ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 64/27

Reference for a preliminary ruling from the Tribunale Amminstrativo Regionale per la Lombardia (Italy) lodged on 28 December 2007 — Sea Srl v Comune di Ponte Nossa

(Case C-573/07)

(2008/C 64/39)

Language of the case: Italian

Referring court

The Tribunale Amminstrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Sea Srl

Defendant: Comune di Ponte Nossa

Question referred

Is the direct award of a contract for the collection, transport and disposal of solid urban and similar waste to a wholly publicly owned limited company, the relevant statutes of which — for the purposes of Article 113 of Legislative Decree No 267 of 18 August 2000 — are set out in the grounds of this order, compatible with Community law and, in particular, with the freedom of establishment or freedom to provide services, the prohibition of discrimination and the obligations relating to equal treatment, transparency and free competition, as referred to in Articles 12 EC, 43 EC, 45 EC, 46 EC, 49 EC and 86 EC?
1.

Are Articles 2 and 4 of the Sixth VAT Directive and Articles 2 and 9 of Council Directive 2006/112/EC on the common system for value added tax to be interpreted as meaning that, where a taxable person liable for tax on sales of services to a subsidiary sells the interests in the subsidiary, that transaction is subject to VAT?
1.

Is Article 27 of Regulation (EEC) No 918/83 of 28 March 1983 (1), as amended by Regulation (EEC) No 3357/91 of 7 November 1991 (2), to be interpreted as meaning that the relief referred to in that Article may be claimed in respect of consignments made up of goods which are individually of negligible value but are dispatched as a grouped consignment with a combined intrinsic value which exceeds the value threshold in Article 27?
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declare that the Republic of Estonia has failed to fulfil its obligations under Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues (1);
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declare that, in so far as the Czech Republic has failed to adopt (all) the laws, regulations and administrative provisions necessary to comply with Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (1), or in any case has failed to inform the Commission thereof, the Czech Republic has failed to fulfil its obligations under Article 12 of that directive and Article 54 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded;
1.

Are the references to the equality of shareholders, and more specifically, to the protection of minorities (a) in Articles 20 and 42 of the Second Company Directive 77/91/EC of 13 December 1976 (1); (b) in the Third General Principle and Supplementary Principle 17 of the Commission Recommendation of 25 July 1977 concerning a European code of conduct relating to transactions in transferable securities (2); (c) in Schedule C, point 2(A) annexed to Council Directive 79/279/EEC of 5 March 1979 coordinating the conditions for the admission of securities to official stock exchange listing and carried over in the consolidating directive of 28 May 2001 (3); (d) in Article 3(1)(a) of Directive 2004/25/EC of 21 April 2004 on takeover bids, read together with the eight recital in the preamble thereto (4) manifestations of a general principle of Community law and did that general principle exist as such before the adoption of Directive 2004/25/EC?
2.

Is Article 4 of Regulation (EC) No 717/2007 (together with Articles 2(a) and 6(3) insofar as they refer to the Eurotariff and obligations relating to the Eurotariff) invalid on the grounds that the imposition of a price ceiling in respect of retail roaming charges infringes the principle of proportionality and/or subsidiarity?
2.

Is Article 49 EC to be interpreted as precluding a national monopoly on the operation of sports betting and lotteries (with more than a low potential risk of addiction), justified primarily on the grounds of combating the risk of gambling addiction, whereas other games of chance, with considerable potential risk of addiction, may be provided in that Member State by private service providers, and the different legal rules for sports betting and lotteries, on the one hand, and other games of chance, on the other, are based on the differing legislative powers of the Bund and the Länder? If question (2) is answered in the affirmative:
2.

Does article 3(1) of Directive 2004/38/EC include within its scope of application a non-EU national who is: (i) a spouse of a Union citizen who resides in the host Member State and satisfies a condition in article 7(1)(a), (b) or (c) and (ii) is then residing in the host Member State with the Union citizen as his/her spouse irrespective of when or where their marriage took place or when or how the non-EU national entered the host Member State.
2.

Should Article 221(3) of the CCC, as applicable before its amendment by Article 1 of Regulation (EC) No 2700/2000 (2), be construed as meaning that the option of lawfully communicating the amount entered in the accounts after the period of three years from the date on which the customs debt was incurred, if that debt is the result of an act which is liable to give rise to criminal court proceedings, is available to the customs authorities only in respect of the person who is responsible for the act which is liable to give rise to criminal court proceedings?
2.1

Does Article 4(1) and (2) of Commission Regulation (EC) No 1972/2003 (3) preclude the ascertainment of the amount of an operator's surplus stock by automatically deducting from the surplus stock (regarded as transitional stock) the operator's average stock as at 1 May of the four years of activity preceding 1 May 2004, multiplied by 1.2? If the answer is in the affirmative, would the answer be different if in determining the amount of the transitional stock and surplus stock it were possible also to take into account the growth of the operator's production, processing or sales volume, the maturation period of the agricultural product, the time when the stocks were built up, and other circumstances independent of the operator?
EN Official Journal of the European Union C 158/10

Appeal brought on 1 April 2008 by Dorel Juvenile Group, Inc. against the judgment of the Court of First Instance (Fifth Chamber) delivered on 24 January 2008 in Case T-88/06, Dorel Juvenile Group, Inc. v Office for Harmonization in the Internal Market (Trade Mark and Designs) (OHIM)

(Case C-131/08 P)

(2008/C 158/14)

Language of the case: English

Parties

Appellant: Dorel Juvenile Group, Inc. (represented by: Dr. G. Simon, Rechtsanwältin)

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

Form of order sought

The appellant claims that the Court should:

— annul judgment of the Court of First Instance (Fifth Chamber) of 24 January 2008, Case T-88/06;

— annul the Decision of the Second Board of Appeal of 11 January 2006, Case R 616/2004-2 and

— order the defendant to pay the costs.

Pleas in law and main arguments

The appellant submits that the CFI's assessment of the conditions for registration of a trademark is too restrictive. The appellant argues that the CFI assessed the character of the term ‘SAFETY 1st’ by means of a separate analysis of the element ‘1st’ and based its judgment on the presumption that as the element ‘1st’ was devoid of a distinctive character it cannot acquire such character when combined with the trademark element ‘SAFETY’. According to the appellant the CFI should have assessed the distinctive character of the mark on the overall perception of the wording ‘SAFETY 1st’ by the average consumer. The splitting by the Court of the trademark ‘SAFETY 1st’ into its component parts does not reflect the view and approach adopted by consumers.

The contested judgment relies on a criterion according to which the expression safety first is used to designate the goods covered by the mark applied for ‘as information relating to a quality or characteristic of the goods’. The appellant submits that that criterion is relevant in the context of Article 7(1)(c) of Regulation No 40/94 but it is not the yardstick against which Article 7(1)(b) thereof should be judged. Therefore, the Court based its view that the sign in question fell within the scope of Article 7(1)(b) on the fat that it did not satisfy the criteria for protection governed by Article 7(1)(c).

Finally the appellant submits that the CFI also ignored the fact that Article 12(b) of Regulation No 40/94 (1) constitutes a corrective to the interpretation of Article 7(1)(b).

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11).
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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) and, in any event, by not having informed the Commission, the French Republic has failed to fulfil its obligations under Article 2 of that directive;
EN Official Journal of the European Union C 171/14

Action brought on 8 April 2008 — Commission of the European Communities v Republic of Finland

(Case C-144/08)

(2008/C 171/24)

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (represented by: I. Koskinen and D. Triantafyllou)

Defendant: Republic of Finland

Form of order sought

— declare that, by using an incomplete definition of normal residence in order to determine whether the temporary import of certain forms of transport is subject to tax exemptions, the Republic of Finland has failed to fulfil its obligations under Article 7(1) of Council Directive No 83/182/EEC (1) of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another;

— order Republic of Finland to pay the costs.

Pleas in law and main arguments

For the purpose of determining tax exemptions, Article 7(1) of Directive 83/182/EEC governs normal residence, which determines the Member State under whose rules on temporary imports the vehicle in question falls, and the Member State which is entitled to charge tax on that vehicle. Article 7(1) of Directive 83/182/EEC governs certain exceptions to the rule according to which normal residence means the place where a person usually lives for at least 185 days in each calendar year. In particular, the second subparagraph of Article 7(1) states that if the normal residence of a person whose occupational ties are in a different place from his personal ties and who consequently lives in turn in different places situated in two or more Member States shall be regarded as being the place of his personal ties, provided that such person returns there regularly. However, it is expressly stated that the last condition need not be met where the person is living in a Member State in order to carry out a task of a definite duration.

However, Finnish legislation imposes a requirement for the person concerned to return to the place of normal residence also in the case where he is living in Finland in order to carry out a task of a definite duration. Therefore, Finland has failed to correctly transpose Article 7(1) of Directive 83/182/EEC into national law.

(1) OJ 1998 L 105, p. 59.
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Declare that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC (1) 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, or, in any event, by not informing the Commission thereof, the Portuguese Republic has failed to fulfil its obligations under Article 2 of that directive;
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Declare that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC (1) or, in any event, by not informing the Commission thereof, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 197/15

Action brought on 12 June 2008 — Commission of the European Communities v Republic of Malta

(Case C-252/08)

(2008/C 197/26)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: L. Flynn and A. Alcover San Pedro, Agents)

Defendant: Republic of Malta

The applicant claims that the Court should:

— declare that, by failing to correctly apply Directive 2001/80/EC (1) of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants (OJ 2001 L 309, p. 1) (hereinafter ‘the Directive’) in relation to the operation of the Phase One steam plant of the Delimara power station and the power station at Marsa, the Republic of Malta has failed to fulfil its obligations under Article 4(1) in conjunction with Annex IV A, Annex VI A and Annex VII A, and under Article 12 in conjunction with Annex VIII A.2 of that directive;

— order the Republic of Malta to pay the costs.

Pleas in law and main arguments

The Commission submits that the Phase One steam plant of the Delimara power station does not respect the emission limit values fixed by the directive for emissions of sulphur dioxide, nitrogen oxides and dust.

It is further submitted that, with regard to both the Phase One steam plant of the Delimara power station and the power station at Marsa, Malta has failed to comply with the requirement for continuous measurement of concentrations of sulphur dioxide, nitrogen oxides and dust pursuant to Art. 12 and paragraph 2 of Part A of Annex VIII of the directive.

(1) OJ 2001 L 309, p. 1.
3.

Is the term ‘other duly recognised establishments of a similar nature’ in Article 13A(1)(b) of the Sixth Directive to be interpreted as covering private stem cell banks where the services — which are performed and supplied by professional health personnel in the form of nurses, midwives and bioanalysts — consists in the collection, transportation, analysis and storage of umbilical cord blood from newborns with a view to autologous use in connection with possible future hospital care where the stem cell banks concerned do not receive support from the public heath insurance scheme and where the expenditure on the services provided by these stem cell banks is not covered by the public health insurance scheme? In that connection, is it relevant whether or not a private stem cell bank has obtained authorisation from a Member State's competent health authorities to handle tissue and cells — in the form of processing, preserving and storing stem cells from umbilical cord blood for autologous use — pursuant to national legislation which implements Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells (2)?
EN Official Journal of the European Union C 209/25

Action brought on 29 May 2008 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-232/08)

(2008/C 209/37)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: T. van Rijn and K. Banks, acting as Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

— Declare that, by allowing fishing vessels to have a higher engine power than permitted under Article 29(2) of Regulation (EC) No 850/98 (1), has failed to fulfil its obligations under Article 23 of Regulation (EC) No 2371 (2) and Article 2(1) of Regulation (EEC) No 2847/93 (3);

— order Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The Commission considers that the Netherlands Government has failed to fulfil its obligations, as it has consciously allows infringements of the rule regarding the maximum engine power with which fishing may be carried out in the ‘plaice box’.

First, it is apparent from the information provided by the Netherlands Government that it permits Netherlands ‘Eurokotters’ participating in the private arrangement to satisfy the maximum permitted engine power of 300 hp only with effect from 1 May 2009. Second, it is apparent from this information that when monitoring compliance with this rule a margin of tolerance of 12,5 % is applied systematically and therefore penalties are not imposed on infringements of the maximum permitted engine power within that margin.

(1) Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms (OJ 1998 L 125, p. 1).

(2) Council Regulation of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59).

(3) Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (OJ 1993 L 261, p. 1).
EN Official Journal of the European Union C 209/36

Action brought on 25 June 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-273/08)

(2008/C 209/55)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and A. Alcover San Pedro, Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

— declare that, by failing to communicate to the Commission of the European Communities its programmes for the reduction of national emissions of sulphur dioxide (SO2), nitrogen oxides (NOX), volatile organic compounds (VOC) and ammonia (NH3), its national emission inventories of SO2, NOX, VOC and NH3, and its annual projections for SO2, NOX, VOC and NH3 for 2010, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 6(1), (2) and (3), Article 7(1) and (2) and Article 8(1) and (2) of Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (1);

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

Pleas in law and main arguments

The Commission submits that the Grand Duchy of Luxembourg has failed to communicate, within the time-limits prescribed in Directive 2001/81/EC, three types of document concerning the establishment of national emission ceilings for sulphur dioxide (SO2), nitrogen oxides (NOX), volatile organic compounds (VOC) and ammonia (NH3).

First, the defendant failed to fulfil its obligation, set out in Article 6(1), (2) and (3) of the directive, to draw up programmes for the progressive reduction of national emissions of the aforementioned pollutants.

Secondly and thirdly, the defendant did not comply, in respect of the same pollutants, with the provisions of Article 7(1) and (2) concerning the preparation and annual updating of the national emission inventories and emission projections for 2010.

Finally, it failed to fulfil its obligation to communicate these three types of document to the Commission within the time-limits prescribed in Article 8(1) and (2) of the directive.

(1) OJ 2001 L 309, p. 22.
1.

Must Article 5(1) of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (‘Directive 89/104’) (1) be interpreted as meaning that a trade mark is used in a manner reserved for the proprietor of the trade mark if the trade mark or a sign similar to it (such as the word component of a word and figurative trade mark) is reserved as a keyword with a search engine operator and advertising for identical or similar goods or services therefore appears on the screen when the trade mark or the sign similar to it is entered as a search term?
EN Official Journal of the European Union C 223/36

Appeal brought on 7 July 2008 by Leche Celta SL against the judgment delivered on 23 April 2008 in Case T-35/07 Leche Celta SL v OHMI

(Case C-300/08 P)

(2008/C 223/57)

Language of the case: French

Parties

Appellant: Leche Celta SL (represented by: J Calderón Chavero and T. Villate Consonni, lawyers)

Other party/parties to the proceedings: Office for Harmonisation in the Internal Market (Trade marks and Designs), Celia SA

Form of order sought

— Annul the judgment of the Third Chamber of the Court of First Instance of 23 April 2008 in Case T-35/07 on the grounds that the marks CELIA/CELTA are clearly incompatible;

— Order payment of costs.

Pleas in law and main arguments

By its appeal the appellant challenges in essence the assessment made by the Court of First Instance on the similarity of the marks at issue. According to the appellant, the similarity of the two marks is such that the relevant public will not be able to detect any difference between them, the more so when the goods covered by them are identical. The Court therefore committed several errors of assessment by judging the degree of verbal and conceptual similarity between the marks at issue to be low.
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declare that, by failing to adopt, in respect of the Region of Campania, all the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without harming the environment and, in particular, by failing to establish an integrated and adequate network of disposal installations, the Italian Republic has failed to fulfil its obligations under Articles 4 and 5 of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (1);