ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 32/15

Action brought on 10 November 2008 — United Kingdom of Great Britain and Northern Ireland v Council of the European Union

(Case C-482/08)

(2009/C 32/24)

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: V. Jackson, Agent, T. Ward, Barrister)

Defendant: Council of the European Union

The applicant claims that the Court should:

— annul Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences (1);

— determine, following the annulment of the VIS Police Access Decision, that its provisions should remain effective, except in so far as they have the effect of excluding the United Kingdom from participating in the application of the VIS Police Access Decision;

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

Pleas in law and main arguments

The United Kingdom was denied the right to take part in the adoption of the VIS Police Access Decision on the grounds that the Council considered that the measure constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part — namely the common visa policy. As a consequence, the Council considers that the United Kingdom is not bound by the Decision or subject to its application.

The United Kingdom contends that the Council was wrong to conclude that the Decision constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part. The VIS Police Access Decision is not a development of the common visa policy, but rather, a police cooperation measure. Neither the aim nor the content of the VIS Police Access Decision relate to the common visa policy. Rather it is entirely concerned with the sharing of information entered by visa authorities with designated law enforcement authorities and Europol for the purpose of prevention, detection and investigation of terrorist offences and other serious offences. This is reflected in the Council's choice of legal basis, namely Articles 30(1)(b) and 34(2)(c) TEU.

The annulment of the VIS Police Access Decision is accordingly sought on the grounds that the exclusion of the United Kingdom from its adoption entails the infringement of an essential procedural requirement and/or the infringement of the Treaty, within the meaning of Article 35(6) EU.

(1) OJ L 218, p. 129.
EN Official Journal of the European Union C 44/37

Action brought on 22 December 2008 — European Parliament v Council of the European Union

(Case C-566/08)

(2009/C 44/63)

Language of the case: French

Parties

Applicant: European Parliament (represented by R. Passos, G. Mazzini and D. Gauci, acting as Agents)

Defendant: Council of the European Union

Form of order sought

— annul, on the ground of breach of the EC Treaty, Council Decision 2008/780/EC of 29 September 2008 on the conclusion, on behalf of the European Community, of the Southern Indian Ocean Fisheries Agreement (1);

— order the Council to pay the costs.

Pleas in law and main arguments

The European Parliament relies on a single plea in law in support of its application, namely the wrong legal basis of the contested decision. According to the Parliament, it is clear both from the interpretation of Article 300 EC and from the content of the agreement at issue in the present case that that agreement falls within the category of agreements establishing a specific institutional framework by organising cooperation procedures. Consequently, the contested decision should have been adopted on the basis of Article 37 EC in conjunction with the first sentence of the first subparagraph of Article 300(2) EC and the second subparagraph of Article 300(3) EC — requiring the assent of the European Parliament to be obtained — and not on the basis of Article 37 EC in conjunction with the first sentence of the first subparagraph of Article 300(2) EC and the first subparagraph of Article 300(3) EC, providing merely for the Parliament to be consulted.

(1) OJ 2008 L 268, p. 27.
EN Official Journal of the European Union C 44/39

Appeal brought on 24 December 2008 by Christos Gogos against the judgment delivered by the Court of First Instance (Seventh Chamber) on 15 October 2008 in Case T-66/04 Christos Gogos v Commission of the European Communities

(Case C-583/08 P)

(2009/C 44/67)

Language of the case: Greek

Parties

Appellant: Christos Gogos (represented by: N. Korogiannakis and P. Katsimani, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance;

— annul the decision placing him in Grade A 7 and the decision of 24 November 2003 rejecting his administrative complaint;

— exercise its unlimited jurisdiction and award compensation totalling EUR 538 121,79 in respect of the economic damage which results from the Commission's unlawful conduct in adopting the harmful decision at issue, and which has been aggravated by the administrative reform for the remainder of his expected life;

— award compensation totalling EUR 50 000 for the long delay in delivery of the judgment at first instance;

— order the defendant to pay the appellant's costs in respect of both the case before the Court of First Instance and the present proceedings.

Pleas in law and main arguments

In his appeal against the judgment of 15 October 2008 in Case T-66/04 Christos Gogos v Commission of the European Communities, the appellant Christos Gogos puts forward, first of all, two pleas to substantiate his claim that the judgment of the Court of First Instance should be set aside.

First, the appellant complains of insufficient and mistaken reasoning in respect of five of the six pleas for annulment which he put forward as applicant.

Secondly, the appellant submits that the length of the proceedings before the Court of First Instance is not justified by objective reasons. Furthermore, he has been harmed economically and has suffered non-material damage because of that delay.
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/70/EC (1) of 1 August 2006 laying down implementing measures for Directive 2005/60/EC (2) of the European Parliament and of the Council as regards the definition of a ‘politically exposed person’ and the technical criteria for simplified customer due diligence and for exemption on grounds of a financial activity conducted on an occasional or very limited basis, or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive;
EN Official Journal of the European Union C 44/35

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (The Netherlands) lodged on 4 December 2008 — Staatssecretaris van Financiën v Facet BV/Facet Trading BV

(Case C-539/08)

(2009/C 44/57)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Staatssecretaris van Financiën

Respondent: Facet BV/Facet Trading BV

Question referred

Must Article 17(2) and (3) and Article 28b(A)(2) of the Sixth Directive (1) be interpreted as meaning that, if the place of an intra-Community acquisition is deemed, on the basis of the first subparagraph of the latter provision, to be within the territory of the Member State which issued the VAT identification number under which the person acquiring made the acquisition, the aforementioned person acquiring the goods has the right immediately to deduct the VAT thus due in that Member State?

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

Must the first indent of the first subparagraph of Article 5(2) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (1) be interpreted as meaning that non-Community goods subject to excise duty which have been placed under an inward processing procedure within the terms of Article 84(1)(a) of Regulation (EEC) No 2913/92 (Customs Code) are to be deemed to be subject to duty-suspension arrangements even if they are produced, under an inward processing procedure, from goods which are not subject to excise duty only after the importation of those goods and therefore, in accordance with the 15th recital in the preamble to Directive 92/12/EEC, when they are being moved there is no need for the accompanying document referred to in Article 18(1) of Directive 92/12/EEC to be used?
EN Official Journal of the European Union C 205/19

Appeal brought on 1 August 2008 by Dr Hans Kronberger against the Order of the Court of First Instance (Seventh Chamber) of 21 May 2008 in Case T-18/07 Dr Hans Kronberger v European Parliament

(Case C-349/08 P)

2009/C 205/32

Language of the case: German

Parties

Appellant: Dr Hans Kronberger (represented by: W. Weh, Rechtsanwalt)

Other party to the proceedings: European Parliament

Dr Hans Kronberger brought an appeal on 1 August 2008 before the Court of Justice of the European Communities against the order of the Court of First Instance (Seventh Chamber) of 21 May 2008 in Case T-18/07 Dr Hans Kronberger v European Parliament. The appellant is represented by Dr Wilfried Ludwig Weh, Rechtsanwalt, of Wolfeggstraße 1, AT-6900 Bregenz.

By Order of 19 May 2009 the Court of Justice of the European Communities (Eighth Chamber) dismissed the appeal and ordered the appellant to pay his own costs.
EN Official Journal of the European Union C 82/9

Appeal brought on 12 November 2008 by Mr Matthias Rath against the order of the Court of First Instance (Seventh Chamber) made on 8 September 2008 in Case T-374/06 Matthias Rath v Office for Harmonisation in the Internal Market

(Case C-489/08 P)

(2009/C 82/17)

Language of the case: German

Parties

Appellant: Matthias Rath (represented by: S. Ziegler, C. Kleiner and F. Dehn, Rechtsanwälte)

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

Form of order sought

— Set aside the order of the Seventh Chamber of the Court of First Instance of 8 September 2008 in Case T-374/06;

— grant the forms of order sought at first instance;

— order the Office for Harmonisation in the Internal Market and the intervener to pay the costs of the proceedings.

Pleas in law and main arguments

By its order under appeal, the Court of First Instance confirmed the decision of the First Board of Appeal that there is a likelihood of confusion as regards food supplements not for medical purposes and dietetic substances not adapted for medical use between the word sign ‘EPICAN’ applied for by the appellant and the earlier Community word mark ‘EPIGRAN FORTE’.

The appellant's appeal is based on an infringement of Article 8(1)(b) of Regulation No 40/94. The Court of First Instance relied on erroneous facts in its assessment of the similarity of products and signs. If the Court had assessed the facts correctly, it would have had to conclude that there is no likelihood of confusion between the signs at issue. This is particularly the case since, as the Court correctly found, consumers pay a high level of attention to the goods at issue in the proceedings.
2.

If the answer to Question 1 is affirmative: Are Articles 1(2), 6(4) and 10a of Directive 85/337 to be interpreted as meaning that different national requirements can be laid down with regard to the public concerned referred to in Articles 6(4), on the one hand, and 10a, on the other, with the result that a locally established environmental protection association which has a right to participate in the decision-making procedures referred to in Article 6(4) in respect of projects which may have significant effects on the environment in the area where the association is active does not — since it has fewer members than the minimum number laid down in national law — have a right of appeal such as is referred to in Article 10a of Directive 85/337?
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declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2005/68 (1) of the European Parliament and of the Council of 16 November 2005, and in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 82/22

Appeal brought on 14 February 2009 by Makhteshim-Agan Holding BV, Makhteshim-Agan Italia Srl, Magan Italia Srl against the order of the Court of First Instance (Sixth Chamber) delivered on 26 November 2008 in Case T-393/06 Makhteshim-Agan Holding BV and Others v Commission

(Case C-69/09 P)

(2009/C 82/39)

Language of the case: English

Parties

Appellants: Makhteshim-Agan Holding BV, Makhteshim-Agan Italia Srl, Magan Italia Srl (represented by: K. Van Maldegem, C. Mereu, advocaten)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellants claim that the Court should, following an oral hearing:

— set aside the Order of the Court of First Instance in Case T-393/06 and declare the Appellants' application for annulment admissible; and

— annul the Contested Decision; or

— alternatively, refer the case back to the Court of First Instance to rule on the Appellants' application for annulment; and

— order the Commission to pay all the costs of these proceedings (including the costs before the Court of First Instance).

Pleas in law and main arguments

The Appellants submit that the CFI erred in law in rejecting their application for annulment of the decision of the European Commission, expressed in a letter dated 12 October 2006, not to include the active substance azinphos-methyl in Annex I to Council Directive 91/414/EEC (1) of 15 July 1991 concerning the placing of plant protection products on the market (the ‘Contested Decision’).

In particular, the Appellants contend that the Court of First Instance erred in law in rejecting their application on grounds of admissibility. It wrongly held that the Contested Decision was not a challengeable act pursuant to Article 230 of the EC Treaty.

(1) OJ L 230, p. 1.
EN Official Journal of the European Union C 90/15

Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Roma (Italy) lodged on 9 February 2009 — Emiliano Zanotti v Agenzia delle Entrate

(Case C-56/09)

2009/C 90/22

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Roma

Parties to the main proceedings

Applicant: Emiliano Zanotti

Defendant: Agenzia delle Entrate

Question referred

Do the general principles of the Treaty and of Community law regarding full and effective judicial protection, equal treatment and freedom of movement preclude the application of Article 15(e) of Decree No 917 of the President of the Republic of 22 December 1986 (Consolidated Text of the Laws on Income Tax) and of Point 1.5.1 of Circular No 95 of the Ministry of Finance of 12 May 2000 and does the limitation, pursuant to those provisions, of the recognition of the costs referred to therein conflict with Community law?
EN Official Journal of the European Union C 102/14

Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece), lodged on 25 February 2009 — Idrima Tipou A.E. v Ipourgos Tipou Kai Meson Mazikis Enimerosis

(Case C-81/09)

2009/C 102/23

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Claimant: Idrima Tipou A.E.

Defendants: Ipourgos Tipou kai Meson Mazikis Enimerosis

Question referred

Does Directive 68/151/EEC, which provides in Article 1 that ‘the coordination measures prescribed by this Directive shall apply to the laws, regulations and administrative provisions of the Member States relating to the following types of company: … — in Greece: ανώνυμη εταιρία.’, contain a rule prohibiting the adoption of a national provision, such as Article 4(3) of Law 2328/1995, in so far as it specifies that the fines provided for in the preceding paragraphs of that article for infringement of legislation and rules of good conduct governing the operation of television stations are imposed jointly and severally on both the company which holds the licence to found and operate the television station and on all shareholders with a holding of over 2.5%?
2.

Must Articles 12, 17 and 18 of the Treaty establishing the European Community, in conjunction with the provisions of Articles 21, 24 and 34 of the Charter of Fundamental Rights (adopted by the European Council of Nice on 7 December 2000, published in its current version in OJ 2007 C 303), be interpreted as meaning that the right which they recognise, without discrimination on the grounds of nationality, in favour of any citizen of the Union to move and reside freely in the territory of the Member States means that, where that citizen is an infant dependent on a relative in the ascending line who is a national of a non-member State, the infant’s enjoyment of the right of residence in the Member State in which he resides and of which he is a national must be safeguarded, irrespective of whether the right to move freely has been previously exercised by the child or through his legal representative, by coupling that right of residence with the useful effect whose necessity is recognised by Community case-law (Case C-200/02 Zhu and Chen), by granting the relative in the ascending line who is a national of a non-member State, upon whom the child is dependent and who has sufficient resources and sickness insurance, the secondary right of residence which that same national of a non-member State would have if the child who is dependent upon him were a Union citizen who is not a national of the Member State in which he resides?
EN Official Journal of the European Union C 129/6

Reference for a preliminary ruling from the Sąd Najwyższy (Republic of Poland) lodged on 11 March 2009 — Polska Telefonia Cyfrowa sp. z o. o. v Prezes Urzędu Komunikacji Elektronicznej

(Case C-99/09)

2009/C 129/10

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: Polska Telefonia Cyfrowa sp. z o. o.

Defendant: Prezes Urzędu Komunikacji Elektronicznej

Question referred

Is Article 30(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (1) … to be interpreted as meaning that the competent regulatory authority of a Member State, when ensuring that direct charges to subscribers do not act as a disincentive for the use of the additional facility of porting numbers, has an obligation to take account of the costs incurred by mobile telephone network operators in providing that facility?

(1) OJ 2002 L 108, p. 51.
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Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC (1) or, in any event, by failing to notify those provisions to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 129/3

Action brought on 23 February 2009 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-79/09)

2009/C 129/05

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by D. Triantafyllou and W. Roels, acting as Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

— Declare that, by granting exemption from VAT for the making available of personnel in the socio-cultural sector, the health sector and the education sector to so-called Euregios and for promotion of work mobility, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 2(1)(c), Article 24(1) and Article 132 of the VAT Directive; (1)

— order Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The Commission submits that the making available of staff in the socio-cultural sector, the health sector and the education sector must be subject to tax in accordance with Articles 2, 9 and 24 of the VAT Directive and that neither the exemptions under Article 132(1)(b), (c), (g) and (i) nor the exemption under Article 132(1)(n) is applicable to this provision of services

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 11).
EN Official Journal of the European Union C 153/24

Reference for a preliminary ruling from the Tribunale di Genova (Italy) lodged on 17 April 2009 — Fallimento Traghetti del Mediterraneo SpA — Curatore dott. Alberto Fontana v Presidenza del Consiglio dei Ministri

(Case C-140/09)

2009/C 153/44

Language of the case: Italian

Referring court

Tribunale di Genova

Parties to the main proceedings

Applicant: Fallimento Traghetti del Mediterraneo SpA — Curatore dott. Alberto Fontana

Defendant: Presidenza del Consiglio dei Ministri

Question referred

Is national legislation on State aid of the kind laid down in Law No 684/1974, in particular in Article 19 thereof, which provides for the possibility of the payment of State aid — albeit only on account — in the absence of agreements and without the prior establishment of precise and stringent criteria capable of ensuring that payment of the aid cannot give rise to distortion of competition, compatible with the principles of Community law and, in particular, with the provisions laid down in Articles 86 EC, 87 EC and 88 EC and in Title V (formerly Title IV) of the Treaty and, in that regard, may importance be attached to the fact that the beneficiary is required to apply tariffs imposed by the administrative authority?
(d)

If the answers to the first two questions referred for a preliminary ruling are in the affirmative, is a restriction on the freedom to provide services that is impermissible for the purposes of Article 49 of the Treaty establishing the European Community introduced by national legislation which provides that a shipowner to whom the administration has granted a licence to operate a ship on a specified route (either after his application in that regard has been approved as it stands, or after it has been approved with amendments to certain of its elements, which he accepts) is in principle obliged to work the particular operational route continuously for the entire duration of the annual operational period, and that to secure compliance with this obligation imposed on him he must deposit, before the operational service commences, a letter of guarantee all or part of whose amount will be forfeited if the obligation in question is not complied with or not complied with precisely?