ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 157/2

Action brought on 28 February 2012 — European Parliament v Council of the European Union

(Case C-103/12)

2012/C 157/02

Language of the case: French

Parties

Applicant: European Parliament (represented by: L.G. Knudsen, I. Díez Parra and I. Liukkonen, acting as Agents)

Defendant: Council of the European Union

Form of order sought

— Annul Council Decision 2012/19/EU (1) of 16 December 2011 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana;

— Order the Council of the European Union to pay the costs.

Pleas in law and main arguments

By its action, the European Parliament seeks annulment of Council Decision 2012/19/EU of 16 December 2011 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana. The Parliament challenges the legal basis chosen. It submits, principally, that Article 43(3) TFEU, together with Article 218(6)(b) TFEU, cannot be the correct legal basis, since the measure in question equates to an international agreement concerning access to European Union waters for the purposes of fishing activities by a non-member country. Accordingly, the measure ought to have been adopted on the basis of Articles 43(2) and 218(6)(a) TFEU and thus after approval by the Parliament.

In the alternative, the Parliament takes the view that the Council, having used the procedure laid down in Article 218(6)(b) TFEU, has given an incorrect interpretation to Article 218(6)(a) TFEU. Even if Article 43(3) TFEU could constitute the appropriate legal basis for an internal measure of the European Union with the same content as the measure challenged, which the Parliament disputes, the fact remains that the Common Fisheries Policy forms, for the purposes of the EU entering into international commitments, an indissociable whole from a procedural point of view. Accordingly, any agreement in that field is an ‘agreement covering fields to which either the ordinary legislative procedure applies’ within the meaning of Article 218(6)(a) TFEU. Thus, in any event the measure ought to have been adopted in observance of the consent procedure laid down in Article 218(6)(a) TFEU.

(1) OJ 2012 L 6, p. 8.
EN Official Journal of the European Union C 73/23

Appeal brought on 11 January 2012 by Sheilesh Shah, Akhil Shah against the judgment of the General Court (Fifth Chamber) delivered on 10 November 2011 in Case T-313/10: Three-N-Products Private Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-14/12 P)

2012/C 73/39

Language of the case: English

Parties

Appellants: Sheilesh Shah, Akhil Shah (represented by: M. Chapple, Barrister)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Three-N-Products Private Ltd.

Form of order sought

The appellants claim that the Court should order that:

— the Judgment be annulled;

— the Decision be affirmed;

— the CTM Application be allowed to proceed to registration.

— the Respondent pays to the Appellants the costs incurred by the Appellants in connection with this Appeal, the hearing before the General Court and the Decision.

Pleas in law and main arguments

The Appellants respectfully submit that the General Court erred as a matter of law in the following respects:

The General Court wrongly decided that there was no likelihood of confusion between the trade mark in suit and the two earlier registered trade marks upon which the Respondent relies (one a word mark of AYUR and the other figurative mark containing the word AYUR), given the weak distinctive character of the earlier marks and the low overall similarity between the signs at issue;

In particular the General Court wrongly decided that although the letters U and I added respectively in the middle and at the end of the word AYUR, give difference to the trade mark in suit, such difference is ‘not such as to attract the attention of the consumer’;
EN Official Journal of the European Union C 65/10

Appeal on 17 January 2012 by Gino Trevisanato against the Order of the General Court (Seventh Chamber) of 13 December 2011 in Case T-510/11 Gino Trevisanato v European Commission

(Case C-25/12 P)

2012/C 65/20

Language of the case: Italian

Parties

Applicant: Gino Trevisanato (represented by L. Sulfaro, lawyer)

Other party to the proceedings: European Commission

Forms of order sought

— Annul the order of the Seventh Chamber of the General Court of 13 December 2011 in Case T-510/11, declaring the admissibility and the jurisdiction of the General Court to rule on the applications in the action for failure to take action, brought by the applicant on 29 September 2011 against the European Commission, pursuant to the third paragraph of Article 265 TFEU;

— Consequently, rule on the merits of the action with costs awarded to the successful party, or, in the alternative, refer the matter back to the General Court.

Pleas in law and main arguments

The applicant makes three pleas in law in support of his appeal.

The applicant maintains that the order is vitiated by factual error through misinterpretation of the applicant’s claim. He had not asked the Court to find an unlawful refusal by the Commission to take a position, by means of a reasoned opinion within the meaning of Article 258 TFEU, on the inadequate transposition into the Italian legal order of Directive 98/59/EC (1) on collective redundancies, as the order presupposes. He had, on the contrary, requested the Court to hold that the Commission had unlawfully failed to act by not notifying to the applicant the legally binding position on the request which, 4 years after the complaint, was raised again with the request of 11 July 2011 with regard to the right or otherwise of employees in Italy to enjoy the protection of Directive 98/59/EC on collective redundancies, that right having been denied by the Italian courts to the applicant, who had been the victim of a redundancy of that type, carried out by IBM in Italy.

The General Court then erred by declaring that it had no jurisdiction, on the basis of the Order of the Court of Justice of 26 October 1995 in Joined Cases C-199/94 P and C-200/94 P Pevasa and Inpesca. That case-law was not relevant in that case on account of the different factual background.

Finally, the General Court infringed its Rules of Procedure and Article 47 of the Charter of Fundamental Rights, by omitting to notify the action to the opposing party, publish a summary in the Official Journal and refer the matter to the Advocate General.

(1) OJ 1998 L 225, p. 16.
2.

Second ground of appeal : the General Court erred in law in finding that ASPLA was out of time in advancing the argument that incorrect sales figures were used when the financial penalty imposed on it was being determined. Alternatively, that argument directly concerns a matter of public policy which on account of the General Court’s lack of assessment also amounts to an error of law. As regards the main plea, the appellant submits that the General Court’s error lies in the fact that the argument in question is not a new plea in law but rather supplements an existing one, and also in the fact that the sales figures for the Grupo Armando Álvares were used in preference to those for ASPLA in order to calculate the penalty. As regards the alternative plea, the appellant submits that the General Court erred in law by failing to assess properly the scope of the Commission’s duty to give reasons regarding the method of calculating the basic amount of the fine imposed on ASPLA.
EN Official Journal of the European Union C 165/12

Reference for a preliminary ruling from the Oberster Gerichtshof (Austria), lodged on 19 March 2012 — Pensionsversicherungsanstalt v Peter Brey

(Case C-140/12)

2012/C 165/19

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant on a point of law: Pensionsversicherungsanstalt

Respondent to the appeal on a point of law: Peter Brey

Question referred

Is a compensatory supplement to be regarded as a ‘social assistance’ benefit within the terms contemplated in Article 7(1)(b) of Directive 2004/38/EC (1) of the European Parliament and of the Council of 29 April 2004?

(1) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).
2.

(a) If question 1 is answered in the affirmative, is it necessary in order to determine whether, for the purposes of Article 57(1) EC (now Article 64(1) TFEU), there has been an increase, for account to be taken in the present case — in which the withholding tax on participation dividends paid by a subsidiary company established in the Netherlands to its holding company established in the Netherlands Antilles was increased from the 1993 rate of 7,5 or 5 % to 8,3% as from 1 January 2002 — exclusively of the increase in the Netherlands withholding tax, or must account also be taken of the fact that, as from 1 January 2002, the Netherlands Antillean authorities have — in conjunction with the increase in the Netherlands withholding tax — granted an exemption in respect of participation dividends received from a subsidiary company established in the Netherlands, whereas previously those dividends formed part of profits taxed at a rate of 2,4 to 3 % or 5 %? (b) If account must also be taken of the tax reduction in the Netherlands Antilles effected by the introduction of the participation exemption referred to in question 2(a) above, should Netherlands Antillean implementation arrangements (in the present case: Netherlands Antillean rulings practice), the result of which may have been that prior to 1 January 2002 — including in 1993 — the actual tax liability in respect of dividends received from the/a subsidiary company established in the Netherlands was substantially lower than 8,3%, also be taken into consideration?
3.

The Commission is of the opinion that the infrastructure manager is to make the infrastructure available to railway undertakings at its own cost, those undertakings having to pay charges equivalent to the direct costs. That can be explained by the need to make the railway infrastructure more attractive for use by a large number of railway undertakings and to increase its optimal use by each one of them. It is possible to apply Article 8(1) of Directive 2001/14/EC only when the conditions laid down in that article are fulfilled: for all market segments, in respect of which the infrastructure manager wishes to levy mark-ups, it must establish whether they could bear such mark-ups. That interpretation follows from the wording of the first subparagraph of Article 8(1), in particular from the formulation ‘if the market can bear this …’, and from the wording of the second subparagraph of Article 8(1) which reads: ‘The level of charges must not, however, exclude the use of infrastructure by market segments which can pay at least the cost that is directly incurred as a result of operating the railway service, ….’
EN Official Journal of the European Union C 157/5

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Anna Muzzio v A.S.L. Pavia and Others

(Case C-161/12)

2012/C 157/09

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Anna Muzzio

Defendants: A.S.L. Pavia and Others

Question referred

Do the principles of freedom of establishment, non-discrimination and the preservation of competition under Article 49 et seq TFEU preclude national legislation which does not allow a pharmacist, who is qualified and entered in the relevant professional register but does not own a pharmacy on the ‘pianta organica’ [territorial grid], also to offer for retail sale, in the para-pharmacy owned by that pharmacist, pharmaceutical products which are subject to a prescription in the form of a ‘ricetta bianca’ — that is to say, pharmaceutical products the cost of which is borne not by the [national health service] but wholly by the citizen — and which accordingly also establishes in that sector a prohibition on the sale of certain categories of pharmaceutical product, as well as a quota in relation to the number of commercial outlets which may be established in the national territory?
EN Official Journal of the European Union C 98/13

Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 16 January 2012 — Elodie Giersch, Benjamin Marco Stemper, Julien Taminiaux, Xavier Renaud Hodin and Joëlle Hodin v State of the Grand Duchy of Luxembourg

(Case C-20/12)

2012/C 98/20

Language of the case: French

Referring court

Tribunal administratif

Parties to the main proceedings

Applicants: Elodie Giersch, Benjamin Marco Stemper, Julien Taminiaux, Xavier Renaud Hodin and Joëlle Hodin

Defendant: State of the Grand Duchy of Luxembourg

Question referred

In the light of the Community principle of equal treatment set out in Article 7 of Regulation No 1612/68, (1) do the considerations relating to education policy and budgetary policy put forward by the State of Luxembourg, namely seeking to encourage an increase in the proportion of people with a higher education degree, which is currently inadequate compared with other countries as far as the resident population of Luxembourg is concerned, considerations which would be seriously threatened if the State of Luxembourg had to give financial aid for higher education studies to every student, without any connection with the society of the Grand Duchy, to carry out their higher education studies in any country in the world, which would lead to an unreasonable burden on the budget of the State of Luxembourg, constitute considerations, in terms of the Community case-law cited above, which are capable of justifying the difference in treatment resulting from the residence requirement imposed both on Luxembourg nationals and on nationals of other Member States in order to obtain aid for higher education studies?

(1) Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community. English Special Edition 1968(II), p. 475.
EN Official Journal of the European Union C 184/5

Appeal brought on 16 April 2012 by The Dow Chemical Company against the judgment of the General Court (Seventh Chamber) delivered on 2 February 2012 in Case T-77/08: The Dow Chemical Company v European Commission

(Case C-179/12 P)

2012/C 184/09

Language of the case: English

Parties

Appellant: The Dow Chemical Company (represented by: D. Schroeder and R. Polley, Rechtsanwälte)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— Set aside the General Court's judgment in Case T-77/08 insofar as it dismisses its request to annul the Commission's decision of 5 December 2007 in Case COMP/38629 as amended by Commission decision C(2008) 2974 final of 23 June 2008 insofar as it relates to the Appellant;

— Annul the Commission's decision of 5 December 2007 in Case COMP/38629 as amended by Commission decision C(2008) 2974 final of 23 June 2008 insofar as it relates to the Appellant;

— In the alternative, set aside the General Court's judgment in case T-77/08 insofar as it dismisses its request to substantially reduce the fine imposed on it;

— Substantially reduce the fine imposed on it;

— Order the Commission to pay the Dow Chemical Company's legal and other costs and expenses in relation to this matter; and

— Take any other measures that the Court considers appropriate.

Pleas in law and main arguments

The appeal contains two pleas. According to the first plea, the General Court erred in law as concerns the imputation of the infringement to the Appellant. Since the Appellant did not exercise decisive influence over DuPont Dow Elastomers (‘ DDE ’), a joint venture with EI du Pont de Nemours and Company, it did not participate in the infringement committed by DDE. The General Court erred in law by misinterpreting the related concepts of a single economic unit, of a single undertaking and of the exercise of decisive influence. According to the second plea, the General Court erred in law as concerns the increase of the Appellant's fine by 10 % for deterrence. The General Court erred in law by holding that the Commission did not breach the principle of equal treatment in this respect.
EN Official Journal of the European Union C 174/19

Appeal brought on 11 April 2012 by Carrols Corp. against the judgment of the General Court (Eighth Chamber) delivered on 1 February 2012 in Case T-291/09 Carrols Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Mr Giulio Gambettola

(Case C-171/12 P)

2012/C 174/30

Language of the case: Spanish

Parties

Appellant: Carrols Corp. (represented by: I. Temiño Ceniceros, lawyer)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Mr Giulio Gambettola

Form of order sought

— Set aside in its entirety the judgment of the General Court of 1 February 2012 in Case T-291/09;

— uphold in their entirety the claims put forward by Carrols Corp. at first instance.

Pleas in law and main arguments

Infringement of European Union law by the General Court, as a result of breach of Article 52(1)(b) of Regulation No 207/2009 (1) and the case-law interpreting it.

In the judgment under appeal, the General Court concluded that ‘the fact that the signs at issue are identical does not establish bad faith on the part of the intervener, where there are no other relevant factors’.

Case C-529/07 Chocoladefabriken Lindt & Sprüngli [2009] ECR I-4893 makes clear that ‘[w]hether the applicant is acting in bad faith … must be the subject of an overall assessment, taking into account all the factors relevant to the particular case’ (paragraph 37 of the judgment). However, Carrols Corp. submits that the General Court erred by assessing each of the facts individually and in isolation, precluding an overall view being taken and unreasonably increasing the burden of proof on Carrols Corp., thereby prejudicing its right to an effective remedy.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 118/14

Action brought on 7 February 2012 — European Commission v Council of the European Union

(Case C-63/12)

2012/C 118/22

Language of the case: French

Parties

Applicant: European Commission (represented by: J. Currall, J.-P. Keppenne and D. Martin, agents)

Defendant: Council of the European Union

Form of order sought

— annul Council Decision 2011/866/EU of 19 December 2011 concerning the Commission’s proposal for a Council Regulation adjusting with effect from 1 July 2011 the remuneration and pensions of the officials and other servants of the European Union and the correction coefficients applied thereto; (1)

— order the Council of the European Union to pay the costs.

Pleas in law and main arguments

The Commission raises two grounds of complaint in relation to Annex XI to the Staff Regulations.

The first ground of complaint concerns the Council’s refusal to adopt the adjustment of the remuneration and pensions of officials and other servants, as proposed by the Commission on 24 November 2011, thereby infringing the method governing that adjustment for a period of eight years ending on 31 December 2012. By that ground of complaint, the Commission’s primary plea in law claims that the Council has misused its power and exceeded the limits of that power, and its alternative plea in law is that the Council has infringed the conditions for the application of Article 10 of Annex XI to the Staff Regulations. The primary plea in law concerns the fact that the Council has in fact itself applied Article 10, but in breach of the required institutional conditions; the Council has thereby infringed, first, Article 65 of the Staff Regulations and, second, Articles 3 and 10 of Annex XI. By the alternative plea in law, the Commission argues that, in any event, the substantive conditions for the application of Article 10 were not met in 2011, as is clear moreover from the two economic reports which the Commission submitted to the Council at the latter’s request. The Commission also considers that Council failed properly to state reasons for its decision.

The second ground of complaint concerns the Council’s refusal to adjust the correction coefficients which must be applied to the remuneration and pensions, according to the various places of employment or residence of the persons concerned. The first plea in law within that complaint is that that refusal is contrary to Article 64 of the Staff Regulations and Articles 1 and 3 of Annex XI to the Staff Regulations. The Commission’s second plea in law is that that refusal lacks any statement of reasons, contrary to the second paragraph of Article 296 TFEU.

(1) OJ 2011 L 341, p.54
1.

Is Article 132(1)(b) and (c) of the VAT Directive (1) to be interpreted as meaning that the stated exemption from taxation covers services such as those at issue in the present case and which consist of: (a) cosmetic surgery, (b) cosmetic treatments?
1.

Must the principles of legal certainty and protection of legitimate expectations, which are considered to be fundamental principles of European Union law, be interpreted as meaning that they preclude a Member State from adopting provisions which vary the content of a contract concluded by a Member State, in its capacity as proprietor, to the detriment of the other party to the contract, classifying the object of the contract as non-transferable and thereby preventing the other party from exercising the rights derived from the contract?
EN Official Journal of the European Union C 217/6

Reference for a preliminary ruling from the Tribunal Judicial de Braga (Portugal) lodged on 23 April 2012 — Impacto Azul, Lda v BPSA 9 — Promoção e Desenvolvimento de Investimentos Imobiliários, SA and Others

(Case C-186/12)

2012/C 217/11

Language of the case: Portuguese

Referring court

Tribunal Judicial de Braga

Parties to the main proceedings

Applicant: Impacto Azul, Lda

Defendants: BPSA 9 — Promoção e Desenvolvimento de Investimentos Imobiliários, SA, Bouygues Imobiliária, SGPS, Lda, Bouygues Immobilier S.A., Aniceto Fernandes Viegas, Óscar Cabanez Rodriguez

Question referred

Is it contrary to Community law, in particular Article 49 TFEU, as interpreted by the Court of Justice of the European [Union], for the application of the rules in Article 501 of the [Portuguese Code of Commercial Companies] to undertakings having their seat in another Member State to be excluded pursuant to the rules contained in Article 481(2) of [that code]?