ddrg/super_eurlex huggingface dataset:
2.

If the answer to Question 1 is in the affirmative: Does Article 96(2) of Directive 2001/83/EC permit a national provision such as Paragraph 47(3) of the Arzneimittelgesetz (Law on medicinal products; ‘the AMG’), if that provision is interpreted as meaning that pharmaceutical companies may not distribute free finished medicinal products to pharmacists, if their packaging is labelled ‘for demonstration purposes’, the medicinal products are used by the pharmacist to test the product, there is no risk of further distribution (of the unopened product) to end users and the further conditions for distribution set out in Article 96(1)(a) to (d) and (f) to (g) of that directive and in Paragraph 47(4) of the AMG are met?
1.

While Member States have the ability to investigate when undertakings have a dominant position (and to impose specific obligations on those undertakings as a result), is Article 43(11) of Legislative Decree No 177 of 31 July 2005, in the version in force on the date of adoption of the contested decision, according to which ‘undertakings, including through subsidiaries or affiliates, whose revenues in the electronic communications sector, as defined by Article 18 of Legislative Decree No 259 of 1 August 2003, exceed 40 per cent of the total revenues in that sector, may not earn, within the Integrated Communications System, revenues exceeding 10 per cent of that system’ incompatible with EU law and, in particular, with the principle of free movement of capital laid down in Article 63 TFEU?; is Article 43(11) of Legislative Decree No 177 of 31 July 2005 incompatible with EU law and, in particular, with the principle of free movement of capital laid down in Article 63 TFEU, in so far as — through reference to Article 18 of the Codice delle comunicazioni elettroniche (Electronic Communications Code), it restricts the sector in question to the markets susceptible to ex ante regulation, regardless of what commonly happens, which is that information (the pluralism of which the rule is designed to protect) is increasingly conveyed by the use of the Internet, personal computers and mobile telephony, which is sufficient to make it unreasonable to exclude from that sector, in particular, retail mobile telephony services, simply because they operate completely competitively; is Article 43(11) of Legislative Decree No 177 of 31 July 2005 incompatible with EU law and, in particular, with the principle of free movement of capital laid down in Article 63 TFEU, taking into account the fact that the Authority has defined the boundaries of the electronic communications sector, for the purposes of applying Article 43(11) [of Legislative Decree No 177/2005] in the course of the present proceedings, by taking into consideration only the markets where at least one analysis has been carried out since the entry into force of the Electronic Communications Code, that is, from 2003 to date, and with revenues resulting from the last useful assessment, carried out in 2015?
If the answer to Question 1 is in the negative:

Must Article 56 TFEU, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services and Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC be interpreted as precluding the imposition of cumulative fines for infringements of formal obligations in connection with the cross-border deployment of labour which have no absolute upper limits?
Official Journal of the European Union

Appeal brought on 23 November 2018 by Sevenfriday AG against the judgment of the General Court (Fourth Chamber) delivered on 27 September 2018 in Case T-448/17: Sevenfriday v EUIPO

(Case C-734/18 P)

(2019/C 155/23)

Language of the case: English

Parties

Appellant: Sevenfriday AG (represented by: M. Mostardini, F. Mellucci, S. Pallavicini, avvocati)

Other parties to the proceedings: European Union Intellectual Property Office, Seven SpA

By order of 19 March 2019 the Court of Justice (Seventh Chamber) held that the appeal was inadmissible.
Official Journal of the European Union

Appeal brought on 11 September 2018 by Petrus Kerstens against the order of the General Court (First Chamber) delivered on 26 June 2018 in Case T-757/17 Kerstens v Commission

(Case C-577/18 P)

(2019/C 131/21)

Language of the case: French

Parties

Appellant: Petrus Kerstens (represented by: C. Mourato, lawyer)

Other party to the proceedings: European Commission

By order of 22 January 2019, the Court (Sixth Chamber) dismissed the appeal.
Official Journal of the European Union

Appeal brought on 10 December 2018 by Cuervo y Sobrinos 1882, S.L. against the judgment of the General Court (Eighth Chamber) delivered on 10 October 2018 in Case T-374/17 Cuervo y Sobrinos 1882 v EUIPO — A. Salgado Nespereira

(Case C-780/18 P)

(2019/C 230/22)

Language of the case: Spanish

Parties

Appellant: Cuervo y Sobrinos 1882, S.L. (represented by: S. Ferrandis González and K. Gibas, abogados)

Other parties to the proceedings: European Union Intellectual Property Office and A. Salgado Nespereira, S.A.

By order of 22 May 2019, the Court of Justice (Eighth Chamber) dismissed the appeal as in part manifestly inadmissible and in part manifestly unfounded and ordered Cuervo y Sobrinos 1882, S.L. to bear its own costs.
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set aside the order of the General Court of the European Union of 8 May 2018 in Case T-92/18, Spieker v EUIPO (Science for a better skin), by which the General Court dismissed the action for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 December 2017 (R 1067/2017-4) which had dismissed the appellant’s appeal against the decision of the EUIPO examiner of 20 March 2017;
Official Journal of the European Union

Appeal brought on 28 November 2018 by Chefaro Ireland DAC against the judgment of the General Court (Third Chamber) delivered on 12 September 2018 in Case T-905/16: Chefaro Ireland DAC v EUIPO

(Case C-739/18 P)

(2019/C 280/18)

Language of the case: English

Parties

Appellant: Chefaro Ireland DAC (represented by: P. Maeyaert, J. Muyldermans, advocaten)

Other party to the proceedings: European Union Intellectual Property Office

By order of 2 May 2019 the Court of Justice (Ninth Chamber) held that the appeal was inadmissible.
Appeal brought on 29 January 2019 by the Kingdom of Spain against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 15 November 2018 in Case T-399/11 RENV Banco Santander and Santusa v Commission

(Case C-65/19 P)

(2019/C 112/43)

Language of the case: Spanish

Parties

Appellant: Kingdom of Spain (represented by: M. A. Sampol Pucurull, acting as Agent)

Other parties to the proceedings: Banco Santander, S.A. and Santusa Holding, S.L, and the European Commission

Interveners in support of the applicants at first instance: Federal Republic of Germany, and Ireland

Form of order sought

The appellant submits that the Court should:

— Uphold the present appeal and set aside the judgment of the General Court of 15 November 2018, in Case T-399/11 RENV Banco Santander, S.A. and Santusa Holding, S.L. v European Commission; (1)

— Annul Article 1(1) of the contested decision in so far as Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (2) considers that the tax measure at issue constitutes State aid; and

— Order the European Commission to pay the costs.

Grounds of appeal and main arguments

The appeal is founded on a single ground of appeal which ought to lead to the setting aside of the judgment under appeal. Spain submits that the General Court erred in law, for the purposes of Article 58 of the Statute of the Court of Justice, in its erroneous interpretation of Article 107(1) of the Treaty (TFEU) and, in particular, the concept of the selectivity of State aid contained in that article. The single ground of appeal can be divided into four parts:

— In the first place, Spain submits that the General Court erred in determining the reference system for the tax measure, which does not coincide with that contained in the contested decision;

— In the second place, Spain submits that the General Court erred in law by failing to find that the tax treatment of financial goodwill constitutes a general measure or an independent or specific framework;

— In the third place, Spain maintains that the General Court also erred in law in incorrectly defining the objective of the reference framework and in incorrectly conducting the comparison required by the judgment given on appeal in World Duty Free; (3)

— In the fourth place, the error committed in identifying a constituent element of the reference framework entails an error of law in the attribution of the burden of proof.

(1) Judgment of 15 November 2018, Banco Santander, S.A. and Santusa Holding, S.L. v Commission (T-399/11 RENV, EU:T:2018:787).

(2) OJ 2011 L 135, p. 1.

(3) Judgment of 21 December 2016, Commission v World Duty Free Group and Others (C-20/15 P and C-21/16 P, EU:C:2016:981).
Request for a preliminary ruling from the Riigikohus (Estonia) lodged on 4 January 2019 — A.P. v Riigiprokuratuur

(Case C-2/19)

(2019/C 93/44)

Language of the case: Estonian

Referring court

Riigikohus

Parties to the main proceedings

Appellant: A.P.

Respondent: Riigiprokuratuur

Question referred

Is the recognition and supervision of execution of a judgment of a Member State compatible with Council Framework Decision 2008/947/JHA (1) of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions even where the sentenced person has by that judgment been conditionally released without any additional obligations being imposed, so that the person’s only obligation is to avoid committing a new intentional offence during the probation period (this being a suspended sentence within the meaning of Paragraph 73 of the Estonian Criminal Code)?

(1) Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (OJ 2008 L 337, p. 102).
1.

First plea in law, alleging infringement of the principles governing the shifting of the burden of proof as to the accuracy of the facts: — The General Court infringed the principles on the shifting of the burden of proof as laid down in the judgment Council v Hamas, C-79/15 P, and placed an extremely difficult, indeed impossible, burden of proof on Hamas; — In the alternative, the General Court infringed the principles on the shifting of the burden of proof in holding that Hamas had not made a specific and detailed challenge to the facts established by the Council; — The General Court failed to fulfil its obligation to respond, to the requisite legal standard, to all the arguments raised by the appellant concerning the possibility of attributing terrorist acts to it.
Appeal brought on 25 January 2019 by Sigma Alimentos Exterior, S.L. against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-239/11 Sigma Alimentos Exterior v Commission

(Case C-50/19 P)

(2019/C 112/35)

Language of the case: Spanish

Parties

Appellant: Sigma Alimentos Exterior, S.L. (represented by: M. Muñoz Pérez, abogado)

Other party to the proceedings: European Commission

Form of order sought

The appellant submits that the Court should:

— Uphold the present appeal;

— Set aside the judgment of the General Court of 15 November 2018, given in Case T-239/11; (1)

— Annul Article 1(1) of Commission Decision 2011/282/EU of 12 January 2011; (2)

— In the alternative, annul Article 4 of the contested decision;

— Order the European Commission to pay the costs.

Grounds of appeal and main arguments

The present appeal is based on two grounds, the second of which is divided into three parts:

— Incorrect interpretation of the judgment in World Duty Free, (3) setting erroneous comparability criteria which lead, in turn, to an incorrect assessment of the existence of selectivity and, accordingly, to the assessment of unlawful aid, thus infringing the provisions of Article 107 TFEU;

— Error in holding, on the basis of an erroneous analysis of the three-step method used by the Commission in determining whether there was unlawful aid, that the finding that there may be legal obstacles to cross-border combinations does not preclude the contested measure being selective. The judgment therefore errs in the following respects: — Error in the identification of the national common tax scheme, infringing the provisions of Article 107 TFEU relating to the categorisation of unlawful State aid; — Error in failing to find that the measure examined was a general measure, thus also infringing the provisions of Article 107 TFEU; — Error in the assessment of whether there was an exception to the national common tax scheme as a reference framework, thereby infringing Article 107 TFEU.

The appellant submits that the General Court of the European Union has committed various infringements of Article 107(1) TFEU and of the principle of fiscal neutrality and that, in various respects, it has essentially supplemented the reasoning set out by the Commission in the contested decision or even replaced it with its own, which would, in itself, constitute sufficient grounds for setting aside the judgment under appeal.

(1) Judgment of 15 November 2018, Sigma Alimentos Exterior v Commission (T-239/11, not published, EU:T:2018:781).

(2) Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions No C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1).

(3) Judgment of 21 December 2016, Commission v World Duty Free Group and Others (C-20/15 P and C-21/15 P, EU:C:2016:981).
2.

Can Article 47 of the Charter of Fundamental Rights and Article 31 of Directive 2013/32/EU of the European Parliament and of the Council (known as the ‘Procedures Directive’) be interpreted, again in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that legislation of a Member State which lays down a single mandatory time limit of 60 days in total for judicial proceedings in asylum matters, irrespective of any individual circumstances and without regard to the particular features of the case or any potential difficulties in relation to evidence, is compatible with those provisions?
The second ground of appeal alleges that the General Court erred in law in finding that the reduction in the number of annual leave days under the new Article 6 of Annex X to the Staff Regulations affects the applicants’ right to annual leave.

In the first place, in holding that, in certain circumstances, a directive (in the present case Directive 2003/88) (1) may be invoked against the institutions, the General Court disregarded settled case-law to the effect that directives are addressed to the Member States and not to EU institutions or bodies, with the effect that the provisions of a directive may not be treated as imposing any obligations on the EU institutions in their relations with their staff.

In the second place, the General Court erred in law in holding that the legislature is bound by the contents of Directive 2003/88 referred to in the explanations of the Praesidium regarding Article 31(2) of the Charter of Fundamental Rights.

In the third place, the General Court misconstrued the scope of Article 31(2) of the Charter of Fundamental Rights, which, contrary to the findings of the General Court, is not intended to improve living and working conditions, but rather to ensure an adequate level of protection for all workers in the European Union.

In the fourth place, the General Court erred in law in holding that Article 6 of Annex X to the Staff Regulations infringes the right to annual leave enshrined under Article 31(2) of the Charter of Fundamental Rights, in so far as the number of annual leave days of officials posted to a third country is significantly higher than the minimum of 20 days provided for in Directive 2003/88.
b.

In answering the first question, does it matter that the Member State has concluded an agreement in the form of the ‘Safety Deal hittewerende bekleding op LPG-autogastankwagens’ (‘Safety Deal on heat-resistant lining on LPG automotive-fuel road tankers’) with organisations of market participants in the LPG industry (including operators of LPG service stations, producers, sellers and carriers of LPG), in which the parties have committed themselves to implementing the heat-resistant lining and that, subsequently, that Member State issued a circular such as the ‘Circulaire effectafstanden externe veiligheid LPG-tankstations voor besluiten met gevolgen voor de effecten van een ongeval’ (‘Circular on safety distances external safety LPG service stations for decisions with consequences for the effects of an accident’), in which an additional risk policy is laid down that is based on the assumption that LPG service stations are supplied by means of road tankers fitted with a heat-resistant lining?
3.

If, in answering the question of whether a civil or commercial matter as referred to in Article 1(1) of the Brussels I Regulation (recast) is at issue, or alternatively, the question of whether a claim falling within the scope of Article 24(5) of the Brussels I Regulation (recast) is at issue, significance is attached to the fact that the international organisation has based its claims on immunity of execution, to what extent is the court seised of the matter obliged to assess whether the reliance on immunity of execution is effective, and in that regard does the rule apply that it must assess all the evidence available to it, including, where appropriate, the disputes involving the respondent, or any other rule?
Request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia (Spain) lodged on 6 February 2019 — Agencia Estatal de la Administración Tributaria v RK

(Case C-85/19)

(2019/C 164/20)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Galicia

Parties to the main proceedings

Appellant: Agencia Estatal de la Administración Tributaria

Respondent: RK

Question referred

Are a provision in a collective agreement and an employer’s practice, pursuant to which, for the purposes of remuneration and promotion, the length of service of a part-time female employee whose working hours are ‘distributed vertically’ over the whole year is to be calculated solely on the basis of time actually worked, contrary to Clause 4(1) and (2) of the Framework Agreement on part-time work [annexed to] Council Directive 97/81/EC of 15 December 1997, (1) and to Articles 2(1)(b) and 14(1) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)? (2)

(1) Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9).

(2) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23).
2.

Does the Italian tax ruling provided for by Article 11 of Law No 212 [of 27 July 2000] — which precludes an interpretation of Article 9(8) of Legislative Decree No 23, by analogy with the case-law of the Italian Supreme Court concerning the ICI [Municipal Tax on Immovable Property], to the effect that the IMU exemption does not apply to an AUSL when the property is used by a public limited company in which that public body also has a holding and which provides healthcare services there in competition with other entirely privately owned commercial companies which also provide healthcare services, thus giving rise to a tax advantage which may be classified as State aid that distorts the rules of the free market — comply with the Treaty, specifically Article 107 TFEU, which prohibits State aid ‘in any form’?
2.

In the light of primary law, is Regulation (EC) No 883/2004 to be interpreted as meaning that, as the former State of residence and State of employment, a Member State is obliged to pay benefits such as the Austrian rehabilitation allowance to a person who is resident in another Member State if that person completed the majority of the periods of insurance from the sickness and pension branches as an employee in that other Member State (after the transfer of residence to that country years previously) and has not since then received benefits from the health and pension insurance scheme of the former State of residence and employment?
Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 28 February 2019 — H. A. v État belge

(Case C-194/19)

(2019/C 164/30)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: H. A.

Defendant: État belge

Question referred

Must Article 27 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (1) (recast), considered alone or in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as requiring a national court, in order to guarantee the right to an effective remedy, to take into consideration, where appropriate, circumstances arising subsequent to a ‘Dublin transfer’ decision?

(1) OJ 2013 L 180, p. 31.
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First Plea — Errors of law and/or a manifest error or lack of reasoning on refusal to deal: — First Sub-Plea: ST submits that the General Court's finding that the Bronner conditions for refusal to supply under Article 102 TFEU do not apply where there is an ex ante regulatory access obligation is incorrect. Moreover, the argument of the General Court that the Bronner condition of ‘indispensability’ did not need to be satisfied since an ex ante regulation had already acknowledged ‘the need for access to the applicant's local loop’ and that, accordingly, the Commission did not need to (re)examine ‘indispensability’ under Article 102 is an error of law. — Second Sub-Plea: ST submits that the General Court's finding that the CJEU judgment in TeliaSonera supports the proposition that the refusals to deal engaged in by ST do not require a demonstration that the Bronner conditions are satisfied is an error of law. — Third Sub-Plea: ST submits that General Court's finding that the General Court's Clearstream judgement should be distinguished from ST case because, unlike ST, it did not involve a former State monopoly or an ex ante regulatory access obligation is an error of law. — Fourth Sub-Plea: ST submits the General Court committed an error of law and/or a manifest error or lack of reasoning in its finding that a constructive refusal is not necessarily less serious than an actual refusal, and that a case-by-case assessment is required. — Fifth Sub Plea: ST submits the General Court erred in law and/or made a manifest error of appreciation in concluding that ST being a former State monopoly provided a legal basis for ignoring the application of the Bronner conditions in the case at hand.