Case C-189/07: Judgment of the Court (Second Chamber) of 22 December 2008 — Commission of the European Communities v Kingdom of Spain (Failure to fulfil obligations — Regulation (EEC) No 2847/93 — Articles 2(1) and 31(1) and (2) — Regulations (EC) No 2406/96 and 850/98 — Control system in the fisheries sector — Common marketing standards for certain fishery products — Unsatisfactory monitoring, inspection and surveillance — Failure to adopt adequate measures to penalise infringements — Enforcement of penalties — General failure to fulfil the provisions of a regulation — Production before the Court of additional evidence intended to support the proposition that the failure is general and consistent — Whether permissible)
Date: 2008-12-22
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, fishing controls, fishing regulations, offence

21.2.2009

EN

Official Journal of the European Union

C 44/9

Re:

Re:

Reference for a preliminary ruling — Conseil d'État — Validity,
in the light of the Community principle of equal treatment, of
Directive 2003/87/EC of the European Parliament and of the
Council of 13 October 2003 establishing a scheme for green-
house gas emission allowance trading within the Community
and amending Council Directive 96/61/EC (OJ 2003 L 275,
p. 32) — Difference in treatment as between, on the one hand,
installations in the steel sector subject to the greenhouse gas
emission allowance trading scheme laid down by the Directive
and, on the other, the aluminium and plastic industries, which
emit identical greenhouse gases and which are not subject to
that system — Objective justification for that difference in treat-
ment?

Operative part of the judgment

Consideration of Directive 2003/87/EC of the European Parliament
and of the Council of 13 October 2003 establishing a scheme for
greenhouse gas emission allowance trading within the Community and
amending Council Directive 96/61/EC, as amended by Directive
2004/101/EC of
the Council of
27 October 2004, from the point of view of the principle of equal
treatment has disclosed nothing to affect its validity in so far as it
makes the greenhouse gas emission allowance trading scheme applic-
able to the steel sector without including the chemical and non-ferrous
metal sectors in its scope.

the European Parliament and of

(1) OJ C 117, 26.5.2007.

Judgment of the Court (First Chamber) of 22 December
the European Communities v
2008 — Commission of

Republic of Austria

(Case C-161/07) (1)

of a Member State

obligations —
(Failure
Article 43 EC — National legislation laying down the condi-
tions for registration of partnerships or companies on applica-
tion by nationals of the new Member States — Procedure for
certification of self-employed status)

fulfil

to

(2009/C 44/14)

Language of the case: German

Parties

Failure of a Member State to fulfil obligations — Infringement
of Article 43 EC — National legislation laying down the condi-
tions for registration of businesses owned by third-country
nationals, applicable also to Czech, Estonian, Latvian, Lithua-
nian, Hungarian, Polish, Slovene and Slovak nationals — Obliga-
tion for all members of partnerships and for minority share-
holders in limited liability companies who perform activities
which are typical of a work relationship to follow a special
procedure for determining the applicant's self-employed status,
in the course of which they must prove their influence on the
management of the business they wish to have registered in the
Member State

Operative part of the judgment

The Court:

1. Declares that, by requiring for the registration of partnerships or
companies in the commercial register on application by persons who
are nationals of the Member States which acceded to the European
Union on 1 May 2004 — with the exception of the Republic of
Cyprus and the Republic of Malta — and are members of a part-
nership or have minority holdings in a limited liability company, a
determination by
self-
employed or the presentation of a work permit exemption certificate,
the Republic of Austria has failed to fulfil
its obligations under
Article 43 EC;

the Arbeitsmarktservice

they are

that

2. Orders the Republic of Austria to pay the costs.

(1) OJ C 140, 23.6.2007.

Judgment of the Court (Second Chamber) of 22 December
the European Communities v
2008 — Commission of

Kingdom of Spain

(Case C-189/07) (1)

(Failure to fulfil obligations — Regulation (EEC) No 2847/93
— Articles 2(1) and 31(1) and (2) — Regulations (EC)
No 2406/96 and 850/98 — Control system in the fisheries
sector — Common marketing standards for certain fishery
products — Unsatisfactory monitoring, inspection and surveil-
lance — Failure to adopt adequate measures to penalise infrin-
gements — Enforcement of penalties — General failure to
fulfil the provisions of a regulation — Production before the
Court of additional evidence intended to support the proposi-
tion that the failure is general and consistent — Whether
permissible)

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and G. Braun, Agents)

Intervener in support of the applicant: Republic of Lithuania (repre-
sented by: D. Kriaučiūnas, Agent)

Parties

(2009/C 44/15)

Language of the case: Spanish

Defendant: Republic of Austria (represented by: C. Pesendorfer
and M. Winkler, Agents)

Applicant: Commission of the European Communities (repre-
sented by: P. Oliver and F. Jimeno Fernández, Agents)

C 44/10

EN

Official Journal of the European Union

21.2.2009

Defendant: Kingdom of Spain (represented by: M. Muñoz Pérez,
Agent)

Judgment of the Court (Fourth Chamber) of 22 December
2008 — Donal Gordon v Commission of the European
Communities

Re:

Failure of a Member State to fulfil obligations — Infringement
of Articles 2(1) and 31(1) and (2) of Council Regulation (EC)
No 2847/93 of 12 October 1993 establishing a control system
applicable to the common fisheries policy (OJ 1993 L 261,
p. 1) — Infringement of Council Regulation (EC) No 2406/96
of 26 November 1996 laying down common marketing stan-
dards for certain fishery products (OJ 1996 L 334, p. 1) and
Council Regulation (EC) No 850/98 of 30 March 1998 for the
conservation of fishery resources through technical measures for
the protection of juveniles of marine organisms (OJ 1998 L 125,
p. 1) — Unsatisfactory monitoring — Failure to adopt adequate
measures to penalise the infringements

Operative part of the judgment

The Court:

1. Declares that,

— by failing to carry out satisfactorily the monitoring, inspection
fishing activities within its territory and
and surveillance of
within maritime waters subject to its sovereignty or jurisdiction,
including the landing and marketing of species subject to rules
on minimum size under Council Regulation (EC) No 850/98
of 30 March 1998 for the conservation of fishery resources
juveniles of
through technical measures for the protection of
marine organisms, and Council Regulation (EC) No 2406/96
of 26 November 1996 laying down common marketing stan-
dards for certain fishery products and by failing to devote the
inspection and
necessary human resources to the monitoring,
surveillance of fishing; and

— by failing to act with sufficient diligence to ensure the adoption
of appropriate measures against those responsible for infringing
Community provisions in relation to fisheries, in particular by
bringing administrative actions or criminal proceedings and
imposing penalties which have a deterrent effect on those
responsible;

the Kingdom of Spain has failed to fulfil its obligations under Arti-
cles 2(1) and 31(1) and (2) of Council Regulation (EEC)
No 2847/93 of 12 October 1993 establishing a control system
applicable to the common fisheries policy, as amended by Council
Regulation (EC) No 2846/98 of 17 December 1998;

2. Dismisses the remainder of the action;

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

(Case C-198/07 P) (1)

(Appeal — Career development report — Action for annul-
ment — Legal interest in bringing proceedings — Official in
a state of total permanent invalidity)

(2009/C 44/16)

Language of the case: English

Parties

Appellant: Donal Gordon (represented by: J. Sambon, P.-P. Van
Gehuchten and P. Reyniers, avocats)

the European
Other party to the proceedings: Commission of
Communities (represented by: J. Currall and H. Krämer, acting
as Agents)

Re:

Appeal against the judgment of
the Court of First Instance
(Third Chamber) of 7 February 2007 in Case T-175/04 Gordon
v Commission — Action for annulment of the applicant's career
development report for the 2001-2002 appraisal procedure —
Legal interest in bringing proceedings — Official retired on the
ground of total permanent invalidity during the proceedings

Operative part of the judgment

The Court:

1) Sets aside the judgment of

the Court of First

the
European Communities of 7 February 2007 in Case T-175/04
Gordon v Commission in so far as the Court of First Instance
declared that there was no need to rule on the application for
annulment brought by Mr Gordon;

Instance of

2) Dismisses the appeal as inadmissible in so far as it challenges the
dismissal of the claim for damages in the judgment of the Court of
First Instance referred to;

3) Annuls the decision of the Commission of the European Commu-
nities of 11 December 2003 rejecting Mr Gordon's complaint
against the decision of 28 April 2003 confirming his career devel-
opment report for the period from 1 July 2001 to 31 December
2002;

4) Orders the Commission of the European Communities to pay the
costs incurred by Mr Gordon before the Court of Justice of the
the
European Communities and the Court of First
European Communities.

Instance of

(1) OJ C 129, 9.6.2007.

(1) OJ C 129, 9.6.2007.