Directive 98/44/EC (1) of the European
Parliament and of the Council of 6 July 1998 on the legal
protection of biotechnological
inventions be interpreted as
meaning that the protection provided under that article can
be invoked even in a situation such as that in the present
proceedings, in which the product (the DNA sequence) forms
part of a material imported into the European Union (soy
meal) and does not perform its function at the time of the
alleged infringement, but has indeed performed its function
(in the soy plant) or would possibly again be able to perform
its function after it has been isolated from that material and
inserted into the cell of an organism?

2. Proceeding on the basis that the DNA sequence described in
claim 6 of patent no EP 0 546 090 is present in the soy
meal
imported into the Community by Cefetra and ACTI,
and that the DNA is incorporated in the soy meal for the
purposes of Article 9 of Directive 98/44 and that it does not
perform its function therein:

does the protection of a patent on biological material as
in particular Article 9,
provided for by Directive 98/44,
preclude the national patent
legislation from offering (in
parallel) absolute protection to the product (the DNA) as
such, regardless of whether that DNA performs its function,
and must the protection as provided under Article 9 of the
Directive therefore be deemed to be exhaustive in the situa-
tion referred to in that article, in which the product consists
of genetic information or contains such information, and the
product
is incorporated in material which contains the
genetic information?

3. Does it make any difference, for the purpose of answering
the previous question, that patent no EP 0 546 090 was
applied for and granted (on 19 June 1996) prior to the adop-
tion of Directive 98/44 and that such absolute product
legislation
protection was granted under national patent
prior to the adoption of that directive?

4. Is it possible, in answering the previous questions, to take
into consideration the TRIPS Agreement, in particular Arti-
cles 27 and 30 thereof?

(1) OJ 1998 L 213, p. 13.

Appeal brought on 1 October 2008 by Luigi Marcuccio
against the judgment delivered on 9 July 2008 in Joined
Cases T-296/05 and T-408/05 Marcuccio v Commission

(Case C-432/08 P)

(2008/C 313/25)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (represented by: G. Cipressa, avvo-
cato)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— 1. In any event:

(1.a) annul the judgment under appeal in its entirety;

(1.b) declare that both the pending actions are fully admis-

sible;

and in addition:

reimbursement of

the defendant, by way of

— 2/A., primarily, grant the forms of order sought by the
applicant at first instance, that is to say: (2/A.1) annul the
in so far as necessary,
contested decisions; (2/A.2) annul,
(2/A.3)
both decisions dismissing the claims in question;
order
the
amount of the medical costs incurred by the applicant and
referred to in the claims in question seeking 100 % reimbur-
sement, or by way of compensation for the damage resulting
from the unlawful conduct of the defendant, to pay to the
applicant sums equal to EUR 2 572,32 (two thousand five
hundred and seventy two point three two) and EUR 381,04
(three hundred and eight one point zero four), or greater or
lesser sums than those stated above as the Court deems fair
and equitable; (2/A.4) order the defendant to pay the appli-
cant default interest on the sums stated above in point 2/A.3
of this appeal, in the amount to be capitalised on the start
and end date in accordance with what is stated in the case-
files; (2/A.5) order the defendant to pay the applicant's costs
relating to this appeal and also to the pending cases;

or

C 313/18

EN

Official Journal of the European Union

6.12.2008

— 2/B., in the alternative, refer both the cases in question back
to the Court of First Instance for it to give another ruling on
the same.

Pleas in law and main arguments

Distortion and misrepresentation of the facts and statements of
the applicant in its pleadings, following also from the material
inaccuracy of the findings of the Court of First Instance (in par-
ticular, paragraphs 30, 44, 46 and 49 of the judgment under
appeal).

2. If the answer to the first question is in the affirmative:

Is the term ‘Signature’ to be understood as meaning that the
application for a refund must be signed by the taxable
person himself or, in regard to a legal person, by its statutory
representative, or is the signature of an agent (for example, a
representative for tax purposes or an employee of the taxable
person) sufficient?

(1) OJ L 331, 1979, p. 11.

Misinterpretation and misapplication of the concept of a chal-
lengeable act, also for confusion, unreasonableness and illogical-
ness, infringement of Article 231 of the EC Treaty and failure to
appreciate the case-law concerning the effects of annulment by
the Community courts of a decision issued by a Community
institution, infringement of the principle of the authority of res
judicata,
the separation of
powers (in particular, paragraphs 43, 44 and 49 of the judg-
ment under appeal).

the principle of

infringement of

Complete absence of preliminary investigations and failure to
rule on a fundamental issue of the dispute (in particular, para-
graph 12 and paragraphs 43 to 51 inclusive of the judgment
under appeal).

Reference for a preliminary ruling from the Bundes-
finanzhof (Germany) lodged on 1 October 2008 — Yaesu
Europe BV v Bundeszentralamt für Steuern

(Case C-433/08)

(2008/C 313/26)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Yaesu Europe BV

Defendant: Bundeszentralamt für Steuern

Questions referred

1. Is the term ‘Signature’ in the specimen in Annex A to the
Eighth Council Directive 79/1072/EEC of 6 December 1979
on the harmonization of the laws of the Member States
relating to turnover taxes — Arrangements for the refund of
value added tax to taxable persons (1) not established in the
territory of the country, which is to be used to submit an
application for a refund of
to
Article 3(a) of the directive, to be to be given a uniform
Community law interpretation?

tax pursuant

turnover

Action brought on 3 October 2008 — Commission of the
European Communities v Portuguese Republic

(Case C-438/08)

(2008/C 313/27)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and M. Teles Romão, Agents)

Defendant: Portuguese Republic

Form of order sought

— A declaration that the Portuguese Republic, by imposing
under, specifically, Articles 3(2), 6(1) and 7 of Decree-Law
No 550/99 of 15 December 1999, and point 1(e) of Decree
No 1165/2000 of 9 December 2000, restrictions on the
freedom of establishment of entities of other Member States
intending to carry on in Portugal the activity of vehicle
inspection,
in particular, making the grant of
authorisations subject to the public interest, the requirement
of minimum share capital of EUR 100 000, the limiting of
the undertakings' company objects and the incompatibility
rules with regard to other activities of members, managers
and directors, has failed to fulfil
its obligations under
Article 43 of the EC Treaty;

including,

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

Subordinating the grant of new authorisations to the public
interest constitutes a restriction of freedom of establishment,
given that legal persons from other Member States seeking to
carry on the activity of vehicle inspection in Portugal are subject
to the discretionary power of the competent national authori-
ties, which leads to considerable legal uncertainty as to the
extent of their rights.