Case C-438/08: Action brought on 3 October 2008 — Commission of the European Communities v Portuguese Republic
Date: 2008-10-03
Institutions: Court of Justice
Subjects: Portugal, action for failure to fulfil an obligation, fine, motor vehicle, roadworthiness tests

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.

6.12.2008

EN

Official Journal of the European Union

C 313/19

The requirement of minimum share capital of EUR 100 000
must be regarded as a restriction of freedom of establishment,
for it prevents a Community operator having less share capital
than the minimum amount demanded by the Portuguese legisla-
tion from setting up subsidiaries or branches in Portugal.

Limiting an undertaking's company objects to the carrying on
of the activity of vehicle inspection constitutes a restriction of
freedom of establishment,
for Community operators legally
providing other services at the same time (inspecting, repairing
and servicing vehicles) in the Member State of establishment
the undertaking's objects and,
would be obliged to alter
perhaps, even its own internal structure in order to be able to
extend to Portugal its vehicle-inspecting activity; in addition, this
condition cannot be considered necessary in order to guarantee
the independence and impartiality of
that
service.

the providers of

The incompatibility rules imposed on the members, managers
and directors of the undertaking who deal with the manufac-
ture, repair, rental, import or marketing of vehicles, their parts
or accessories or who are involved in transport activity are
capable of having restrictive effects comparable to those
produced by limiting the company objects and of creating
significant restrictions of the freedom of establishment of under-
takings from other Member States wishing to carry on the
vehicle-inspection activities in Portugal, because the providers of
vehicle-inspection services already legally established in another
Member State, with members, managers or directors carrying on
other activities in the Member State of establishment, would
have to alter their internal structure, part company with those
members or cause them to give up the incompatible activities.

Reference for a preliminary ruling from the Hof van
Beroep te Brussel (Belgium) lodged on 6 October 2008 —
VZW Vlaamse Federatie van Verenigingen van Brood- en
Banketbakkers,
Chocoladebewerkers
‘VEBIC’, the other parties being: Raad voor de Mededinging
and the Minister van Economie

Ijsbereiders

en

(Case C-439/08)

(2008/C 313/28)

Language of the case: Dutch

Parties to the main proceedings

Applicant: VZW Vlaamse Federatie van Verenigingen van Brood-
en Banketbakkers, Ijsbereiders en Chocoladebewerkers ‘VEBIC’

Other parties: Raad voor de Mededinging and Minister van Econ-
omie

Questions referred

1. Must [Regulation (EC) No 1/2003 on the implementation of
the rules on competition laid down in Articles 81 and 82 of
the Treaty, in particular Articles 2, 15(3) and 35(1)] (1) above
be interpreted to mean that national competition authorities
to formulate
derive directly from them an entitlement
written observations on arguments raised, in the context of
appeal proceedings, against a decision made by them, and
that they can themselves present arguments in fact and in
law, with the result that this entitlement cannot be excluded
by a Member State?

2. Must the same provisions be interpreted to mean that, for
the effective application of the competition rules with a view
to protecting the public interest,
the public enforcement
bodies which are designated as the competition authorities
are not only entitled but also have a duty to participate in
the appeal proceedings against their decisions by stating their
position in relation to the arguments raised in fact and in
law?

3. If questions (1) and (2) are answered in the affirmative, must
in the
these provisions then be interpreted to mean that,
absence of national provisions concerning the participation
by the competition authority in the proceedings before the
appeal body, and where various authorities are involved, it is
the authority which is competent to take the decisions set
out in Article 5 of the Regulation which shall participate in
the appeal proceedings against its decision?

4. Are the answers to the above questions different

the
competition authority acts, in accordance with national law,
as a court of law and/or if the final decision is taken on
completion of an investigation by a body belonging to that
court and charged with drawing up the objections and a
draft decision?

if

Referring court

Hof van Beroep te Brussel (Belgium)

(1) OJ 2003 L 1, p. 1.