Case C-573/08: Action brought on 22 December 2008 — Commission of the European Communities v Italian Republic
Date: 2008-12-22
Institutions: Court of Justice
Subjects: Italy, action for failure to fulfil an obligation, bird, carriage of goods, egg, environmental protection, hunting

C 55/14

EN

Official Journal of the European Union

7.3.2009

the effect of the excessively long period of 120 days prescribed
by the Italian authorities for complying with a request to change
prices is that the principle that economic operators must be free
to fix maximum prices, enshrined in Article 9(1) of Directive
95/59/EC, is, in practice, to some extent undermined.

That system reproduces a previous regime of tax concessions
already condemned by the Court of Justice in 1980, and the
Italian Republic's arguments in favour of the new system cannot
justify such a choice.

(1) Council Directive 95/59/EC of 27 November 1995 on taxes other
than turnover taxes which affect the consumption of manufactured
tobacco (OJ 1995 L 291, p. 40).

(2) Council Directive 72/464/EEC of 19 December 1972 on taxes other
than turnover taxes which affect the consumption of manufactured
tobacco (OJ 1972 L 303, p. 1).

Action brought on 22 December 2008 — Commission of
the European Communities v Italian Republic

(Case C-573/08)

(2009/C 55/23)

Language of the case: Italian

Action brought on 22 December 2008 — Commission of
the European Communities v Italian Republic

(Case C-572/08)

(2009/C 55/22)

Parties

Applicant: Commission of the European Communities (repre-
sented by: D. Recchia, acting as Agent)

Language of the case: Italian

Defendant: Italian Republic

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Aresu and W. Mölls, acting as Agents)

Defendant: Italian Republic

Forms of order sought

— A declaration that the Italian Republic has failed to fulfil its
obligations under Article 90 EC, by conferring a tax conces-
sion on regenerated lubricating oil produced from used oil
collected in Italy, but refusing to confer the same concession
on regenerated lubricating oil produced from used oil
(in accordance with
collected in other Member States
the Italian Revenue
Circular 24/D of 5 May 2004 of
Authority
Law No 266 of
and Article 1(116) of
23 December 2005, as interpreted by Article 62 of the Testo
le imposte sulla
unico delle disposizioni
produzione e sui consumi e relative sanzioni penali e amministra-
tive (Consolidated Text of Legislative Provisions relating to
duties on production and consumption and related criminal
and administrative penalties) approved by Decree No 504 of
the President of the Republic of 26 October 1995);

legislative concernenti

— An order that the Italian Republic is to pay the costs.

Pleas in law and main arguments

The Commission complains that the Italian authorities are oper-
ating a system of tax concessions on regenerated lubricating oil
that
which favours national production to the detriment of
from other Member States, in clear breach of the principle of
non-discrimination, which in the field of taxation is laid down
in Article 90 EC.

Form of order sought

— Declare that the Italian Republic has failed to fulfil its obliga-
tions under Articles 2, 3, 4, 5, 6, 7, 9, 10, 11, 13 and 18 of
Directive 79/409/EEC:

— by failing to transpose Directive 79/409/EEC (1)

into
Italian law in a manner which is wholly in compliance
with that directive;

— by failing to transpose Article 9 of Directive 79/409/EEC
into Italian law in a manner which ensures that the dero-
gations adopted by the competent
Italian authorities
comply with the conditions and requirements laid down
in that provision;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission argues that the Italian legislation does not
fully transpose Directive 79/409/EEC into Italian law in a
manner that is in compliance with that directive:

Article 2: not transposed;

Article 3: not transposed in compliance with the directive,
owing to the failure to transpose Article 2;

Article 4(4): not transposed;

Article 5: non-transposition of the prohibition of the deliberate
destruction of nests and eggs, or of deliberate damage thereto,
and of
the
species of bird protected by the directive;

the deliberate disturbance of

the prohibition of

Article 6: non-transposition of the prohibition on transport for
sale;

7.3.2009

EN

Official Journal of the European Union

C 55/15

Article 7(4):
incomplete transposition (the way in which the
hunting seasons have been fixed does not ensure that hunting is
prohibited during the rearing season and the various stages of
in particular, as regards migratory species,
reproduction; nor,
does it ensure that hunting is prohibited during the period of
reproduction or during the return to the rearing grounds; more-
over, the obligation to send the Commission all relevant infor-
mation on the practical application of the hunting legislation
has not been transposed);

Article 9: not transposed at State level in compliance with the
directive (the reviews of the legitimacy of the derogations are
ineffective and belated); incorrect transposition and implementa-
tion at regional
(Abruzzo, Lazio, Toscana, Lombardia,
Emilia Romagna, Marche, Calabria and Puglia);

level

Article 10(2): incomplete transposition (failure to transpose the
obligation to send the Commission the information required for
the coordination of the research and work for the protection,
management and use of the population of the species of bird
protected by the directive);

Article 11:
incomplete transposition (failure to transpose the
obligation to consult the Commission with respect to the intro-
duction of exotic species);

Article 13: not transposed;

Article 18(2): failure on the part of the Italian authorities to
communicate the texts setting out the provisions of regional law
on hunting for the regions of Lazio, Lombardia, Toscana and
Puglia.

(1) Council Directive 79/409/EEC of 2 April 1979 on the conservation

of wild birds (OJ 1979 L 103, p. 1).

Appeal brought on 23 December 2008 by People's
Mojahedin Organization of Iran against the judgment of
the Court of First Instance (Seventh Chamber) delivered on
23 October 2008 in Case T-256/07 People's Mojahedin
Organization of Iran v Council of the European Union

(Case C-576/08 P)

(2009/C 55/24)

Language of the case: English

Parties

Other parties to the proceedings: Council of the European Union,
United Kingdom of Great Britain and Northern Ireland,
Commission of the European Communities, Kingdom of the
Netherlands

Form of order sought

The appellant claims that the Court should:

— set aside the decision of the Court of First Instance insofar
as that Court dismissed the PMOI's application to annul
Council Decision 2007/445/EC (1) as unfounded;

— annul Decision 2007/445/EC insofar as it concerned the

PMOI;

— order the Council to pay the Appellant's costs in this Court
and with regard to Decision 2007/445/EC in the Court of
First Instance.

Pleas in law and main arguments

The Appellant contends that in a case which concerned funda-
mental rights and the application of Article 1(4) and 1(6) of
Common Position 931/2001 and Article 2(3) of Regulation
2580/2001 in relation to a Community measure which main-
tained the People's Mojahedin of Iran on the list of proscribed
organisations:

(1) In determining whether the Council had made a manifest
error of assessment, the Court of First Instance failed to
provide a full review of Decision 2006/445/EC as required
by the EC Treaty;

(2) The Court of First Instance failed to respect the principle of
effective judicial protection by failing to provide full review;

(3) The Court of First Instance was wrong in law to conclude
that the Council had not committed a manifest error of
assessment in reaching its Decision. The Council and the
CFI had before it all the facts and arguments that were
before the national tribunal and should have considered the
exculpatory material in detail;

(4) The Court of First Instance was wrong in law under Arti-
cles 1(4) and (6) of the aforesaid Common Position and
Article 2(3) of the aforesaid Regulation to reject the Appel-
lant's
terrorist
activity or threats are capable of justifying the continued
inclusion of a person on the list;

contention that only contemporaneous

(5) The CFI was wrong to conclude that the Council could
correctly exclude the exculpatory material adduced by the
Appellant on the basis of its conclusion on the matters
addressed by the previous ground of appeal;

Appellant: People's Mojahedin Organization of Iran (represented
by:
lawyer, D. Vaughan QC, M.-E. Demetriou,
Barrister)

J.-P. Spitzer,

(6) The Court of First Instance was wrong to reject the Appel-
lant's argument that the Council had failed to give adequate
reasons in respect of the exculpatory material adduced by