Case C-334/07 P: Judgment of the Court (Second Chamber) of 11 December 2008 — Commission of the European Communities v Freistaat Sachsen (Appeal — State aid — Proposed scheme for aid to small and medium-sized enterprises — Compatibility with the common market — Criteria for assessing State aid — Application ratione temporis — Proposed scheme notified before the entry into force of Regulation (EC) No 70/2001 — Decision subsequent to entry into force thereof — Legitimate expectations — Legal certainty — Complete notifications)
Date: 2008-12-11
Institutions: Court of Justice
Subjects: European Community, State aid, appeal, small and medium-sized enterprises

7.2.2009

EN

Official Journal of the European Union

C 32/5

Other parties to the proceedings: Département du Loiret, Scott SA
(represented by: J. Lever QC, J. Gardner and G. Peretz, Barristers,
instructed by R. Griffith and M. Papadakis, Solicitors)

Re:

Appeal against the judgment of 29 March 2007 of the Court of
First Instance (First Chamber) in Case T-369/00 Département du
Loiret v Commission, by which the Court annulled Commission
Decision 2002/14/EC of 12 July 2000 on the State aid granted
by France to Scott Paper SA/Kimberly-Clark (OJ 2002 L 12,
p. 1) in so far as it concerns the aid granted in the form of the
preferential price for a property referred to in Article 1 thereof
— Method for calculating interest due on sums unlawfully
received: simple or compound interest rates? — Reasons for the
choice of that method and reversal of the burden of proof —
Point in time at which the existence of an unlawful advantage
falls to be determined

Operative part of the judgment

The Court:

1. Sets aside the judgment of

the
European Communities of 29 March 2007 in Case T-369/00
Département du Loiret v Commission [2007] ECR II-851;

the Court of First

Instance of

2. Refers the case back to the Court of First Instance of the European

Communities;

3. Reserves the costs.

(1) OJ C 211, 8.9.2007.

Re:

Reference for a preliminary ruling — Landgericht Regensburg
— Interpretation of Article 54 of the Convention implementing
the Schengen Agreement of 14 June 1985 between the Govern-
ments of the States of the Benelux Economic Union, the Federal
Republic of Germany and the French Republic on the gradual
abolition of checks at their common borders (OJ 2000 L 239,
p. 19) — Interpretation of ne bis in idem principle — Conviction
in absentia in respect of same acts — No enforcement and
conviction subsequently covered by general amnesty

Operative part of the judgment

The Court:

The ne bis in idem principle, enshrined in Article 54 of the Convention
implementing the Schengen Agreement of 14 June 1985 between the
Governments of the States of the Benelux Economic Union, the Federal
Republic of Germany and the French Republic on the gradual abolition
of checks at their common borders, signed in Schengen (Luxembourg)
on 19 June 1990, is applicable to criminal proceedings instituted in a
Contracting State against an accused whose trial for the same acts as
those for which he faces prosecution was finally disposed of in another
Contracting State, even though, under the law of the State in which he
was convicted, the sentence which was imposed on him could never, on
account of specific features of procedure such as those referred to in the
main proceedings, have been directly enforced.

(1) OJ C 211, 8.9.2007.

Judgment of the Court (Second Chamber) of 11 Decem-
ber 2008 (reference for a preliminary ruling from the
Landgericht Regensburg — Germany) — Criminal proceed-
ings against Klaus Bourquain

(Case C-297/07) (1)

(Convention implementing the Schengen Agreement —
Article 54 — ‘Ne bis in idem’ principle — Scope — Convic-
tion in absentia in respect of the same acts — Concept of
‘finally disposed of’ — Procedural rules of national law —
Concept of ‘penalty which can no longer be enforced’)

Judgment of the Court (Second Chamber) of 11 December
the European Communities v
2008 — Commission of

Freistaat Sachsen

(Case C-334/07 P) (1)

(Appeal — State aid — Proposed scheme for aid to small and
medium-sized enterprises — Compatibility with the common
market — Criteria for assessing State aid — Application
ratione temporis — Proposed scheme notified before the entry
into force of Regulation (EC) No 70/2001 — Decision subse-
quent to entry into force thereof — Legitimate expectations —
Legal certainty — Complete notifications)

(2009/C 32/08)

Language of the case: German

(2009/C 32/09)

Language of the case: German

Referring court

Landgericht Regensburg

Defendant in the criminal proceedings

Klaus Bourquain

Parties

Appellant: Commission of the European Communities (repre-
sented by: K. Gross, acting as Agent)

Other party to the proceedings: Freistaat Sachsen (represented by:
Th. Lübbig, Rechtsanwalt)

C 32/6

EN

Official Journal of the European Union

7.2.2009

Re:

Parties to the main proceedings

Appeal against the judgment of the Court of First Instance (Fifth
Chamber, Extended Composition) of 3 May 2007 in Case
T-357/02 Freistaat Sachsen v Commission by which the Court
annulled in part Commission Decision 2003/226/EC of
24 September 2002 on an aid scheme which the Federal
Republic of Germany is planning to implement — ‘Guidelines
on assistance for SMEs — Improving business efficiency in
Saxony’: Subprogrammes 1 (Coaching), 4 (Participation in fairs),
5 (Cooperation) and 7 (Design promotion)
(OJ 2003 L 91,
p. 13) — Applicability of Commission Regulation (EC)
No 70/2001 of 12 January 2001 on the application of Arti-
cles 87 and 88 of the EC Treaty to State aid to small and
medium-sized enterprises
for aid projects notified to the
Commission before the entry into force of that regulation

Operative part of the judgment

The Court:

1. Sets aside the judgment of

the
European Communities of 3 May 2007 in Case T-357/02 Freis-
taat Sachsen v Commission;

the Court of First

Instance of

2. Refers the case back to the Court of First Instance of the European

Communities;

3. Reserves costs.

(1) OJ C 223, 22.9.2007.

Judgment of the Court (Third Chamber) of 11 December
2008 (reference for a preliminary ruling from the Tribunal
d'instance du VIIe arrondissement de Paris — France) —
Kip Europe SA, Kip (UK) Ltd, Caretrex Logistiek BV, Utax
GmbH (C-362/07), Hewlett Packard International SARL
(C-363/07) v Administration des douanes — Direction
générale des douanes et droits indirects

(Joined Cases C-362/07 and C-363/07) (1)

classification — Multi-function

(Common Customs Tariff — Combined Nomenclature —
Tariff
apparatus —
Apparatus combining the functions of laser printer and a
digital electronic scanner module, with a copier function —
Heading 8471 — Heading 9009)

(2009/C 32/10)

Language of the case: French

Referring court

Tribunal d'instance du VIIe arrondissement de Paris

Applicants: Kip Europe SA, Kip (UK) Ltd, Caretrex Logistiek BV,
Utax GmbH (C-362/07), Hewlett Packard International SARL
(C-363/07)

Defendant: Administration des douanes — Direction générale des
douanes et droits indirects

Re:

Reference for a preliminary ruling — Tribunal d'instance du
VIIème arrondissement de Paris (France) — Interpretation of
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
tariff and statistical nomenclature and on the Common Customs
Tariff (OJ 1987 L 256, p. 1), in the version applicable at the
material time, and validity of Regulation (EC) No 400/2006 of
8 March 2006 concerning the classification of certain goods in
the Combined Nomenclature (OJ 2006 L 70, p. 9) — Multifunc-
tional apparatus comprising a laser printer module, a scanner
module and a computer module — Whether classification
should be under tariff heading 8471 60 40 (Automatic data-
processing machines) on the basis of General Rule 3(b) for the
interpretation of the CN (printing function giving the apparatus
its ‘essential character’) or under heading 9009 12 00 (photoco-
pying apparatus) pursuant to Note 5(E) to Chapter 84 of the CN
function —
autonomously fulfilling a
(apparatus
copying — other than data-processing)

specific

Operative part of the judgment

1. Note 5(E) to Chapter 84 of the combined nomenclature consti-
tuting Annex I to Council Regulation (EEC) No 2658/87 of
23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation
(EC) No 1719/2005 of 27 October 2005, is to be interpreted as
meaning that only machines incorporating an automatic data-
processing machine or working in conjunction with such a machine,
whose function is not data processing, perform ‘a specific function
other than data processing’;

as

amended

2. If the copying function performed by the machines at issue in the
main proceedings is secondary in relation to the printing and elec-
tronic scanning functions, they must be considered units of auto-
matic data-processing machines within the meaning of Note 5(B)
to Chapter 84 of the combined nomenclature constituting Annex I
by Regulation
to Regulation No 2658/87,
No 1719/2005, which units, by application of Note 5(C) to that
chapter, if they are presented in isolation, fall within heading 8471.
In such a case, the relevant subheading must be determined in
accordance with Note 3 to Section XVI of the said nomenclature.
However, if the importance of that copying function is equivalent to
that of the other two functions, those machines must be classified,
by application of General Rule 3(b) of the General rules for the
interpretation of
the heading corre-
sponding to the module which gives those machines their essential
character. If such identification proved impossible, they must be
classified under heading 9009 in accordance with General
Rule 3(c);

that nomenclature, under