ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 22/23

Reference for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 29 October 2007 — M.C.O. Congres v suxess GmbH

(Case C-476/07)

(2008/C 22/44)

Language of the case: German

Referring court

Landgericht Berlin

Parties to the main proceedings

Applicant: M.C.O. Congres

Defendant: suxess GmbH

Question referred

Is Article 9(2)(e) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (1), last amended by Directive 1999/85/EC of 22 October 1999 (OJ 1999 L 277, p. 34), to be interpreted as meaning that if services are supplied in connection with sports and cultural services under Article 259 A 4(a) of the Code Général des Impôts (General Tax Code) in the form of the grant to the person to whom the services are supplied of permission to advertise on surfaces, in premises where events take place and on t-shirts, then they are advertising services within the meaning of Article 9(2) of Sixth Council Directive 77/388/EEC of 17 May 1977 with the result that the services are deemed to have been supplied at the place where the person to whom the services have been supplied has his place of business?

(1) OJ 1977 L 145, p. 1.
EN Official Journal of the European Union C 37/18

Appeal brought on 30 November 2007 by Imagination Technologies Ltd against the judgment of the Court of First Instance (Third Chamber) delivered on 20 September 2007 in Case T-461/04: Imagination Technologies Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-542/07 P)

(2008/C 37/25)

Language of the case: English

Parties

Appellant: Imagination Technologies Ltd (represented by: M. Edenborough, Barrister)

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

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance.

— make an order for costs of and associated with this appeal before the Court of Justice and its appeal before the Court of First Instance.

Pleas in law and main arguments

The Appellant submits that the Community trade mark application No 2396075 for the word mark PURE DIGITAL (the ‘Application’) does not offend against either Article 7(1)(b) or 7(1)(c) of Council Regulation No 40/94 as it has acquired a distinctive character since the Application was filed. It is submitted that the Court of First Instance erred in its analysis of the relevant law; in particular, it erred when it failed to hold that use after the filing date was relevant when considering the issue of acquired distinctiveness.

Accordingly, the Court of First Instance was wrong to dismiss the appeal before it. Hence, it is submitted that this appeal against the judgment of the Court of First Instance ought to be allowed and its Judgment set aside. The Appellant also seeks its costs in these appeal proceedings and in the proceedings before the Court of First Instance.
3.

Do fuel additives such as those at issue, which are not intended for use, offered for sale or used as motor fuel but which are added to motor fuel for purposes other than powering the vehicle in which the fuel is used, fall to be taxed under the second paragraph of Article 2(3) of Directive 2003/96/EC (2)?
EN Official Journal of the European Union C 37/14

Action brought on 29 November 2007 — Commission of the European Communities v Portuguese Republic

(Case C-530/07)

(2008/C 37/18)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by S. Pardo Quintillán and G. Braga da Cruz, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

— Declare that, by failing (a) to provide the agglomerations of Angra do Heroismo, Bacia do Rio Uima (Fiães de S. Jorge), Costa de Aveiro, Covilhã, Espinho/Feira, Fátima, Ponta delgada, Ponte de Lima, Póvoa de Varzim/Vila do Conde, Santa Cita, Vila Real de Santo António, Viana do Castelo-Cidade and Vila Real with collecting systems, as provided for by Article 3 of Council Directive 91/271/EEC (1) of 21 May 1991 concerning urban waste-water treatment, and (b) to subject to secondary treatment or an equivalent treatment urban waste water from the agglomerations of Alta Nabão, Alverca, Bacia do Rio Uima (Fiães de S. Jorge), Carvoeiro, Costa da Caparica/Trafaria, Costa de Aveiro, Costa Oeste, Covilhã, Espinho/Feira, Fátima, Fundão/Alçaria, Lisbon, Matosinhos, Milfontes, Moledo/Âncora/Afife, Nazaré/Famalicâo, Pedrógão Grande, Ponta delgada, Ponte de Lima, Póvoa de Varzim/Vila do Conde, Santa Cita, Vila Nova de Gaia/Douro Nordeste, Vila Real de Santo António, Viana do Castelo-Cidade, Vila Franca de Xira and Vila Real, as provided for by Article 4 of that directive, the Portuguese Republic has failed to fulfil its obligations under Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment;

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Member States were to ensure, at the latest by 31 December 2000, that all agglomerations with a population equivalent (p.e.) of more than 15 000 and, at the latest by 31 December 2005, that all agglomerations with a p.e. of between 2 000 and 15 000 were provided with collecting systems for urban waste water.

Article 4 of the Directive provides as follows:

‘1. Member States shall ensure that urban waste water entering collecting systems shall before discharge be subject to secondary treatment or an equivalent treatment as follows: — at the latest by 31 December 2000 for all discharges from agglomerations of more than 15 000 p.e., — at the latest by 31 December 2005 for all discharges from agglomerations of between 10 000 and 15 000 p.e., — at the latest by 31 December 2005 for discharges to fresh water and estuaries from agglomerations of between 2 000 and 10 000 p.e. …’

(1) OJ L 135, p. 40.
D.

Those conditions are not met in the present case. In order to properly supervise the implementation of the Agreement it is not necessary to impose a requirement that undertakings must have their registered office in Germany since all applications have to be made to the German authorities in any case. As regards the enforcement of the liability of the applicant for payment of social security contributions and penalties for infringements of law, such questions are not specifically related to the agreement on works contracts, but are related to the general provision of services in Germany by undertakings from other Member States. There also appears to be no reason why the opening of the bilateral agreement to undertakings from other Member States should lead to an incorrect application or circumvention of the transitional provisions in the Accession Agreement. Concerns about the incorrect use of the transitional provisions in no way amount to a sufficiently serious threat to public policy or security capable of justifying a discriminatory restriction on the freedom to provide services.
EN Official Journal of the European Union C 51/31

Appeal brought on 21 November 2007 by AGC Flat Glass Europe SA, formerly Glaverbel SA, against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-141/06: Glaverbel SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-513/07 P)

(2008/C 51/53)

Language of the case: English

Parties

Appellant: AGC Flat Glass Europe SA, formerly Glaverbel SA (represented by: S. Möbus and T. Koerl, lawyers)

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

Form of order sought

The appellant claims that the Court should:

— annul the judgment of the Court of First Instance of 12 September 2007 in case T-141/06 concerning the Community trade mark application No 3183068;

— order the Defendant to pay the costs.

Pleas in law and main arguments

The Appellant submits that the appealed judgment of the Court of First Instance is based on a wrong intepretation of Article 7(3) of the Community Trade Mark Regulation (1) (hereinafter ‘CTMR’) caused by a wrong assessment of the target public and a wrong assessment of the territory which has to be considered.

1. Contrary to the assessment of the Court of First Instance the target public consists of specialists of the glass industry only. The Court of First Instance thus incorrectly applied Article 7(3) CTMR in respect of the assessment of the target public.

2. Contrary to the assessment of the Court of First Instance the Defendant incorrectly examined the evidence provided in respect of the acquired distinctiveness for each member state separately as this apparently contradicts Article 7(3) CTMR requiring an acquired distnctiveness through use throughout the Community. What the Defendant would have been required to do — instead of assessing the number of member states — is to look at the provided evidence as a whole and to assess whether it builds a coherent picture of sustained use in a sufficiently large geographical area over a sufficiently long period of time before the filing date.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community Trade Mark (OJ L 11, 14.1.1994, p. 1).
iii.

the law of the first Member State provides, in summary, that: a. in the event of the issue of shares in certificated form (or in un-certificated form in the settlement system for dematerialised shares of the first Member State), duty shall not be charged on the issue of the shares but on each subsequent sale of the shares, which duty is charged at the rate of 0,5 % of the consideration for the transfer; but b. on the transfer or issue of un-certificated shares to the operator of a clearance service, duty shall be charged (where the shares are issued) at the rate of 1,5 % of the issue price or (where the shares are transferred for consideration) at the rate of 1,5 % of the amount or value of the consideration or, (in any other case) at the rate of 1,5 % of the value of the shares and, no subsequent charge is thereafter levied on sales of the shares (or of rights to or over the shares) within the clearance service. c. the operator of a clearance service may, where it receives the approval of the relevant taxation authority, elect that no duty is charged on the transfer or issue of the shares to its clearance service, but that duty is instead charged on each sale of the shares within the clearance service, at the rate of 0,5 % of the consideration. The relevant taxation authority may (and presently does) require, as a condition for its approval of such an election, that the operator of the clearance system seeking to make such an election should make and maintain arrangements (as the taxation authority considers satisfactory) for the collection of the duty within the clearance service and for complying or securing compliance with the regulations in relation to it.
2.

Assuming that Article 6 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies may be interpreted as allowing Member States to adopt provisions of national law such as Article 67 of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that a worker made redundant can no longer challenge compliance with the procedure for informing and consulting except on the ground that the employer has not fulfilled the conditions referred to in Article 66(1)(ii) of that law, and to the extent that staff representatives within the Works Council or, where no such council exists, the members of the union delegation or, where no such delegation exists, the workers who should be informed and consulted, have notified the employer of objections in respect of compliance with one or more of the conditions referred to in Article 66(1)(ii) within a period of 30 days from the display referred to in the second subparagraph of Article 66(2) and where the worker made redundant has informed the employer, in a letter sent by recorded delivery within 30 days from the date of redundancy or from the date on which the redundancies acquired their status as collective redundancies, that he was challenging compliance with the procedure for informing and consulting and he was seeking to be reinstated in his post, is such a system compatible with the fundamental rights of the individual which form an integral part of the general principles of law — respect for which is ensured by the Community judicature — and more particularly with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms?
EN Official Journal of the European Union C 64/29

Appeal brought on 2 January 2008 by U.S. Steel Košice, s.r.o. against the order of the Court of First Instance (Third Chamber) delivered on 1 October 2007 in Case T-27/07: U.S. Steel Košice, s.r.o. v Commission of the European Communities

(Case C-6/08 P)

(2008/C 64/42)

Language of the case: English

Parties

Appellant: US Steel Košice, s.r.o. (represented by: C. Thomas, Solicitor, E. Vermulst, advocaat)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul the order of the Court of First Instance of 1 October 2007 in Case T-27/07 U.S. Steel Košice, s.r.o. v. Commission

— refer the case back to the Court of First Instance for judgment on the substance;

— order the Commission to pay the appellant's costs

Pleas in law and main arguments

The appellant submits that the appeal is based on errors of law committed by the Court of First Instance in relation to its application of the principles guiding the admissibility of actions and in the interpretation of Directive 2003/87 (1), as well as the distortion (denaturation) of the contested decision by the Court.

1. The Court of First Instance wrongly failed to recognise that the contested decision rejected the plan of the Slovak Government to grant a specified amount of allowances to the appellant.

2. The Court of First Instance wrongly failed to recognise that the contested decision inevitably led to and indeed explicitly required a reduction in the appellant's allowances.

3. The Court of First Instance wrongly failed to recognise the procedural similarity of the contested decision with a State aid or merger control decision; — the fundamental aspects of the procedure under Article 9(3) of Directive 2003/87 are similar to State aid and merger control; — the contested decision in fact made a State aid appraisal of the appellant's allowances.

4. The Court of First Instance wrongly identified a ‘discretion’ in the ‘implementation’ of the contested decision.

In short, the appellant maintains that it is directly concerned by the contested decision which rejected a formal plan to grant emissions allowances to the appellant, inevitably reduced the allowances that the appellant would be allocated, and indeed explicitly required those allowances to be reduced.

(1) Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (Text with EEA relevance) (OJ L 275, p. 32).
1.

(a) Is it contrary to Article 56 EC for a natural person with unlimited tax liability in Germany to be unable to deduct losses from the letting or leasing of real estate located in another Member State — in contrast to a loss from real estate on national territory — when calculating taxable income in Germany in the year in which the loss arises? (b) Is it relevant whether the natural person made the real estate investment himself or does an infringement arise also where the natural person has become the owner of the real estate located in another Member State by way of inheritance?
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/51/EC of 6 June 2006 (1) amending for the purposes of adapting to technical progress Annex I to Directive 2005/55/EC of the European Parliament and of the Council (2) and Annexes IV and V to Directive 2005/78/EC (3) as regards requirements for the emission control monitoring system for use in vehicles and exemptions for gas engines and, in any event, by failing to communicate such provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3 of that directive;
2.

If the answer to question 1 is in the negative, does Article 12 EC in conjunction with Article 39 EC preclude national rules which exclude Union citizens from receipt of social assistance if the maximum period of residence permitted under Article 6 of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 has been exceeded and there is no right of residence under other provisions?
—

Declare that, by not adopting the laws regulations and administrative provisions necessary to comply with Council Directive 2003/72/EC (1) of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees, and in any event by not informing the Commission of such measures, the Hellenic Republic has failed to fulfil its obligations under that directive.
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees (1), or by not ensuring that management and labour introduce the required provisions by way of agreement, or, in any case, by failing to communicate those measures to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 16(1) of that directive;
EN Official Journal of the European Union C 107/18

Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 18 February 2008 — Europol Frost-Food GmbH v Hauptzollamt Krefeld

(Case C-65/08)

(2008/C 107/27)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Europol Frost-Food GmbH

Defendant: Hauptzollamt Krefeld

Question referred

Is additional note 5(b) to Chapter 20 of the Combined Nomenclature in the version of Regulations (EC) Nos 2388/2000 (1) and 2031/2001 (2) valid?

(1) Commission Regulation (EC) No 2388/2000 of 13 October 2000 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2000 L 264, p. 1, and OJ 2000 L 276, p. 92).

(2) Commission Regulation (EC) No 2031/2001 of 6 August 2001 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2001 L 279, p. 1).
EN Official Journal of the European Union C 128/20

Appeal brought on 25 February 2008 by Miguel Cabrera Sánchez against the judgment delivered on 13 December 2007 in Case T-242/06 Miguel Cabrera Sánchez v OHIM and Industrias Cárnicas Valle, S.A.

(Case C-81/08 P)

(2008/C 128/34)

Language of the case: Spanish

Parties

Appellant: Miguel Cabrera Sánchez (represented by: J.A. Calderón Chavero and T. Villate Consonni, abogados)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Industrias Cárnicas Valle, S.A.

Form of order sought

— Set aside the judgment of the Court of First Instance (Third Chamber) delivered on 13 December 2007 in case T-242/06 seeking annulment of the decision in question since the appellant claims that the marks EL CHARCUTERO (appellant) and EL CHARCUTERO ARTESANO (respondent) are clearly incompatible;

— Make an order for costs.

Pleas in law and main arguments

The appellant claims, contrary to the judgment under appeal, that the Community trade mark ‘El chacutero Artesano’ falls under the prohibition in Article 8(1)(b) of Regulation 40/94 (1) since, upon opposition by the proprietor of an earlier trade mark, in this case, the Spanish mark ‘El Charcutero’, the trade mark applied for is not to be registered if, because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected, in this case, Spain. The likelihood of confusion includes the likelihood of association with the earlier trade mark.

(1) Council Regulation of 20 December 1993 on the Community trade mark (OJ 1993 L 11, p. 1).
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary for the purpose of giving effect to Commission Directive 2006/73/EC (1) of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council, or in any event by failing to inform the Commission of the adoption of such measures, the Republic of Poland has failed to fulfil its obligations arising under that directive;
EN Official Journal of the European Union C 128/18

Action brought on 11 February 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-47/08)

(2008/C 128/30)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: J.-P. Keppenne and H. Støvlbæk, agents)

Defendant: Kingdom of Belgium

Form of order sought

The applicant claims that the Court should:

— declare that, by laying down a nationality requirement for access to the profession of notary and by failing to transpose Council Directive 89/48/EEC (1) in respect of the occupation of notary, the Kingdom of Belgium has failed to fulfil its obligations under the EC Treaty, in particular Articles 43 and 45 EC, and Directive 89/48/EEC on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

By its action, the Commission first of all alleges that the defendant, by laying down a nationality requirement for access to the profession of notary and its practice, disproportionately restricts freedom of establishment as laid down in Article 43 EC. Admittedly, Article 45 EC exempts from the application of the chapter relating to the right of establishment activities connected directly and specifically with the exercise of public authority. According to the Commission, the tasks entrusted to notaries under Belgian law are so distantly connected to the exercise of public authority that they do not fall within the scope of that article or warrant such a restriction of the freedom of establishment. Those tasks, in fact, do not confer on notaries a power of coercion and less restrictive measures than a nationality requirement could be laid down by the national legislature, such as subjecting the operators concerned to strict conditions for access to the profession, specific professional duties and/or a specific test.

By its second complaint, the Commission further alleges that the defendant failed to fulfil its obligations by failing to transpose Directive 89/48/EEC in respect of the profession of notary. As it is a regulated profession, the directive is fully applicable to that profession and the high level of qualification required of notaries could easily be guaranteed by an aptitude test or an adaptation period.

(1) Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years duration (OJ 1989 L 19, p. 16).