ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 32/13

Action brought on 4 November 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-474/08)

(2009/C 32/21)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and B. Schima, Agents)

Defendant: Kingdom of Belgium

Form of order sought

The applicant claims that the Court should:

— declare that, by failing to provide that cases of refusal of access to the distribution or transmission network can be submitted to the regulatory authority which will rule by binding decision within two months, in accordance with Article 23(5) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (1), by removing certain issues which are decisive for the calculation of tariffs from the competence of the regulatory authority as set out in Article 23(2) of Directive 2003/54/EC, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

— order Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission submits, first, that the transposition into Belgian law of Article 23(5) of Directive 2003/54/EC has not been carried out. The relevant provisions of Belgian law relating to the organisation of the electricity market are in fact so general that they do not enable it to be ascertained with any certainty whether there is an individual right of action against decisions to refuse access to the electricity distribution or transmission network. Those provisions do not set out an exact procedural framework and do not provide for a time-limit as regards the response of the regulatory authority, in this case the Commission nationale de régulation de l'électricité (National Commission for the Regulation of Electricity; CRE).

The applicant secondly alleges that the defendant has infringed Article 23(2) of Directive 2003/54/EC in so far as it confers on the Crown, that is an authority other than the CRE, the power to set specific rules concerning the provision for depreciation and the profit margin relating to investments in the national interest and in European interest. That procedure is not compatible with the aforementioned article, since the regulatory authority does not seem to have any control in either of those situations over the methodology used to calculate or establish the tariffs for transmission and distribution.

(1) OJ L 176, p. 37.
EN Official Journal of the European Union C 44/25

Reference for a preliminary ruling from the Oberlandesgericht Oldenburg (Germany) lodged on 1 October 2008 — Arnold and Johann Harms, in their capacity as a partnership under German civil law v Freerk Heidinga

(Case C-434/08)

(2009/C 44/42)

Language of the case: German

Referring court

Oberlandesgericht Oldenburg (Germany)

Parties to the main proceedings

Applicants: Arnold and Johann Harms, in their capacity as a partnership under German civil law

Defendant: Freerk Heidinga

Question referred

Is Article 46(2) of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy (1) and establishing certain support schemes for farmers to be interpreted as meaning that the following contractual arrangements are incompatible with that provision and hence invalid: contractual arrangements outwardly effecting a complete and definitive transfer of payment entitlements, but stipulating — according to an internal agreement between the parties — that the seller is to remain the beneficial owner of those payment entitlements, whereby the purchaser, in his capacity as the person formally entitled to them, is to activate the payment entitlements through cultivation of the corresponding land and to pass on to the seller the full amount of the single payments made to him, or contractual arrangements pursuant to which land premiums are transferred to the purchaser in such a way that he remains under an ongoing obligation to pay to the seller a part of the single payments (the farm-specific part), at any rate once those payments have been activated and disbursed?

(1) OJ L 270, p. 1.
EN Official Journal of the European Union C 44/28

Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 24 November 2008 — Vera Mattner v Finanzamt Velbert

(Case C-510/08)

(2009/C 44/47)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Vera Mattner

Defendant: Finanzamt Velbert

Question referred

Are Articles 39 EC and 43 EC and Article 56 EC in conjunction with Article 58 EC to be interpreted as precluding national legislation of a Member State on the charging of gift tax which, where land situated within the country is acquired by a non-resident person, provides for a tax-free amount of only EUR 1 100 for the non-resident acquirer, while on the gifting of the same land a tax-free amount of EUR 205 000 would apply, if at the time the gift was effected the donor or acquirer were domiciled in the Member State concerned?
EN Official Journal of the European Union C 55/16

Reference for a preliminary ruling from the Arbeidshof te Antwerpen, Afdeling Hasselt (Belgium) lodged on 29 December 2008 — Rijksdienst voor pensioenen v E. Brouwer

(Case C-577/08)

(2009/C 55/25)

Language of the case: Dutch

Referring court

Arbeidshof te Antwerpen, Afdeling Hasselt

Parties to the main proceedings

Applicant: Rijksdienst voor pensioenen

Defendant: E. Brouwer

Question referred

Are the Royal Decrees of 1.12.1969, 18.6.1970, 8.6.1971, 14.9.1972, 31.7.1973, 12.7.1974, 13.2.1975, 28.11.1975, 26.11.1976, 26.9.1977, 31.7.1978, 31.8.1979, 2.12.1980, 13.1.1982, 14.3.1983, 11.1.1984, 30.11.1984, 24.1.1986, 30.12.1986, 6.1.1988, 2.12.1988, 30.11.1989, 10.12.1990, 1.6.1993, 8.12.1993, 19.12.1994 and 10.10.1995 enacted pursuant to Article 25 of the Royal Decree of 21 December 1967 laying down general rules for the retirement and survivor's pension for employed persons (Koninklijk Besluit tot vaststelling van het algemeen reglement betreffende het rust- en overleveringspensioen voor werknemers) — which establish lower notional and/or flat-rate daily wages for the calculation of a retirement pension for female frontier workers than for male frontier workers — in accordance with Article 4(1) of Directive 79/7/EEC (1) on the progressive implementation of the principle of equal treatment for men and women in matters of social security?

(1) Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24).
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declare that in failing to adopt the laws, regulations and administrative measures necessary to comply with Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies (1) the Kingdom of Belgium has failed to fulfil its obligations under that directive;
(c)

Is a Member State permitted to limit the interpretation of ‘sample’ in the last sentence of Article 5.6 of the Sixth Directive to- (i) an industrial sample in a form not ordinarily available for sale to the public given to an actual or potential customer of the business (until 1993), (ii) only one, or only the first of a number of samples given by the same person to the same recipient where those samples are identical or do not differ in any material respect from each other (from 1993)?
EN Official Journal of the European Union C 102/9

Action brought on 21 November 2008 — Commission of the European Communities v Slovak Republic

(Case C-507/08)

2009/C 102/12

Language of the case: Slovak

Parties

Applicant: Commission of the European Communities (represented by: C. Giolito, J. Javorský, K. Walkerová, acting as Agents)

Defendant: Slovak Republic

Form of order sought

— declare that the Slovak Republic, by failing to execute the Commission Decision of 7 June 2006 on State Aid No C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice, a.s. (notified under C(2006) 2082) (1) has failed to fulfil its obligations under the fourth paragraph of Article 249 of the EC Treaty and Article 2 of that decision;

— order Slovak Republic to pay the costs.

Pleas in law and main arguments

In its decision of 7 June 2006 on State Aid No C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice, a.s., the Commission found that the measures which the Slovak Republic implemented for Frucona Košice, a.s. constituted State aid within the meaning of Article 87(1) EC and that that aid was incompatible with the common market. It also directed the Slovak Republic to take all necessary measures to recover from the beneficiary the unlawfully granted aid.

To date, the aid awarded to Frucona has not been recovered.

State aid was granted to Frucona in the form of a waiver of a tax debt confirmed by the court in the context of an arrangement procedure. The Slovak Republic applied to recover the unlawfully granted aid in legal proceedings. The first instance court dismissed the action inter alia because Frucona’s obligation to pay its debt to the tax authorities arose ex lege. The appeal court upheld the judgment of the first instance court inter alia because it was not possible to review the order concerning the arrangement, because, as res judicata, it must be respected by all bodies, including the appeal court and, also, because the Commission in the decision failed to respect the provisions of national law governing conflicts between bankruptcy and enforcement proceedings.

The judgments of both courts prevent the immediate and effective execution of the Commission decision.

It is not sufficient that the Slovak Republic made use of all means at its disposal. The application of those means must result in the immediate and effective enforcement of the decision, failing which the Slovak Republic must be considered as having failed to fulfil its obligations. A Member State fails to fulfil its obligation to recover if the steps taken by that Member State have no impact on the actual recovery of those amounts.

(1) OJ L 112, 30.4.2007, p. 14.
1.

Does Community law permit the Member States to introduce a prohibition, directed at all undertakings providing telecommunication services, on making the conclusion of a service-provision contract contingent on the purchase of another service (combined sale) and, in particular, does a measure of this kind go beyond what is necessary to attain the objectives of the directives contained in the telecommunications package (Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (1); Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (2); Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (3); and Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (4))?
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declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/113/EC (1) of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, or in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 82/21

Appeal brought on 16 February 2009 by Georgios Karatzoglou against the judgment of the Court of First Instance (First Chamber) delivered on 2 December 2008 in Case T-471/04 Georgios Karatzoglou v European Agency for Reconstruction (EAR)

(Case C-68/09 P)

(2009/C 82/38)

Language of the case: English

Parties

Appellant: Georgios Karatzoglou (represented by: S. A. Pappas, dikigoros)

Other party to the proceedings: European Agency for Reconstruction (EAR)

Form of order sought

The appellant claims that the Court should:

— set aside the appealed decision;

— Cancel the contested decision of the appointing authority;

— Order the Defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The appellant submits that in holding that dismissals of temporary staff do not require reasoning the Court of First Instance disregarded recent case law of the Court of Justice, infringed international law and infringed art. 253 of the EC Treaty, which imposes a general obligation to give reasons.

The appellant also submits that the CFI was wrong in declaring that he had not presented evidence capable of establishing the existence of a misuse of powers. He also contests the finding of the CFI that there was no breach of the principle of sound administration.
2.

In the event that Article 76(2) of Regulation No 1408/71 is to be applied mutatis mutandis: on the basis of which discretionary considerations may the institution competent for family benefits in the country of residence apply Article 10(a) of Regulation No 574/72 as if benefits had been granted in the country of employment? May the discretion to assume that family benefits have been received in the country of employment be restricted where the person entitled intentionally does not apply for the family benefits to which he is entitled in the country of employment in order to cause detriment to the person entitled to child benefit in the country of residence?
1.

Under what conditions does an infringement of Article 82 EC arise on the basis of a difference between the price charged by a vertically integrated dominant undertaking for the sale of input ADSL products to competitors on the wholesale market and the price which the same undertaking charges on the end-user market?
EN Official Journal of the European Union C 102/12

Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 18 February 2009 — Ėtablissements Rimbaud SA v Directeur général des impôts, Directeur des services fiscaux d’Aix-en-Provence

(Case C-72/09)

2009/C 102/18

Language of the case: French

Referring court

Cour de Cassation

Parties to the main proceedings

Applicant: Ėtablissements Rimbaud SA

Defendants: Directeur général des impôts, Directeur des services fiscaux d’Aix-en-Provence

Question referred

Does Article 40 of the Agreement on the European Economic Area preclude legislation such as that imposed by Article 990D et seq. of the Code général des impôts, in the version applicable at the relevant time, which exempts from the 3% tax on the market value of immovable property situated in France companies which have their registered office in France and which, in respect of a company which has its registered office in a country in the European Economic Area and which is not a member of the European Union, makes that exemption subject either to the existence of a convention on administrative assistance between France and that State for the purposes of combating tax avoidance and tax evasion or to the existence of a requirement in a treaty containing a clause prohibiting discrimination on grounds of nationality to the effect that those legal persons cannot be more heavily taxed than companies established in France?
EN Official Journal of the European Union C 102/12

Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 17 February 2009 — Alexander Hengartner and Rudolf Gasser

(Case C-70/09)

2009/C 102/17

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: Alexander Hengartner, Rudolf Gasser

Defendant: Vorarlberger Landesregierung

Question referred

Is the carrying on of hunting, if the person licensed to hunt sells the shot wildlife within the country concerned, a self-employed activity within the meaning of Art. 43 EC, even if that activity is not intended to make an overall profit?
EN Official Journal of the European Union C 129/11

Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 3 April 2009 — Smit Reizen BV v Minister van Verkeer en Waterstaat

(Case C-124/09)

2009/C 129/18

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Smit Reizen BV

Respondent: Minister van Verkeer en Waterstaat

Questions referred

1. Against the background of Article 1(5) of Council Regulation (EEC) No 3820/85 (1) of 20 December 1985 on the harmonisation of certain social legislation relating to road transport and of Article 15 of Council Regulation (EEC) No 3821/85 (2) of 20 December 1985 on recording equipment in road transport, how must the term ‘operating centre,’ as referred to in paragraph 21, and elsewhere, of the judgment of the Court of Justice in Case C-297/99 Skills Motor Coaches Ltd [2001] ECR I-573, be interpreted?

2. For the assessment as to what constitutes rest for the purposes of Article 1(5) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport, does it make any difference whether the driver concerned drives himself to a place where he is to take over a vehicle in which a tachograph must be installed or is driven there by someone else?

(1) Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1).

(2) Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8).
EN Official Journal of the European Union C 141/32

Reference for a preliminary ruling from the Arios Pagos (Greece) lodged on 10 April 2009 — Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v Divani Acropolis Hotel and Tourism AE

(Case C-136/09)

2009/C 141/56

Language of the case: Greek

Referring court

Arios Pagos

Parties to the main proceedings

Applicant: Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon

Respondent: Divani Acropolis Hotel and Tourism AE

Question referred

Does the mere installation of television sets by a hotelier in hotel rooms and their connection to the central antenna installed in the hotel, without any other action, intermediation or intervention by the hotelier, constitute communication of the work to the public within the meaning of Article 3(1) of Directive 2001/29/EC, and, in particular, in accordance with the aforementioned judgment of the Court of Justice of 7 December 2006 in Case C-306/05 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA, does this involve the distribution of a signal, via television sets, to customers who stay in the hotel rooms, by means of the technical intervention of the hotelier?
1.

Infringement of Article 299(4) EC, as it has been interpreted in the case-law of the Court of Justice. First, the judgment under appeal disregards the legal status of Gibraltar according to the case-law of the Court of Justice of the European Communities (judgments of 23 September 2003 and 12 September 2006), since it fails to state that Gibraltar was ceded by the King of Spain to the British Crown under the Treaty of Utrecht 1713 and since it makes a number of errors in describing the status of Gibraltar. Second, the judgment under appeal also infringes Article 299(4) EC in that it affords Gibraltar the possibility, in the field of taxation, to separate itself from the United Kingdom, which means that, in that field, the United Kingdom ceases to be responsible for the external relations of Gibraltar and that the latter is converted de facto into a new Member State for the purposes of taxation.
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Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/40/EC (1) of the European Parliament and of the Council of 17 May 2006 relating to emissions from air-conditioning systems in motor vehicles and amending Council Directive 70/156/EEC, or in any event, by failing to communicate them all to the Commission, the United Kingdom of Great Britain and Northern Ireland failed to fulfil its obligations under this Directive and under the Treaty;
1)

In circumstances where (i) an EU citizen came to the United Kingdom in September 1999 as a worker and remained as a worker until February 2005 (H) the EU citizen then left the United Kingdom and returned to the Member State of which she is a national for a period of 10 months (iii) the EU citizen returned to the United Kingdom in December 2005 and resided there continuously until November 2006, when she made a claim for social security assistance:
EN Official Journal of the European Union C 180/27

Reference for a preliminary ruling from the Tribunal de commerce de Bourges (France) lodged on 8 May 2009 — Lidl SNC v Vierzon Distribution SA

(Case C-159/09)

2009/C 180/46

Language of the case: French

Referring court

Tribunal de commerce de Bourges

Parties to the main proceedings

Applicant: Lidl SNC

Defendant: Vierzon Distribution SA

Question referred

Is Article 3a of Directive 84/450 (1), as amended by Directive 97/55 (2), to be interpreted as meaning that it is unlawful to engage in comparative advertising on the basis of the price of products meeting the same needs or intended for the same purpose, that is to say, products which are sufficiently interchangeable, on the sole ground that, in regard to food products, the extent to which consumers would like to eat those products, or, in any case, the pleasure of consuming them, is completely different according to the conditions and the place of production, the ingredients used and the experience of the producer?

(1) Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (OJ 1984 L 250, p. 17).

(2) Directive 97/55/EC of European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising (OJ 1997 L 290, 23.10.1997, p. 18).
1.

Is the second subparagraph of Article 22(2) of Council Regulation (EEC) No 1408/71 of 14 June 1971 (1) … to be interpreted as meaning that, where it is impossible to give in a Bulgarian healthcare institution the specific treatment that has been the subject of an application for the issue of form E 112, it is to be assumed that this treatment is not financed from the budget of the National Health Insurance Fund (NZOK) or the Ministry of Health and, conversely, where such treatment is financed from the budget of the NZOK or the Ministry of Health it is to be assumed that it can be given in a Bulgarian healthcare institution?