Case C-554/08 P: Appeal brought on 17 December 2008 by Le Carbone Lorraine against the judgment of the Court of First Instance (Fifth Chamber) delivered on 8 October 2008 in Case T-73/04 Le Carbone Lorraine v Commission
Date: 2008-12-17
Institutions: Court of Justice
Subjects: General Court (EU), appeal, carbon, competition, electrical equipment, equal treatment, principle of proportionality

21.2.2009

EN

Official Journal of the European Union

C 44/35

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

(Case C-539/08)

(2009/C 44/57)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Staatssecretaris van Financiën

Respondent: Facet BV/Facet Trading BV

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-
nization of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment
(OJ L 145, p. 1).

Action brought on 4 December 2008 — Commission of
the European Communities v Czech Republic

(Case C-544/08)

(2009/C 44/58)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (repre-
sented by: N. Yerrell, L. Jelínek, acting as Agents)

Defendant: Czech Republic

Form of order sought

— Declare

that, by failing to adopt, within the period
prescribed, all the laws, regulations and administrative provi-
sions necessary to comply with Directive 2005/68/EC of the
European Parliament and of the Council of 16 November
2005 on reinsurance and amending Council Directives
73/239/EEC, 92/49/EEC as well as Directives 98/78/EC and
2002/83/EC (1), or in any event, by failing to inform the
Commission thereof, the Czech Republic has failed to fulfil
its obligations under Article 64 of that directive;

— order Czech Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for implementing the Directive into the
domestic legal order expired on 10 December 2007.

(1) OJ 2005 L 323, p. 1.

Appeal brought on 17 December 2008 by Le Carbone
Lorraine against
the Court of First
Instance (Fifth Chamber) delivered on 8 October 2008 in
Case T-73/04 Le Carbone Lorraine v Commission

the judgment of

(Case C-554/08 P)

(2009/C 44/59)

Language of the case: French

Parties

Appellant: Le Carbone Lorraine (represented by: A. Winckler and
H. Kanellopoulos, avocats)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— set aside, in part, under Article 225(1) EC and Article 61 of
the Statute of the Court of Justice, the judgment of the
Court of First Instance of 8 October 2008 in Case T-73/04
Le Carbone Lorraine v Commission;

the Statute of

— allow the claims submitted by Le Carbone Lorraine at first
instance and, consequently, on the basis of Article 229 EC,
Justice and
Article 61 of
Article 17 of Council Regulation No 17/62 (1), now
Article 31 of Council Regulation No 1/2003 (2), reduce the
amount of the fine imposed on Le Carbone Lorraine by the
Commission in its decision of 3 December 2003 in Case
C.38.359 — Electrical and mechanical carbon and graphite
products (3);

the Court of

The Commission claims the Court should:

— order the Commission to pay the costs.

C 44/36

EN

Official Journal of the European Union

21.2.2009

Pleas in law and main arguments

Action brought on 16 December 2008 — Commission of
the European Communities v United Kingdom of Great
Britain and Northern Ireland

The appellant puts forward four pleas in law in support of its
appeal.

By its first plea, the appellant claims that the Court of First
Instance infringed the principle that penalties must be specific
to the offender in that it held that the Commission was not
required to assess individually the various elements of the infrin-
gement, since there was a single infringement and an overall
strategy shared by all the members of the cartel. In the absence
of a definition of the relevant product markets or of the cate-
gories of products in question, such an overall assessment of the
infringement leads to the amount of the fine being set without
infringement specifically committed by
regard for the actual
each member of the cartel.

By its second plea, the appellant asserts that the Court of First
Instance misinterpreted the Commission's decision in that it
held that the Commission had taken account of
the actual
impact of the cartel on the market in question in order to deter-
mine the amount of the fine, despite the fact that the Commis-
sion itself had stated, both in its decision of 3 December 2003,
and at the hearing before the Court of First Instance, that that
impact could not be determined with any precision. The infrin-
gement was classified as ‘very serious’ on the sole ground of its
type and geographical scope.

By its third plea, the appellant claims that the Court of First
Instance infringed the principle of equal treatment in that it
upheld the Commission's refusal to grant the appellant an addi-
tional reduction in the amount of the fine based on the leniency
notice, despite the fact that that reduction had been granted
additionally to two other companies, which are competitors of
the appellant. The close and sustained cooperation of the appel-
lant in the course of the proceedings was, therefore, not suffi-
ciently taken into account and recompensed by the Court of
First Instance.

By its fourth and final plea, Carbone Lorraine objects to the
breaches, by the Court of First Instance, of the principles of
proportionality and equal treatment,
in that it held that the
appellant could not benefit from a reduction in the amount of
the fine on the basis of the serious financial difficulties which it
was facing, despite the fact that that same factor was held to be
sufficient to reduce the fine imposed on another competing
company.

(1) Council Regulation No 17/62 of 7 February 1962, First Regulation
the Treaty (English special

implementing Articles 85 and 86 of
edition: Series I Chapter 1959-1962, p. 87).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ 2003 L 1, p. 1).

(3) OJ 2004 L 125, p. 45.

(Case C-556/08)

(2009/C 44/60)

Language of the case: English

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and A.A. Gilly, Agents)

Defendant: United Kingdom of Great Britain and Northern
Ireland

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to fully comply with
Directive 2005/36/EC (1) of the European Parliament and of
the Council of 7 September 2005 on the recognition of
professional qualifications, or in any event by failing to fully
communicate them to the Commission, the United Kingdom
has failed to fulfil its obligations under the Directive;

— order the United Kingdom to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed
expired on 20 October 2007.

(1) OJ L 255, p. 22.

Action brought on 16 December 2008 — Commission of
the European Communities v United Kingdom of Great
Britain and Northern Ireland

(Case C-557/08)

(2009/C 44/61)

Language of the case: English

Parties

Applicant: Commission of the European Communities (repre-
sented by: L. Lozano Palacios and A.A. Gilly, Agents)

Defendant: United Kingdom of Great Britain and Northern
Ireland