ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 145/13

Action brought on 2 March 2011 — European Commission v Ireland

(Case C-108/11)

2011/C 145/19

Language of the case: English

Parties

Applicant: European Commission (represented by: R. Lyal, C. Soulay, agents)

Defendant: Ireland

The applicant claims that the Court should:

— Declare that by applying a VAT rate of 4.8% to supplies of greyhounds and horses not normally intended for the preparation of foodstuffs, to the hire of horses and to certain insemination services, Ireland has failed to comply with its obligations under Articles 96, 98 (in conjunction with Annex III) and Article 110 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax;

— order Ireland to pay the costs.

Pleas in law and main arguments

Under article 96 of the VAT directive, the standard rate of VAT fixed by each Member State, subject to a minimum rate of 15 %, is applicable to all supplies of goods and services. A rate other than the standard rate may be applied only in so far as that is permitted by other provisions of the directive.

Article 98 provides that Member States may apply one or two reduced rates to the supplies of goods and services listed in Annex III to the directive. The supplies now in issue do not appear in Annex III.

The VAT directive also contains transitional provisions which permit Member States to continue to apply rates which derogate from the general rules on the structure and level of rates contained in the directive, if the relevant national provisions were in force on 1 January 1991.

Under article 113 of the VAT directive, where a Member State applied, on 1 January 1991, a reduced rate lower than the minimum laid down in article 99, it may apply to those goods and services one of the reduced rates provided for in article 98. However, since the rate applied by Ireland to the goods and services now in issue is lower than the minimum set out in article 99 of the VAT directive, article 113 can be of no avail.

Article 110 of the directive also applies to rates lower than the minimum laid down in article 99. It lays down a transitional arrangement for certain national measures adopted for clearly defined social reasons (i.e. to reduce the tax burden levied on consumption of goods and service which cover basic social needs) and for the benefit of the final consumer. The Commission submits that the supply of horses and greyhounds (other than for use in the preparation of foodstuffs), the hire of horses and insemination services cannot be deemed to be necessary in order to cover basic social needs. The Commission also submits that, since a large proportion of horses and greyhounds are intended for racing or breeding, the benefit of the measure cannot be considered as lying with the final consumer.

(1) OJ L 347, p. 1
EN Official Journal of the European Union C 139/14

Appeal brought on 22 February 2011 by Longevity Health Products, Inc. against the judgment of the General Court (Fifth Chamber) delivered on 16 December 2010 in Case T-363/09: Longevity Health Products, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Gruppo Lepetit SpA

(Case C-81/11 P)

2011/C 139/25

Language of the case: English

Parties

Appellant: Longevity Health Products, Inc. (represented by: J. Korab, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Gruppo Lepetit SpA

Form of order sought

The appellant claims that the Court should:

— admit the appeal filed by the company Longevity Health Products, Inc.

— annul the decision of the General Court of 16 December 2010 in case T-363/09

— order the Office for Harmonization in the Internal Market to pay the costs

Pleas in law and main arguments

The appellant submits that the General Court violated its right to due process of law by failing to grant a time period for the appellant to reply to the submissions of OHIM.

It is also submitted that the General Court did not deal with the arguments advanced by the holder of the trademark concerning the likelihood of confusion.
1.

Is Article 52(1) of the koninklijk besluit van 21 december 1967 tot vaststelling van het algemeen reglement betreffende het rust- en overlevingspensioen voor werknemers (Royal Decree of 21 December 1967 on the general regulation of the retirement and survivor’s pension scheme for employed workers), under which a survivor’s pension is reduced as a result of the increase in an old-age pension awarded under the Wet van 31 mei 1956 inzake een algemene ouderdomsverzekering (Law of 31 May 1956 on general old-age pensions) pursuant to the implementation of the equal treatment of men and women by the Law of 28 March 1985, compatible with Community law, in particular with Article 46a of Council Regulation (EEC) No 1408/71 (1) of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community;
2.

If Question 1 is answered in the affirmative: Is there a request for information ‘complying with the time-limit’ where the holder claims in his request that he has some indication that the supplier of processing services has processed or intends to process for planting harvested material of the protected variety which the farmer named in the request has obtained by planting from propagating material of the protected variety, or must the supplier of the processing services also be furnished with evidence of the claimed indication in the request for information (for example, by providing a copy of the farmer’s statements of planting the product of the harvest)?
EN Official Journal of the European Union C 173/6

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 1 April 2011 — Azienda Sanitaria Locale di Lecce v Ordine degli Ingegneri della Provincia di Lecce and Others — Università del Salento

(Case C-159/11)

2011/C 173/12

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Azienda Sanitaria Locale di Lecce

Defendants: Ordine degli Ingegneri della Provincia di Lecce; Consiglio Nazionale degli Ingegneri; Associazione delle Organizzazioni di Ingegneri, di Architettura e di Consultazione Tecnico-Economica (Oice); Etacons Srl; Ing. Vito Prato Engineering Srl; Barletti — del Grosso & Associati Srl; Ordine degli Architetti della Provincia di Lecce; Consiglio Nazionale degli Architetti Pianificatori, Paesaggisti e Conservatori (Cnappc)

Intervener: Università del Salento

Question referred

Does Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1) and, in particular, Article 1(2)(a) and (d), Article 2 and Article 28 of that directive and Categories 8 and 12 in Annex II thereto, preclude national legislation which permits written agreements to be entered into between two contracting authorities for the study of the seismic vulnerability of hospital buildings and its evaluation in the light of national regulations on the safety of structures and of strategic buildings in particular, for a consideration not exceeding the costs incurred in the performance of the service, where the authority responsible for performance is capable of acting in the capacity of an economic operator?

(1) OJ L 134, p. 114.
EN Official Journal of the European Union C 160/11

Action brought on 3 March 2011 — European Commission v Czech Republic

(Case C-109/11)

2011/C 160/11

Language of the case: Czech

Parties

Applicant: European Commission (represented by: K. Walker and D. Triantafyllou, acting as Agents)

Defendants: Czech Republic

Form of order sought

— Declare that, by authorising non-taxable persons to become members of a VAT group, the Czech Republic has failed to fulfil its obligations under Articles 9 and 11 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1)

— order the Czech Republic to pay the costs.

Pleas in law and main arguments

According to Article 9(1) of Directive 2006/112/EC, ‘taxable person’ shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity. Article 11 of that directive provides that, after consulting the advisory committee on value added tax (hereafter, the ‘VAT Committee’), each Member State may regard as a single taxable person any persons established in the territory of that Member State who, while legally independent, are closely bound to one another by financial, economic and organisational links.

In the opinion of the Commission, by permitting non-taxable persons to become members of VAT groups in accordance with Article 11 of Directive 2006/112/EC, the Czech Republic has failed to fulfil its obligations under Articles 9 and 11 of Regulation 20é6/112/EC.

(1) OJ 2006 L 347, p. 1.
EN Official Journal of the European Union C 179/8

Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 17 March 2011 — Pfeifer & Langen KG v Hauptzollamt Aachen

(Case C-131/11)

2011/C 179/12

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Pfeifer & Langen KG

Defendant: Hauptzollamt Aachen

Question referred

Must Article 3(4) of Commission Regulation (EEC) No 1443/82 (1) of 8 June 1982 laying down detailed rules for the application of the quota system in the sugar sector be interpreted as extending also to the additional quantities subsequently found by the authorities in the context of an inspection at the producer’s premises?

(1) OJ 1982 L 158, p. 17.
1.

Must Article 15(1) of Regulation (EC) No 207/2009 (1) on the Community trade mark be interpreted as meaning that use of a Community trade mark within the borders of a single Member State is sufficient to constitute genuine use of that trade mark, provided that, had it been a national trade mark, such use would have been regarded as genuine use in that Member State (cf. Joint Statement No 10 regarding Article 15 of Council Regulation (EC) No 40/94 (2) of 20 December 1993 and the Opposition Guidelines of the OHIM)?
1.

Where a party uploads data from a database protected by sui generis right under Directive 96/9/EC (1) (‘the Database Directive’) onto that party's web server located in member state A and in response to requests from a user in another member state B the web server sends such data to the user's computer so that the data is stored in the memory of that computer and displayed on its screen (a) is the act of sending the data an act of ‘extraction’ or ‘re-utilisation’ by that party? (b) does any act of extraction and/or re-utilisation by that party occur (i) in A only (ii) in B only or (iii) in both A and B?
EN Official Journal of the European Union C 186/16

Action brought on 20 April 2011 — European Commission v Kingdom of Spain

(Case C-189/11)

2011/C 186/27

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: L. Lozano Palacios and C. Soulay, Agents)

Defendant: Kingdom of Spain

Form of order sought

— Declare that — by applying the special scheme for travel agents in cases where travel services have been sold to a person other than the traveller; — by excluding from that special scheme sales to the public, by retail agents acting in their own name, of trips organised by wholesale agents; — by authorising travel agents, in certain circumstances, to charge in the invoice an overall amount that is not related to the actual VAT charged to the customer, and by authorising the latter, where he is a taxable person, to deduct this overall amount from the VAT payable; and — by authorising travel agencies, insofar as they benefit from the special scheme, to make an overall determination of the basis of assessment of the tax for each tax period;

the Kingdom of Spain has failed to fulfil its obligations under Articles 73, 168, 169, 226 and 306 to 310 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax,

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission considers that the application by the Kingdom of Spain of the special scheme for travel agents, insofar as it is not limited to services provided to travellers, as the directive prescribes, but is extended to operations carried out between travel agents, infringes the provisions of the legislation concerning VAT.

Furthermore, the exclusion from that special scheme of sales to the public, by retail agents acting in their own name, of trips organised by wholesale agents is not compatible with the directive either, as such activities, without any doubt in the opinion of the Commission, fall within the activities covered by the special scheme.

Likewise, the Commission considers that the Spanish rules authorising travel agents, without any basis in that directive, to charge in the invoice an overall VAT amount that is not related to the actual VAT charged to the customer, or that authorise the latter, where he is a taxable person, to deduct this overall amount from the VAT payable, or that allow travel agencies, insofar as they benefit from the special scheme, to make an overall determination of the basis of assessment of the tax for each tax period, infringe the VAT directive.

(1) OJ 2006 L 347, p. 1.
EN Official Journal of the European Union C 211/16

Action brought on 13 May 2011 — European Commission v Portuguese Republic

(Case C-223/11)

2011/C 211/30

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by P. Guerra e Andrade and I. Hadjiyannis, Agents)

Defendant: Portuguese Republic

Form of order sought

The Commission claims that the Court should:

1. Declare that: — by failing to publish national and international plans for the management of river basins, the Portuguese State has failed to fulfil its obligations under Article 13(6), in conjunction with Article 13(1) and (2), of Directive 2000/60/EC; (1) — by failing to publish and make available for comments to the public, including users, draft copies of the river basin management plans, the Portuguese State has failed to fulfil its obligations under Article 14(1)(c) of Directive 2000/60/EC; — by failing to send to the Commission copies of the plans for river basin management, the Portuguese State has failed to fulfil its obligations under Article 15(1) of Directive 2000/60/EC;

2. Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Article 13 of Directive 2000/60/EC

Article 13(6), in conjunction with Article 13(1) and (2), of Directive 2000/60/EC, provides that the river basin management plans of every river basin district, whether national or international, falling entirely within the European Union must be published by 22 December 2009 at the latest.

The Commission has not been notified, nor is it aware, that any such plans have been published, so far as Portugal is concerned.

Article 14 of Directive 2000/60/EC

As the Directive makes clear, public participation is considered essential to the pursuit of the Directive’s objectives.

The Commission has not been notified, nor is it aware, that any draft river basin management plans whatsoever have been published or made available for comments to the public, including users.

Article 15 of Directive 2000/60/EC

The Commission has received from the Portuguese State no copies of plans for river basin management or of those for national or international river basin districts.

(1) Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1).
2.

Is Article 39 of the above Council Directive when read in conjunction with its Recital (27) and Article 267 TFEU to be interpreted to the effect that the effective remedy thereby required is provided for in national law when the function of review or appeal in respect of the first instance determination of applications is assigned by law to an appeal to the Tribunal established under Act of Parliament with competence to give binding decisions in favour of the asylum applicant on all matters of law and fact relevant to the application notwithstanding the existence of administrative or organisational arrangements which involve some or all of the following: — The retention by a government Minister of residual discretion to override a negative decision on an application; — The existence of organisational or administrative links between the bodies responsible for first instance determination and the determination of appeals; — The fact that the decision making members of the Tribunal are appointed by the Minister and serve on a part-time basis for a period of three years and are remunerated on a case by case basis; — The retention by the Minister of powers to give directions of the kind specified in ss. 12, 16(2B)(b) and 16(11) of the above Act?
1.

(a) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country — whose spouse and minor children are Union citizens — residence in the Member State of residence of the spouse and children, who are nationals of that Member State, even in the case where those Union citizens are not dependent on the national of a non-member country for their subsistence? (Dereci case) (b) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country — whose spouse is a Union citizen — residence in the Member State of residence of that spouse, who is a national of that Member State, even in the case where that Union citizen is not dependent on the national of a non-member country for his or her subsistence? (Heiml and Maduike cases) (c) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country — who has reached the age of majority and whose mother is a Union citizen — residence in the Member State of residence of the mother, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for her subsistence but rather that national of a non-member country who is dependent on the Union citizen for his subsistence? (Kokollari case) (d) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country — who has reached the age of majority and whose father is a Union citizen — residence in the Member State of residence of the father, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for his subsistence but rather the national of a non-member country who receives subsistence support from the Union citizen? (Stevic case)
EN Official Journal of the European Union C 211/18

Appeal brought on 19 May 2011 by World Wide Tobacco España, S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 March 2011 in Case T-37/05 World Wide Tobacco España v Commission

(Case C-240/11 P)

2011/C 211/35

Language of the case: Spanish

Parties

Appellant: World Wide Tobacco España, S.A. (represented by: M. Odriozola and A Vide, Abogados)

Other party to the proceedings: European Commission

Form of order sought

— set aside in part the judgment of the General Court in Case T-37/05;

— reduce the fine imposed on the appellant;

— order the Commission to pay the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

First, the appellant submits that the Commission infringed the principle of equal treatment by applying a more stringent factor for deterrence on World Wide Tobacco España S.A. (WWTE) than on other undertakings engaged in processing tobacco. The Commission applied a factor for deterrence to WWTE on the ground that it belonged to a multi-national group having considerable economic and financial power. The fact that WWTE may have acted — which is not the case — under the decisive influence of its parent companies was considered solely as a supplementary factor.

Second, in the alternative, the appellant submits that the Court of Justice must recalculate the multiplier in so far as it may find any of the parent companies not to be responsible for the conduct of WWTE. The General Court should not have rejected WWTE’s arguments on the ground that it had not included in its application the arguments of its parent companies, given that it is for the parent companies to refute the imputation of liability, not the subsidiary. In any event, the judgments delivered and to be delivered in the actions of the parent companies, including the judgment in Case T-24/05, have the effect of res judicata as between persons which are jointly and severally liable.

Third, the General Court should not have declared inadmissible on grounds of lack of clarity the appellant’s argument that the Commission had imposed a fine which, as the parent companies were not liable, failed to observe the ceiling of 10 % of turnover. The reasons are the same as those referred to in the preceding paragraph: only the parent companies have the capacity to refute the imputation of liability and the judgment given has the effect of res judicata as between persons which are jointly and severally liable.

Finally, the Commission infringed the Guidelines on the method of setting fines since it failed to take into account that, during 1996 and 1997, WWTE did not respect the agreements. Furthermore, the appellant submits that, in having failed to include an express reference to that attenuating circumstance in the contested decision, the Commission cannot maintain that it took it into account.
2.

Does a regulation, under which a fine can be imposed on a person who has not registered on the register of taxable persons for the purposes of VAT, in an amount equivalent to the tax that would normally be due for the value of the goods supplied, even though that person would not have to pay the tax if he had registered on the register, comply with the principle of proportionality?