ddrg/super_eurlex huggingface dataset:
1.

Does the principle of non discrimination laid down by Article 12 EC preclude national legislation such as Article 695-24 of the Code of Criminal Procedure which restricts the power to refuse to execute a European arrest warrant issued for the purposes of enforcing a penalty involving deprivation of liberty to cases where the person whose extradition is sought is of French nationality and the competent French authorities undertake to proceed with such enforcement?
EN Official Journal of the European Union C 120/6

Action brought on 16 February 2011 — European Commission v Kingdom of Sweden

(Case C-70/11)

2011/C 120/10

Language of the case: Swedish

Parties

Applicant: European Commission (represented by: J. Enegren and M. Owsiany-Hornung, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

— Declare that, by providing that a trader, if a consumer exercises his right of withdrawal, can require not only that the consumer pay for that part of the financial service which has already been supplied but can also require payment of reasonable costs for services relating to the time before the trader accepted the consumer’s confirmation that he had withdrawn from the contract, the Kingdom of Sweden has failed to fulfil its obligations under Directive 2002/65/EC of the European Parliament and of the Council (1) of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC, and

— order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

In accordance with recital 13 in the preamble to the directive, Member States should not be able to adopt provisions other than those laid down in this Directive in the fields it harmonises, unless otherwise specifically indicated in it.

It is apparent from Article 6(1) of the directive that the Member States are to ensure that the consumer has a period of 14 calendar days to withdraw from the contract without penalty and without giving any reason.

Under Article 7(1) of the directive, when the consumer exercises his right of withdrawal he may only be required to pay for the service actually provided by the supplier in accordance with the distance contract.

It follows from the second sentence of Chapter 3, Paragraph 11, of the Law on distance and doorstep selling (2005:59) (distans- och hemförsäljningslagen) that traders, in addition to payment for the service actually provided, can also require payment for reasonable costs.

In the legislation which implements the directive, Sweden has thus introduced provisions which go beyond what is laid down in Article 7(1) of the directive as regards the consumer’s right of withdrawal.

In all the circumstances, Sweden does not appear to have transposed Article 7(1) of the directive with the clarity and precision laid down by the Court in order that the requirement for legal certainty be met.

(1) OJ L 271, p. 16.
2.

Are the first sentence of Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and the fourth sentence of Article 3(3) of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 (2) concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC to be interpreted as meaning that there is no ‘plain and intelligible term’ or that ‘high levels of consumer protection, particularly with respect to transparency regarding general contractual terms and conditions’ are not ensured if a seller or supplier seeks to justify a unilateral right to vary prices with the argument that he refers globally, in his general terms and conditions, to a national regulation which was adopted in respect of a different consumer group and a different type of contract and in which, moreover, the provision relevant to the right to vary prices does not satisfy the requirement of transparency?
EN Official Journal of the European Union C 130/14

Appeal brought on 2 March 2011 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment delivered by the General Court (Seventh Chamber) on 16 December 2010 in Case T-513/09 José Manuel Baena Grupo, S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Herbert Neuman and Andoni Galdeano del Sel

(Case C-102/11 P)

2011/C 130/25

Language of the case: Spanish

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: J. Crespo Carillo and A. Folliard-Monguiral, Agents)

Other parties to the proceedings: José Manuel Baena Grupo, S.A. and Herbert Neuman and Andoni Galdeano del Sel

Form of order sought

— set aside the judgment under appeal;

— deliver a new judgment on the merits of the case, dismissing the action brought against the contested decision, or refer the case back to the General Court;

— order the applicant at first instance to pay the costs.

Pleas in law and main arguments

OHIM submits that the judgment under appeal should be set aside on the ground that the General Court infringed Article 61 CDR. (1) In support of that plea, OHIM puts forward the reasons set out below, which may be summarised as follows:

(a) By substituting its assessment of the facts for that of the Board of Appeal, without having found any ‘manifest errors of assessment’, the General Court went beyond what Article 61 CDR permits in relation to Community designs. Instead of reviewing the lawfulness of the decision, the General Court exercised the same jurisdiction as that reserved to the Board of Appeal under Article 60 CDR.

(b) The General Court infringed Article 25(1)(c) CDR, together with Article 6 CDR, in that it: — applied an incorrect test in examining whether the designs compared produce a different overall impression on informed users. The error of law arises from the fact that the General Court examined whether the similarities and differences would be ‘preserved in the memory’ of an informed user (see paragraphs 22 and 23 of the judgement under appeal). However, the comparison cannot be based on the memory of the user. As this case involves designs — and not trade marks — the correct test consists in determining whether the similarities and differences between the designs produce a different overall impression when an informed user makes a direct comparison of the designs. — analysed perception only from the point of view of one section of the relevant public and did not give any reasons at all concerning the perception of users of some of the goods in question, namely, ‘printed material, including advertising material’.

(1) Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).
EN Official Journal of the European Union C 145/10

Action brought on 24 February 2011 — European Commission v Ireland

(Case C-85/11)

2011/C 145/14

Language of the case: English

Parties

Applicant: European Commission (represented by: R. Lyal, Agent)

Defendant: Ireland

The applicant claims that the Court should:

— declare that by permitting non-taxable persons to be members of a VAT group (a single taxable person for VAT purposes), Ireland has failed to comply with its obligations under Articles 9 and 11 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax;

— order Ireland to pay the costs.

Pleas in law and main arguments

For reasons of facility and in order to combat possible abuses, the VAT directive allows Member States to treat two or more taxable persons together as a single taxable person. It is submitted that the directive does not allow them to include non-taxable persons in such a group, thus extending the rights and obligations of taxable persons to non-taxable persons. The Irish legislation which permits the inclusion of non-taxable persons in a VAT group is thus contrary to the directive.

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

What particular factors does the Referring Court have to take into account when deciding whether, in circumstances such as those of the present case, a taxable person is providing a single taxable supply of parking services or two separate supplies, one of parking and one of transport of passengers? In particular: (a) Is this case covered by the reasoning adopted by the Court of Justice in Case C-349/96 Card Protection Plan and Case C-41/04 Levob. In particular, can the transport services in question be regarded as ancillary to the parking services or so closely linked to them that they form, objectively, a single indivisible economic supply, which it would be artificial to split? (b) In considering question 1(a), what account should the Referring Court take of the costs of providing the transport services, as opposed to the parking services, in accordance with paragraphs 24-26 of the ECJ's judgment in Joined Cases C-308/96 and C-94/97 Madgett and Baldwin, in assessing whether or not the transport services are ancillary to the parking services? (c) In the light of the ECJ's judgment in Case C-572/07 Tellmer, in particular paragraphs 21-24, should the Referring Court when answering question 1(a) take account of the fact that the transport element of the supplies could be (but is not in fact) provided in a variety of ways (for example, the taxable person could provide those transport services using a third party provider who invoices the taxable person or could use a third party provider who contracts directly with the customer and separately charges for the transport services) and to what extent (if at all) is it relevant whether or not the contract gives the customer the right to choose between the different manners in which the transport element could be provided?
(f)

is the primary carer of a child who came to the United Kingdom and entered general education after accession and after she ceased to be established in self-employment,
3.

Does interpretation of Article 27 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings permit secondary insolvency proceedings, the nature of which is specified in the second sentence of Article 3(3) of the regulation, to be opened in the Member State in which the whole of the assets of the insolvent person are situated, when the main proceedings, which are subject to automatic recognition, are of a protective nature (French sauvegarde proceedings), a scheme of payment has been accepted and confirmed in those proceedings, that scheme is being implemented by the debtor and the court has forbidden the disposal of the debtor’s assets?
EN Official Journal of the European Union C 173/3

Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 25 February 2011 — Alfred Strigl v Deutsches Patent- und Markenamt

(Case C-90/11)

2011/C 173/05

Language of the case: German

Referring court

Bundespatentgericht

Parties to the main proceedings

Applicant: Alfred Strigl

Defendant: Deutsches Patent- und Markenamt

Question referred

Is the ground for refusal under Article 3(1)(b) and/or (c) of Directive 2008/95/EC (1) also applicable to a word sign which consists of a descriptive word combination and a non descriptive letter sequence, if the trade perceives the letter sequence as an abbreviation of the descriptive words because it reproduces their initial letters, and the trade mark as a whole can thus be construed as a combination of mutually explanatory descriptive indications or abbreviations?

(1) Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (Codified version); OJ 2008 L 299, p. 25.
1.

Is Article 288 of the Treaty on the Functioning of the European Union in conjunction with Article 58 of the Act of Accession to be interpreted in the light of the case-law of the Court of Justice (the judgments in Case C-161/06 Skoma-Lux [2007] ECR I-10841; Case C-560/07 Balbiino [2009] ECR I-4447; and Case C-140/08 Rakvere Lihakombinaat [2009] ECR I-10533) as meaning that an individual can be required to fulfil the obligation deriving from European Commission Regulation (EC) No 1972/2003 (1) of 10 November 2003 (a) even despite the fact that that regulation had not been published in Estonian in the Official Journal of the European Union by 1 May 2004 (b) and the legislature of the Member State concerned has not reproduced in a measure of national law the term ‘agricultural products’ defined in the regulation but has confined itself to referring to Article 4(5) of that regulation, which has not been duly published (c) if the individual has nevertheless fulfilled an obligation deriving from the regulation (he has declared the stock according to the correct goods code) and has not challenged such an obligation (d) and the charge was levied on him by the competent office of the Member State at a time when Regulation No 1972/2003 had already been published in Estonian in the Official Journal of the European Union?
EN Official Journal of the European Union C 179/7

Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 16 March 2011 — Neurim Pharmaceuticals (1991) Ltd v Comptroller-General of Patents

(Case C-130/11)

2011/C 179/11

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicant: Neurim Pharmaceuticals (1991) Ltd

Defendant: Comptroller-General of Patents

Questions referred

1. In interpreting Article 3 of Regulation EEC No. 1768/92 (1) [now Regulation (BC) No. 469/2009 (2)] (‘the SPC Regulation’), when a marketing authorisation (A) has been granted for a medicinal product comprising an active ingredient, is Article 3(d) to be construed as precluding the grant of an SPC based on a later marketing authorisation (B) which is for a different medicinal product comprising the same active ingredient where the limits of the protection conferred by the basic patent do not extend to placing the product the subject of the earlier MA on the market within the meaning of Article 4?

2. If the grant of the SPC is not precluded, does it follow that in interpreting Article 13(1) of the SPC Regulation, ‘the first authorisation to place the product on the market in the Community’ needs to be an authorisation to place a medicinal product on the market within the limits of the protection conferred by the basic patent within the meaning of Article 4?

3. Are the answers to the above questions different if the earlier marketing authorisation has been granted for a veterinary medicinal product for a particular indication and the later marketing authorisation has been granted for a medicinal product for human use for a different indication?

4. Are the answers to the above questions different if the later marketing authorisation required a full application for marketing approval in accordance with Article 8(3) of Directive 2001/83/EC (3) (formerly a full application under Article 4 of Directive 65/65/EEC (4))?

5. Are the answers to the above questions different if the product covered by authorisation (A) to place the corresponding medicinal product on the market is within the scope of protection of a different patent which belongs to a different registered proprietor from the SPC applicant?

(1) Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, OJ L 182, p. 1

(2) Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products, OJ L 152, p. 1

(3) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, OJ L311, p. 67

(4) Council Directive 65/65/EEC OF 26 January 1965 on the approximation of provisions laid down by Law, Regulation or Administrative Action relating to proprietary medicinal products, OJ 22, p. 369 (English special edition: Series I Chapter 1965-1966, p. 24)
EN Official Journal of the European Union C 179/10

Reference for a preliminary ruling from the Jász-Nagykun-Szolnok County Court (Hungary) lodged on 23 March 2011 — Péter Dávid v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

(Case C-142/11)

2011/C 179/17

Language of the case: Hungarian

Referring court

Jász-Nagykun-Szolnok County Court

Parties to the main proceedings

Applicant: Péter Dávid

Defendant: Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

Questions referred

1. Are the provisions relating to VAT deductions in 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: uniform basis of assessment, as amended by Council Directive 2001/115/EC (2) of 20 December 2001 (‘the Sixth Directive’) and, as regards 2007, in Council Directive 2006/112/EC (3) of 28 November 2006 on the common system of value added tax to be interpreted as meaning that the right of deduction of a taxable person may be restricted or prohibited by the tax authority, on the basis of strict liability, if the invoice issuer cannot guarantee that the involvement of further subcontractors complied with the rules?

2. Where the tax authority does not dispute that the economic activity detailed in the invoice actually took place, nor that the form of the invoice complies with the legal provisions, may the authority lawfully prohibit a VAT refund if the identity of the other subcontractors used by the invoice issuer cannot be determined, or invoices have not been issued in accordance with the rules by the latter?

3. Is a tax authority which prohibits the exercise of the right of deduction in accordance with paragraph 2 obliged to ensure during its procedures that the taxable person with the right of deduction was aware of unlawful conduct, possibly engaged in for the purpose of tax avoidance, of the companies behind the subcontracting chain, or even colluded in such conduct?

(1) 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 (OJ 1977 L 145, p. 1).

(2) Council Directive 2001/115/EC of 20 December 2001 amending Directive 77/388/EEC with a view to simplifying, modernising and harmonising the conditions laid down for invoicing in respect of value added tax (OJ 2002 L 15, p. 24).

(3) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
EN Official Journal of the European Union C 204/18

Appeal brought on 16 May 2011 by Siemens Transmission & Distribution Limited against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-122/07 to T-124/07 Siemens AG Österreich and Others v Commission.

(Case C-232/11 P)

2011/C 204/32

Language of the case: German

Parties

Appellant: Siemens Transmission & Distribution Limited (represented by: H. Wollmann and F. Urlesberger, Rechtsanwälte)

Other parties to the proceedings: Siemens AG Österreich, VA Tech Transmission & Distribution GmbH & Co. KEG, Siemens Transmission & Distribution SA, Nuova Magrini Galileo SpA, European Commission

Form of order sought

The appellant claims that the Court should

— vary the fourth indent of Paragraph 3 of the operative part of the contested judgment, so that the fine there imposed on is reduced to at least EUR 7 400 000;

— alternatively, set aside Paragraph 3 of the operative part of the contested judgment, to the extent that it concerns Reyrolle, and refer the case back to the General Court;

— in any event order the respondent to pay the costs.

Grounds of appeal and main arguments

The appellant submits that there is an infringement of the principle that penalties must be specific to the individual and to the offence. In the exercise of its unlimited jurisdiction to review the General Court misinterpreted Article 23(3) of Regulation 1/2003, where it penalised the undertaking Rolls-Royce/Reyrolle for the period from 1988 until 1998 not on the basis of the conduct of that undertaking, but instead relied on the economic power of an economic entity which only came into existence many years later (with the Reyrolle sale to VA Technologie).

Further, the appellant submits that there is an infringement of the principles, well established in the case-law of the Court of Justice, of equal treatment and proportionality. In the framework of Article 31 of Regulation 1/2003 the General Court applied systemically different methods of calculation, which significantly prejudiced the appellant as compared with other parties on whom fines were imposed. No objective justification for this discrimination is apparent.
—

Declare that the Kingdom of Spain has failed to fulfil its obligations under Commission Decisions 2002/820/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Álava in the form of a tax credit amounting to 45 % of investments (OJ 2002 L 296, p. 1); 2002/892/EC of 11 July 2001 on the State aid scheme applied by Spain to certain newly established firms in Álava (OJ 2002 L 314, p. 1); 2003/27/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Vizcaya in the form of a tax credit amounting to 45 % of investments (OJ 2003 L 17, p. 1); 2002/806/EC of 11 July 2001 on the State aid scheme applied by Spain to certain newly established firms in Vizcaya (OJ 2002 L 279, p. 35); 2002/894/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Guipúzcoa in the form of a tax credit amounting to 45 % of investments (OJ 2002 L 314, p. 26); 2002/540/EC of 11 July 2001 on the State aid scheme applied by Spain to certain newly established firms in Guipúzcoa (OJ 2002 L 174, p. 31) (‘the 2001 decisions’) as well as under Article 260 TFEU, by failing to take all the measures necessary to comply with the judgment of the Court of Justice of 14 December 2006 in Commission v Spain (Joined Cases C-485/03 to C-490/03 [2006] ECR I-11887; ‘the 2006 judgment’), relating to Spain’s failure to fulfil its obligations under those decisions.
EN Official Journal of the European Union C 211/17

Reference for a preliminary ruling from the Cour de cassation (France) lodged on 16 May 2011 — Expedia Inc. v Autorité de la concurrence, Ministre de l’économie de l’industrie et de l’emploi, Société nationale des chemins de fer français (SNCF), Voyages-SNCF.Com, Agence Voyages-SNCF.Com, Société VFE Commerce, Société IDTGV, société par actions simplifiée

(Case C-226/11)

2011/C 211/32

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Expedia Inc.

Defendants: Autorité de la concurrence, Ministre de l’économie de l’industrie et de l’emploi, Société nationale des chemins de fer français (SNCF), Voyages-SNCF.Com, Agence Voyages-SNCF.Com, Société VFE Commerce, Société IDTGV, société par actions simplifiée

Question referred

Should Article 101(1) TFEU and Article 3(2) of Regulation No 1/2003 (1) be interpreted as precluding proceedings being brought and penalties being imposed by a national competition authority, on the grounds of both Article 101(1) TFEU and the national law of competition, in respect of a practice under agreements, decisions of associations of undertakings or concerted action that may affect trade between Member States, but which does not reach the thresholds specified by the European Commission in its notice of 22 December 2001 on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty establishing the European Community (de minimis) (OJ 2001 C 368, p. 13)?

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