ddrg/super_eurlex huggingface dataset:
1.

First the grounds of the judgment under appeal are, in and of themselves, contradictory. On the one hand, the General Court accepts that the Board of Appeal limited itself to examining which types of undertaking would offer the opposing goods and services, and thereby wrongly assessed the number of those undertakings possibly as a consequence of a too-narrow interpretation of the lists of earlier marks resulting from an overall assessment of the goods and services. On the other hand, the question whether the Board of Appeal made errors of assessment can be decided upon only after an assessment of ‘the Board of Appeal’s prevailing examination of each of the goods and services covered by the application’, whereas the General Court then undertakes those individual assessments — which had not been carried out by the Board of Appeal — in order to reach the conclusion that no errors made by the Board of Appeal were apparent. That inconsistency had a burdensome effect on the appellant, since in the context of the individual comparisons undertaken by General Court, constant recourse was had to the ‘overall comparison’, carried out by the Board of Appeal on the basis of sectors, so that the restrictive interpretation of the lists of goods and services covered by earlier marks resulting from that ‘overall comparison’ is repeated.
1.

Are the circular contested at first instance and the national rules referred to therein [namely, Circular No 4853 of the Ministry of the Interior of 18 May 2009 and, in particular, Legislative Decree No 152 of 2 April 2006] compatible with Community law and with the rules specifically referred to [in the order]? In particular, do the circular and the national rules infringe the principles and rules laid down by Directive 89/106/EEC (1) relating to construction products, which does not in any way make EC marking mandatory, but, on the contrary, provides (at Article 6(1) and (2)) that Member States ‘shall not impede the free movement, placing on the market or use in their territory of products which satisfy the provisions’ of that directive, and are to ensure ‘that the use of such products’, for the purpose for which they were intended, shall not be impeded by rules or conditions imposed by public bodies or private bodies acting as a public undertaking or acting as a public body on the basis of a monopoly position ‘and are to allow products not covered by Article 4(2) to be placed on the market in their territory if they satisfy national provisions consistent with the Treaty until the European technical specifications referred to in Chapters II and III provide otherwise’?
3.

Moreover, the GC committed an error in law by completely failing to assess the distinct pleas set out in paragraphs 93 to 96, on the one hand, and 121 to 129, on the other, of the Application in relation to the compatibility assessment of the Italian Law pursuant to Article 107 (3) (c) TFEU. In this respect, the GC also failed to provide an adequate statement of reasons. Furthermore, the GC erred in law when applying Article 107 (3) (c) TFEU, by declaring the Italian Law incompatible with the Common Market, as a result, and merely because of an alleged non-respect of the principle of technological neutrality arising from the alleged exclusion of satellite decoders from its benefits, quod non; and by approving the Defendant's failure to legally assess the distortive effects of the measure on the Pay TV market, through performing a proper legal, economic and balancing test of: a) the specific distortions of competition on the Pay-TV market; and b) the claimed efficiencies of the economic advantage. The latter was merely assumed in the first place and held incompatible with the Common Market because allegedly it is not technologically neutral. In addition, the GC erred in law and proceeded with an incorrect statement of reasons when dismissing the Third Plea of the Application. Not only did the GC incorrectly present and misread the relevant plea and arguments on the contradictory reasoning of the Contested Decision, but it also failed to examine such arguments and, therefore, erroneously dismissed them as unfounded.
1.

Do the principles of effectiveness, non-discrimination and tax neutrality in respect of value added tax preclude a national framework or practice that construes the right of the purchaser/client to reimbursement of VAT paid in error as a right to a payment due under the ordinary law, unlike that exercised by the principal debtor (supplier/provider of the service), with a time limit for the former significantly longer than that applied to the latter, such that the claim of the purchaser/client, brought when the time limit for the supplier/provider of the service has already expired, can give rise to an order for reimbursement against the latter, who can no longer claim reimbursement from the tax authority, and with no provision for any bridging instrument to prevent conflicts or disputes between the proceedings brought or to be brought before the various courts?
—

The General Court has infringed Regulation No 68/2001, the former Article 87(3)(c) EC and the principle of equal treatment because the examination of the necessity of the aid is incorrect in law. The infringement of Regulation No 68/2001 results from the fact that substantive criteria not laid down in the regulation are examined, which is permissible, by way of exception, only where the specific features of an individual case so justify. The former Article 87(3) EC has been infringed because the General Court erred in law in not finding that training aid serves or can serve the objectives of the former Article 87(3)(c) EC and that this is to be taken into account by the Commission in the balancing test under Article 87(3) EC. Finally, there is an infringement of the principle of equal treatment since in previous decisions involving comparable facts the Commission neither examined nor established the necessity of training aid. No objective justification for this unequal treatment is apparent.
Definition of the relevant product market. The General Court has erred in law by upholding the Commission’s findings in the Decision on the relevant product market, that for the period 1993-2000 proton pump inhibitors (PPIs) were in a market of their own. There are two grounds of appeal. The first ground of appeal has two principal parts. First, that the General Court has erred by failing to conduct a temporal analysis of the evidence thereby making a finding as to the relevant product market in 1993 on the basis of the state of competition between PPIs and H2 blockers in 2000. Second, that the General Court erred by ignoring the fact that the increase in use of PPIs was gradual on the basis that the practices of prescribing doctors, characterised by ‘inertia’ was irrelevant to the exercise of market definition. The second ground of appeal is that the question of the overall cost of treatment by H2 blockers as opposed to PPIs is fundamental to any purported reliance on price differentials in the exercise of market definition and the General Court erred by failing to take the overall cost of treatment into account.
EN Official Journal of the European Union C 328/12

Reference for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 13 September 2010 — Belgian State — SPF Finances v BLM SA

(Case C-436/10)

()

2010/C 328/22

Language of the case: French

Referring court

Cour d’appel de Mons

Parties to the main proceedings

Applicant: Belgian State — SPF Finances

Defendant: BLM SA

Question referred

Must Articles 6(2)(a) and 13B(b) 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) be interpreted as precluding national legislation which treats as an exempt supply of services, on the basis that it constitutes a leasing or letting of immovable property within the meaning of Article 13B(b), the private use by a director and his family of part of a building constructed or owned under a right in rem in that property by a taxable legal person, where the input tax on that asset is deductible?

(1) OJ 1997 L 145, p. 1
EN Official Journal of the European Union C 317/16

Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 27 August 2010 — Delphi Deutschland GmbH v Hauptzollamt Düsseldorf

(Case C-423/10)

()

2010/C 317/30

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Delphi Deutschland GmbH

Defendant: Hauptzollamt Düsseldorf

Question referred

Do the electrical connectors described in this Order come under subheading 8536 69 of the Combined Nomenclature in the version resulting from Commission Regulation (EC) No 1810/2004 of 7 September 2004, (1) Commission Regulation (EC) No 1719/2005 of 27 October 2005 (2) and Commission Regulation (EC) No 1549/2006 of 17 October 2006, (3) which were adopted to amend Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff?

(1) OJ 2004 L 327, p. 1.

(2) OJ 2005 L 286, p. 1.

(3) OJ 2006 L 301, p. 1.
1.

Does the first paragraph of Article 110 TFUE (formerly Article 90 EC) preclude the levying of a domestic tax on the registration for the first time in Romania of motor vehicles already registered in another Member State of the European Union, while motor vehicles already registered in Romania may be the subject of transactions without the imposition of such a tax?
EN Official Journal of the European Union C 328/24

Action brought on 5 October 2010 — European Commission v Kingdom of Sweden

(Case C-479/10)

()

2010/C 328/40

Language of the case: Swedish

Parties

Applicant: European Commission (represented by: K. Simonsson and A. Alcover San Pedro, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

— Declare that, by exceeding the limit values of PM10 in ambient air in 2005, 2006 and 2007 in zones SW 2 and SW 4 and in 2005 and 2006 in zone SW 5, the Kingdom of Sweden has failed to fulfil its obligations under Article 5(1) of Council Directive 1999/30/EC (1) of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air;

— Order Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

Article 5(1) of Directive 1999/30 provides that Member States are to take the measures necessary to ensure that concentrations of PM10 in ambient air do not exceed the limit values laid down in Section I of Annex III as from the dates specified therein. The relevant date in this case is 1 January 2005.

It is apparent from the reports sent by Sweden to the Commission concerning 2005 to 2007 that the limit values for PM10 have been exceeded in zones SW 2 and SW 4 during that entire period, and in zone SW 5 in 2005 and 2006.

Accordingly, Sweden has failed to fulfil its obligations under Article 5(1) of Directive 1999/30 in respect of those zones and those years.

(1) OJ L 163, p. 41.
EN Official Journal of the European Union C 346/34

Reference for a preliminary ruling from the Ufficio del Giudice di Pace di Venafro (Italy) lodged on 15 October 2010 — Criminal proceedings against Aldo Patriciello

(Case C-496/10)

()

2010/C 346/58

Language of the case: Italian

Referring court

Ufficio del Giudice di Pace di Venafro

Party to the main proceedings

Aldo Patriciello

Question referred

Do the facts construed in abstracto as a criminal offence committed by Aldo Patriciello (a Member of the European Parliament, described in the indictment and in favour of whom the European Parliament adopted a decision on 5 May 2009 to defend immunity), categorised as insulting behaviour under Article 594 of the Penal Code, correspond to the expression of an opinion in the performance of parliamentary duties for the purposes of Article 9 of the Protocol?
EN Official Journal of the European Union C 346/34

Reference for a preliminary ruling from the Commissione Tributaria Centrale — Sezione di Bologna (Italy) lodged on 19 October 2010 — Ufficio IVA di Piacenza v Belvedere Costruzioni Srl

(Case C-500/10)

()

2010/C 346/59

Language of the case: Italian

Referring court

Commissione Tributaria Centrale — Sezione di Bologna

Parties to the main proceedings

Applicant: Ufficio IVA di Piacenza

Defendant: Belvedere Costruzioni Srl

Question referred

Does Article 10 of the EC Treaty, now Article 4 of the Treaty on European Union, read in conjunction with Articles 2 and 22 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, preclude [legislation such as] the legislation of the Italian State laid down in Article 3(2a) of Decree-Law No 40 of 25 March 2010, converted into Law No 73 of 22 May 2010, under which the court with jurisdiction in tax matters may not rule on the existence of an alleged tax debt which the Tax Authority has sought, in due time, to recover by appealing against an unfavourable decision and which thus in effect provides for the VAT debt at issue to be wholly waived in cases where the courts have ruled both at first instance and at the first level of appeal that such a debt does not exist, without the taxable person in favour of whom the waiver has operated having to pay even a fraction of the debt at issue?
EN Official Journal of the European Union C 13/19

Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge (Belgium) lodged on 19 October 2010 — Vlaamse Oliemaatschappij v F.O.D. Financiën

(Case C-499/10)

()

2011/C 13/34

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brugge

Parties to the main proceedings

Applicant: Vlaamse Oliemaatschappij

Defendant: F.O.D. Financiën

Question referred

Does the former Article 21(3) of the Sixth Directive (77/388), (1) now incorporated in Article 205 of Council Directive 2006/112/EC (2) of 28 November 2006 on the common system of value added tax, in conjunction with Articles 202 and 157(1)(b) of the same Directive, authorise the Member States to provide that a warehouse-keeper other than a customs warehouse-keeper is jointly and severally liable, unconditionally, for the tax which is owing on a supply of goods made for valuable consideration by the owner of the goods who is liable for the tax on those goods, even where the warehouse-keeper acts in good faith or where no fault or negligence can be imputed to him (Article 51a(3) of the Wetboek van de belasting over toegevoegde waarde (WBTW).

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1)

(2) OJ 2006 L 347, p. 1
1.

Must Article 7(f) of Directive 95/46/EC (1) of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data be interpreted as precluding the application of national rules which, in the absence of the interested party’s consent, and in order to allow processing of his personal data that is necessary to satisfy a legitimate interest of the controller or of third parties to whom the data will be disclosed, not only require fundamental rights and freedoms not to be prejudiced, but also require the data to appear in public sources?
1.

Does the abuse of rights principle in taxation matters, as defined in Cases C-255/02 Halifax and Others [2006] ECR I-1609 and C-425/06 Part Service [2008] ECR I-897, constitute a fundamental principle of Community law only in the field of harmonised taxes and in matters governed by secondary Community law provisions, or does it extend, as a category of abuse of fundamental freedoms, to matters involving non harmonised taxes, such as direct taxes, where the tax relates to cross-border financial matters, such as the acquisition by a company of rights of usufruct over the shares of a second company established in another Member State or in a non-Member State?
—

Declare that, by failing fully to adopt the laws, regulations and administrative provisions necessary to transpose Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 on the inland transport of dangerous goods (1) or fully to communicate such measures to the Commission, the Republic of Austria has failed to fulfil its obligations under that directive;
2.

If the first question is answered in the negative, do the provisions of the third sub-paragraph of Article 236(2) of the Community Customs Code require the customs authorities to repay anti-dumping duties of their own initiative when the unlawfulness of those duties has been found following a challenge to their lawfulness by a Member State of the World Trade Organisation (‘the W.T.O.’): 1. from the time of the first communication of the country concerned contesting the lawfulness of the anti-dumping regulation; 2. from the time of the panel report finding the unlawfulness of the anti-dumping regulation; 3. from the time of the report of the Appellate Body of the W.T.O. which led the European Community to recognise the unlawfulness of the anti-dumping regulation?
EN Official Journal of the European Union C 55/20

Action brought on 16 December 2010 — European Commission v French Republic

(Case C-597/10)

2011/C 55/35

Language of the case: French

Parties

Applicant: European Commission (represented by: V. Peere and I. Hadjiyannis, acting as Agents)

Defendant: French Republic

Form of order sought

— declare that, failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 (1) on the assessment and management of flood risks, which aims to reduce damage to human health, the environment, cultural heritage and economic activity associated with floods in the Community, or, in any event, by failing to communicate those provisions to the Commission, France has failed to fulfil its obligations under that directive;

— order French Republic to pay the costs.

Pleas in law and main arguments

The period for the transposition of Directive 2007/60/EC expired on 25 November 2009. On the date on which the present action was brought, the defendant had not yet taken all the measures necessary to transpose the directive or, in any event, it had not notified the Commission thereof.

(1) Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks (OJ 2007 L 288, p. 27).
1.

Does Article 2(1) of the Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax permit a provision whereby a taxpayer may deduct, from his own tax liability, tax on goods and services which he uses for the purposes of his business as a taxpayer, if that tax has been charged to him by another inland taxpayer, on goods and services supplied or to be supplied, in circumstances where the plaintiff, in his capacity as co-applicant in respect of an invention on which a patent has yet to be granted, already owns, as a matter of law, the right independently to use the invention which is the subject-matter of the patent as a whole?
EN Official Journal of the European Union C 72/8

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 8 December 2010 — Staatssecretaris van Financiën, other party: P. Mook

(Case C-579/10)

2011/C 72/12

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Staatssecretaris van Financiën

Other party: P. Mook

Question referred

In the light of Article 18 EC (now Article 21 TFEU), does Community law govern a situation in which a Member State levies a tax on the first use on the road network in its territory of a vehicle which is registered in another Member State, has been borrowed from a resident of that other Member State and has been driven for private purposes by a resident of the first Member State between those two Member States?
2.

Do Article 6 of Title I, ‘Common Provisions’, of the Treaty of Lisbon of 13 December 2007 amending the Treaty on European Union signed at Maastricht on 7 February 1992 and in force since 1 December 2009 (substantially reproducing the provisions previously laid down in Article 6 of Title I of the Treaty on European Union signed at Maastricht on 7 February 1992, which itself entered into force on 1 November 1993) and Article 234 (formerly Article 177) of the Treaty establishing the European Community (EC Treaty) of 25 March 1957, on the one hand, and/or Article 47 of the Charter of Fundamental Rights of the European Union of 7 December 2000, on the other hand, preclude national legislation — in the present case, Article 26(4) of the Belgian Law of 6 January 1989 on the Cour d’arbitrage (now called the Cour constitutionnelle), as amended by the Law of 12 July 2009, whether read separately or in conjunction with Article 9(2) of that Special Law of 6 January 1989 — under which the national courts are required to refer to a court which occupies a higher rank in the national court system (in the present case, the Cour constitutionnelle, referred to above), for a preliminary ruling, any question concerning the interpretation of provisions of European Union law, which is directly applicable in the domestic legal order and takes precedence over domestic law, where those provisions are also laid down in the national Constitution and where the national courts suppose those provisions to have been infringed in the circumstances of the disputes brought before them, with the result that those courts have been divested of jurisdiction to apply European Union law immediately, at the very least in cases where the higher court has already ruled on an identical issue?