Case C-444/08 P: Appeal brought on 8 October 2008 by Região autónoma dos Açores against the judgment of the Court of First Instance (Third Chamber) delivered on 1 July 2008 in Case T-37/04 Região Autónoma dos Açores v Council of the European Union
Date: 2008-10-08
Institutions: Court of Justice
Subjects: appeal, association, environmental protection, fishery management, fishery resources, fishing area, fishing regulations, producer organisation

20.12.2008

EN

Official Journal of the European Union

C 327/15

Reference for a preliminary ruling from the Naczelny Sąd
Administracyjny (Republic of Poland) lodged on 7 October
2008 — Elektrownia Pątnów II sp. z o.o. v Dyrektor Izby
Skarbowej w Poznaniu

Appeal brought on 8 October 2008 by Região autónoma
dos Açores against the judgment of the Court of First
Instance (Third Chamber) delivered on 1 July 2008 in Case
T-37/04 Região Autónoma dos Açores v Council of the
European Union

(Case C-441/08)

(2008/C 327/25)

(Case C-444/08 P)

(2008/C 327/26)

Language of the case: Polish

Language of the case: English

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: Elektrownia Pątnów II sp. z o.o.

Respondent: Dyrektor Izby Skarbowej w Poznaniu

Questions referred

In the light of Community law (in particular the provisions of
Directive 69/335/EEC) (1), are tax authorities obliged when char-
ging capital duty on an increase in capital to take into account
transactions relating to the same component of capital which
were liable to a capital duty before the date of Poland's accession
to the European Union?

In particular, does the mechanism provided for in the second
indent of Article 5(3) of Directive 69/335/EEC apply to situa-
tions in which the conversion of
loans granted to a capital
company that are referred to in Article 4(2)(c) of the directive
takes place after accession, but those loans have, on the basis of
the national
legislation in force until the date of accession,
previously been taxed in accordance with the principles set out
in the Polish Law on civil law transactions tax?

(1) Council Directive 69/335/EEC of 17 July 1969 concerning indirect
taxes on the raising of capital (OJ English Special Edition 1969 (II),
p. 412).

Parties

Appellant: Região autónoma dos Açores (represented by: M.
Renouf, Solicitor, C. Bryant, Solicitor, H. Mercer QC)

Other parties to the proceedings: Council of the European Union,
Commission of the European Communities, Kingdom of Spain,
Seas at Risk VZW, WWF — World Wide Fund for Nature,
Stichting Greenpeace Council

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment of the Court of First Instance of

1 July 2008 in Case T-37/04;

— Declare the application in Case T-37/04 admissible;

— Annul Articles 3 and 11 and the Annex of Council Regu-
lation 1954/2003 (1) in so far as they: a) provide for the
fishing effort under the Regulation to be determined by
reference only to the target species and the ICES/CECAF area
but not also by reference to the type of fishing gear used,
whether fixed or towed; and b) exclude deep-sea species
by Regulation
(i.e.
No 2347/2002 (2)) from the scope of Articles 3 and 11 of
the Council Regulation 1954/2003.

demersal

covered

species

those

— Annul Article 15 of Council Regulation 1954/2003 in so
far as the repeal of Regulations 685/95 (3) and 2027/95 (4):
a) Removes (i) the power of the Community to determine
fishing effort by reference not only to target species and
ICES/CECAF area but also by reference to the type of fishing
gear used, and (ii) the determination of the fishing effort, as
effected by Regulation 2027/95; b) Removes (i) the power
to determine a maximum annual fishing effort by area in
respect of deep-sea species (i.e.
those demersal species
covered by Regulation No 2347/2002) and (ii) the determin-
ation of the maximum annual fishing effort, as effected by
Regulation 2027/95; c) Removes the exclusion of access of
Spanish vessels to the waters of the Azores for fishing of
tuna or tuna-like species;

C 327/16

EN

Official Journal of the European Union

20.12.2008

— Annul Article 5(1) of Council Regulation 1954/2003 in so
far as it does not maintain the exclusion of access of
Spanish vessels to the waters of the Azores for fishing of
tuna or tuna-like species;

Seventh, that the Court of First Instance erred in law by failing
to consider the factors relied upon by the appellant cumulatively
as well as separately.

— Refer the case back to the Court of First Instance if the
Court of Justice does not consider that the state of the
proceedings is such as to enable it to give final judgment;
and

— Order the Council of the European Union to pay the costs
incurred by the Autonomous Region of the Azores (Região
Autónoma dos Açores) in respect of both the proceedings at
first instance and the present appeal.

Pleas in law and main arguments

(1) Council Regulation (EC) No 1954/2003 of 4 November 2003 on the
management of the fishing effort relating to certain Community
fishing
and modifying Regulation (EC)
No 2847/93 and repealing Regulations (EC) No 685/95 and (EC)
No 2027/95 (OJ L 289, p. 1).

and resources

areas

(2) Council Regulation (EC) No 2347/2002 of 16 December 2002
establishing specific acess requirements and associated conditions
applicable to fishing for deep-sea stocks (OJ L 351, p. 6).

(3) Council Regulation (EC) No 685/95 of 27 March 1995 on the
management of the fishing effort relating to certain Community
fishing areas and resources (OJ L 71, p. 5).

(4) Council Regulation (EC) No 2027/95 of 15 June 1995 establishing a
system for the management of fishing effort relating to certain Com-
munity fishing areas and resources (OJ L 199, p. 1).

The appellant relies on seven grounds to support its appeal
against the above mentioned Court of First Instance judgment.

First, that the Court of First Instance erred in law by finding that
the protection afforded to the appellant under Article 299(2) EC
is not sufficient to establish that the appellant is individually
concerned by the contested provisions.

Reference for a preliminary ruling from the Conseil d'Etat
(France)
lodged on 9 October 2008 — Société Solgar
Vitamin's France, Valorimer SARL, Christian Fenioux,
L'Arbre de Vie SARL, Société Source Claire, Nord Plantes
EURL, Société RCS Distribution, Société Ponroy Santé —
Intervener: Syndicat de la Diététique et des Compléments
Alimentaires v Ministre de l'Économie, des Finances et de
l'Emploi, Ministre de la Santé, de la Jeunesse et des Sports,
Ministre de l'Agriculture et de la Pêche

(Case C-446/08)

(2008/C 327/27)

Language of the case: French

Second, that the Court of First Instance wrongly concluded that
only Member States, and not regional authorities, have the right
to defend the general interest of their territory.

Third, that the Court of First Instance erred in law by failing to
distinguish environmental from economic considerations.

Fourth, that the Court of First Instance erred in law by finding
that the contested provisions would not entail harmful effects
for the fish stocks and for the marine environment in the
Azores and, concequently, for the survival of the fishing sector
in the region.

Referring court

Conseil d'Etat

Fifth, that the Court of First Instance erred in law by finding
that the effect of the contested provisions on the appellant's
legislative and executive powers did not make the appellant indi-
vidually concerned by the provisions.

Parties to the main proceedings

Applicants: Société Solgar Vitamin's France, Valorimer SARL,
Christian Fenioux, L'Arbre de Vie SARL, Société Source Claire,
Nord Plantes EURL, Société RCS Distribution, Société Ponroy
Santé

Sixth, that the Court of First Instance erred in law by finding
that the appellant's application was not admissible by virtue of
the lack of other effective judicial remedies available to the
appellant.

Defendants: Ministre de l'Économie, des Finances et de l'Emploi,
Ministre de la Santé, de la Jeunesse et des Sports, Ministre de
l'Agriculture et de la Pêche