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2.4.

2005 EN Official Journal of the European Union C 82/25

Action brought on 17 February 2005 by the United pates pursuant to a Council decision adopted on the basis
Kingdom of Great Britain and Northern Ireland against the of Article 4, is contradicted by the structure and language
Council of the European Union of those Articles, by the very nature of the Article 5
mechanism, and by the Declaration on Article 5 that was
annexed to the Final Act of the Treaty of Amsterdam.
(Case C-77/05)

(b) The Council's interpretation of the Schengen Protocol is


(2005/C 82/50) not required to enable the ‘without prejudice’ rule in Article
7 of the Protocol on the Position of the United Kingdom
and Ireland to have useful effect. Nor is such an intepreta-
(Language of the case: English) tion required to preserve the integrity of the Schengen
acquis. Indeed, as a means of safeguarding the acquis, its
adverse impact on the United Kingdom would be grossly
disproportionate.
An action against the Council of the European Union was
brought before the Court of Justice of the European Commu-
nities on 17 February 2005 by the United Kingdom of Great (c) Given the broad and loose conception of measures building
Britain and Northern Ireland, represented by Elizabeth O'Neill, on the Schengen acquis which the Council employs in its
acting as Agent, with an address for service in Luxembourg. practice, the mechanism of Article 5 of the Schengen
Protocol, as interpreted by the Council, would be liable to
The applicant claims that the Court should: function in a way that violates the principle of legal
certainty and the fundamental principles governing
1. annul Council Regulation (EC) No 2007/2004 of 26 enhanced cooperation.
October 2004 establishing a European Agency for the
Management of Operational Cooperation at the External In the alternative, the United Kingdom contends that, if the
Borders of the Member States of the European Union (1); Council's interpretation of the relationship between Article 5
and Article 4 of the Schengen Protocol were correct, this
2. determine, pursuant to Article 233 EC, that, following the would necessarily entail taking a narrow view of the notion of
annulment of the Border Agency Regulation, and pending a measure that builds upon the Schengen acquis within the
the adoption of new legislation in this matter, the provisions meaning of Article 5, as a measure inextricably connected with
of the Border Agency Regulation should remain effective, the acquis; and the Border Agency Regulation is not such a
except in so far as they have the effect of excluding the measure.
United Kingdom from participating in the application of the
Border Agency Regulation;
(1) OJ L 349, p. 1.
3. order the Council to pay the costs of the proceedings.

Pleas in law and main arguments:

The United Kingdom was denied the right to take part in the
adoption of Council Regulation (EC) No 2007/2004 of 26
October 2004 establishing a European Agency for the Manage- Reference for a preliminary ruling from the Amtsgericht
ment of Operational Cooperation at the External Borders of the Freiburg by order of that court of 14 January 2005 in the
Member States of the European Union (the Border Agency case of Bernd Voigt v Regierungspräsidium Karlsruhe–
Regulation), despite having given notice of its wish to do so Bretten
pursuant to Article 5(1) of the Protocol integrating the
Schengen acquis into the framework of the European Union
(the Schengen Protocol) and to Article 3(1) of the Protocol on (Case C-83/05)
the position of the United Kingdom and Ireland. The annul-
ment of the Border Agency Regulation is sought on the
grounds that the exclusion of the United Kingdom from its
adoption entails the infringement of an essential procedural (2005/C 82/51)
requirement and/or the infringement of the Treaty, within the
meaning of Article 230, second paragraph, EC.
(Language of the case: German)
The main contention of the United Kingdom is that, in so
excluding it from the adoption of the Border Agency Regu-
lation, the Council acted on the basis of an erroneous interpre-
tation of the relationship between Article 5 and Article 4 of the
Schengen Protocol. It is contended more particularly as follows: Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Amtsgericht Freiburg (Frei-
(a) The Council's interpretation, according to which the right burg Regional Court) (Germany) of 14 January 2005, received
of participation conferred by Article 5 of the Schengen at the Court Registry on 18 February 2005, for a preliminary
Protocol applies only to measures building on provisions of ruling in the proceedings between Bernd Voigt and Regierung-
the Schengen acquis in which the United Kingdom partic- spräsidium Karlsruhe–Bretten on the following questions:
C 82/26 EN Official Journal of the European Union 2.4.2005

1. Is Directive 70/156/EEC on type-approval, (1) as amended The Commission of the European Communities
by Council Directive 92/53/EEC of 18 June 1992, (2) imple-
mented in German law in the EG-TypV (Verordnung über
die EG-Typgenehmigung für Fahrzeuge und Fahrzeugteile Having put the Grand Duchy of Luxembourg on notice to
(Regulation on EC type-approval of vehicles and vehicle submit its observations and having issued a reasoned opinion
components) of 9 December 1994, most recently amended on 7 July 2004 and regard being had to the reply of the
on 7 February 2004), to be interpreted as meaning that the government of the Grand Duchy of Luxembourg, registered at
driver of a motor vehicle whose vehicle has been registered the Secretariat General on 13 October 2004,
as a passenger car in accordance with a vehicle authorisa-
tion based on EC type-approval is also entitled to use that Claims that the Court should:
vehicle, as an authorised vehicle type, on the public
highway, and in particular is the driver of such a motor
vehicle also subject only to the speed requirements applic- 1. declare that, by not observing the six-month period for
able to passenger cars? refunds of VAT to taxable persons established within the
country, the Grand Duchy of Luxembourg has failed to fulfil
its obligations under Article 7(4) of Eighth Council Directive
79/1072/EEC of 6 December 1979, (1)
2. May the authorities responsible for prosecuting road traffic
offences declare that the vehicle authorisations in accord-
ance with EC type-approval issued by the Kraftfahrt-Bunde- 2. order the defendant to pay the costs.
samt (Federal Office for Motor Vehicles) and the registra-
tions issued by the German registration authorities based on
these EC type-approvals are not decisive when establishing
the speed requirements to be complied with by the driver of Pleas in law and main arguments
such a vehicle type?

The Grand Duchy of Luxembourg, whilst having correctly


(1) Council Directive 70/156/EEC of 6 February 1970 on the approxi- transposed the directive into national law, is not in practice
mation of the laws of the Member States relating to the type- observing the six-month period provided for in Article 7(4) for
approval of motor vehicles and their trailers (OJ, English Special the refund of VAT to taxable persons not established within
Edition 1970 (I), p. 96).
(2) Council Directive 92/53/EEC of 18 June 1992 amending Directive the country. In fact refunds made by the Luxembourg authori-
70/156/EEC (OJ 1992 L 225, p. 1). ties are systematically paid with considerable delays. Moreover,
Luxembourg legislation does not provide for interest on late
payment to offset damage suffered as a result of those delays.

(1) Eighth Council Directive 79/1072/EEC of 6 December 1979 on the


harmonisation of the laws of the Member States relating to turnover
taxes – Arrangements for the refund of value added tax to taxable
persons not established in the territory of the country.
Action brought on 18 February 2005 by the Commission
of the European Communities against the Grand Duchy of
Luxembourg

(Case C-90/05)
Action brought on 21 February 2005 by the Commission
of the European Communities against the French Republic

(2005/C 82/52) (Case C-92/05)

(2005/C 82/53)
(Language of the case: French)

(Language of the case: French)

An action against the Grand Duchy of Luxembourg was An action against the French Republic was brought before the
brought before the Court of Justice of the European Commu- Court of Justice of the European Communities on 21 February
nities on 18 February 2005 by the Commission of the Euro- 2005 by the Commission of the European Communities, repre-
pean Communities, represented by Dimitris Triantafyllou, sented by Bruno Stromsky and Bernhard Schima, acting as
acting as Agent, with an address for service in Luxembourg. Agents, with an address for service in Luxembourg.