ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 142/17

Reference for a preliminary ruling from the Hof van Cassatie van België, lodged on 25 March 2008 — I. Distillerie Smeets Hasselt NV v 1. Belgische Staat, 2. L.S.C. De Vos, 3. Bollen, Mathay & Co. BVBA, liquidator of Transterminal Logistics NV, 4. D. Van den Langenbergh and 5. Firma De Vos NV; II. Belgische Staat v Bollen, Mathay & Co. BVBA, liquidator of Transterminal Logistics NV; and III. L.S.C. De Vos v Belgische Staat

(Case C-126/08)

(2008/C 142/25)

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Appellants:

I. Distillerie Smeets Hasselt NV

II. Belgische Staat

III. L.S.C. De Vos

Respondents:

I. 1. Belgische Staat 2. L.S.C. De Vos 3. Bollen, Mathay & Co. BVBA, liquidator of Transterminal Logistics NV 4. D. Van den Langenbergh 5. Firma De Vos NV

II Bollen, Mathay, & Co. BVBA, liquidator of Transterminal Logistics NV

III. Belgische Staat

Question referred

Should Articles 217(1) and 221(1) of the Community Customs Code (CCC) (1) be construed as meaning that the prescribed entry of a customs debt in the accounts may also be lawfully effected through the entry of the amount in a record in accordance with the AWDA (2), drawn up by investigating officials and not by persons authorised to enter such amounts in the accounts, and that such records may be treated as accounting records or any other equivalent medium within the terms of Article 217(1) of the CCC?

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

(2) Royal Decree of 18 July 1997 coordinating the general provisions on customs and excise duties.
2.

Through such expropriation and subsequent sale to NV Metafox (specifically the preferential price paid by NV Metafox of EUR 91 720,60) does the Flemish Region/Flemish Community, through the WVI, not indirectly benefit the favoured undertaking, NV Metafox, by directly conferring an economic advantage on it (namely the difference between the price paid and the ‘for tax’ sale price stated in the sales instrument), since the favoured undertaking, NV Metafox, could not have acquired this land under normal market conditions (EUR 1 007 926,40) or at the ‘for tax’ sale price (EUR 294 394,14)? Consequently, can such a measure of the WVI (specifically the sale of industrial land for the preferential price actually paid) be classified as a financial advantage that is contrary to Article 87(1) EC?
EN Official Journal of the European Union C 171/12

Reference for a preliminary ruling from the Bundesfinanzhof lodged on 2 April 2008 — J.E. Tyson Parketthandel GmbH hanse j. v Hauptzollamt Bremen

(Case C-134/08)

(2008/C 171/21)

Language of the case: German

Referring court

Bundesfinanzhof (Germany)

Parties to the main proceedings

Applicant: J.E. Tyson Parketthandel GmbH hanse j.

Defendant: Hauptzollamt Bremen

Question referred

Is Article 4(2) of Council Regulation (EC) No 2193/2003 of 8 December 2003 establishing additional customs duties on imports of certain products originating in the United States of America (1) to be interpreted, contrary to its wording, as meaning that products for which it can be demonstrated that they are on their way to the Community on the date of first application of the additional duties and whose destination cannot be changed are not affected by the additional duty?

(1) OJ 2003 L 328, p. 3.
If the predominant aspect of the contract relates to the carriage of goods, should the division referred to in Question (b) not be taken into account and must then the law applicable to all constituent parts of the contract be determined pursuant to Article 4(4) of the 1980 Convention?

With regard to the ground set out in 3.6.(ii) above:
1.

Where nationals of a Member State, relying upon evidence of a qualification that they believe comes within the scope of Directive 89/48/ΕEC, have been recruited by a legal person governed by public law and exercise a regulated profession in the host Member State under a contract of employment of unlimited duration governed by private law, having progressed in terms of their career and salary in keeping with the qualification in question, is it subsequently open to the competent authorities, for the purpose of Articles 1, 2, 3 and 4 of the said directive, interpreted in the light of Articles 149 and 150 of the Treaty establishing the European Community, to prevent such persons from exercising their professional rights because they are unable to recognise the academic equivalence of the qualification relied on for the purpose of classification in the job category and salary grade corresponding to the qualification, purely on the ground that, although it was awarded by an authority in the Member State of origin, it was awarded at the end of a course of which part was completed, under a franchising agreement, at an institution in the host Member State which, although operating freely in the host Member State, is not recognised as an educational establishment in that State under the relevant general provision of its legislation?
EN Official Journal of the European Union C 183/11

Action brought on 17 April 2008 — Commission of the European Communities v Republic of Poland

(Case C-165/08)

(2008/C 183/20)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: B. Doherty and A. Szmytkowska, Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by introducing a ban on the free movement of seed derived from genetically modified varieties and by prohibiting the registration of genetically modified varieties in the national catalogue of varieties, the Republic of Poland has failed to comply with its obligations under Directive 2001/18/EC of the European Parliament and of the Council (1) in its entirety, and in particular pursuant to Articles 22 and 23 thereof, as well as its obligations under Council Directive 2002/53/EC (2), and in particular Articles 4(4) and 16 thereof;

— order the Republic of Poland to pay the costs of the proceedings.

Pleas in law and main arguments

The national provision stating that ‘seed derived from genetically modified varieties may not be authorised for marketing within the territory of the Republic of Poland’ is at variance with Directive 2001/18/EC, which lays down the principles governing the bringing onto the market of genetically modified organisms. Article 22 of that directive prohibits the Member States from imposing additional conditions on the marketing of organisms which have been authorised at Community level, while Article 23 of the directive provides for restrictions and prohibitions only in the case of particular genetically modified organisms and only in special circumstances. In none of its provisions does the directive authorise a Member State to prohibit, in a general and unjustified manner, the marketing, within its territory, of an entire category (in this case, seed) of genetically modified organisms. The aforementioned provision is also at variance with Directive 2002/53/EC, in particular Article 16 thereof, inasmuch as it constitutes a marketing restriction in relation to seed derived from varieties listed in the common catalogue of varieties of agricultural plant species.

The national provision stating that ‘genetically modified varieties may not be registered in the national catalogue’ is at variance with Directive 2002/53/EC. Article 4(4) of that directive does not authorise Member States to prohibit generally the registration of genetically modified varieties in the national catalogue, but rather imposes on them solely the obligation to ensure, when such varieties are being entered in the national catalogue, that each of those varieties had been approved in accordance with the Community legislation applicable to genetically modified organisms.

(1) OJ L 106, 17.4.2001, p. 1-39.

(2) OJ L 193, 20.7.2002, p. 1-11.
2.

If the Regulation is invalid, can the Common Customs Tariff then be interpreted to mean that those goods should be classified as ‘parts and accessories of the machines of heading 8471’ as referred to in subheading 8473 30 90 of the CN?
EN Official Journal of the European Union C 197/13

Action brought on 22 May 2008 — Commission of the European Communities v Italian Republic

(Case C-218/08)

(2008/C 197/23)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: B. Schima and D. Recchia, acting as Agents)

Defendant: Commission of the European Communities

Form of order sought

— declare that, by failing to draw up external emergency plans for all the establishments for which those plans are required, the Italian Republic has failed to fulfil its obligations under Article 11(1)(c) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (1), as amended by Directive 2003/105/EC (2);

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Seveso II directive pursues the objective of preventing major-accident hazards involving dangerous substances and limiting their consequences for man and the environment. It is clear that the drawing up of external emergency plans is a fundamental provision of that directive: it ensures that in the case of accidents urgent measures are adopted to limit their consequences.

Article 11 applies, by virtue of the references made in Article 9 and Article 2 of the directive, to all establishments where dangerous substances are present in quantities equal to or in excess of the quantities listed in Annex I, Parts 1 and 2, column 3.

The Italian authorities confirm with data from their own sources that not all the establishments which ought to have external emergency plans have actually been provided with such plans.

(1) OJ L 10 of 14.1.1997, p. 13.

(2) OJ L 345 of 31.12.2003, p. 97.
EN Official Journal of the European Union C 197/2

Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) lodged on 23 April 2008 — H.J. Nijemeisland v Minister van Landbouw, Natuur en Voedselkwaliteit

(Case C-170/08)

(2008/C 197/03)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicant: H.J. Nijemeisland

Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit

Question referred

Must Article 3a of Regulation (EC) No 795/2004 (1), read in conjunction with Article 2(r) and (s) of Regulation (EC) No 2419/2001 (2), be interpreted as preventing only the perpetuation of a reduction or exclusion applied under Regulation (EC) No 2419/2001, or is that provision also applicable to reductions or exclusions applied on the basis of other regulations?

(1) Commission Regulation (EC) No 795/2004 of 21 April 2004 laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 41, p. 1).

(2) Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92 (OJ 2001 L 327, p. 11).
3.

In the event that such use does not constitute a use which may be prevented by the trade mark proprietor under the directive or the regulation, may the provider of the paid referencing service be regarded as providing an information society service consisting of the storage of information provided by the recipient of the service, within the meaning of Article 14 of Directive 2000/31 of 8 June 2000 (3), so that that provider cannot incur liability until it has been notified by the trade mark proprietor of the unlawful use of the sign by the advertiser?
1.

Is the second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to be interpreted as meaning that in the case of journeys by air from one Member State to another the single place of performance for all contractual obligations must be taken to be the place of the main provision of services, determined according to economic criteria?
EN Official Journal of the European Union C 209/33

Reference for a preliminary ruling from the Tribunal Superior de Justicia de Murcia (Spain) lodged on 19 June 2008 — María Julia Zurita García v Delegado del Gobierno en la Región de Murcia

(Case C-261/08)

(2008/C 209/49)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Murcia

Parties to the main proceedings

Applicant: María Julia Zurita García

Defendant: Delegado del Gobierno en la Región de Murcia

Question referred

Should Article 62(1) and (2)(a) of the Treaty Establishing the European Community and Articles 5, 11 and 13 of Regulation (EC) No 562/2006 (1) of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) be interpreted as precluding national legislation, and the case-law which interprets it, which permits the substitution of the expulsion of any ‘third country national’ who does not have documentation authorising him to enter and remain in the territory of the European Union by the imposition of a fine?

(1) OJ L 105, p. 1.
—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/22/EC (1) of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC or, in any event, by failing to communicate such provisions to the Commission, the Italian Republic has failed to fulfil its obligations under that directive:
EN Official Journal of the European Union C 223/33

Action brought on 1 July 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-289/08)

(2008/C 223/52)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and A. Sipos)

Defendant: Grand Duchy of Luxembourg

Form of order sought

— Declare that, by not drawing up an external emergency plan for the measures to be taken outside establishments subject to Article 9 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (1), the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 11(1)(c) of that directive;

— order Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The applicant claims that drawing up an emergency plan for the measures to be taken outside establishments subject to Article 9 of Council Directive 96/82/EC is a fundamental requirement of that directive. The Grand Duchy of Luxembourg has failed to fulfil its obligations under the directive since it has not drawn up such plans for eight operational establishments situated on its territory.

(1) OJ 1997, L 10, p. 13.
—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2006/22/EC (1) of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC, or in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and (1), in any event, by failing to inform the Commission thereof, the Republic of Finland has failed to fulfil its obligations under that directive.
4.

On the basis of the above the Commission must conclude that the Netherlands has failed to adopt the necessary measures to correctly implement Article 4(2) and (3) in conjunction with Annexes II and III of Directive 85/337/EEC, as amended by Directives 97/11 and 2003/35/EC, in that it has failed to apply all the criteria in Annex III to all projects in Annex II.
3.

If the answer to the first and second questions is in the affirmative, is Article 29 of the Warsaw Convention, in conjunction with Regulation (EC) No 2027/97, to be interpreted as meaning that the period of two years laid down in that article can be suspended or interrupted or that the carrier or its insurer can waive that time-limit, by an act deemed by the national court to constitute recognition of liability?
2.

If the answer is in the affirmative, do Article 18(4) and the principle of the effectiveness of the protection of rights arising under the Community legal system impose an obligation on the Member States nonetheless to ensure that those refunds are made within a reasonable period of time?
1.

Is Article 4(1) 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 (1) (the Sixth Directive) to be interpreted in such a way that ‘external advertising’ by the legally independent provincial organisation of a political party, taking the form of publicity, information provision, the staging of party events, the supply of advertising material to district organisations and the organisation and holding of an annual ball (the SPÖ Ball), is to be regarded as an economic activity if revenue is obtained from (partially) passing the expense of the ‘external advertising’ on to the likewise legally independent party structures (district organisations etc.) and from entrance fees from the holding of the ball?
1.

Is the reference in Article 11(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to Article 9(1)(b) of that regulation to be interpreted as meaning that a social security institution, to which the claims of the directly injured party have passed by operation of law (Paragraph 332 of the Allgemeines Sozialversicherungsgesetz (General Social Insurance Law, ASVG)), may bring an action directly against the insurer in the courts for the place in a Member State where the social security institution is established, provided that such a direct action is permitted and the insurer is domiciled in a Member State?
—

declare that, by failing to adopt and publish the laws, regulations and administrative provisions necessary to comply with Directive 2003/59/EC (1) of the European Parliament and of the Council of 15 July 2003 on the initial qualification and periodic training of drivers of certain road vehicles for the carriage of goods or passengers, amending Council Regulation (EEC) No 3820/85 and Council Directive 91/439/EEC and repealing Council Directive 76/914/EEC and, in any event, by failing to notify the Commission thereof, the Portuguese Republic has failed to fulfil its obligations under that directive;
2.

Is Article 49 et seq. of the Treaty establishing the European Community to be interpreted as precluding a national provision under which the holder of a licence to operate commercial balloon flights who is established in another Member State and recognised under the legal order of that Member State is required to obtain a further licence for the operation of balloon flights in another Member State, where the test requirements in respect of that licence prove to be identical in substance to those of the licence already granted in the country of origin, albeit with the additional proviso that the applicant for the licence must have his registered office or place of residence within the territory of the country (in this case, in Austria)?
EN Official Journal of the European Union C 285/17

Appeal brought on 21 July 2008 by Transports Schiocchet — Excursions SARL against the order of the Court of First Instance (Fourth Chamber) delivered on 19 May 2008 in Case T-220/07 Transports Schiocchet — Excursions v Commission

(Case C-335/08 P)

(2008/C 285/28)

Language of the case: French

Parties

Appellant: Transports Schiocchet — Excursions SARL (represented by: D. Schönberger, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— Annul the order of the Court of First Instance of 19 May 2008;

— Decide the case definitively by granting the applications sought at first instance;

— In the alternative, remit the case to the Court of First Instance;

— Order the Commission to pay the costs in their entirety.

Pleas in law and main arguments

The appellant puts forward three pleas in law in support of its appeal.

In its first plea, the appellant claims that the Court of First Instance infringed the principle of legal certainty which applies to decisions of the Community judicature, Article 235 EC, the second paragraph of Article 288 EC and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms inasmuch as, in paragraph 39 of the contested order, the Court of First Instance that the commencement of the appellants actions before the national courts neither suspended nor interrupted the limitation period, whereas in its earlier decisions, which are now res judicata, the Court encouraged it to continue its action before the national courts.

In its second plea, the appellant complains of several errors committed by the Court of First Instance in assessing the conditions for non-contractual liability concerning distortion of the facts and the forms of order sought in the appellant's application, the second paragraph of Article 288 EC and Article 230 EC with regard, in particular to the alleged confirmation of the Commission's position by the national courts and the assessment made of the period in which the damage was suffered.

In its third and final plea, the appellant invokes an infringement of Article 4(2) and Article 2(1)(3) of Regulation No 684/92 (1) inasmuch as the Court of First Instance erroneously accepted the Commission's interpretation and wrongly characterised the activities of the appellant's competitors as ‘special regular services’ (Article 4(2)) and therefore exempt from authorisation, whereas they are in fact parallel or temporary services (Article 2(1)(3)), subject to the same rules as the regular services operated by the appellant.

(1) OJ 1992 L 74, p. 1.
3.

Does the Community directive on compensation for environmental damage (Directive 2004/35/EC of 21 April 2004 and, in particular, Article 7 and Annex II thereto) preclude national legislation which allows the authorities to impose such requirements ex officio as conditions for an authorisation for the lawful use of the areas not directly affected by the decontamination in so far as they have already been decontaminated or in any event were not polluted, included within the limits of the Priolo site of national interest?
—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC of 20 November 2006 adapting certain directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania (1), or in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;