ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 148/21

Appeal brought on 6 April 2010 by Mr Karen Goncharov against the judgment of the General Court (Fourth Chamber) delivered on 21 January 2010 in Case T-34/07 Karen Goncharov v Office for Harmonisation in the Internal Market (Trade Marks and Designs); other party to the proceedings before the Board of Appeal of OHIM: DSB

(Case C-156/10 P)

2010/C 148/32

Language of the case: German

Parties

Appellant: Karen Goncharov (represented by: A. Späth and G.N. Hasselblatt, Rechtsanwälte)

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

Form of order sought

The appellant requests the Court to:

— Set aside the judgment of the General Court of 21 January 2010 (Case T-34/07);

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 4 December 2006 (Case R 1330/2005-2); and

— Order OHIM to pay the costs of the proceedings before the Court of Justice, the General Court and the Board of Appeal, as well as the appellant’s costs.

Pleas in law and main arguments

The judgment of the General Court of 21 January 2010 (Case T-34/07) should be set aside, because it infringes the provision on the relative grounds for refusal of registration contained in Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark).

The General Court misapplied the general principles concerning the assessment of the likelihood of confusion. In particular, it failed to take the circumstances of the present case fully into account, by disregarding the fact that the marks at issue consist in acronyms.

The General Court bases its decision finally only on a general rule according to which the consumer usually attaches greater weight to the first part of words. Thus, the difference in the form of the letter ‘W’ in the contested mark is not sufficient to eliminate the visual and aural similarity.

The General Court thereby ignored the fact that the marks in conflict are not words, but acronyms. The reasoning of the judgment shows that the General Court failed to undertake a comprehensive examination of the likelihood of confusion, relying instead only on a general rule, which is moreover not applicable at all to the present case.

The consumer is in fact accustomed in the case of acronyms to directing his attention specifically to each single letter. General rules concerning word marks consisting in words may not therefore be applied without hesitation to word marks consisting in acronyms.
1.

Can the provisions of [Commission] Regulation No 2571/97 of 15 December 1997 on the sale of butter at reduced prices and the granting of aid for cream, butter and concentrated butter for use in the manufacture of pastry products, ice-cream and other foodstuffs, (1) a regulation which implements [Council] Regulation No 1255/99 [of 17 May 1999 ] on the common organisation of the market in milk and milk products, (2) be regarded as constituting sectoral Community rules derogating from Article 3(1) of Regulation No 2988/95 of 18 December 1995 (3) and preventing the application of national provisions on limitation?
5.

Is Clause 4 to be interpreted as meaning that, even though the rules of a public selection process were published and were not contested by the applicant, the national court must examine whether those rules are contrary to the Community legislation and, in that case, must the national court refrain from applying those rules or the national provision on which they are based in so far as they conflict with that clause?
1.

The main purpose of Directive 1999/31/EC is to prevent or reduce as far as possible negative effects on the environment, in particular the pollution of surface water, groundwater, soil and air, and on the global environment, including the greenhouse effect, as well as any resulting risk to human health, from landfilling of waste, during the whole life-cycle of the landfill.
1.

Must Articles 17 and 19 of Directive 98/71/EC (1) be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, protection is conferred may include discretion to preclude such protection where a third party — without authorisation from the design copyright holder– had already produced and marketed in that State products based on the designs in question — those designs being in the public domain — before the date on which the national implementing legislation entered into force?
3.

If the answer to Question 2 is in the affirmative, what conduct amounts to a relevant practice, and in particular: (a) is it necessary that the taxing authority has made a clear and unambiguous statement that comparator supplies would be treated as exempt from VAT; (b) is it relevant that at the time the taxing authority made any statement it had an incomplete or incorrect understanding of facts relevant to the correct VAT treatment of the comparator supplies; and (c) is it relevant that VAT was not accounted for by the taxpayer, or sought by the taxing authority, in respect of the comparator supplies, but that the taxing authority has subsequently sought to recover that VAT, subject to the normal domestic limitation periods?
First ground of appeal: by the contested judgment our action, together with all the arguments put forward, was dismissed in its entirety on erroneous and inadequate grounds, although it should have been upheld in its entirety, or otherwise in part. In particular, the contested judgment does not take any account at all of the argument, essential to the outcome of the case, that our company performed its contractual obligation to design a printed information publication, with a print-run of 1 000 copies (in each language), which would contain all the information required to prepare school children for the transition to the euro, publishing a related multi-sided information booklet (claims viii, ix and x). The contested judgment is also vitiated by a lack of reasoning as concerns its assessment in respect of the information brochures which we published to meet our contractual obligations.
2.

In determining whether the principle of fiscal neutrality requires the same tax treatment of the types of machine referred to in Question 1 (FOBTs and Part III gaming machines), what level of abstraction should be adopted by the national court in determining whether the products are similar? In particular, to what extent is it relevant to take into account the following matters: (a) similarities and differences in the permitted maximum stakes and prizes as between FOBTs and Part III gaming machines; (b) that FOBTs could be played only on certain types of premises licensed for betting, which were different, and subject to regulatory constraints that were different from those applicable to, premises licensed for gaming (although FOBTs and up to two Part III gaming machines could be played alongside each other in premises licensed for betting); (c) that the chances of winning the prize on FOBTs were directly related to the published fixed odds, whereas the chances of winning on Part III gaming machines could in some cases be varied by a device that ensured a particular percentage return to the operator and player over time; (d) similarities and differences in the formats available on FOBTs and Part III gaming machines; (e) similarities and differences as between FOBTs and Part III gaming machines in the interaction which could occur between the player and the machine; (f) whether or not the matters referred to above were either known to the generality of players of the machines or regarded by them as relevant or important; (g) whether the difference in VAT treatment is justified by any of the above?
(a)

Is Paragraph 3(64) of the Einkommensteuergesetz (Law on Income Tax), in the version applicable in 2005 and 2006, compatible with the freedom of movement of workers pursuant to Article 45 of the ‘Consolidated Version of the Treaty on the Functioning of the European Union’ (TFEU) (Article 39 of the Treaty on the Establishment of the European Community; ‘EC Treaty’)?
Does ‘lawful use’ (see Article 5(1) of the Infosoc Directive) include the scanning by a commercial business of entire newspaper articles and subsequent processing of the reproduction, for use in the business’s summary writing, even where the rightholder has not given consent to those acts, if the other requirements in the provision are satisfied?

Is it relevant to the answer to the question whether the 11 words are stored after the data capture process is terminated?
EN Official Journal of the European Union C 234/28

Action brought on 7 July 2010 — European Commission v Republic of Finland

(Case C-342/10)

()

2010/C 234/46

Language of the case: Finnish

Parties

Applicant: European Commission (represented by I. Koskinen and R. Lyal)

Defendant: Republic of Finland

Form of order sought

— declare that, by introducing and maintaining in force a scheme under which dividends paid to foreign pension funds are taxed in a discriminatory manner, the Republic of Finland has failed to fulfil its obligations under Article 63 TFEU and Article 40 of the EEA Agreement;

— order the Republic of Finland to pay the costs.

Pleas in law and main arguments

Finland taxes foreign pension funds on the dividends received by them more heavily than Finnish pension funds. Finnish pension funds are taxed under a special tax scheme (Elinkeinoverolaki) and their tax rate is determined differently from that of other corporations. Under Paragraph 6a of the Elinkeinoverolaki, only 75 % of their dividend income is taxable income, and since the corporation tax rate is 26 % their real tax rate is 19,5 %. Finnish pension institutions can also deduct, under Paragraph 7 and point 10 of the first subparagraph of Paragraph 8 of the Elinkeinoverolaki, expenses and losses deriving from the acquisition or preservation of income, and also pension liabilities. Dividends received by comparable foreign pension funds are charged withholding tax at a tax rate of as much as 28 %. As regards pension funds established in the Member States and most pension funds from EFTA countries belonging to the EEA, the dividends are taxed in accordance with a tax rate of 19,5 %, but foreign pension funds are not entitled to make the corresponding deductions.

The tax rate applicable to dividends paid to recipients abroad under the Finnish tax scheme, together with the broader basis of assessment applicable to them, acts to the disadvantage of foreign pension funds offering their services to Finnish customers by placing them in an unfavourable competitive situation. The discriminatory treatment of foreign pension funds makes it less profitable and attractive for those funds to invest in Finnish companies and affects the opportunities of Finnish companies to acquire capital finance from foreign pension funds. There is therefore a prohibited restriction for the purposes of Article 63 TFEU and Article 40 of the EEA Agreement. The discriminatory treatment of foreign pension funds cannot be justified on any of the grounds put forward by the Republic of Finland.
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2005/47/EC (1) of 18 July 2005 on the Agreement between the Community of European Railways (CER) and the European Transport Workers’ Federation (ETF) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services in the railway sector or, in any event, by failing to communicate those measures to the Commission, the Italian Republic has failed to fulfil its obligations under Article 5 of that directive;
3.

If Question 2 is answered in the negative, can the making of submissions by a court-appointed guardian of the defendant in the case be regarded on its own as submission by the defendant to the jurisdiction of the local court for the purposes of Article 24 of the Brussels I Regulation, even where the subject-matter of the dispute is a claim arising out of a consumer contract and the courts of the Czech Republic would not have jurisdiction under Article 16(2) of that regulation to determine that dispute?
EN Official Journal of the European Union C 234/25

Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 7 June 2010 — Circul Globus București (Circ & Variete Globus București) v Uniunea Compozitorilor și Muzicologilor din România — Asociația pentru Drepturi de Autor — U.C.M.R. — A.D.A.

(Case C-283/10)

()

2010/C 234/40

Language of the case: Romanian

Referring court

Înalta Curte de Casație și Justiție

Parties to the main proceedings

Applicant: Circul Globus București (Circ & Variete Globus București)

Defendant: Uniunea Compozitorilor și Muzicologilor din România — Asociația pentru Drepturi de Autor — U.C.M.R. — A.D.A.

Question referred

Is Article 3(1) of Directive 2001/29/EC (1) of the European Parliament and of the Council of 22 May 2001 to be interpreted to the effect that ‘communication to the public’ means:

(a) exclusively communication to the public where the public is not present at the place where the communication originates, or

(b) also any other communication of a work which is carried out directly in a place open to the public using any means of public performance or direct presentation of the work?

In the event that point (a) represents the correct meaning, does that mean that the acts, referred to in point (b), by which works are communicated directly to the public do not fall within the scope of that directive or that they do not constitute communication of a work to the public, but rather the public performance of a work, within the meaning of Article 11(1)(i) of the Berne Convention?

In the event that point (b) represents the correct meaning, does Article 3(1) of the directive permit Member States to make statutory provision for the compulsory collective management of the right to communicate musical works to the public, irrespective of the means of communication used, even though that right can be and is managed individually by authors, no provision being made for authors to be able to exclude their works from collective management?

(1) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).
3.

necessary or permissible for such use of the general words of the Class Headings of the said International Classification of Goods and Services to be interpreted in accordance with Communication No. 4/03 of the President of the Office for Harmonisation in the Internal Market of 16 June 2003 (OJ OHIM 2003 p. 1647)?
EN Official Journal of the European Union C 246/32

Reference for a preliminary ruling from the Augstākās tiesas Senāta Administratīvo lietu departaments (Republic of Latvia) lodged on 9 July 2010 — SIA Norma-A, SIA Dekom v Ludzas novada dome

(Case C-348/10)

()

2010/C 246/54

Language of the case: Latvian

Referring court

Augstākās tiesas Senāta Administratīvo lietu departaments

Parties to the main proceedings

Applicants: SIA Norma-A, SIA Dekom

Defendant: Ludzas novada dome

Questions referred

1. Must Article 1(3)(b) of Directive 2004/17/EC (1) be interpreted as meaning that it is necessary to treat as a public service concession a contract under which the successful tenderer is granted the right to provide public bus services, in cases where part of the consideration consists in the right to operate the public transport services but where, at the same time, the contracting authority compensates the service provider for losses arising as a result of the provision of services, and in addition the public law provisions governing the provision of the service and the contractual provisions limit the risk associated with operation of the service?

2. If the first question is answered in the negative, has Article 2f(1)(b) of Directive 92/13/EEC, as amended by Directive 2007/66/EC, (2) been directly applicable in Latvia since 21 December 2009?

3. If the second question is answered in the affirmative, must Article 2f(1)(b) of Directive 92/13/EEC be interpreted as being applicable to public contracts entered into before the end of the period prescribed for domestic law to be brought into conformity with Directive 2007/66/EC?

(1) Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1).

(2) Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (Text with EEA relevance) (OJ 2007 L 335, p. 31).
1.

Does the correct application of Articles 15 and 16 of Directive 2006/123/EC (1) preclude the provisions of national law laid down in Article 32(7)(a) of Legislative Decree No 185 of 29 November 2008, added by Converting Law No 2 of 28 January 2009 and subsequently amended by Law No 14 of 27 February 2009, under which: — the award of services relating to the assessment and collection of taxes and other local authority revenue to persons who fail to satisfy the minimum financial requirement of fully paid up share capital in the sum of EUR 10 million is to be null and void; — persons entered in the relevant register of private persons authorised to carry out activities relating to the assessment and collection of taxes and other revenue of the provinces and municipalities are required to bring their share capital up to the minimum figure in question, pursuant to Article 53(3) of Legislative Decree No 446 of 15 December 1997, as subsequently amended; — it is prohibited to acquire new contracts or participate in tender procedures for the operation of services relating to the assessment and collection of taxes and other local authority revenue until the abovementioned requirement to adjust share capital has been met; and companies in which all or a majority of the share capital is in public ownership are excluded from those provisions?
EN Official Journal of the European Union C 260/13

Reference for a preliminary ruling from the Supreme Court (Ireland) made on 6 August 2010 — J. McB. v L. E.

(Case C-400/10)

()

2010/C 260/17

Language of the case: English

Referring court

Supreme Court, Ireland

Parties to the main proceedings

Applicant: J. McB.

Defendant: L. E.

Question referred

Does Council Regulation (EC) No 2201/2003 (1) of 27th November 2003 on the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (2), whether interpreted pursuant to Article 7 of the Charter of Fundamental Rights of the European Union or otherwise, preclude a Member State from requiring by its law that the father of a child who is not married to the mother shall have obtained an order of a court of competent jurisdiction granting him custody in order to qualify as having ‘custody rights’ which render the removal of that child from its country of habitual residence wrongful for the purposes of Article 2.11 of that Regulation?

(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000

OJ L 338, p. 1

(2) Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses

OJ L 160, p. 19
2.

If the answer to the first question should be in the negative: when a customs office examines whether export products comply with the CAP Goods List number stated in the export declaration is a margin of error to be allowed so that a so-called ‘anomaly’ is not detrimental to a refund?
2.

If, for a product to be classified as a ‘biocidal product’ within the meaning of Article 2(1)(a) of Directive 98/8/EC, the Court of Justice deems that an indirect chemical or biological effect on the harmful organism is sufficient, what is required of the product’s indirect effect on the harmful organism in order to be able to classify such a product as a ‘biocidal product’, within the meaning of Article 2(1)(a) of Directive 98/8/EC, or is an indirect effect of any nature sufficient to establish a product’s biocidal quality?
1.

Is it for national law to determine whether or not judges as a whole are ‘workers who have an employment contract or employment relationship’ within the meaning of clause 2.1 of the Framework Agreement, or is there a Community norm by which this matter must be determined?
1.

Is the first sentence of Article 16(1) of Directive 2004/38/EC (1) to be interpreted as conferring on Union citizens who have resided legally for more than five years on the basis only of national law in the territory of a Member State, but who did not during that period fulfil the conditions laid down in Article 7(1) of Directive 2004/38/EC, a right of permanent residence in that Member State?
—

declare that by failing to fully adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2005/85/EC (1) of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, or in any event by failing to notify measures for the full transposition of those provisions into national law, Ireland has failed to fulfil its obligations under the Directive;
1.

Does a person become a debtor liable to pay customs duties because of ‘participation’ in the unlawful introduction of goods into the customs territory of the European Union according to the second indent of Article 202(3) of Regulation (EEC) No 2913/92 establishing the Community Customs Code, (1) where that person, without being directly involved in the introduction of goods, arranges the conclusion of the contracts to purchase the goods concerned and therefore envisages that the seller will possibly deliver the goods or part of the goods in such a way as to evade import duties?
EN Official Journal of the European Union C 328/10

Appeal brought on 17 March 2010 by Francisco Pérez Guerra against the order of the General Court (Fourth Chamber) delivered on 11 February 2010 in Case T-3/10 Pérez Guerra v BNP Paribas and Spain

(Case C-142/10 P)

()

2010/C 328/16

Language of the case: Spanish

Parties

Appellant: Francisco Pérez Guerra (represented by: G. Soriano Bel, abogado)

Other parties to the proceedings: BNP Paribas and Kingdom of Spain

By order of 24 September 2010, the Court of Justice (Eighth Chamber) dismissed the appeal.
—

declare that, by applying a negotiated procedure, without prior publication of a contract notice, in connection with the handling of dangerous medical waste of an infectious nature from health establishments falling under the responsibility of the First D.Y.P.E. (Regional Health Authority) of Attiki, the Hellenic Republic has infringed its obligations under Article 28 of Directive 2004/18/EC [of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts] inasmuch as none of the conditions governing the derogations provided for in Article 31 of the Directive is satisfied, in particular the conditions of Article 31(1)(c), which justify a departure from the general rule and application of the exceptional procedure provided for by the said article;