Case C-491/07: Judgment of the Court (Sixth Chamber) of 22 December 2008 (reference for a preliminary ruling from the Landesgericht für Strafsachen Wien (Austria)) — Criminal proceedings against Vladimir Turanský (Convention implementing the Schengen Agreement — Article 54 — Ne bis in idem principle — Scope — Concept of finally disposed of — Decision by which a police authority orders the suspension of criminal proceedings — Decision not barring further prosecution and not having a ne bis in idem effect under national law)
Date: 2008-12-22
Institutions: Court of Justice
Subjects: Schengen Agreement, border control, free movement of persons, interpretation of the law, penalty

21.2.2009

EN

Official Journal of the European Union

C 44/19

Re:

Failure of a Member State to fulfil its obligations — Infringe-
ment of Article 5(1) and Article 16(1) of Directive 2000/59/EC
of the European Parliament and of the Council of 27 November
2000 on port reception facilities for ship-generated waste and
cargo residues (OJ 2000 L 332, p. 81) — Failure to have devel-
oped and/or implemented waste reception and handling plans
the ‘Comunidades
for all ports under
Autónomas’

the jurisdiction of

Operative part of the judgment

The Court:

1. Declares that, by failing to develop, implement and approve waste
reception and handling plans for all Spanish ports, the Kingdom of
its obligations under Article 5(1) and
Spain has failed to fulfil
Article 16(1)
the European
of Directive 2000/59/EC of
Parliament and of the Council of 27 November 2000 on port
reception facilities for ship-generated waste and cargo residues;

and 19(1) of Sixth Council Directive 77/388/EEC of 17 May
1977 on the harmonisation 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) —
Goods and services used for both taxable and exempt transac-
tions — Calculation of the deductible proportion — Rules on
rounding up

Operative part of the judgment

Member States are not obliged to apply the rounding up rule in the
second subparagraph of Article 19(1) of Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the laws of
the Member States relating to turnover taxes — Common system of
value added tax: uniform basis of assessment where the proportion of
input tax deductible is calculated in accordance with one of the special
third subparagraph of
(d) of
(c) or
in (a),
methods
Article 17(5) of that directive.

(b),

the

2. Orders the Kingdom of Spain to pay the costs.

(1) OJ C 8, 12.1.2008.

(1) OJ C 315 of 22.12.2007.

Judgment of the Court (Eighth Chamber) of 18 December
2008 (reference for a preliminary ruling from the Court of
Session (Scotland), Edinburgh — United Kingdom) —
Royal Bank of Scotland Group plc v The Commissioners
for Her Majesty's Revenue and Customs

(Case C-488/07) (1)

(Sixth VAT Directive — Deduction of input tax — Goods and
services used for both taxable and exempt transactions —
Deductible proportion — Calculation — Methods laid down
in the third subparagraph of Article 17(5) — Obligation to
apply the rounding up rule in the second subparagraph of
Article 19(1))

(2009/C 44/31)

Language of the case: English

Referring court

Court of Session (Scotland), Edinburgh

Parties to the main proceedings

Applicant: Royal Bank of Scotland plc

Judgment of the Court (Sixth Chamber) of 22 December
2008 (reference for
a preliminary ruling from the
Landesgericht für Strafsachen Wien (Austria)) — Criminal
proceedings against Vladimir Turanský

(Case C-491/07) (1)

(Convention implementing the Schengen Agreement —
Article 54 — ‘Ne bis in idem’ principle — Scope — Concept
of ‘finally disposed of’ — Decision by which a police authority
orders the suspension of criminal proceedings — Decision not
barring further prosecution and not having a ne bis in idem
effect under national law)

(2009/C 44/32)

Language of the case: German

Referring court

Landesgericht für Strafsachen Wien

Defendant in the criminal proceedings

Vladimir Turanský

Defendant: The Commissioners for Her Majesty's Revenue and
Customs

Re:

Re:

Reference for a preliminary ruling — Court of Session
(Scotland), Edinburgh — Interpretation of Articles 17(5)

Reference for a preliminary ruling — Landesgericht für Strafsa-
chen Wien — Interpretation of Article 54 of the Convention
implementing the Schengen Agreement of 14 June 1985
between the Governments of
the Benelux
Economic Union, the Federal Republic of Germany and the

the States of

C 44/20

EN

Official Journal of the European Union

21.2.2009

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 — Scope — Decision by which a
police authority terminates criminal proceedings

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, does not fall to be applied to a decision by which
an authority of a Contracting State, after examining the merits of the
case brought before it, makes an order, at a stage before the charging
of a person suspected of a crime, suspending the criminal proceedings,
where the suspension decision does not, under the national law of that
State, definitively bar
further prosecution and therefore does not
preclude new criminal proceedings, in respect of the same acts, in that
State.

(1) OJ C 22, 26.1.2008.

Judgment of the Court (Third Chamber) of 18 December
2008 (reference for a preliminary ruling from the High
Court of Justice (Chancery Division) — United Kingdom)
— Afton Chemical Limited v Commissioners for Her
Majesty's Revenue and Customs

(Case C-517/07) (1)

(Directive 92/81/EEC — Excise duty on mineral oils —
Article 2(2) and (3) and Article 8(1)(a) — Directive
2003/96/EC — Taxation of energy products and electricity —
Article 2(2), (3) and (4)(b) — Scope — Fuel additives which
are mineral oils or energy products but are not used as motor
fuel — National taxation regime)

(2009/C 44/33)

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Appellant: Afton Chemical Limited

Re:

Reference for a preliminary ruling — High Court of Justice
(Chancery Division) — Interpretation of Articles 2(3) and 8(1)
of Council Directive 92/81/EEC of 19 October 1992 on the
harmonisation of the structures of excise duties on mineral oils
(OJ 1992 L 316, p. 12), Articles 2(3) and 4(b) of Council Direc-
tive 2003/96/EC of 27 October 2003 restructuring the Com-
munity framework for the taxation of energy products and elec-
tricity (OJ 2003 L 283, p. 51) and Article 3 of Council Directive
92/12/EEC of 25 February 1992 on the general arrangements
for products subject to excise duty and on the holding, move-
ment and monitoring of such products (OJ 1992 L 76, p. 1) —
Mineral oils added to fuel for purposes other than increasing
the power of the vehicle but not intended to be sold or used as
fuel — To be taxed as motor fuel?

Operative part of the judgment

Article 2(3) and Article 8(1) of Council Directive 92/81/EEC of
19 October 1992 on the harmonisation of the structures of excise
duties on mineral oils, as amended by Council Directive 94/74/EC of
22 December 1994, as regards the period ending on 31 December
2003, and Article 2(3) and (4) of Council Directive 2003/96/EC of
27 October 2003 restructuring the Community framework for the
taxation of energy products and electricity, as regards the period from
1 January to 31 October 2004, are to be interpreted as meaning that
fuel additives, such as those at issue in the main proceedings, which are
‘mineral oils’ within the meaning of Article 2(1) of Directive 92/81
or ‘energy products’ within the meaning of Article 2(1) of Direc-
tive 2003/96, but which are not intended for use, offered for sale or
used as motor fuel, must be made subject to the taxation regime
imposed by those directives.

(1) OJ C 22, 26.1.2008.

Judgment of the Court (Fourth Chamber) of 22 December
2008 (reference for a preliminary ruling from the Handels-
gericht Wien — Austria) — Friederike Wallentin-Hermann
v Alitalia — Linee Aeree Italiane SpA

(Case C-549/07) (1)

(Carriage by air — Regulation (EC) No 261/2004 — Article 5
— Compensation and assistance to passengers in the event of
cancellation of flights — Exemption from the obligation to
to extraordinary
pay compensation — Cancellation due
circumstances which could not have been avoided even if all
reasonable measures had been taken)

(2009/C 44/34)

Language of the case: German

Respondents: Commissioners for Her Majesty's Revenue and
Customs

Referring court

Handelsgericht Wien