ddrg/super_eurlex huggingface dataset:
2.

Does it result from Article 52(1) of the Charter of Fundamental Rights of the European Union, interpreted in conjunction with the limitation on the rights laid down in Articles 6 and 45(1) of that Charter and in accordance with the European Union law principle of protection from arbitrary or disproportionate interference with the freedom of action of natural persons, that a provision of national law such as the one at issue in the case in the main proceedings, namely point 5 of Article 63(1) of the Zakon za ministerstvoto na vatreshnite raboti in relation to police detention for a maximum of 24 hours, may be applied — provided that a national of a Member State cannot be identified in accordance with the procedures laid down by law — pursuant to which such detention is permissible under the following conditions: A. the police authorities have discretion to order such a measure where it is impossible to identify the individual on the basis of an identification document, through another person whose identify is already known or by any other permissible means; B. the provision neither governs how to assess whether it is necessary to identify the individual, nor provides for an assessment of the individual’s conduct or whether, in the circumstances of the case, it has become necessary for the police authorities to make use of the authority made available to them under law; C. the identification of the individual is not based expressly on the cases in which the law authorises measures to be adopted to identify an individual; identification is also possible by merely consulting an information system or by another reliable means other than identification mesaures; D. the application of the provision is subject to review by the courts only in the circumstances set out therein, since the exercise of that authority is wholly discretionary?
EN Official Journal of the European Union C 123/10

Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 28 January 2013 — Hauptzollamt Krefeld v Rhein-Ruhr Beschichtungs-Service GmbH

(Case C-44/13)

2013/C 123/15

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Defendant and appellant: Hauptzollamt Krefeld

Applicant and respondent: Rhein-Ruhr Beschichtungs-Service GmbH

Question referred

Does Article 2(3) of Council Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity, (1) in relation to the taxation of energy products other than those for which a level of taxation is specified in the Directive, require the application of a rate of tax which national law specifies for the use of an energy product as heating fuel, provided that that other energy product is also used as heating fuel? Or, in cases where the other energy product — in circumstances where it is used as heating fuel — is equivalent to a particular energy product, can the rate of tax specified by national law for this energy product be applied, even in the case where the rate of tax is the same irrespective of whether it is being used as motor fuel or as heating fuel?

(1) OJ 2003 L 283, p. 51.
6.

Article 79 (2) (b) TFEU is found in Title V of Part Three of the TFEU. Pursuant to Protocol 21 to the Treaties, measures adopted under Title V do not apply to the United Kingdom (or Ireland) unless it signals its willingness to ‘opt into’ them. By its erroneous choice of Article 48 TFEU, instead of Article 79 (2) (b) TFEU, as the substantive legal basis of the Decision, the Council refused to recognise the right of the United Kingdom not to take part in the adoption of the Decision and not to be bound by it.
EN Official Journal of the European Union C 147/11

Request for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) lodged on 4 March 2013 — P.J. Vonk Noordegraaf v Staatssecretaris van Economische Zaken

(Case C-105/13)

2013/C 147/20

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Appellant: P.J. Vonk Noordegraaf

Respondent: Staatssecretaris van Economische Zaken

Question referred

Can it be said to constitute a correct application of Regulation (EC) No 73/2009, (1) with particular reference to Articles 34, 36 and 137, if a farmer with payment entitlements acquired on the basis of non-area-related production, allocated to the area in his possession, does not have a significant proportion of those entitlements paid out to him despite the fact that he declared the eligible area of the hectares which remained unchanged in his possession in good faith in accordance with the measuring method used by the Member State at the time of the activation of the payment entitlements under Article 34 of Regulation (EC) No 73/2009, but subsequently rejected by the Commission, for the sole reason that the eligible area determined for purposes of the payment turns out to be smaller as the result of a changed measuring method?

(1) Council Regulation of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ 2009 L 30, p. 16).
EN Official Journal of the European Union C 108/17

Request for a preliminary ruling from the Tribunal Central Administrativo Norte (Portugal) lodged on 4 February 2013 — Marina da Conceição Pacheco Almeida v Fundo de Garantia Salarial, IP, Instituto da Segurança Social, IP

(Case C-57/13)

2013/C 108/35

Language of the case: Portuguese

Referring court

Tribunal Central Administrativo Norte

Parties to the main proceedings

Appellant: Marina da Conceição Pacheco Almeida

Respondent: Fundo de Garantia Salarial, IP, Instituto da Segurança Social, IP

Question referred

Is European Union law, in the specific context of a guarantee covering wage claims in the event of the employer’s insolvency, in particular Articles 4 and 10 of Directive 80/987/EEC, (1) to be interpreted as precluding a provision of national law which guarantees only claims falling due in the six months preceding the initiation of insolvency proceedings against the employer, even where the employee has brought an action against that employer before the Tribunal do Trabalho (Labour Court) with a view to obtaining a judicial determination of the amount outstanding and an enforcement order to recover those sums?

(1) Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer. (OJ 1980 L 283 p. 23).
EN Official Journal of the European Union C 164/10

Appeal brought on 15 March 2013 by BSH Bosch and Siemens Hausgeräte GmbH against the judgment of the General Court (Fourth Chamber) delivered on 15 January 2013 in Case T-625/11 BSH Bosch and Siemens Hausgeräte GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-126/13 P)

2013/C 164/17

Language of the case: German

Parties

Appellant: BSH Bosch and Siemens Hausgeräte GmbH (represented by: S. Biagosch, Rechtsanwalt)

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

Form of order sought

The appellant claims the Court of Justice should:

— set aside the judgment of the General Court (Fourth Chamber) of 15 January 2013 in Case T-625/1, in so far as the General Court found that the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) did not infringe Article 7(1)(c) of Regulation (EC) No 207/2009 (1) in its decision of 22 September 2011 (Case R 340/2011-1);

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 September 2011 (Case R 340/2011-1), in so far as, by that decision, the Board partially rejected the registration of the mark ecoDoor on the basis of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009; in the alternative

— refer the case back to the General Court for judgment;

— order OHIM to pay of the costs of both instances.

Grounds of Appeal and main arguments1

This appeal has been brought against the judgment of the General Court (Fourth Chamber) of 15 January 2013 in Case T-625/11, by which the General Court rejected the action brought by BSH Bosch and Siemens Hausgeräte GmbH against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 September 2011 (Case R 340/2011-1), in which the application for registration of the mark ecoDoor was partially rejected on the basis of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009.

The appellant basis its appeal on the following ground of appeal:

It claims that Article 7(1)(c) of Regulation (EC) No 207/2009 has been infringed since the mark ecoDoor — which is not at all descriptive of the goods rejected by OHM, but, at best, only of part of those goods, namely a door — can be regarded as descriptive of the relevant goods only if the relevant part is so important for the goods that it would be automatically associated, in trade, with them. This is the case only where, in the eyes of consumers, the relevant part plays a fundamental role in the goods. This is not the case for a door which forms part of the goods applied for, with the result that registration cannot be precluded on the basis of Article 7(1)(c) of Regulation (EC) No 207/2009.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1).
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to implement Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities in respect of self-employed drivers or, in any event, by failing to inform the Commission thereof, the Republic of Finland has failed to fulfil its obligations under Articles 2(1), 3 to 7 and 11 of that directive;
2.

If the first question is to be answered in the negative, how many earlier flights involving the aircraft to be used in the scheduled flight are relevant to the existence of an extraordinary circumstance? Is there a time limit to the consideration of extraordinary circumstances which occur during earlier flights? If so, how is that time limit to be calculated?
EN Official Journal of the European Union C 171/19

Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 2 April 2013 — Turbo.com BV, other party: Staatssecretaris van Financiën

(Case C-163/13)

2013/C 171/37

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Turbo.com BV

Defendant: Staatssecretaris van Financiën

Question referred

Should the national authorities and judicial bodies, on the basis of the law of the European Union, refuse to apply the VAT exemption in respect of an intra-Community supply where it is established, on the basis of objective evidence, that there was VAT fraud in respect of the goods concerned and that the taxable person knew or should have known that he was participating therein, even if the national law does not make provision under those circumstances for refusing the exemption?
EN Official Journal of the European Union C 156/24

Request for a preliminary ruling from the Riigikohus (Estonia) lodged on 28 March 2013 — MTÜ Liivimaa Lihaveis v Eesti-Läti programmi 2007-2013 Seirekomitee

(Case C-175/13)

2013/C 156/39

Language of the case: Estonian

Referring court

Riigikohus (Estonia)

Parties to the main proceedings

Applicant and appellant: MTÜ Liivimaa Lihaveis

Defendant and respondent: Eesti-Läti programmi 2007-2013 Seirekomitee

Intervener: Eesti Vabariigi Siseministeerium

Questions referred

2.1 Are the Member States taking part in the Estonia-Latvia Programme 2007-2013, when setting up the monitoring committee referred to in Articles 63(1) of Council Regulation (EC) No 1083/2006 of 11 July 2006 (1) and Article 14(3) of Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006, (2) required, in accordance with the third sentence of Article 19(1) of the Treaty on European Union and Article 47(1) of the Charter of Fundamental Rights of the European Union, to agree which court has jurisdiction to hear actions brought against decisions of the monitoring committee and under which law the actions are heard?

2.2 If the answer Question 2.1. is in the affirmative, yet there is no such agreement, is it then consistent with Article 63(2) of Council Regulation (EC) No 1083/2006 of 11 July 2006 if an action brought against a decision of the monitoring committee is heard on the basis of national law by a court of the Member State of the person who has brought the action?

(1) Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25).

(2) Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 on the European Regional Development Fund and repealing Regulation (EC) No 1783/1999 (OJ 2006 L 210, p. 1).
If the answer to question 1 or question 2 is no:

May the national court in such circumstances stay its proceedings until the conclusion of the formal State aid investigation procedure?
2.

Should the first question be answered in the negative: Is Article 27(1)(f) of Regulation (EC) No 889/2008 to be understood as meaning that the use of the substances referred to is also legally required where the marketing of a foodstuff as a food supplement or bearing health claims would, without the addition of at least one of the substances referred to, tend to mislead the consumer because the foodstuff cannot, in the absence of one of the substances referred to in sufficient strength, fulfil its stated purpose as a foodstuff or its stated purpose as expressed by the health claim?
1.

Does Article 35 of Directive 2004/38/EC (1) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (‘the Directive’) entitle a Member State to adopt a measure of general application to refuse, terminate, or withdraw the right conferred by Article 5(2) of the Directive exempting non-national EU family members who are holders of residence cards issued pursuant to Article 10 of the Directive (‘residence card holders’) from visa requirements?
2.

If the exemption from VAT (whether or not under the conditions described in Question 1) for which Article 140(a) and (b) of the 2006 VAT Directive provides applies to the intra-Community acquisition of dental prostheses, does the exemption therefore apply in Member States, such as the Netherlands, which have complied with the exemption provided for in Article 132 of the 2006 VAT Directive, to the intra-Community acquisition of dental prostheses originating from a Member State which has taken advantage of the derogating and transitional arrangements for which Article 370 of the 2006 VAT Directive provides?
—

declare that, by failing to adopt the laws and regulations to transpose Article 2(21), Article 9(5), (7) and (12), Article 10(5),the first sentence of Article 11(1), Article 11(5)(a) and (b), Article 16(2) and (3), the second, fourth and fifth sentences of Article 26(2)(c), Article 36, Article 37(1)(e), (f), (i), (k) and (p), Article 37(8), the second sentence of Article 37(10), Article 38(3), Article 40(3), and the fifth indent of point 1(a) and point 1(d), (f), (i) and (j) of Annex I of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC, (1) or in any event by failing to notify the Commission of the adoption of the necessary provisions for transposition of the directive, the Republic of Estonia has failed to fulfil its obligations under Article 49(1) of the directive;
EN Official Journal of the European Union C 189/14

Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 13 May 2013 — Peter Flood v Health Service Executive

(Case C-255/13)

2013/C 189/27

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicant: Peter Flood

Defendant: Health Service Executive

Question referred

Is an insured citizen of a Member State (‘the First Member State’) who has been gravely ill for eleven years as a result of a serious medical condition which first manifested itself while that person was resident in the First Member State but was on holidays in another Member State (‘the Second Member State’) to be regarded as ‘staying’ in that Second Member State for that period for the purpose of either Article 19(1) or, alternatively, Article 20(1) and Article 20(2) of Regulation No 883/2004 (1) where the person in question has been effectively compelled by reason of his acute medical illness and the convenient proximity to specialist medical care physically to remain in that Member State for that period?

(1) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems

OJ L 166, p. 1
EN Official Journal of the European Union C 207/13

Appeal brought on 29 April 2013 by Albergo Quattro Fontane Snc against the order of the General Court (Fourth Chamber) of 20 February 2013 in Joined Cases T-278/00 to T-280/00, T-282/00 to T-286/00 and T-288/00 to T-295/00 Albergo Quattro Fontane and Others v Commission

(Case C-227/13 P)

2013/C 207/25

Language of the case: Italian

Parties

Appellant: Albergo Quattro Fontane Snc (represented by: A. Bianchini and F. Busetto, avvocati)

Other parties to the proceedings: Comitato ‘Venezia vuole vivere’, European Commission

Form of order sought

— Set aside the order of the General Court under appeal

— Uphold the forms of order sought at first instance and, accordingly, — annul, in so far as is reasonable and in so far as it concerns the appellant, European Commission Decision No 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995; — in the alternative, annul that decision in so far as it imposes an obligation to recover the relief granted and in so far as it requires interest to be added to the amount of relief to be recovered for the periods taken into consideration in the judgment;

— order the Commission to pay the costs incurred both at first instance and on appeal.

Grounds of appeal and main arguments

In support of the appeal, the appellant raises nine grounds of appeal:

First ground: the General Court erred in not taking into consideration the fact that the measures in question did not confer any advantage upon their beneficiaries given their compensatory nature.

Second ground: the Court erred in not excluding, or at least assessing, the likelihood that the measures in question would affect competition and intra-Community trade.

Third ground: the Court erred in holding that the derogations in Article 87(2)(b) EC (now Article 107(2)(b) TFEU) and Article 87(3)(b) EC (now Article 107(3)(b) TFEU) were inapplicable.

Fourth ground: the Court erred in holding that the derogation in Article 87(3)(c) EC (now Article 107(3)(c) TFEU) was inapplicable.

Fifth ground: the Court erred in holding that the derogations in Article 87(3)(d) and (e) EC (now Article 107(3)(d) and (e) TFEU) were inapplicable.

Sixth ground: the Court erred in holding that the derogation in Article 86(2) EC (now Article 106(2) TFEU) was inapplicable.

Seventh ground: the Court erred in not recognising the existence of the aid, thus infringing Article 88(3) EC (now Article 108(3) TFEU) and Article 15 of Regulation No 659/1999. (1)

Eighth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the recovery order.

Ninth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the addition of interest.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).
1.

Are Articles 1, 2(f), 3(1), 4(2)(a), 4(3), 5(3), 6, 7 and 8(1) and 8(2) of Law No 10/2012 of 20 November 2012 regulating certain fees relating to the administration of justice and to the National Institute of Toxicology and Forensic Science (Ley 10/201, de 20 de noviembre 2012, por la que se regulan determinadas tasas en el ámbito de la Administración de Justicia y del Instituto Nacional de Toxicología y Ciencias Forenses) contrary to Article 47 of the Charter of Fundamental Rights of the European Union (1) in that they do not permit a national court to: (a) adjust judicial fees or to assess reasons of proportionality (relating to the basis for charging the fees on the part of the State or to their amount as constituting an obstacle to obtaining an effective remedy) for the purposes of exemption; (b) have regard to the principle of effectiveness in the application of provisions of Union law; or (c) assess the importance of the proceedings to the parties in the light of the circumstances, when payment of judicial fees is a prerequisite to obtaining leave to proceed with the appeal lodged?
2.

Second ground of appeal: Infringement of European Union law by the General Court (i) The General Court wrongly applied Article 107(1) TFEU, in conjunction with Article 1c of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, (1) in that it assumed that new aid had been granted to Rousse Industry AD. (ii) The General Court delivered its judgment in infringement of Article 107(1) TFEU, since it wrongly assumed that the aid was incompatible with the internal market and infringed competition, and that the fact that the debt was not recovered by the State amounted to an advantage for the company in question. (iii) The General Court’s judgment does not comply with Article 107(1) TFEU and Article 296 TFEU, since, in its assessment of the Commission’s private creditor criteria, the General Court adopted an approach which was erroneous from a legal point of view. In its decision, the Commission failed to support its conclusions regarding the private creditor criteria with any analysis and economic grounds, which is why the General Court had no grounds for endorsing the Commission’s arguments. (iv) The General Court misinterpreted and misapplied Article 14 of Regulation (EC) 659/1999 and Article 296 TFEU since, in its decision, the European Commission was required to state the amount of aid to be recovered, plus interest, and to calculate the interest in that regard in accordance with an appropriate rate determined by the Commission, which it did not do. This means that grounds were not provided for the Commission’s decision.
1.

Is the protection of freedom of competition, free movement of undertakings, freedom of establishment and freedom to provide services (under Article 4(3) TEU, Article 101 TFEU, and Articles 49, 56 and 96 TFEU) compatible — and, if so, to what extent — with statutory provisions adopted by EU Member States which lay down minimum operating costs for the road haulage sector which involve the fixing by bodies external [to the contracting parties] of a component of the charge for the service concerned and, accordingly, of the contract price?