ddrg/super_eurlex huggingface dataset:
3.

How must Article 27(2) of the Framework Decision be interpreted in so far as, under that provision, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for another offence, especially in relation to the consent procedure referred to in Article 27(4) and having regard to the provision in Article 27(3)(c) under which the speciality rule does not apply if the criminal proceedings do not give rise to the application of a measure restricting personal liberty? (a) In cases which fall within the scope of the consent procedure, must the abovementioned provisions be interpreted as meaning that they do not preclude prosecution being brought, proceedings being carried on or judgment being given for the offence in question prior to receipt of consent, provided that the suspect is not deprived of liberty or has his or her liberty restricted as a result of being suspected of the offence in question? (b) Of what relevance is it that the criminal proceedings associated with the restriction on liberty relate to more than one offence, one of which falls within the scope of the consent procedure? Must the abovementioned provisions then be interpreted as meaning that they do not preclude prosecution being brought, proceedings being carried on or judgment being given for an offence subject to the consent procedure prior to receipt of consent, despite the fact that the suspect has been subject to a restriction on his or her personal liberty in connection with the proceedings, where there is a lawful basis for that restriction on liberty on grounds of other pending charges?
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A declaration that the Republic of Slovenia, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC (1) of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, has failed to fulfil its obligations under that directive;
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declare that, by not adopting 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), or in any event by not notifying those provisions to the Commission, the Republic of Cyprus has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 301/23

Reference for a preliminary ruling from High Court of Justice (England and Wales) (Queen's Bench Division), Leeds District Registry, made on 18 September 2008 — Uniplex (UK) Ltd v NHS Business Services Authority

(Case C-406/08)

(2008/C 301/36)

Language of the case: English

Referring court

High Court of Justice (Queen's Bench Division)

Parties to the main proceedings

Applicant: Uniplex (UK) Ltd

Defendant: NHS Business Services Authority

Questions referred

Where an economic operator is challenging in national proceedings the award of a framework agreement by a contracting authority following a public procurement exercise in which he was a tenderer and which was required to be conducted in accordance with Directive 2004/18/EC (1) (and applicable implementing national provisions), and is in those proceedings seeking declarations and damages for breach of applicable public procurement provisions as regards that exercise and award:

(a) is a national provision such as Regulation 47(7)(b) of the Public Contracts Regulations 2006 which states that those proceedings are to be brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose, unless the Court considers that there is good reason for extending the period, to be interpreted, in light of Directive 89/665/EEC (2), Articles 1 and 2, and the Community law principle of equivalence and the Community law requirement for effective legal protection, and/or the principle of effectiveness, and having regard to any other relevant principles of EC law, as conferring an individual and unconditional right upon the tenderer against the contracting authority such that the time for the bringing of proceedings challenging such a tender exercise and award starts running as from the date when the tenderer knew or ought to have known that the procurement procedure and award infringed EC public procurement law or as from the date of breach of the applicable public procurement provisions; and

(b) in either event how is a national court then to apply (i) any requirement for proceedings to be brought promptly and (ii) any discretion as to extending the national limitation period for the bringing of such proceedings?

(1) 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 (OJ L 134, p. 114).

(2) 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 L 395, p. 33).
EN Official Journal of the European Union C 301/17

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 27 August 2008 — Attanasio Group Srl v Comune di Carbognano

(Case C-384/08)

(2008/C 301/31)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Attanasio Group Srl

Defendant: Comune di Carbognano

Question referred

Are the Italian regional and national provisions laying down mandatory minimum distances between roadside petrol stations and, in particular, Article 13 of the Regional Law of Latium, which applies to the case before this Court and is material for the decision in those proceedings, as well as the national framework legislation (Legislative Decree No 32/1998, as subsequently amended and supplemented, Law No 57/2001 and Ministerial Decree of 31 October 2001), in so far as they allow, or in any event have not prevented provision being made, in the exercise of the regulatory powers of the Italian State, for minimum distances between petrol stations under Article 13, compatible with Community law, in particular Articles 43, 48, 49 and 56 of the EC Treaty and the principles of freedom of competition and non-discrimination enshrined in that treaty, as stated in the grounds?
1.

Must [Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, in particular Articles 2, 15(3) and 35(1)] (1) above be interpreted to mean that national competition authorities derive directly from them an entitlement to formulate written observations on arguments raised, in the context of appeal proceedings, against a decision made by them, and that they can themselves present arguments in fact and in law, with the result that this entitlement cannot be excluded by a Member State?
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declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, and in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;
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declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/70/EC (1) of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis or, in any event, by failing to notify those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 5 thereof;
3.

Where a Member State opts for a system of charging or levying in respect of digital reproduction equipment, devices and media, in accordance with the aim pursued by Article 5(2)(b) of Directive 2001/29 and the context of that provision, must that charge (the fair compensation for private copying) necessarily be linked to the presumed use of those equipment and media for making reproductions covered by the private copying exception, with the result that the application of the charge would be justified where it may be presumed that the digital reproduction equipment, devices and media are to be used for private copying, but not otherwise?
EN Official Journal of the European Union C 19/15

Appeal brought on 10 November 2008 by Alcon Inc. against the judgment of the Court of First Instance (Fourth Chamber) delivered on 10 September 2008 in Case T-106/07 Alcon Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-481/08 P)

(2009/C 19/26)

Language of the case: English

Parties

Appellant: Alcon Inc. (represented by: M. Graf, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), *Acri.Tec AG Gesellschaft für ophthalmologische Produkte

Form of order sought

The appellant claims that the Court should:

— Annul the Judgment under appeal and annul the contested decision

— Order OHIM to bear the costs

Pleas in law and main arguments

The appellant contends that the contested judgment should be set aside on the following grounds:

— Distortion of facts and evidence since the relevant consumers are normal consumers. This is a question of law which must be decided by the Court even when the argument was first raised in the oral hearing, ‘da mihi facta, dabo tibi ius’.

— Error in application and interpretation of Article 8(1)(b) of Regulation No 40/94 (1) and distortion of facts and evidence since apparently only the pronunciation in the English language of the marks ‘BioVisc’ and ‘DUOVISC’ was taken into account, not the pronunciation in the French language.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, p. 1).
EN Official Journal of the European Union C 32/17

Action brought on 14 November 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-495/08)

(2009/C 32/27)

Language of the case: English

Parties

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

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

1. declare that by failing to provide that individual decisions not to carry out an environmental impact assessment pursuant to Article 4(2) of Council Directive 85/337/EEC (1) as amended must be supported by sufficient reasoning, and failing to make ROMP applications lodged in Wales prior to 15 November 2000 subject to the requirements of that Directive, the United Kingdom has failed to fulfil its obligations under that Directive.

2. order the United Kingdom of Great Britain and Northern Ireland to bear the costs of the present proceedings.

Pleas in law and main arguments

Under the United Kingdom legislation reasons must be given only if an Environmental Impact Assessment (EIA) is found to be necessary: if, for whatever reason, the relevant planning authority or the Secretary of State reaches the conclusion that no EIA is necessary, then nothing in the Regulations requires any reasons to be given in support of that conclusion. The Commission submits that individual decisions taken by Member States not to carry out an EIA pursuant to Article 4(2) to (4) of the directive must be supported by adequate reasoning.

Furthermore, the United Kingdom has not enacted legislation in Wales which would make Review of Mineral Planning (‘ROMP’) applications subject to the requirements of the directive.

(1) Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (OJ L 175, p. 40).
2.

If the answer to the first question is that the term ‘the same parties’ is intended to give to the subjective scope of the operation of the competing judgments a more precise interpretation in isolation from Regulation No 44/2001: (i) must, in the interpretation of that term in Article 34(3) of Regulation No 44/2001, support be sought in the interpretation which the Court of Justice of the European Communities gave to the term ‘between the same parties’ in Article 21 of the Brussels Convention (now Article 27 of Regulation No 44/2001) in its judgment in Case C-351/96 Drouot assurances v CMI and Others [1998] ECR I-3075; and (ii) must K-Line, which was a party to the Rotterdam proceedings, but not to the Düsseldorf proceedings, be deemed, because of the assignment and mandate, to be ‘the same party’ as Zeuner, which was a party to the Düsseldorf proceedings, but not to the Rotterdam proceedings?
EN Official Journal of the European Union C 44/31

Action brought on 2 December 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-526/08)

(2009/C 44/51)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and N. von Lingen, Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

— declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply fully and properly with Articles 4 and 5, in conjunction with Annex II A(1) and Annex III 1(1), Annex II A(5) and Annex III 1(2), and Annex II A(2) and Annex II A(6), of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (1), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

Pleas in law and main arguments

The Commission raises four complaints in support of its action.

By its first complaint, the Commission criticises the defendant for not complying with the procedures and periods for land application, as laid down in the directive. Although the prohibition on land application during certain periods should cover both organic and artificial fertilisers, the Luxembourg legislation refers solely to organic fertilisers. In addition, the prohibition on the land application of fertilisers during certain periods should relate to all agricultural land, including prairies, which are omitted from the national implementing measures. The Commission also claims that the national legislation should define, with greater precision, those circumstances which may give rise to a derogation from the land application prohibition, as this was not envisaged in the directive.

By its second complaint, the Commission claims that the national legislation does not lay down any requirement for a minimum manure storage capacity for all installations, but refers only to new installations or those being modernised. Such an implementing measure does not comply with the Directive in so far as the existing installations also present pollution risks. The national legislation should, therefore, impose a minimum storage capacity for all installations.

By its third complainant, the Commission claims that, in the context of the prohibition of land application on steeply sloping ground, the national legislation should include all fertilisers, and not only organic fertilisers.

By its fourth and final complaint, it is alleged that the defendant did not adopt sufficient measures concerning land application techniques, in particular, to ensure a uniform and efficient application of fertilisers.

(1) OJ 1991 L 375, p. 1.
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declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC, 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC (1), and in any event by not informing the Commission of the adoption of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 64 of that directive;
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declare that, by failing to adopt the laws, regulations and administrative provisions necessary to fully comply with Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, or in any event by failing to fully communicate them to the Commission, the United Kingdom has failed to fulfil its obligations under the Directive;
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declare that, by failing to adopt, in full, the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1), or, as the case may be, by failing to fully inform the Commission of those provisions, the Republic of Austria has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 55/19

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 29 December 2008 — Angelo Rubino v Ministero dell'Università e della Ricerca

(Case C-586/08)

(2009/C 55/30)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Angelo Rubino

Defendant: Ministero dell'Università e della Ricerca

Question referred

Is it contrary to the Community principles concerning the abolition of obstacles to the free movement of persons and services between Member States of the Community, and the mutual recognition of diplomas, certificates and other evidence of formal qualifications, set out in Articles 3(1)(c) and 47(1) of the Treaty establishing the European Community, and the provisions contained in Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, for national legislation, such as the Italian rules laid down in Legislative Decree 206/2007, to exclude university lecturers from the scope of the regulated professions for purposes of the recognition of professional qualifications?

(1) OJ 2005 L 255, p. 22.
EN Official Journal of the European Union C 129/2

Appeal brought on 1 July 2008 by Carlos Correia de Matos against the order of the Court of First Instance (Fifth Chamber) delivered on 9 April 2008 in Case T-38/08 Corriea de Matos v Commission

(Case C-290/08 P)

2009/C 129/02

Language of the case: Portuguese

Parties

Appellant: Carlos Correia de Matos (represented by: C.I. Correia de Matos, advogada)

Other party to the proceedings: Commission of the European Communities

By order of 10 February 2009, the Court of Justice (Eighth Chamber) dismissed the appeal.
EN Official Journal of the European Union C 69/23

Action brought on 29 December 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-582/08)

(2009/C 69/41)

Language of the case: English

Parties

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

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

— declare that by denying recovery of input tax in respect of certain transactions carried out by taxable persons not established in the territory of the European Community, the United Kingdom has failed to comply with its obligations under Articles 169, 170 and 171 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax and with Article 2(1) of the Thirteenth VAT Directive 86/560/EEC (2) of 17 November 1986 on the harmonization of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in Community territory;

— order United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

The Commission submits that Article 2(1) of the Thirteenth VAT Directive cannot be interpreted as excluding the refund of VAT charged on goods or services used for the purposes of the insurance and financial transactions mentioned in Article 17(3)(c) of the Sixth VAT directive (3). The Commission therefore takes the view that the United Kingdom legislation, in so far as it denies the right to a refund of that VAT to taxable persons not established in the territory of the European Community, is in breach of Community law.

(1) OJ L 347, p. 1.

(2) OJ L 326, p. 40.

(3) OJ L 145, p. 1. Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment.
EN Official Journal of the European Union C 82/17

Action brought on 28 January 2009 — Commission of the European Communities v Portuguese Republic

(Case C-37/09)

(2009/C 82/31)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: J.-B. Laignelot, S. Pardo Quintillán and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

— A declaration, first, that by not having adopted the measures necessary to ensure that waste tipped in the dos Limas, dos Linos and dos Barreiras quarries in the district of Lourosa is disposed of or recovered without endangering human health or harming the environment, in particular without creating risks to water or soil, and to ensure that the waste is entrusted to a private or public collection service or to an undertaking responsible for its disposal or recovery and, secondly, by not having adopted the measures necessary to restrict the introduction into groundwater of substances included in List II of Directive 80/68/EEC so as to prevent the pollution of groundwater by those substances, the Portuguese Republic has failed to fulfil its obligations under Articles 4 and 8 of Directive 2006/12/EC on waste, codifying Directive 75/442/EEC on waste, and under Articles 3 and 5 of Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

Starting in the 1980s, waste from various sources began to be tipped in disused quarries without any supervision by the authorities whatsoever. Discharging of waste into the quarries continued until February 2004. Only in June 2004 were those areas closed off.

Analysis of the water at separate points in the old quarry area disclosed troubling levels of chemical contamination. The water table in that area is contaminated.

For many years the Portuguese authorities did not take the measures necessary to prevent holders of unidentified waste from discharging and abandoning waste in disused quarries. They did not check the discharge or abandonment of waste in the quarries or monitor its disposal.

Furthermore, the Portuguese authorities did not take the measures necessary to prevent the introduction into groundwater of harmful toxic substances. They did not make subject to prior investigation the tipping of waste capable of leading to the indirect discharge of noxious substances into groundwater. Nor did they check the surface discharge of waste.