ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 30/17

Action brought on 29 October 2010 — European Commission v French Republic

(Case C-515/10)

()

2011/C 30/27

Language of the case: French

Parties

Applicant: European Commission (represented by: G. Rozet and A. Marghelis, acting as Agents)

Defendant: French Republic

Form of order sought

— declare that, by failing to adopt the laws, regulations and administrative provisions necessary to ensure that asbestos-cement waste is treated in suitable landfills, the French Republic failed to fulfil its obligations under Article 2(e), the first subparagraph of Article 3 and Article 6(d) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (1) and the provisions of Council Decision of 19 December 2002 establishing criteria and procedures for the acceptance of waste at landfills pursuant to Article 16 of and Annex II to Directive 1999/31/EC (2);

— order French Republic to pay the costs.

Pleas in law and main arguments

The Commission relies on a single plea in law in support of its action alleging an incorrect interpretation of the provisions of Directive 1999/31/EC and, in particular, of the definition of ‘waste’.

The applicant disputes the interpretation of the French authorities according to which the waste can be both inert waste and hazardous waste at the same time. According to the Commission, the directive recognises on the contrary the existence of three different categories of waste, ‘hazardous’, ‘non-hazardous’ and ‘inert’, resulting in different obligations and a precise distinction in the conditions of acceptance of different waste to landfill. Thus, asbestos-cement waste should be considered to be ‘hazardous waste’ in accordance with the list of wastes established by Decision 2000/532/EC (3), as amended by Decision 2001/573/EC (4), and the particular precautions necessary for the disposal thereof. The national legislation classifying asbestos-cement waste as inert and authorising its acceptance in a landfill for inert waste therefore does not comply with the requirements of the directive.

(1) OJ 1999 L 182, p. 1.

(2) OJ 2002 L 11, p. 27.

(3) Commission Decision of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste (OJ 2000 L 226, p. 3).

(4) Council Decision of 23 July 2001 amending Commission Decision 2000/532/EC as regards the list of wastes (OJ 2001 L 203, p. 18).
EN Official Journal of the European Union C 38/2

Appeal brought on 16 November 2010 by adp Gauselmann GmbH against the judgment of the General Court (Seventh Chamber) delivered on 9 September 2010 in Case T-106/09: adp Gauselmann GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Archer Maclean

(Case C-532/10 P)

2011/C 38/02

Language of the case: English

Parties

Appellant: adp Gauselmann GmbH (represented by: P. Koch Moreno, lawyer)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Archer Maclean

Form of order sought

The appellant claims that the Court should:

— Annul the appealed judgment dated 9 September 2010 of the General Court (Seventh Chamber) in Case T-106/09.

— Annul the decision of 12 January 2009 issued by the First Board of Appeal of OHIM or, subsidiarily, return the case to the General Court of the European Union.

— Order the adverse parties to pay the costs incurred in both instances.

Pleas in law and main arguments

The appellant submits that the General Court's judgment was not consistent with the case law relating to the interpretation of article 8(1)(b) of the Community Trade Mark Regulation (1). The appellant's submission is based on the following grounds:

— The appellant maintains that the General Court was wrong to give the words ‘Archer Maclean's’, which have a clearly secondary or marginal representation within the whole of the trademark applied for, which renders them almost illegible, the same differentiating value as the word ‘MERCURY’, which is the distinctive and dominant element, when reaching the conclusion that there is no likelihood of confusion with the opposing mark, ‘MERKUR’.

— The appellant maintains that the judgment of the General Court was wrong in its assessment of the two marks, since the word ‘MERCURY’, which is the distinctive and dominant element in the trademark applied for, not only lacks any meaning in the language of the relevant market, i.e. Germany, but is also very similar, phonetically and visually, to the opposing trademark, ‘MERKUR’.

— Finally the appellant maintains that the General Court was wrong to consider the minimal differences between the word ‘MERCURY’, which is the distinctive and dominating element in the trademark applied for, and ‘MERKUR’, which is the symbol of the opposing trademark, to be sufficient to prevent the public from confusing the two trademarks.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1
EN Official Journal of the European Union C 46/6

Reference for a preliminary ruling from the Tribunal de Grande Instance de Chartres (France) lodged on 29 November 2010 — Michel Bourges-Maunoury, Marie-Louise Bourges-Maunoury (née Heintz) v Direction des Services Fiscaux d’Eure et Loir

(Case C-558/10)

2011/C 46/09

Language of the case: French

Referring court

Tribunal de Grande Instance de Chartres

Parties to the main proceedings

Applicants: Michel Bourges-Maunoury, Marie-Louise Bourges-Maunoury (née Heintz)

Defendant: Direction des Services Fiscaux d’Eure et Loir

Question referred

Is it contrary to the second paragraph of Article 13 of Chapter V of the Protocol on the Privileges and Immunities of the European Communities, (1) annexed to the Treaty establishing a Single Council and a Single Commission of the European Communities, for the entirety of a taxpayer’s income, including Community income, to be taken into account in calculating the cap on wealth tax (‘impôt de solidarité sur la fortune’)?

(1) OJ 1967 L 152, p. 13, now Article 12 of Chapter V of the Protocol on the Privileges and Immunities of the European Union (OJ 2010 C 83, p. 266).
1.

Can the scheme put in place by Article L. 12(b) of the French Civil and Military Retirement Pensions Code, as amended by Article 48 of the Law of 21 August 2003, and by Article R. 13 of that Code, as amended by Article 6 of the Decree of 26 December 2003, be regarded as giving rise to indirect discrimination, within the meaning of Article 157 of the Treaty on [the Functioning of the] European Union, against the biological parents of children, given the proportion of men liable to fulfil the condition relating to a break in their career for a continuous period of at least two months, in particular by reason of the absence of a statutory framework allowing them to fulfil that condition by taking paid leave?
With regard to the deduction of operating costs, the Commission would like to point out that the Member States must also comply with the prohibitions on discrimination enshrined in the Treaty with regard to withholding taxes. In that context, the source State may not rely on unilateral rules in another Member State in order to avoid complying with its own obligations. Germany has not submitted that agreement has been reached with the other Member States that they deduct operating costs instead of Germany. Even if there were such an agreement, it would often not achieve the objective, for example where the revenue concerned is tax-exempt in the other State or the taxpayer does not make any overall profit. In addition, where the imputation method is used, the deduction of operating costs in the State of residence cannot replace that in the source State. In that case both States namely tax, in principle, the same income. Accordingly, taxation of net revenue rather than gross revenue is guaranteed only where both States apply their provisions on the deduction of operating costs. Deduction by the source State does not therefore lead to a double burden but merely establishes equal treatment vis-à-vis purely internal situations.
5.

The Swedish system of imposing tax surcharges and examining liability for tax offences in separate proceedings is motivated by a number of reasons of general interest, which are described in greater detail below. If Question 2 is answered in the affirmative, is a system like the Swedish one compatible with the ne bis in idem principle when it would be possible to establish a system which would not come under the ne bis in idem principle without it being necessary to refrain from either imposing tax surcharges or ruling on liability for tax offences by, if liability for tax offences is relevant, transferring the decision on the imposition of tax surcharges from the Skatteverket and, where appropriate, administrative courts to ordinary courts in connection with their examination of the charge of tax offences?
EN Official Journal of the European Union C 103/11

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 23 December 2010 — Waldemar Hudzinski v Agentur für Arbeit Wesel — Familienkasse

(Case C-611/10)

2011/C 103/19

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Waldemar Hudzinski

Defendant: Agentur für Arbeit Wesel — Familienkasse

Question referred

Is Article 14a(1)(a) of Regulation (EC) No 1408/71 (1) to be interpreted as meaning that a Member State which lacks jurisdiction under that Article is in any event deprived of the authority to grant family benefit under national law to a worker only temporarily employed in its territory, if neither the worker himself nor his children are domiciled or habitually resident in that Member State?

(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).
EN Official Journal of the European Union C 89/8

Action brought on 22 December 2010 — European Commission v Kingdom of Sweden

(Case C-607/10)

2011/C 89/15

Language of the case: Swedish

Parties

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

Defendant: Kingdom of Sweden

Form of order sought

— Declare that, by failing to adopt the measures necessary to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (1) or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) not later than 30 October 2007, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

— order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

It follows from Article 5(1) of the IPPC Directive that Member States are to adopt the measures necessary to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) not later than 30 October 2007. In the view of the Commission, that obligation is to be understood as covering all existing installations in the Member State in question.

In accordance with established case-law, a question whether there is a breach of the Treaties is to be assessed against the background of the situation prevailing in the Member State concerned at the time of expiry of the period laid down in the reasoned opinion. It follows from Sweden’s reply to the reasoned opinion that 33 existing installations did not meet the requirements in the IPPC Directive at the time of the reply.

Furthermore, it is apparent from the attachment to Sweden’s supplementary reply to the reasoned opinion that in October 2010, nearly three years after expiry of the period in the IPPC Directive, there remained 23 existing installations which did not meet the requirements under the directive.

(1) OJ L 24, 29.1.2008, p. 8.
—

declare that, by not adopting all 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 on the assessment and management of flood risks, (1) and in any event by not informing the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 17(1) of that directive;
EN Official Journal of the European Union C 103/15

Action brought on 21 January 2011 — European Commission v Portuguese Republic

(Case C-34/11)

2011/C 103/26

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: P. Guerra e Andrade and A. Alcover San Pedro, Agents)

Defendant: Portuguese Republic

Form of order sought

— Declare that, by failing to ensure that the concentrations of PM10 in ambient air do not exceed the limit values required under Article 13 of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, (1) the Portuguese Republic has failed to fulfil its obligations under Article 13 of Directive 2008/50/EC.

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

In view of the objections raised by the Commission in its decision of 26 November 2009, and in the light of the reports submitted by Portugal, which show that the PM10 limit values continue to be exceeded in various zones and agglomerations and indicate in some cases a trend towards the long-term exceedance of the limits, the Commission takes the view that for the agglomerations and zones of Braga, Porto literal, Área Metropolitana de Lisboa Norte and Área Metropolitana de Lisboa Sul the Portuguese State has failed to fulfil the requirements of Article 13 of Directive 2008/50/EC.

(1) OJ 2008 L 152, p. 1.
3.

Having regard to the reply given to the second question above, is it of significance that the owner of the aircraft in turn makes a charge for the use of the aircraft to a private person who is its shareholder, who uses the procured aircraft for his own business and/or private use, taking into account the fact that the airline has also been able to use the aircraft for other flights?
EN Official Journal of the European Union C 113/6

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 January 2011 — Marianne Scheunemann v Finanzamt Bremerhaven

(Case C-31/11)

2011/C 113/10

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Marianne Scheunemann

Defendant: Finanzamt Bremerhaven

Question referred

Must Article 56(1) of the Treaty establishing the European Community, in conjunction with Article 58 thereof, be interpreted as precluding legislation of a Member State which, for the purposes of calculating the inheritance tax on an estate, provides that account be taken of the entire value of a shareholding, forming part of private assets, as a sole shareholder in a capital company with its registered office and principal place of business in Canada, whereas where such a shareholding in a capital company with its registered office or principal place of business in Germany is acquired a tax free amount is granted and only 65 % of the remaining value is taken into account?
—

finding that that decree was adopted without compliance with the procedure prescribed by Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (1) and that it is, for that reason, contrary to the law of the European Union and must be annulled,
EN Official Journal of the European Union C 130/9

Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 28 January 2011 — Amorim Energia BV v Ministério das Finanças e da Administração Pública

(Case C-38/11)

2011/C 130/16

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Amorim Energia BV

Defendant: Ministério das Finanças e da Administração Pública

Question referred

Do Articles 63 TFEU and 65 TFEU (formerly Articles 56 EC and 58 EC) preclude legislation of a Member State, such as Articles 46(1), 96(2) and (3), 14(3) and 89 of the Corporation Tax Code, which, in the context of elimination of economic double taxation of distributed profits, while complying with Council Directive 90/435/EEC (1) of 23 July 1990, does not enable shareholder companies resident in another Member State to secure repayment of the tax deducted at source in the same circumstances as shareholder companies resident in Portugal, requiring for that purpose a longer minimum period of share ownership and a minimum but significant shareholding, delaying or rendering impracticable the elimination of economic double taxation?

(1) Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States

OJ L 225, p. 6
EN Official Journal of the European Union C 120/7

Action brought on 22 February 2011 — Council of the European Union v European Parliament

(Case C-77/11)

2011/C 120/12

Language of the case: French

Parties

Applicant: Council of the European Union (represented by: G. Maganza and M. Vitsentzatos, acting as Agents)

Defendant: European Parliament

Form of order sought

— annul the act of the President of the Parliament of 14 December 2010 declaring the European Union budget for the financial year 2011 definitively adopted, in so far as that measure is combined with the act establishing the budget,

— alternatively, and in so far as it is a separate act from the above, annul the act of the President of the Parliament of that date purporting to adopt the European Union budget for 2011 and give it binding force as against the institutions and the Member States,

— in the alternative, annul the act of the President of the European Parliament declaring the European Union budget for 2011 definitively adopted, in so far as that declaration was made without the 2010 budget procedure (2011 budget) having been completed,

— consider the effects of the 2011 budget as definitive until the budget is established by a legislative act in accordance with the Treaties,

— order the European Parliament to pay the costs.

Pleas in law and main arguments

By this action the Council submits that, following the introduction of the Treaty on the Functioning of the European Union (TFEU) on 1 December 2009, the annual budget of the European Union and any amending budgets must henceforth be established by a joint legislative act of the two institutions which produce them, namely the European Parliament and the Council. That act must be signed by the presidents of those two institutions in accordance with the second subparagraph of Article 297(1) TFEU.

The Council submits accordingly that the act establishing the 2011 annual budget — whether that act is combined with the declaration of the President of the European Parliament that the 2011 budget is definitively adopted or whether it is regarded as a separate act — is unlawful in so far as it consists in a non-typical and non-legislative act made and signed by the President of the European Parliament alone, in breach of Article 314 TFEU and Articles 288 and 289(2) and the first and third paragraphs of Article 296 of the Treaty and Article 13(2) of the Treaty on European Union. In the alternative, the Council submits that that act is unlawful on the ground of breach of essential procedural requirements and breach of Article 314(9) TFEU.

Finally, the Council asks the Court to maintain, if need be, the effects of the budget as published in the Official Journal of the European Union until the date on which that budget is established in accordance with those articles of the Treaty.
EN Official Journal of the European Union C 145/12

Appeal brought on 2 March 2011 by Helena Rubinstein, L'Oréal against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-345/08: Helena Rubinstein SNC, L'Oréal SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allergan, Inc.

(Case C-100/11 P)

2011/C 145/17

Language of the case: English

Parties

Appellants: Helena Rubinstein SNC, L'Oréal SA (represented by: A. von Mühlendahl, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allergan, Inc.

Form of order sought

The appellants claim that the Court should:

— annul the judgment of the General Court of 16 November 2010 in joined cases T-345/08 and T-357/08;

— to dismiss the appeals filed by Allergan, Inc. against the decisions of the Office's Cancellation Division of 28 March 2007 in Case 1118 C (Helena Rubinstein SNC, BOTOLIST) and 4 April 2007 in Case 1120 C (L'Oréal SA, BOTOCYL);

— to order the Office to bear the costs of the proceedings before the Court of Justice and before the General Court, as well as the costs of the proceedings before the Office's Board of Appeal.

Pleas in law and main arguments

The appellants submit that the contested judgment should be annulled on the following grounds:

That the General Court violated Article 52 (1)CTMR (1) in conjunction with Article 8 (5) CTMR in deciding that the Office was justified in finding that the earlier marks relied on by Allergan, Inc. had reputation and that the use of the contested registrations would take unfair advantage of or be detrimental to the distinctiveness or the reputation of the earlier marks.

That the General Court violated Article 115 CTMR in conjunction with Article 1 Rule 38 (2) of Commission Regulation (EC) No 2868/95 (2) of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, as amended (referred to hereafter as ‘Rule 38’ and ‘CTMIR’),in taking into account evidence which was not submitted in the language of the proceedings.

That the General Court violated Article 63 CTMR in reviewing and confirming the contested decisions according to erroneous legal standards.

That the General Court violated Articles 73 CTMR in deciding that the contested decisions were not vitiated by absence of sufficient reasons.

(1) OJ L 011, p. 1.

(2) OJ L 303, p. 1