Case C-549/07: Judgment of the Court (Fourth Chamber) of 22 December 2008 (reference for a preliminary ruling from the Handelsgericht Wien — Austria) — Friederike Wallentin-Hermann v Alitalia — Linee Aeree Italiane SpA (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 pay compensation — Cancellation due to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken)
Date: 2008-12-22
Institutions: Court of Justice
Subjects: Germany, Italy, air transport, civil aviation, consumer protection, interpretation of the law, traveller

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

21.2.2009

EN

Official Journal of the European Union

C 44/21

Parties to the main proceedings

Applicant: Friederike Wallentin-Hermann

Defendant: Alitalia — Linee Aeree Italiane SpA

Re:

Reference for a preliminary ruling — Handelsgericht Wien —
Interpretation of Article 5(3) of Regulation (EC) No 261/2004
of the European Parliament and of the Council of 11 February
2004 establishing common rules on compensation and assis-
tance to passengers in the event of denied boarding and of
cancellation or long delay of flights, and repealing Regulation
(EEC) No 295/91 (OJ 2004 L 46, p. 1) — Concepts of ‘extraor-
dinary circumstances’ and ‘reasonable measures’ — Cancellation
of a flight on account of an engine defect — Substantially
higher rate of cancellations due to technical defects than that of
other airlines

Operative part of the judgment

1. Article 5(3) of Regulation (EC) No 261/2004 of the European
Parliament and of the Council of 11 February 2004 establishing
common rules on compensation and assistance to passengers in the
event of denied boarding and of cancellation or long delay of
flights, and repealing Regulation (EEC) No 295/91, must be
interpreted as meaning that a technical problem in an aircraft
which leads to the cancellation of a flight is not covered by the
concept of ‘extraordinary circumstances’ within the meaning of that
provision, unless that problem stems from events which, by their
nature or origin, are not inherent in the normal exercise of the
activity of
the air carrier concerned and are beyond its actual
control. The Convention for the Unification of Certain Rules for
International Carriage by Air, concluded in Montreal on 28 May
the grounds of
is not decisive for the interpretation of
1999,
exemption under Article 5(3) of Regulation No 261/2004.

2. The frequency of

the technical problems experienced by an air
carrier is not in itself a factor from which the presence or absence of
‘extraordinary circumstances’ within the meaning of Article 5(3) of
Regulation No 261/2004 can be concluded.

3. The fact that an air carrier has complied with the minimum rules
on maintenance of an aircraft cannot in itself suffice to establish
that that carrier has taken ‘all reasonable measures’ within the
meaning of Article 5(3) of Regulation No 261/2004 and, there-
fore, to relieve that carrier of its obligation to pay compensation
provided for by Articles 5(1)(c) and 7(1) of that regulation.

Judgment of the Court (Fourth Chamber) of 22 December
2008 (reference for a preliminary ruling from the Bundes-
gerichtshof (Germany)) — In the proceedings brought by
Erich Stamm, Anneliese Hauser

(Case C-13/08) (1)

(Agreement between the European Community and its
Member States, of the one part, and the Swiss Confederation,
of the other, on the free movement of persons — Equal treat-
ment — Self-employed frontier workers — Agricultural lease
— Agricultural structure)

(2009/C 44/35)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Erich Stamm, Anneliese Hauser

Interested party: Regierungspräsidium Freiburg

Re:

Reference for a preliminary ruling — Bundesgerichtshof —
Interpretation of Articles 12(1), 13(1) and 15(1) of Annex I to
the Agreement between the European Community and its
Member States, of the one part, and the Swiss Confederation, of
the other, on the free movement of persons, signed in Luxem-
bourg on 21 June 1999 (OJ 2002 L 114, p. 6) — Applicability
of the principle of equal treatment to self-employed frontier
workers — Farmer with Swiss nationality residing in Switzer-
land having entered into a lease agreement for land for agri-
cultural use located in Germany.

Operative part of the judgment

Pursuant to Article 15(1) of Annex I to the Agreement between the
European Community and its Member States, of the one part, and the
Swiss Confederation, of the other, on the free movement of persons,
signed in Luxembourg on 21 June 1999, a contracting party must
accord to the ‘self employed frontier workers’, within the meaning of
Article 13 of that annex, of the other contracting party no less favour-
able treatment as regards access to self-employed activity and the
pursuit thereof in the host State than that which is accorded by that
State to its own nationals.

(1) OJ C 64, 8.3.2008.

(1) OJ C 92, 12.4.2008.