Case C-539/07: Judgment of the Court (Seventh Chamber) of 15 January 2009 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2002/22/EC — Article 26(3) — Single European emergency call number — Caller location information — Availability to the authorities handling emergencies — Failure to transpose within the prescribed period)
Date: 2009-01-15
Institutions: Court of Justice
Subjects: European Commission, Italy, access to information, action for failure to fulfil an obligation, emergency aid, telephone

C 55/4

EN

Official Journal of the European Union

7.3.2009

Operative part of the judgment

Operative part of the judgment

Articles 10(1) and 12(1) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member States
relating to trade marks must be interpreted as meaning that, where the
proprietor of a mark affixes that mark to items that it gives, free of
charge, to purchasers of its goods, it does not make genuine use of that
mark in respect of the class covering those items.

(1) OJ C 22, 26.1.2008.

1. The common system of value added tax, as defined in the first and
second paragraphs of Article 2 of First Council Directive
67/227/EEC of 11 April 1967 on the harmonisation of legisla-
tion of Member States concerning turnover taxes and in Articles 2
and 10(1)(a) and (2) 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, as amended by Council
Directive 2004/66/EC of 26 April 2004, does not preclude a
Member State from providing in its legislation for an administrative
penalty which may be imposed on persons liable to value added
tax, such as the ‘additional tax’ provided for in Article 109(5) and
(6) of the Ustawa o podatku od towarów i usług (Law on the taxa-
tion of goods and services) of 11 March 2004.

Judgment of the Court (Second Chamber) of 15 January
2009 (reference
a preliminary ruling from the
Naczelny Sąd Administracyjny — Republic of Poland) —
K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy

for

2. Provisions such as those in Article 109(5) and (6) of the Law on
the taxation of goods and services of 11 March 2004 do not
constitute ‘special measures for derogation’
for preventing certain
types of
tax evasion or avoidance within the meaning of
Article 27(1) of Sixth Directive 77/388, as amended.

(Case C-502/07) (1)

(VAT — Irregularities in the tax declaration submitted by a
taxable person — Additional tax)

3. Article 33 of Sixth Directive 77/388, as amended, does not
preclude
in
Article 109(5) and (6) of the Law on the taxation of goods and
services of 11 March 2004.

the maintenance

of provisions

such as

those

(2009/C 55/05)

(1) OJ C 22, 26.1.2008.

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: K-1 sp. z o.o.

Defendant: Dyrektor Izby Skarbowej w Bydgoszczy

Re:

Reference for a preliminary ruling — Naczelny Sąd Administra-
cyjny (Poland) — Interpretation of paragraphs one and two of
Article 2 of First Council Directive 67/227/EEC of 11 April
legislation of Member States
1967 on the harmonisation of
concerning turnover taxes (OJ, English Special Edition 1967,
p. 14) and Articles 2, 10(1)(a), 10(2), 27(1) and 33 of Sixth
Council Directive 77/388/EEC of 17 May 1977 on the harmoni-
sation of the laws of the Member States relating to turnover
taxes — Common system of value added tax: uniform basis of
assessment
legislation
(OJ 1977 L 145, p. 1) — National
imposing an additional
tax liability where irregularities are
established in the taxable person's VAT declaration

Judgment of the Court (Seventh Chamber) of 15 January
the European Communities v
2009 — Commission of

Italian Republic

(Case C-539/07) (1)

(Failure of a Member State to fulfil obligations — Directive
2002/22/EC — Article 26(3) — Single European emergency
call number — Caller location information — Availability to
the authorities handling emergencies — Failure to transpose
within the prescribed period)

(2009/C 55/06)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Montaguti and A. Nijenhuis, acting as Agents)

Defendant:
Italian Republic (represented by:
Agent, and S. Fiorentino, avvocato dello Stato)

I. M. Braguglia,

7.3.2009

EN

Official Journal of the European Union

C 55/5

Re:

Operative part of the judgment

Failure of a Member State to fulfil obligations — Failure to
adopt, within the prescribed period, the provisions necessary to
comply with Article 26(3) of Directive 2002/22/EC of the Euro-
pean Parliament and of
the Council of 7 March 2002 on
universal service and users' rights relating to electronic commu-
nications networks and services (Universal Service Directive)
(OJ 2002 L 108, p. 51)

Operative part of the judgment

The Court:

1. Declares that, by failing, for all calls to the single European emer-
gency call number ‘112’, to make caller location information avail-
able, to the extent technically feasible, to the authorities handling
emergencies, the Italian Republic has failed to fulfil its obligations
under Article 26(3) of Directive 2002/22/EC of the European
Parliament and of the Council of 7 March 2002 on universal
service and users'
communications
relating to electronic
networks and services (Universal Service Directive);

rights

2. Orders the Italian Republic to pay the costs.

(1) OJ C 37 of 9.2.2008.

The Court:

1. Declares that, by failing to take all the measures necessary to trans-
pose fully and/or correctly the obligations under Article 3(1) and
(2), Article 4(1), Article 5 and Article 8(1) of Council Directive
79/409/EEC of 2 April 1979 on the conservation of wild birds,
the Hellenic Republic has failed to fulfil its obligations under those
provisions;

2. Orders the Hellenic Republic to pay the costs.

(1) OJ C 209 of 15.8.2008.

Appeal brought on 24 September 2008 by Calebus SA
against the judgment delivered on 14 July 2008 in Case
the European
T-366/06 Calebus SA v Commission of

Communities, supported by the Kingdom of Spain

(Case C-421/08 P)

(2009/C 55/08)

Language of the case: Spanish

Judgment of the Court (Sixth Chamber) of 15 January 2009
— Commission of the European Communities v Hellenic
Republic

Parties

(Case C-259/08) (1)

Appellant: Calebus SA (represented by: R. Bocanegra Sierra,
lawyer)

(Failure of a Member State to fulfil obligations — Directive
79/409/EEC — Conservation of wild birds — Preservation
and maintenance of habitats — Classification of special
protection areas — Prohibition of hunting and capture —
Incorrect transposition)

(2009/C 55/07)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Patakia and D. Recchia, acting as Agents)

Defendant: Hellenic Republic (represented by: E. Skandalou,
Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to
transpose Article 3(1) of Council Directive 79/409/EEC of
2 April 1979 on the conservation of wild birds (OJ 1979 L 103,
p. 1) — Incorrect transposition of Article 3(2), Article 4(1),
Article 5 and Article 8(1) of that directive

Other parties to the proceedings: Commission of the European
Communities and the Kingdom of Spain

Form of order sought

Take note of the fact that the appeal was lodged against the
order of the Court of First Instance of 14 July 2008 declaring
inadmissible the action brought by Calebus SA in Case
T-366/06, allow the appeal and, after completion of all the legal
formalities, give a judgment upholding the appeal, setting aside
the judgment under appeal, declaring the action admissible and
uphold its claims.

Pleas in law and main arguments

T-366/06

The appeal is brought against the order of 14 July 2008 of the
Court of First Instance declaring inadmissible the action brought
in Case
SA against Decision
by Calebus
2006/613/EC (1) of 19 July 2006 adopting, pursuant to Council
Directive 92/43/EEC, the list of sites of Community importance
for the Mediterranean biogeographical region as regards the
inclusion of the farm ‘Las Cuerdas’ as the SCI ‘ES61110006
Ramblas de Gergal, Tabernas y Sur de Sierra Alhamilla’, which
appears on that list.