Case C-227/07: Judgment of the Court (Second Chamber) of 13 November 2008 — Commission of the European Communities v Republic of Poland (Failure of a Member State to fulfil obligations — Electronic communications — Networks and services — Directive 2002/19/EC (Access Directive) — Article 4(1) and the first subparagraph of Article 5(1) — Incorrect transposition)
Date: 2008-11-13
Institutions: Court of Justice
Subjects: Poland, action for failure to fulfil an obligation, disclosure of information, electronic mail, information network, telecommunications industry

10.1.2009

EN

Official Journal of the European Union

C 6/5

Re:

Reference for a preliminary ruling — Supreme Court, Ireland —
Interpretation of Article 81(1) EC — Measures limiting or
controlling production — Inclusion of an agreement whose
effect is to reduce structural capacity selectively

the aid scheme implemented by France for the takeover of firms in
difficulty, the French Republic has failed to fulfil
its obligations
under Article 5 of that decision

2. Orders the French Republic to pay the costs

Operative part of the judgment

(1) OJ C 170, 21.7.2007.

An agreement with features such as those of the standard form of
contract concluded between the 10 principal beef and veal processors in
Ireland, who are members of Beef Industry Development Society Ltd,
and requiring, among other things, a reduction of the order of 25 %
in processing capacity, has as its object the prevention, restriction or
distortion of competition within the meaning of Article 81(1) EC.

(1) OJ C 140, 23.6.2007.

Judgment of the Court (Second Chamber) of 13 November
the European Communities v
2008 — Commission of

French Republic

(Case C-214/07) (1)

(State aid — Aid scheme — Incompatibility with the common
market — Implementation of the decision — Recovery of the
aid granted — Absolute impossibility of giving effect to a
decision)

(2009/C 6/08)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: C. Giolito, Agent)

Defendant: French Republic (represented by: G. de Bergues,
S. Ramet and J.-C. Gracia, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to take,
within the prescribed period, the measures necessary to comply
with Commission Decision of 16 December 2003 on the aid
scheme implemented by France for the takeover of firms in diffi-
culty (State aid C(2003) 4636, OJ 2004 L 108, p. 38) — Failure
to take steps to recover the aid illegally granted — Implementa-
tion of the decision ordering the recovery of the aid not impos-
sible

Judgment of the Court (Second Chamber) of 13 November
the European Communities v
2008 — Commission of

Republic of Poland

(Case C-227/07) (1)

(Failure of a Member State to fulfil obligations — Electronic
communications — Networks and services — Directive
2002/19/EC (Access Directive) — Article 4(1) and the first
subparagraph of Article 5(1) — Incorrect transposition)

(2009/C 6/09)

Language of the case: Polish

Parties

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

Defendant: Republic of
Poland (represented initially by:
E. Ośniecka-Tamecka, T. Nowakowski, and subsequently by
M. Dowgielewicz, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Incorrect trans-
position of Directive 2002/19/EC of the European Parliament
and of the Council of 7 March 2002 on access to, and intercon-
nection of, electronic communications networks and associated
facilities (Access Directive) (OJ 2002 L 108, p. 7) — National
requiring, by way of a
legislation on telecommunications
general legal provision, operators of public telecommunications
to negotiate in good faith access contracts and
networks
providing that,
if the parties do not reach an agreement, the
regulatory authority may, at the request of one of the parties,
adopt a decision which will replace the contract

Operative part of the judgment

The Court:

Operative part of the judgment

The Court:

1. Declares that, by failing to implement within the prescribed period
Commission Decision 2004/343/EC of 16 December 2003 on

1. Declares that, by failing to transpose correctly Article 4(1) of
Directive 2002/19/EC of
the
Council of 7 March 2002 on access to, and interconnection of,
electronic communications networks and associated facilities (Access
Directive), the Republic of Poland has failed to fulfil its obligations
under that Directive;

the European Parliament and of

C 6/6

EN

Official Journal of the European Union

10.1.2009

2. Dismisses the action as to the remainder;

3. Orders the Commission of

the European Communities and the

Republic of Poland to bear their own costs.

(1) OJ C 199, 25.8.2007.

Judgment of the Court (Third Chamber) of 13 November
2008 (Reference for a preliminary ruling from the Conseil
d'État — Belgium) — Coditel Brabant SPRL v Commune
d'Uccle, Région de Bruxelles-Capitale

(Case C-324/07) (1)

(Public procurement — Tendering procedures — Public service
concessions — Concession for the operation of a municipal
cable television network — Award by a municipality to an
inter-municipal cooperative society — Obligation of transpar-
ency — Conditions — Whether the control exercised by the
is
concession-granting authority over

concessionaire

the

similar to that exercised over its own departments)

from awarding, without calling for competition, a public service
concession to an inter-municipal cooperative society of which all the
members are public authorities, where those public authorities exer-
cise over that cooperative society control similar to that exercised
over their own departments and where that society carries out the
essential part of its activities with those public authorities;

2. Subject to verification of the facts by the referring court as regards
the degree of independence enjoyed by the inter-municipal coopera-
tive society in question, in circumstances such as those of the case
before the referring court, where decisions regarding the activities of
an inter-municipal cooperative society owned exclusively by public
authorities are taken by bodies, created under the statutes of that
society, which are composed of
the affiliated
public authorities, the control exercised over those decisions by the
public authorities may be regarded as enabling those authorities to
exercise over the cooperative society control similar to that exercised
over their own departments;

representatives of

3. Where a public authority joins an inter-communal cooperative of
which all the members are public authorities in order to transfer to
that cooperative society the management of a public service, it is
possible, in order for the control which those member authorities
exercise over the cooperative to be regarded as similar to that which
they exercise over their own departments,
for it to be exercised
jointly by those authorities, decisions being taken by a majority, as
the case may be.

(2009/C 6/10)

Language of the case: French

(1) OJ C 211, 8.9.2007.

Referring court

Conseil d'État

Parties to the main proceedings

Applicant: Coditel Brabant SPRL

Defendant: Commune d'Uccle, Région de Bruxelles-Capitale

Third party: Société Intercommunale pour la Diffusion de la Télé-
vision (Brutélé)

Re:

Preliminary ruling — Conseil d'État — Interpretation of the
fundamental principles of primary Community law (principles
of non-discrimination and transparency) and of the exceptions
to those principles in the area of public service concessions —
Concession relating to the operation of a municipal television
network — Need for competitive tendering except in those
cases where the awarding authority exercises, over the conces-
sionaire, a control similar to that which it exercises over its own
departments and where the concessionaire performs the major
part of its activities with the authority which controls it

Judgment of the Court (Second Chamber) of 20 November
2008 (reference for a preliminary ruling from the Hoge
Raad der Nederlanden — Netherlands) — Staatssecretaris
van Financiën v Heuschen & Schrouff Oriëntal Foods
Trading BV

(Case C-375/07) (1)

(Reference for a preliminary ruling — Validity of a classifica-
tion regulation — Interpretation of the Annex to Regulation
(EC) No 1196/97 — Articles 220 and 239 of the Customs
Code — Articles 871 and 905 of Regulation (EEC)
No 2454/93 — Dried sheets consisting of rice flour, salt and
water — Tariff classification — Post-clearance recovery of
import duties — Procedure for remission — Detectable error
on the part of the customs authorities — Obvious negligence
on the part of the importer)

(2009/C 6/11)

Language of the case: Dutch

Operative part of the judgment

1. Articles 43 EC and 49 EC, the principles of equal treatment and
of non-discrimination on grounds of nationality and the concomi-
tant obligation of transparency do not preclude a public authority

Referring court

Hoge Raad der Nederlanden