ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 116/14

Action brought on 29 February 2008 — Commission of the European Communities v Grand-Duchy of Luxembourg

(Case C-95/08)

(2008/C 116/24)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and P. Oliver, acting as Agents)

Defendant: Grand-Duchy of Luxembourg

Form of order sought

— Declare that, by not putting in place the authorities able to verify the implementation of the principles of good laboratory practice (GLP), the Grand-Duchy of Luxembourg has failed to fulfil its obligations under Article 3 of Directive 2004/9/EC of the European Parliament and of the Council of 11 February 2004 on the inspection and verification of good laboratory practice (GLP) (1);

— Order the Grand-Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The time-limit for the implementation of Directive 2004/9/EC expired on 12 March 2004. The defendant is still not equipped with authorities having the competences necessary to inspect the laboratories and to audit the studies carried out by those laboratories to assess compliance with good laboratory practice.

(1) Directive 2004/9/EC of the European Parliament and of the Council of 11 February 2004 on the inspection and verification of good laboratory practice (GLP) (OJ 2004 L 50, p. 28).
EN Official Journal of the European Union C 128/21

Reference for a preliminary ruling from the Thüringer Finanzgericht (Germany), lodged on 25 February 2008 — Glückauf Brauerei GmbH v Hauptzollamt Erfurt

(Case C-83/08)

(2008/C 128/35)

Language of the case: German

Referring court

Thüringer Finanzgericht

Parties to the main proceedings

Claimant: Glückauf Brauerei GmbH

Defendant: Hauptzollamt Erfurt

Question referred

Are the criteria of legal and economic independence referred to in Article 4(1) of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (1) for applying the reduced duty rates to be understood, in view of the recitals to the Directive, as meaning that economic dependence between otherwise legally independent breweries is to be presumed only where the breweries concerned cannot act as competitors in the market uninfluenced by each other, or is the mere de facto possibility of influence on the business activity of the breweries sufficient for the criterion of independence to be met no longer?

(1) OJ 1992 L 316, p. 21.
1.

On 1 May 2004, the date of accession of the Republic of Hungary to the European Union, were the rules laid down in Article 38(1)(a) of the általános forgalmi adóról szóló 1992. évi LXXIV. Törvény (Law LXXIV of 1992 concerning turnover tax; ‘the Áfa.tv’) compatible with Article 17 of 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 (‘the Sixth Directive’)?
2.

If the first question referred for a preliminary ruling is answered in the negative: does a legal action which is brought by persons who have participated in the procedure for the award of a public contract of mixed form providing inter alia for the supply of services subject to Annex I B to Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209), and in which they plead breach of the principle of equal treatment of participants in tender procedures (a principle affirmed by Article 3(2) of that directive), fall within the field of application of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395), or is its application precluded inasmuch as, in accordance with Article 9 of Directive 92/50/EEC, only Articles 14 and 16 of the latter apply to the procedure for the award of the abovementioned contract for the supply of services?
EN Official Journal of the European Union C 128/25

Reference for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Lithuania) lodged on 18 March 2008 — Mechel Nemunas UAB v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

(Case C-119/08)

(2008/C 128/45)

Language of the case: Lithuanian

Referring court

Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania)

Parties to the main proceedings

Claimant: Mechel Nemunas UAB

Defendant: Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos (State Tax Inspectorate attached to the Ministry of Finance of the Republic of Lithuania)

Question referred

Are First Council Directive 67/227/EEC (1) and/or Article 33 of Sixth Council Directive 77/388/EEC (2) to be interpreted as having prohibited a Member State from maintaining, and levying, deductions from income in accordance with the Law of the Republic of Lithuania on the financing of the road maintenance and development programme in the form of the tax which has been described earlier in this order?

(1) First Council Directive of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (OJ, English Special Edition 1967, p. 14).

(2) Sixth Council Directive 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 45, p. 1).
EN Official Journal of the European Union C 158/14

Action brought on 29 April 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-184/08)

(2008/C 158/22)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: P. Oliver and J.-B. Laignelot, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

— Declare that by failing to adopt sanctions under Article 18 of Regulation (EC) No 648/2004 of the European Parliament and of the Council of 31 March 2004 on detergents (1) or by not informing the Commission thereof, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 18(1) and (2) of that regulation;

— Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

According to Article 18 of Regulation No 648/2004, the Member States are to adopt, no later than 8 October 2005, dissuasive, effective and proportionate sanctions for any infringement of that regulation and they are immediately to inform the Commission thereof. At the date at which the present action was brought, the defendant had still not adopted sanctions pursuant to the abovementioned article or, at least, had not informed the Commission thereof.

(1) OJ 2004 L 104, p. 1.
1.

Accepting that a national provision in accordance with which only all the members of a consortium without legal personality which has participated unsuccessfully in a public procurement procedure can bring a legal action against the act awarding the contract, and not consortium members individually, is not in principle contrary to Community law and specifically to Directive 89/665, and that that still applies where the legal action has initially been brought by all the members of the consortium but ultimately proves, as regards some of them, to be inadmissible, is it in addition necessary, from the viewpoint of application of that directive, to examine, in order to make a declaration of inadmissibility, whether those individual members thereafter retain the right to claim before another national court any damages which may be envisaged by a provision of national law?
EN Official Journal of the European Union C 171/26

Reference for a preliminary ruling from the Administrative Court of Appeal, Thessaloniki (Greece) lodged on 28 April 2008 — Maria Kastrinaki v A.KH.E.P.A. University Hospital, Thessaloniki

(Case C-186/08)

(2008/C 171/39)

Language of the case: Greek

Referring court

Administrative Court of Appeal, Thessaloniki

Parties to the main proceedings

Applicant: Maria Kastrinaki

Defendant: A.KH.E.P.A. University Hospital, Thessaloniki

Question referred

Is it open to the competent authorities, for the purposes of the provisions of Directive 89/48/ΕEC, as transposed into Greek law by Joint Ministerial Decision No Α4/4112/247/1992, interpreted in the light of Article 39(1), the first paragraph of Article 40, Articles 43, 47(1), 49 and 55 of the Treaty establishing the European Community, to prevent a national of a Member State, the holder of a diploma falling within the scope of Directive 89/48/EEC, who is employed by a legal person governed by public law, under a contract of employment of unlimited duration governed by private law, and who has been granted a licence by the competent authorities of the original Member State to use a professional title and by the competent authorities of the host Member State to practice the profession, in accordance with the provisions of Directive 89/48/ΕEC, as transposed into Greek law by Joint Ministerial Decision No Α4/4112/247/1992, from progressing in career and salary by way of a permanent appointment in a fixed post as a civil servant in the university-education level grade and salary scale, on the ground that recognition of the academic equivalence of the university educational qualification from the original Member State is not possible, since part of the studies were completed in the host Member State under a franchising agreement with a private educational organisation which is not recognised in that Member State as an educational establishment?
2.

If question 1 is answered in the affirmative, where there is an equivalent legal measure under national law, within the meaning of clause 5(1) of the Framework Agreement, which existed before Directive 1999/70/EC entered into force, such as Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 11 of Presidential Decree 164/2004 at issue in the main proceedings, an unacceptable reduction in the general level [of protection] afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement: (a) when the legal measure in question applying the Framework Agreement was adopted after the time-limit for transposing Directive 1999/70/EC had elapsed, but only fixed-term employment contracts and relationships which were in effect before its entry into force or had expired within a certain period before its entry into force but after the time-limit for transposing the Directive had elapsed fall within its chronological scope, although the equivalent legal measure which already existed does not have a chronologically restricted scope of application and covers all fixed-term employment contracts which had been concluded, were in effect or had expired when Directive 1999/70/EC came into force and the time-limit for its transposition had elapsed; (b) when fixed-term employment contracts or relationships only fall within the scope of application of the legal measure in question applying the Framework Agreement if they can be regarded as successive within the meaning of that measure, satisfying the cumulative requirements: (i) that there is a maximum period of three months between them; (ii) that they extend for a total of at least 24 months before the measure in question enters into force, irrespective of the number of contract renewals or that, on the basis of those renewals, there has been a minimum total period of work of 18 months over an overall period of 24 months from the original contract, provided that there are at least three renewals since the original contract, whereas the existing equivalent legal measure does not lay down such conditions but covers all the fixed-term (successive) employment contracts, irrespective of a minimum total period of work and a minimum number of contract renewals; (c) when the legal measure in question applying the Framework Agreement provides as a legal consequence for the protection of fixed-term workers and the prevention of abuse, within the meaning of the Framework Agreement on fixed-term work, for the qualification thereafter (ex nunc) of fixed-term employment contracts as contracts of indefinite duration, whereas the pre-existing legal measure provides for the qualification of fixed-term contracts as contracts of indefinite duration from the time they were originally concluded (ex tunc)?
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC (1), of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania, or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive,
EN Official Journal of the European Union C 183/9

Reference for a preliminary ruling from the Oberlandesgericht Karlsruhe (Germany) lodged on 7 April 2008 — Criminal proceedings against Rafet Kqiku

(Case C-139/08)

(2008/C 183/17)

Language of the case: German

Referring court

Oberlandesgericht Karlsruhe

Parties to the main proceedings

Applicants:

1. Generalstaatsanwaltschaft Karlsruhe

2. Staatsanwaltschaft Konstanz

Defendant: Rafet Kqiku

Questions referred

Are the provisions of Articles 1 and 2 of Decision No 896/2006/EC of the European Parliament and of the Council of 14 June 2006 establishing a simplified regime for the control of persons at the external borders based on the unilateral recognition by the Member States of certain residence permits issued by Switzerland and Liechtenstein for the purpose of transit through their territory (1) to be interpreted as meaning that the residence permits issued by the Swiss Confederation and Liechtenstein listed in the Annex acquire, by virtue of the unilateral recognition by the Member States fully implementing the Schengen acquis of those residence permits as equivalent to their uniform or national visas, directly the effect of a residence document allowing transit through the common area;

Or

are the provisions of Articles 1 and 2 of Decision No 896/2006/EC to be interpreted as meaning that third-country nationals holding one of the residence permits issued by the Swiss Confederation and Liechtenstein listed in the Annex unilaterally recognised by the Member States fully implementing the Schengen acquis are exempt, for the purpose of transit through the common area, from the requirement to be in possession of a visa under Article 1(1) of Regulation (EC) No 539/2001?

(1) OJ 2006 L 167, p. 8.
—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/83/EC (1) of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, or in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under Article 38 of that directive;
EN Official Journal of the European Union C 209/22

Appeal brought on 20 May 2008 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 28 February 2008 by the Court of First Instance (Fifth Chamber) in Case T-215/06, American Clothing Associates v OHIM

(Case C-208/08 P)

(2008/C 209/32)

Language of the case: French

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

Other party to the proceedings: American Clothing Associates SA

Form of order sought

— set aside the judgment of the Court of First Instance of 28 February 2008 in Case T-215/06 in so far as it held that Article 7(1)(h) of the Community Trade Mark Regulation (1) does not apply to marks designating services;

— order American Clothing Associates SA to pay the costs.

Pleas in law and main arguments

The appellant raises a single plea in support of its appeal, alleging infringement of Article 7(1)(h) of the Community Trade Mark Regulation, read in conjunction with Article 6 ter of the Paris Convention for the Protection of Industrial Property of 20 March 1883, as revised and amended (2). Contrary to what the Court of First Instance held, that Article 6 ter, to which Article 7(1)(h) of the Community Trade Mark Regulation refers, applies without distinction to marks designating goods and marks designating services.

In this respect, the appellant states, first, that the Court of First Instance erred in law in interpreting Article 6 ter of the Paris Convention literally and out of context, without taking account of the spirit of that provision and of the Convention in general, which, since its review carried out by the Lisbon Act of 31 October 1958, requires extending all the provisions relating to trade marks to service marks, with the exception of certain provisions which are not applicable in the present case.

The appellant claims, second, that the Community legislature itself contests that it is necessary to draw a distinction between trade marks for goods and trade marks for services since Article 29 of the Community Trade Mark Regulation, which transposes Article 4 A of the Paris Convention, relating to rights of priority, mentions explicitly the services covered by a trade mark application.

The appellant observes third that, contrary to what the Court of First Instance held in the judgment under appeal, Article 16 of the Trademark Law Treaty, adopted at Geneva on 27 October 1994, must be interpreted as meaning that it clarifies the field of application of the Paris Convention, without however extending its field of application to situations that that convention excludes in its current wording.

Lastly, the appellant states that, in a recent judgment, the Court of Justice itself admitted, at least implicitly, that the Paris Convention requires equal treatment as between trade marks for goods and trade marks for services.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

(2) United Nations Treaty Series, Vol. 828, No 11847, p. 108.
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania (1), and, in any event, by failing to communicate them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 209/23

Action brought on 22 May 2008 — Commission of the European Communities v Ireland

(Case C-221/08)

(2008/C 209/34)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal, W. Mölls, Agents)

Defendant: Ireland

The applicant claims that the Court should:

— declare that by imposing minimum and maximum retail prices for cigarettes, Ireland has failed to comply with its obligations under Article 9(1) of Council Directive 95/59/EC (1) of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco;

— declare that by failing to provide the necessary information on the applicable Irish legislation in order to enable the Commission to fulfil its duty to monitor compliance with Directive 95/59, Ireland has failed to comply with its obligations under Article 10 EC;

— order Ireland to pay the costs.

Pleas in law and main arguments

By virtue of the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) (No 2) Regulations 1986 and the arrangements made in implementation of those regulations with tobacco manufacturers and importers, Ireland imposes a minimum price for cigarettes corresponding to a level no more than 3 % below the weighted average price for cigarettes in the category in question. Moreover, in so far as manufacturers and importers may not set prices more than 3 % above that weighted average price, Ireland also imposes a maximum price for cigarettes. Such a system is contrary to Article 9(1) of directive 95/59, under which tobacco manufacturers are ‘free to determine the maximum retail selling price for each of their products’.

Pursuant to Article 10 EC, the Member States have a duty to facilitate the Commission's tasks, in particular by complying with requests for information made in the course of infringement proceedings. The Commission submits that by failing to provide any information on the applicable Irish legislation, despite the Commission's repeated requests, Ireland has failed to comply with its obligations under Article 10 EC.

(1) OJ L 291, p. 40.
EN Official Journal of the European Union C 209/18

Appeal brought on 3 April 2008 by Japan Tobacco, Inc. against the judgment delivered on 30 January 2008 by the Court of First Instance (Fifth Chamber) in Case T-128/06, Japan Tobacco, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) — Torrefacção Camelo

(Case C-136/08 P)

(2008/C 209/26)

Language of the case: French

Parties

Appellant: Japan Tobacco, Inc. (represented by: A. Ortiz López, abogada, S. Ferrandis González, abogado and E. Ochoa Santamaría, abogada)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) Torrefacção Camelo Lda

Form of order sought

— set aside the judgment of the Court of First Instance of the European Communities of 30 January 2008 delivered in Case T-128/06 and deliver a judgment amending the judgment of the Court of First Instance and declaring it necessary to apply the prohibition contained in Article 8(5) of the Community Trade Mark Regulation (1) to this case and, consequently, in considering the arguments submitted by Japan Tobacco, decide to refuse the registration of Community trade mark No 1 469 121;

— order OHIM to pay the costs of these proceedings.

Pleas in law and main arguments

By its appeal, the appellant claims that the Court of First Instance infringed the Community Trade Mark Regulation and, more specifically, Article 8(5) thereof. Despite the fact that the Court of First Instance recognised the reputation of the earlier mark, the similarity between the marks in question and the connection between the goods designated by the marks, it required actual, real and current evidence of harm to the earlier mark, whilst Article 8(5) requires a mere likelihood of harm to that mark, of unfair advantage being taken of its distinctive character or of detriment to it.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
—

declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2005/29/EC (1), or, in any event, by not communicating those provisions to the Commission, the Federal Republic of Germany has failed to fulfil its obligations under Community law, in particular under Article 19 of that directive;
—

Declare that the Kingdom of Spain has failed to fulfil its obligations under Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, interpreted by the judgments of the Court of Justice on 13 January 2005 in Case C-117/03 and on 14 September 2006 in Case C-244/05, and its obligations stemming from Article 12(4) of that directive in relation to the project for improvement of the rural path from Villamanrique de la Condesa (Seville) to El Rocio (Huelva).