ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 52/16

Request for a preliminary ruling from the Verwaltungsgericht Oldenburg (Germany) lodged on 13 November 2017 — ReFood GmbH & Co. KG v Landwirtschaftskammer Niedersachsen

(Case C-634/17)

(2018/C 052/21)

Language of the case: German

Referring court

Verwaltungsgericht Oldenburg

Parties to the main proceedings

Applicant: ReFood GmbH & Co. KG

Defendant: Landwirtschaftskammer Niedersachsen

Questions referred

The following questions on the interpretation of Article 1(3)(d) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (1) are referred for a preliminary ruling:

1. Is the provision to be interpreted as an exemption which applies to all shipments which, pursuant to Article 2 of Regulation (EC) No 1069/2009, (2) come within the scope of that latter regulation?

2. If the first question should be answered in the negative: Is the provision to be interpreted as an exemption which applies to shipments which are subject to rules regarding collection, transport, identification and traceability pursuant to Regulation (EC) No 1069/2009, read also in conjunction with Implementing Regulation (EU) No 142/2011? (3)

3. If the second question should be answered in the negative: Is the provision to be interpreted as an exemption which applies only to those shipments which are consignments requiring consent pursuant to Article 48(1) of Regulation (EC) No 1069/2009?

(1) OJ 2006 L 190, p. 1.

(2) Regulation (EC) No 1069/2009 of the European Parliament and of the Council of 21 October 2009 laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No 1774/2002 (Animal by-products Regulation) (OJ 2009 L 300, p. 1).

(3) Commission Regulation (EU) No 142/2011 of 25 February 2011 implementing Regulation (EC) No 1069/2009 of the European Parliament and of the Council laying down health rules as regards animal by-products and derived products not intended for human consumption and implementing Council Directive 97/78/EC as regards certain samples and items exempt from veterinary checks at the border under that Directive (OJ 2011 L 54, p. 1).
EN Official Journal of the European Union C 52/21

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 24 November 2017 — Istituto nazionale della previdenza sociale (INPS) v Azienda Napoletana Mobilità SpA

(Case C-659/17)

(2018/C 052/30)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: Istituto nazionale della previdenza sociale (INPS)

Respondent: Azienda Napoletana Mobilità SpA

Question referred

Is European Commission Decision 2000/128/EC of 11 May 1999 (1) applicable also to employers operating local public transport services — on a substantially non-competitive basis, given the exclusive nature of the service carried out — which have benefited from reductions in contributions after entering into training and work experience contracts since Law No 407 of 1990 came into force, with reference, in the present case, to the period from [May] 1997 to May 2001?

(1) Commission Decision of 11 May 1999 concerning aid granted by Italy to promote employment (Notified under document number C(1999) 1364) (OJ L 42, p. 1).
1.

Must the provisions of Article 13(1) of [Directive 2010/24] (1), according to which debts to be recovered pursuant to a request for recovery are to be treated by the requested State as being the debts of that State, be interpreted as meaning that (a) the requested Member State is also a party to the legal proceedings concerning the restitution to the insolvency estate of sums paid following a recovery, or (b) that the involvement of the requested State is limited to the recovery of the debt by enforcement and the lodgement of the claim in the insolvency proceedings, and that it is the applicant State which is the defendant in a request for recovery concerning the extent of the assets covered by the liquidation?
1.

Is Article 3(1) of Council Directive 72/166/EEC (1) of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (First Directive), to be interpreted as meaning that the concept of ‘use of vehicles’ covers a situation such as that in the main proceedings, that is to say, the opening of the doors of a stationary vehicle?
2.

Is Article 3 of 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, (1) in conjunction with Article 50 of the Charter of Fundamental Rights of the European Union, to be interpreted as meaning that the rules of EU competition law and of national competition law which are applied in parallel by the competition authority of a Member State protect the same legal interest?
EN Official Journal of the European Union C 94/10

Request for a preliminary ruling from the Rayonen sad Asenovgrad (Bulgaria) lodged on 19 December 2017 — EVN Bulgaria Toplofikatsia EAD v Nikolina Stefanova Dimitrovа

(Case C-708/17)

(2018/C 094/13)

Language of the case: Bulgarian

Referring court

Rayonen sad Asenovgrad

Parties to the main proceedings

Applicant: EVN Bulgaria Toplofikatsia EAD

Defendant: Nikolina Stefanova Dimitrovа

Questions referred

1. Does Article 13(2) of Directive 2006/32/EC (1) of the European Parliament and of the Council of 5 April 2006 preclude the possibility of the district heating supplier demanding consideration for the consumed thermal energy released by the system supplied with district heating of a building in co-ownership in proportion to the heatable volume of the apartments according to the floor plan, without taking account of the quantity of thermal energy actually released in the individual apartment?

2. Is a national provision that obliges consumers who are owners of apartments in buildings subject to the provisions on co-ownership to provide consideration for the thermal energy that is not used but is supplied by the building’s system provided with district heating, if they have ceased the use of the thermal energy by removing the radiators in their apartments or as a result of employees of the district heating supplier having rendered the radiator technically incapable of releasing heat at their request, compatible with Article 27 of Directive 2011/83/EU? (2)

3. Does such a national provision give rise to an unfair commercial practice within the meaning of Directive 2005/29/EC (3) of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council?

(1) Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services and repealing Council Directive 93/76/EEC (Text with EEA relevance), OJ 2006 L 114, p 64.

(2) Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (Text with EEA relevance), OJ 2011 L 304, p 64.

(3) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (Text with EEA relevance), OJ 2005 L 149, p. 22.
If the answer to the first question is in the affirmative:

Should Article 5(3) of Council Regulation (EC) No 261/2004 of 11 February 2004 be interpreted as meaning that the temporary closure of an airport constitutes an extraordinary circumstance even if the aircraft involved in the accident belonged to the fleet of the air carrier which is relying on the occurrence of an extraordinary circumstance in relation to a flight which was delayed due to the closure of the airport?
(1)

The General Court infringed the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, read in conjunction with Article 53 thereof, through misinterpretation of those provisions. In finding that the concepts of ‘force majeure’ and ‘unforeseeable circumstances’ were identical in terms of their meaning, the General Court infringed the principle of the reasonable legislator. Such a reading of those concepts also runs counter to the aim of Article 45 of the Statute, which is intended to compensate for any differences arising as a result of distance (between the place of residence of the parties and the location of the Court). Consequently, the General Court unreasonably failed to take account of the unforeseeable circumstances preventing the appellant from delivering the (original) paper version of the application on time.
EN Official Journal of the European Union C 134/13

Appeal brought on 13 December 2017 by Mr Toni Klement against the judgment of the General Court (Sixth Chamber) delivered on 10 October 2017 in Case T-211/14 RENV Toni Clement v European Union Intellectual Property Office (EUIPO)

(Case C-698/17 P)

(2018/C 134/17)

Language of the case: German

Parties

Appellant: Toni Klement (represented by: J. Weiser, Rechtsanwalt)

Other party to the proceedings: European Union Intellectual Property Office (EUIPO)

Form of order sought

The appellant claims that the Court should:

1. set aside the contested judgment of the General Court of 10 October 2017 in Case T-211/14 RENV; and

2. order the respondent to pay the costs.

Grounds of appeal and main arguments

The appellant relies, in essence, on three grounds of appeal.

In his first ground of appeal, the appellant argues that the statement of reasons in respect of the finding that the three-dimensional mark at issue has a distinctive character is inadequate. The judgment under appeal, he submits, does not provide any statement of reasons whatsoever as to why the three-dimensional mark at issue has a particularly high degree of distinctiveness, although its shape is purely technical. In that regard, the statement of reasons in the judgment is not clear and comprehensible in respect of an essential point and is therefore legally defective.

In his second ground of appeal, the appellant argues that the statement of reasons for the finding that the word element ‘Bullerjan’, added to the mark at issue when in use, has a distinctive character is contradictory and inadequate. The judgment under appeal, he contends, failed to state what degree of distinctiveness the General Court attributed to the added word element. Without a finding as to the degree of distinctiveness of the added element, it is impossible to make a finding as to whether the distinctiveness of the mark at issue had been influenced by that element. The judgment under appeal is also, he argues, contradictory in that regard. The General Court thus, on the one hand, took the view that the word element makes it easier to determine the commercial origin of the goods, while, on the other hand, it stated that that element has no effect on the distinctiveness of the three-dimensional mark at issue. A facilitation of determination of commercial origin and an absence of effect on the degree of distinctiveness are, however, mutually exclusive.

In his third ground of appeal, the appellant argues that an incorrect legal test was applied in determining the distinctiveness of the three-dimensional mark at issue. For the purpose of determining the degree of distinctiveness of a three-dimensional mark, the protected shape has to be compared with the shapes available on the market. The General Court, however, bases its reasoning, not on the available shapes, but on ‘the shape of an oven in general’. Such an average shape of an oven does not, however, exist.
Case C-359/17: Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 9 June 2017 — Marcel Lutz and Others v TUIfly GmbH

Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 9 June 2017 — Marcel Lutz and Others v TUIfly GmbH

(Case C-359/17)

Referring court

Amtsgericht Hannover

Parties to the main proceedings

Applicants: Marcel Lutz, Janine Lutz, Michelle Lutz, Sarah Lutz

Defendant: TUIfly GmbH

By decision of the Court of Justice of 18 May 2018 the case was removed from the Court’s register.
Case C-409/17: Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 7 July 2017 — Barbara Yvette Müller and Others v TUIfly GmbH

Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 7 July 2017 — Barbara Yvette Müller and Others v TUIfly GmbH

(Case C-409/17)

Referring court

Amtsgericht Hannover

Parties to the main proceedings

Applicants: Barbara Yvette Müller, Stefanie Müller, Michelle Müller

Defendant: TUIfly GmbH

By decision of the Court of Justice of 28 May 2018 the case was removed from the Court’s register.
EN Official Journal of the European Union C 112/28

Action brought on 6 February 2018 — European Commission v Republic of Austria

(Case C-79/18)

(2018/C 112/36)

Language of the case: German

Parties

Applicant: European Commission (represented by: G. von Rintelen, P. Ondrůšek and M. Noll-Ehlers, acting as Agents)

Defendant: Republic of Austria

Form of order sought

The applicant claims that the Court should:

— declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose Directive 2014/23/EU (1) of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, with the exception of Article 46 and Article 47 in the Länder of Vienna, Styria and Carinthia, or by failing to notify the Commission of those provisions, the defendant has failed to fulfil its obligations under that directive;

— impose on the defendant, pursuant to Article 260(3) TFEU, by reason of the infringement of the obligation to notify the transposition measures, a penalty payment in the amount of EUR 52 972 per day;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Member States were required, under Article 51(1) of Directive 2014/23/EU, to adopt the national measures necessary to transpose the obligations under that directive into national law by 18 April 2016 at the latest. Since the Republic of Austria failed to adopt all the required laws, regulations and administrative provisions necessary to transpose that directive, or failed to give notification of those provisions to the Commission, the Commission decided to refer the matter to the Court of Justice.

By its application, the Commission requests the Court to impose a penalty payment in the amount of EUR 52 972 per day on the Republic of Austria. The amount of that penalty payment has been calculated taking into account the gravity and duration of the infringement and the deterrent effect based on that Member State’s ability to pay.

(1) OJ 2014 L 94, p. 1.
2.

In the case where end-of-waste criteria have not been set at EU level for a particular type of waste, does the first sentence of Article 6(4) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives grant the waste holder the right to apply to the competent authority or to a court in a Member State for a decision on end-of-waste status in keeping with the applicable case-law of the Court of Justice of the European Union, irrespective of whether criteria set in a generally applicable national legal act exist for a particular type of waste?
3.

Is a Member State entitled to enquire, before recognising a child who is not the consanguineous descendant of the EEA national as a direct descendant under Article 2.2(c), into whether the procedures for placing the child in the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of that child?
1.

Must the second sentence of Article 60(1) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (Regulation No 883/2004) (1) be interpreted as meaning that a Member State having secondary competence (Austria) must pay, as a family benefit, to a parent resident and employed in a Member State having primary competence in accordance with Article 68(1)(b)(i) of Regulation No 883/2004 (Germany) the difference between the ‘Elterngeld’ (parental allowance) paid in the Member State having primary competence and the income-dependent ‘Kinderbetreuungsgeld’ (childcare allowance) in the other Member State, in the case where both parents live with their common children in the Member State having primary competence and the second parent alone is employed as a cross-border worker in the Member State having secondary competence?
EN Official Journal of the European Union C 142/35

Request for a preliminary ruling from the Oberlandesgericht Köln (Germany) lodged on 13 February 2018 — Klaus Manuel Maria Brisch

(Case C-102/18)

(2018/C 142/46)

Language of the case: German

Referring court

Oberlandesgericht Köln

Parties to the main proceedings

Applicant: Klaus Manuel Maria Brisch

Question referred

Is the use of the form as set out in Annex 4 as Form IV, established in accordance with the advisory procedure under Article 81(2) of the EU Succession Regulation, (1) mandatory or merely optional for the purposes of an application for a European Certificate of Succession under Article 65(2) of the EU Succession Regulation, in accordance with Article 1(4) of the Implementing Regulation for the EU Succession Regulation? (2)

(1) Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2012 L 201, p. 107).

(2) Commission Implementing Regulation (EU) No 1329/2014 of 9 December 2014 establishing the Forms referred to in Regulation (EU) No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2014 L 359, p. 30).
1.-

Must Clause 4 of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP approved by Council Directive 1999/70/EC of 28 June 1999 (1) be interpreted as precluding a regional legislative provision, such as that at issue in the main proceedings, which expressly excludes the award and payment to staff employed by the Public Administration of Navarre who are classified as ‘employed under an administrative contract’ (a fixed-term contract) of particular additional remuneration, on the grounds that the additional remuneration in question constitutes remuneration for promotion and development in a professional career that is open only to staff classified as ‘established public officials’ (with a contract of indefinite duration)?
2.

If the answer to Question 1 is in the affirmative, is national legislation contrary to the purpose of Article 90 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax if it does not allow payers of value added tax to make a correction to the amount of tax where tax became chargeable on a taxable supply to another taxpayer who paid for it only in part or not at all, and who subsequently ceased to be a value added tax payer?
—

make an appropriate order as to the sum to be awarded to the appellant as compensation for the non-material harm that she has suffered as a result of the unfounded accusations made before the enquiry was finalised, the harm to her reputation, and the very significant disruption to her personal and political life caused by the contested decision;
3.

Are the functions of a court of second instance limited by the fact that the judgment at first instance granted limited effect to a declaration of unfairness, and the judgment has not been appealed against by the consumer but only by the seller or supplier, who included the term, in order to dispute the unfairness of the term or any effects arising from the declaration that the term was unfair?
—

Declare that, by failing to bring into force by 18 April 2016 at the latest the laws, regulations and administrative provisions necessary to comply with Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1) or, in any event, by failing to communicate to the Commission those provisions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 51 of that directive;
EN Official Journal of the European Union C 182/16

Action brought on 23 March 2018 — European Commission v Republic of Poland

(Case C-206/18)

(2018/C 182/19)

Language of the case: Polish

Parties

Applicant: European Commission (represented by: J. Samnadda, J. Hottiaux and G. von Rintelen, acting as Agents)

Defendant: Republic of Poland

Form of order sought

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations and administrative provisions necessary to ensure compliance with Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market, (1) or, in any event, by failing to notify the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 43 of that directive;

— order the Republic of Poland, pursuant to Article 260(3) TFEU, to pay a penalty payment for failure to fulfil its obligation to notify the measures transposing Directive 2014/26/EU at a daily rate of EUR 87 612 from the day on which judgment is delivered in the present case;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

Pursuant to Article 43(1) of Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market, the Member States were required to introduce the laws, regulations and administrative provisions necessary to ensure compliance with that directive by 10 April 2016. They were required immediately to inform the Commission thereof.

On 22 November 2017 the Republic of Poland sent to the Commission three already existing legal acts, which only partially transpose Directive 2014/26/EU. Because the Republic of Poland has still not incorporated into Polish law, or brought into force, all the necessary provisions, the Commission has decided to bring an action before the Court of Justice of the European Union.

In its application, the Commission requests that the Republic of Poland be ordered to pay a penalty payment at a daily rate of EUR 87 612 from the day on which judgment is delivered in the present case. That rate has been established by taking into account the seriousness of the infringement, the duration of the infringement, and the need to ensure deterrence.

(1) OJ 2014 L 84, p. 72.