Case C-536/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 4 December 2008 — Staatssecretaris van Financiën v X
Date: 2008-12-04
Institutions: Court of Justice
Subjects: Community acquis, Netherlands, interpretation of the law

21.2.2009

EN

Official Journal of the European Union

C 44/33

4. In the event of an application for a declaration of enforce-
ability, does Article 31(3) and (4) of the CMR Convention
permit the court of the State addressed to examine whether
the court of the State of origin had international jurisdiction
to take cognisance of the dispute?

5. Must Article 71(1) of Regulation No 44/2001 be interpreted
as meaning that, in the event of the concurrence of the lis
pendens rules of the CMR Convention and those of Regu-
lation No 44/2001, the lis pendens rules of the CMR Conven-
tion take precedence over those of Regulation No 44/2001?

6. Do the declaration in law applied for in the present case in
the Netherlands and the action in Germany seeking compen-
sation in respect of damage relate to ‘the same grounds’
within the meaning of Article 31(2) of the CMR Convention?

(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters (OJ 2001 L 12, p. 1).

2. If the answer to the first question is that the term ‘the same
parties’
is intended to give to the subjective scope of the
operation of the competing judgments a more precise inter-
pretation in isolation from Regulation No 44/2001:

(i) must, in the interpretation of that term in Article 34(3)
of Regulation No 44/2001, support be sought in the
interpretation which the Court of Justice of the European
Communities gave to the term ‘between the same parties’
in Article 21 of the Brussels Convention (now Article 27
of Regulation No 44/2001)
in Case
C-351/96 Drouot assurances v CMI and Others [1998] ECR
I-3075; and

in its judgment

(ii) must K-Line, which was a party to the Rotterdam
proceedings, but not to the Düsseldorf proceedings, be
deemed, because of the assignment and mandate, to be
‘the same party’ as Zeuner, which was a party to the
Düsseldorf proceedings, but not
to the Rotterdam
proceedings?

3. If

reliance on the ground for

refusal

laid down in

Article 34(3) of Regulation No 44/2001 is to succeed,

(i) must the judgment given in the Member State in which
recognition is sought have acquired the force of res judi-
cata?

Reference for a preliminary ruling from the Hoge Raad der
Nederlanden (Netherlands) lodged on 3 December 2008 —
KLG Europe Eersel BV v Reedereikontor Adolf Zeuner
GmbH

(ii) must the judgment given in the Member State in which
recognition is sought precede the submission of
the
application for enforcement or the granting of the order
for enforcement?

(Case C-534/08)

(2009/C 44/54)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: KLG Europe Eersel BV

Respondent: Reedereikontor Adolf Zeuner GmbH

(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters (OJ 2001 L 12, p. 1).

Reference for a preliminary ruling from the Hoge Raad der
Nederlanden (Netherlands) lodged on 4 December 2008 —
Staatssecretaris van Financiën v X

(Case C-536/08)

(2009/C 44/55)

Language of the case: Dutch

Questions referred

1. Does the term ‘between the same parties’ in Article 34(3) of
Council Regulation (EC) No 44/2001 (1) of 22 December
2000 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters refer to the rules
on the subjective scope of the operation of judgments of the
Member States concerned, or is it intended to give to the
subjective scope of the operation of the competing judg-
ments a more precise interpretation in isolation from that
regulation?

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendant: X

C 44/34

EN

Official Journal of the European Union

21.2.2009

Question referred

Must Article 17(2) and (3) and Article 28b(A)(2) of the Sixth
Directive (1) be interpreted as meaning that, if the place of an
intra-Community acquisition is deemed, on the basis of the first
subparagraph of the latter provision, to be within the territory
of
the Member State which issued the VAT identification
number under which the person acquiring made the acquisition,
the aforementioned person acquiring the goods has the right
immediately to deduct the VAT thus due in that Member State?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment
(OJ 1977 L 145, p. 1).

Appeal brought on 3 December 2008 by Kahla/Thüringen
Porzellan GmbH against the judgment of the Court of First
Instance (Fifth Chamber, Extended Composition) delivered
on 24 September 2008 in Case T-20/03 Kahla/Thüringen
Porzellan GmbH, supported by Freistaat Thüringen and the
the
Federal Republic of Germany v Commission of

European Communities

(Case C-537/08 P)

(2009/C 44/56)

Language of the case: German

Parties

Appellant: Kahla/Thüringen Porzellan GmbH (represented by: M.
Schütte, Rechtsanwalt, S. Zühlke, Rechtsanwältin, und P. Werner,
Rechtsanwalt)

Other parties
to the proceedings: Freistaat Thüringen, Federal
Republic of Germany, Commission of the European Commu-
nities

Form of order sought

— set aside the judgment of the Court of First Instance of
24 September 2008 in Case T-20/03 Kahla/Thüringen
Porzellan GmbH v Commission of the European Communities, in
so far as it concerns measures 15 and 26 and the decision
on costs;

— annul Article 1(2)(d) and (g) of Commission Decision
2003/643/EC of 13 May 2003 on the State aid imple-
mented by Germany for Kahla Porzellan GmbH and
Kahla/Thüringen Porzellan GmbH (1), as well as Article 2
thereof in so far as it concerns measures 15 and 26, at least
in so far as it orders the recovery of measures 15 and 26;

— in the alternative, set aside the judgment under appeal in so
far as it holds that
the employment promotion grants
received conferred an advantage on the appellant and there-
fore must be recovered;

— order the respondent to pay the cost of the proceedings.

Pleas in law and main arguments

The current appeal is lodged against the judgment of the Court
of First Instance dismissing the action brought by the appellant
against Commission Decision 2003/643/EC of 13 May 2003 on
the State aid implemented by Germany for Kahla Porzellan
GmbH and Kahla/Thüringen Porzellan GmbH, in so far as that
decision
to
financial
Kahla/Thüringen Porzellan GmbH.

assistance

concerns

granted

the

The appellant relies on two main pleas in law and one alterna-
tive plea in law. The appellant submits that
the judgment
infringes Community law by wrongly applying the fundamental
principles of
legitimate
expectations. Even if the Court of Justice were not to uphold
those pleas, certain findings in the judgment
in any event
constitute an infringement of Article 87(1) EC.

legal certainty and the protection of

As regards the first plea in law, the judgment of the Court of First
Instance infringed the principle of
legal certainty by holding
that, right from the beginning, the aid scheme approved by the
Commission covering the programme of the Land of Thuringia
for investments by small and medium-sized enterprises (SMEs)
contained restrictions in respect of firms in difficulty and the
aid scheme under Paragraph 249h of the Arbeitsförderungsge-
setz (Law on the promotion of employment;
‘the AFG’)
approved by the Commission excluded private undertakings
from its scope.

be,

the Commission

As regards the second plea in law, the Court of First Instance
infringed the principle of the protection of legitimate expecta-
tions by holding that the absence of explicit restrictions in the
versions of the Commission decision approving the programme
of the Land of Thuringia for investments by SMEs or, as the
that
case may
Paragraph 249h AFG does not contain State aid published in
the Official Journal or otherwise publicly available could not
give rise to legitimate expectations on the part of the appellant
that the measure was lawful and that, consequently, the appel-
lant could be expected to keep itself informed — by looking
beyond the documents that were publicly available — as to
whether the grant of the aid that it had been awarded was
lawful.

decision

finding

Finally, as regards the third, alternative plea, the Court of First
Instance infringed Article 87 EC when it found — without
undertaking an assessment of the actual savings made by the
appellant — that, because of the measure at issue, the appellant
enjoyed an advantage relevant in State aid law in the amount of
the grant received.

(1) OJ 2003 L 227, p. 12.