Case C-36/09 P: Appeal brought on 28 January 2009 by Transportes Evaristo Molina SA against the judgment delivered on 14 November 2008 in Case T-45/08 Transportes Evaristo Molina SA v Commission of the European Communities
Date: 2009-01-28
Institutions: Court of Justice
Subjects: European Commission, appeal, competition law, distributive trades, motor fuel

C 82/16

EN

Official Journal of the European Union

4.4.2009

Reference for a preliminary ruling from the Corte Suprema
di Cassazione (Italy)
lodged on 28 January 2009 —
Ministero dell'Economia e delle Finanze, Agenzia delle
Entrate v Paolo Speranza

Appeal brought on 28 January 2009 by Transportes
Evaristo Molina SA against the judgment delivered on
14 November 2008 in Case T-45/08 Transportes Evaristo
Molina SA v Commission of the European Communities

(Case C-35/09)

(2009/C 82/29)

Language of the case: Italian

(Case C-36/09 P)

(2009/C 82/30)

Language of the case: Spanish

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Parties

Appellant: Transportes Evaristo Molina SA (represented by: A.
Hernández Pardo, S. Beltrán Ruiz and L. Ruiz Ezquerra, lawyers)

Other party to the proceedings: Commission of
Communities

the European

Appellants: Ministero dell'Economia e delle Finanze, Agenzia
delle Entrate

Form of order sought

Respondent: Paolo Speranza

Questions referred

1. Is Article 4(1)(c) of Directive 69/335/EEC (1), which provides
that an increase in the capital of a capital company by contri-
bution of assets of any kind is to be subject to capital duty,
to be interpreted as meaning that an actual contribution is to
be taxable, but not a mere decision to increase the share
capital which remains essentially unimplemented?

2. Is Article 4(1)(c) of Directive 69/335/EEC to be interpreted
as meaning that the duty must be levied exclusively on the
company to which the capital is contributed and not also on
the public official who drafts or certifies the transaction?

3. In any event, are the means of defence afforded to that
public official by the Italian legislation consistent with the
principle of proportionality, in light of the fact that, under
Article 38 of Decree No 131/1986 of the President of the
Republic, it is irrelevant whether the resolution to increase
share capital is null and void or may be annulled, and repay-
ment of the duty paid may be effected only after a civil judg-
ment declaring the transaction null and void or annulling it
has become final?

(1) OJ, English Special Edition, 1969 (II), p. 412.

— annul

the judgment of

the Court of First

Instance of
14 November 2008 in Case T-45/08 in its entirety and, if
the Court of Justice considers that it has sufficient evidence
to give a ruling on the substance of the appeal brought
against the Court of First Instance:

— Prior to the assessment of the substance of the case,
declare relevant and order
the
evidence requested by Transportes Evaristo Molina SA in
its application for annulment; and

the production of

— Uphold the submissions put

forward by Transportes
Evaristo Molina SA before the Court of First Instance:
annulment of
the Commission decision of 12 April
2006 (1) relating to a proceeding pursuant to Article 81
of
the EC Treaty (Case COMP/B-1/38.348 — Repsol
CPP) on the grounds that it infringes Article 9 of Regu-
lation No 1/2003 (2), and the principles of Community
law laid down in the action for annulment, Article 81 EC
and the exemption regulations for the categories which
are
in Article 81(3), Regulation (EEC)
No 1984/83 (3) and Regulation (EC) No 2790/99 (4).

set out

— order the Commission of the European Communities to pay

the costs.

Pleas in law and main arguments

(a) The ‘dies a quo’ (day from which) the starting point for the
limitation period laid down in Article 230 EC is calculated
is the day on which the contested measure (Commis-
sion decision of 12 April 2006 (5) relating to a proceeding
pursuant
(Case
COMP/B-1/38.348 — Repsol CPP) directly and individually
affected TRANSPORTES EVARISTO MOLINA SA.

to Article 81 of

EC Treaty

the

4.4.2009

EN

Official Journal of the European Union

C 82/17

(b) If

that

the Court considers

the action for annulment
brought by TRANSPORTES EVARISTO MOLINA SA is
time-barred,
that should be
regarded as excusable since the conduct of the Commission
caused confusion on the applicant's part.

the applicant submits that

(1) Commission Decision 2006/446/of 12 April 2006 relating to a
the EC Treaty (Case
to Article 81 of
proceeding pursuant
COMP/B-1/38.348 — Repsol CPP) (summary published in OJ 2006
L 176, p. 104).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
[EC] and 82 [EC]of the Treaty (OJ 2003 L 1, p. 1).

(3) Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the
application of Article 85(3) of the Treaty to categories of exclusive
purchasing agreements (OJ 1983 L 173, p. 5).

(4) Commission Regulation (EC) No 2790/1999 of 22 December 1999
on the application of Article 81(3) of the Treaty to categories of
vertical agreements and concerted practices.

(5) Commission Decision 2006/446/of 12 April 2006 relating to a
proceeding pursuant
the EC Treaty (Case
to Article 81 of
COMP/B-1/38.348 — Repsol CPP) (summary published in OJ 2006
L 176, p. 104).

Action brought on 28 January 2009 — Commission of the
European Communities v Portuguese Republic

(Case C-37/09)

(2009/C 82/31)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (repre-
sented by: J.-B. Laignelot, S. Pardo Quintillán and P. Guerra e
Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

— A declaration, first, that by not having adopted the measures
necessary to ensure that waste tipped in the dos Limas, dos
Linos and dos Barreiras quarries in the district of Lourosa is
disposed of or recovered without endangering human health
or harming the environment, in particular without creating
the waste is
risks to water or soil, and to ensure that
entrusted to a private or public collection service or to an
undertaking responsible for its disposal or recovery and,
secondly, by not having adopted the measures necessary to
restrict
the introduction into groundwater of substances
included in List II of Directive 80/68/EEC so as to prevent
the pollution of groundwater by those substances, the Portu-
guese Republic has failed to fulfil its obligations under Arti-
cles 4 and 8 of Directive 2006/12/EC on waste, codifying

Directive 75/442/EEC on waste, and under Articles 3 and 5
of Directive 80/68/EEC on the protection of groundwater
against pollution caused by certain dangerous substances;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

Starting in the 1980s, waste from various sources began to be
tipped in disused quarries without any supervision by the autho-
rities whatsoever. Discharging of waste into the quarries
continued until February 2004. Only in June 2004 were those
areas closed off.

Analysis of the water at separate points in the old quarry area
disclosed troubling levels of chemical contamination. The water
table in that area is contaminated.

For many years the Portuguese authorities did not take the
measures necessary to prevent holders of unidentified waste
from discharging and abandoning waste in disused quarries.
They did not check the discharge or abandonment of waste in
the quarries or monitor its disposal.

the Portuguese authorities did not

Furthermore,
take the
measures necessary to prevent the introduction into ground-
water of harmful toxic substances. They did not make subject to
prior investigation the tipping of waste capable of leading to the
indirect discharge of noxious substances into groundwater. Nor
did they check the surface discharge of waste.

the judgment of

Appeal brought on 29 January 2009 by Mr Ralf Schräder
against
Instance
(Seventh Chamber) delivered on 19 November 2008 in
Case T-187/06 Ralf Schräder v Community Plant Variety
Office

the Court of First

(Case C-38/09 P)

(2009/C 82/32)

Language of the case: German

Parties

Appellant: Ralf Schräder (represented by: T. Leidereiter and W.-A.
Schmidt, Rechtsanwälte)

Other party to the proceedings: Community Plant Variety Office
(CPVO)

Form of order sought

— Set aside the judgment of

Instance
(Seventh Chamber) of 18 November 2008 in Case
T-187/06;

the Court of First