ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 204/16

Appeal brought on 27 April 2011 by Union of European Football Associations (UEFA) against the judgment of the General Court (Seventh Chamber) delivered on 17 February 2011 in Case T-55/08: Union of European Football Associations (UEFA) v European Commission

(Case C-201/11 P)

2011/C 204/30

Language of the case: English

Parties

Appellant: Union of European Football Associations (UEFA) (represented by: D. Anderson QC, D. Piccinin, Barrister, B. Keane, Solicitor, T. McQuail, Solicitor)

Other parties to the proceedings: European Commission, Kingdom of Belgium, United Kingdom of Great Britain and Northern Ireland

Form of order sought

The appellant submits that the contested judgment should be set aside on the following grounds:

(a) The General Court erred in law in the application of the Directive 89/552 (1), both as regards the requirement of clarity and transparency and the characterisation of the EURO as an event of major importance for society.

(b) The General Court erred in law in the application of the Treaty provisions concerning competition.

(c) The General Court erred in law in the application of the Treaty provisions concerning the freedom to provide services and proportionality.

(d) The General Court erred in law in the application of UEFA's right to property.

(e) The General Court erred in law by finding that the contested decision contained an adequate statement of reasons in respect of (i) the characterization of the EURO as an event of major importance for society, (ii) competition, (iii) freedom to provide services, and (iv) property rights.

(1) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities

OJ L 298 p. 23
3.

If the reply to the second question is also in the affirmative: can a person who has acquired a ‘used’ software licence for generating a program copy as ‘lawful acquirer’ under Article 5(1) and the first half-sentence of Article 4(2) of Directive 2009/24 also rely on exhaustion of the right to distribute the copy of the computer program made by the first acquirer with the rightholder’s consent by downloading the program from the internet onto a data carrier if the first acquirer has erased his program copy or no longer uses it?
3.

In the alternative , should the Court find that it is appropriate in this instance to have recourse to enhanced cooperation and that it is possible to establish substantive rules for legal rights subject to EU law without making provision for a dispute resolution system in relation to those rights, the Kingdom of Spain submits that the necessary conditions for enhanced cooperation are not met for the following reasons: 3.1. infringement of Article 20(1) TEU , since in this instance enhanced cooperation is not a last resort and does not fulfil the objectives provided for in the TEU and since areas are referred to which are not within the scope of enhanced cooperation as they are exclusive competence of the EU. 3.2. infringement of Article 326 TFEU , since enhanced cooperation in this instance infringes the principle of non-discrimination and undermines the internal market and economic, social and territorial cohesion, constituting discrimination in trade between Member States and distorting competition between them. 3.3. infringement of Article 327 TFEU , since the enhanced cooperation does not respect the rights of the Kingdom of Spain, which is not participating in it.
EN Official Journal of the European Union C 219/6

Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Gdańsku (Republic of Poland), lodged on 9 May 2011 — Grand Sp. z o.o. v Dyrektor Izby Celnej w Gdyni

(Case C-214/11)

2011/C 219/07

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny w Gdańsku

Parties to the main proceedings

Applicant: Grand Sp. z o.o.

Defendant: Dyrektor Izby Celnej w Gdyni

Question referred

Must Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (1) and of rules on Information Society services be interpreted as meaning that the term ‘technical regulation’, the draft of which must be communicated to the Commission pursuant to Article 8(1) of that directive, includes a legislative measure which prohibits the extension of authorisations to carry on an activity involving gaming on low-value-prize machines?

(1) Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 217, p. 18).
EN Official Journal of the European Union C 226/17

Appeal brought on 30 May 2011 by the European Commission against the judgment delivered by the General Court (Third Chamber) on 22 March 2011 in Case T-369/07 Republic of Latvia v European Commission

(Case C-267/11 P)

2011/C 226/32

Language of the case: Latvian

Parties

Appellant: European Commission (represented by: E. White and I. Rubene)

Other parties to the proceedings: Republic of Latvia, Republic of Lithuania, Slovak Republic, United Kingdom of Great Britain and Northern Ireland

Form of order sought

— Set aside the judgment under appeal.

— Order the Republic of Latvia to pay the costs.

Grounds of appeal and main arguments

The single ground of appeal is based on a failure to respect the three-month time-limit laid down in Article 9(3) of Directive 2003/87/EC. (1)

The Commission considers that, in its analysis, the General Court treated the first and second sentences of Article 9(3) as one and, consequently, that its interpretation is not in line with the objectives laid down in that paragraph.

That interpretation of Article 9(3) of the directive is contrary to the interpretation which the General Court adopted in another case, in which it rightly considered that the second sentence of Article 9(3) constituted a separate legal basis.

In its interpretation of Article 9(3) of the directive, the Commission relies on the literal wording of the provision, which is fully in line with the objective pursued by that provision. Consequently, if the Commission rejects the national allocation plan notified by a Member State, the latter will be required to amend that plan taking account of the Commission's objections and will not be able to execute the plan until the Commission has approved the amendments, for which there is no time-limit.

The Commission notes that the contested decision was a decision on the amendments to the national allocation plan and not on the notified national allocation plan itself.

However, given that the General Court did not consider that the second sentence of Article 9(3) of the directive established a different procedure, it found itself required to consider the notified amendments as notification of a new national allocation plan and, as a result, required to apply the three-month time-limit incorrectly.

(1) OJ 2003 L 275, p. 32.
First of all, the General Court infringed the fundamental right to a fair hearing (Article 6 ECHR in conjunction with Article 6(3) TEU and the second paragraph of Article 47 of the Charter of Fundamental Rights) and the rights of the defence (Article 48(2) of the Charter of Fundamental Rights) in that it based its finding that the appellant had participated in the cartel in the period from 22 April to 1 September 1999 conclusively on the testimony of a witness, without having given the appellant the possibility of questioning that witness.
First plea in law: infringement of Articles 107 TFEU, 108 TFEU and 296 TFEU in so far as the General Court erroneously and on the basis of insufficient reasoning considered the Broadcasting Reserve Fund (FOR) monies and transfer back to the NPO of certain built-up reserves by individual broadcasting entities to be a form of grant of new aid

The General Court erred in interpreting and applying the concepts of aid, existing aid and new aid within the meaning of Article 107 TFEU et seq. by finding that the availability of FOR funds and the transfer back to the NPO by individual Dutch broadcasting entities of certain built-up reserves must be deemed to be a grant of new aid, without providing sufficient reasoning in that regard.
2.

Is it consistent with European Union law if, during proceedings to amend a decision relating to an application for invalidation of a utility model, the measures, procedures and legal remedies are applied in such a way that: the national court, when making its decision, is not bound by the administrative decision made in relation to the application for invalidation, or by the findings established therein, nor, specifically, by the grounds for invalidation indicated during the administrative procedure, or by the declarations, assertions or evidence submitted during the administrative procedure?
—

Declare that, by approving and maintaining in force Articles 3.60 and 3.61 of the 2001 Law on income tax (Wet inkomstenbelasting) and Articles 15c and 15d of the 1969 Law on corporation tax (Wet Vennootschapsbelasting), as currently in force, the Kingdom of the Netherlands has failed to fulfil its obligations under the Treaty on the Functioning of the European Union, in particular Article 49 thereof;
EN Official Journal of the European Union C 252/19

Appeal brought on 9 June 2011 by the European Commission against the judgment delivered on 29 March 2011 by the General Court (Third Chamber) in Case T-33/09 Portuguese Republic v European Commission

(Case C-292/11 P)

2011/C 252/34

Language of the case: Portuguese

Parties

Appellant: European Commission (represented by P. Hetsch, P. Costa de Oliveira and M. Heller)

Other party to the proceedings: Portuguese Republic

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of 29 March 2011 in Case T-33/09 Portuguese Republic v Commission;

— rule on the matters that are the subject of this appeal and were the subject of the action before the General Court, and dismiss the Portuguese Republic’s claim for annulment of the Commission’s decision of 25 November 2008 demanding payment of the penalty payment;

— order the Portuguese Republic to bear, in addition to its own costs, those incurred by the Commission both at first instance and in this appeal.

Pleas in law and main arguments

The General Court erred in law by: (i) misappraising both the powers of the Commission with regard to compliance with judgments of the Court of Justice made pursuant to Article 260(2) TFEU and its own jurisdiction to review the Commission’s actions; (ii) by ruling in the contested judgment, on the basis of an incomplete reading of the operative part of the judgment of the Court of Justice of 2004, that there had been failure to fulfil obligations, thereby infringing Article 260(2) TFEU. Furthermore, on any view the General Court’s judgment is marred by an error of law, for the General Court was in breach of its duty to state reasons, in that it decided on the basis of insufficient, contradictory reasoning that the Commission had overstepped the bounds of the infringement as found by the Court of Justice.
EN Official Journal of the European Union C 269/27

Appeal brought on 20 June 2011 by Smart Technologies ULC against the judgment of the General Court (Second Chamber) delivered on 13 April 2011 in Case T-523/09: Smart Technologies ULC v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-311/11 P)

2011/C 269/50

Language of the case: English

Parties

Appellant: Smart Technologies ULC (represented by: M. Edenborough QC, T. Elias, Barrister, R. Harrison, Solicitor)

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

Form of order sought

The appellant seeks an order that:

— the Judgment of 13 April 2011 in Case T-523/09 Smart Technologies v OHIM (WIR MACHEN DAS BESONDERE EINFACH) be set aside;

— The Decision of the Board of Appeal of OHIM of 29 September 2009 be altered to state that the mark applied for possesses sufficient distinctive character such that no objection to its registration may be raised under Article 7(1)(b) of Regulation No. 207/2009;

— In the alternative, that the Decision of the Second Board of Appeal of OHIM of 29 September 2009 be annulled;

— The Defendant pay to the Appellant the Appellant's costs of and occasioned by this appeal and of the proceedings before the General Court and the Board of Appeal.

Pleas in law and main arguments

The Appellant contests the Judgment of the General Court on the following grounds:

— The General Court did not analyse the distinctiveness of the Appellant’s application on its own terms, but by reference as to whether it was or was not a ‘mere’ advertising slogan. The Appellant submits that this is wrong in law and that the correct approach is to analyse distinctiveness by reference to the relevant goods and service and the relevant public. To conclude that there is no distinctive character in the Application because the Application is a mere advertising slogan is to carry out the wrong test as set out in established case law.

— The General Court erred in law by considering that it is harder to establish distinctiveness in relation to an advertising slogan than in relation to any other form of word mark.

— The General Court erred in law in asserting that it was entitled to assume as a well-known fact a matter which required to be proved by evidence, i.e. that consumers do not accord trade mark value to marketing claims.

— The Appellant finally submits that a mark need have only a minimum degree of distinctive character in order to render refusal under Article 7(1)(b) of Council Regulation (EC) no 207/2009 (1) on the Community trade mark inapplicable.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1
EN Official Journal of the European Union C 269/28

Appeal brought on 22 June 2011 by Longevity Health Products, Inc. against the order of the General Court (Second Chamber) delivered on 15/04/2011 in Case T-96/11: Longevity Health Products, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-316/11 P)

2011/C 269/52

Language of the case: English

Parties

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

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

Form of order sought

The applicant claims that the Court should:

— Admit the complaint filed by the company Longevity Health Products, Inc.;

— Annul the decision of the General Court of April 15, 2011, T-96/11;

— Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

The applicant submits that the contested order should be annulled on the following grounds:

— The reasoning of the General Court is defective;
EN Official Journal of the European Union C 282/13

Action brought on 13 July 2011 — European Commission v Ireland

(Case C-374/11)

2011/C 282/24

Language of the case: English

Parties

Applicant: European Commission (represented by: E. White, I. Hadjiyiannis, A. Marghelis, agents)

Defendant: Ireland

The applicant claims that the Court should:

— declare that, by failing to take the necessary measures to comply with the judgment of this Court in Case C-188/08 Commission v Ireland, Ireland has failed to fulfil its obligations wider Article 260 TFEU;

— order Ireland to pay to the Commission a lump sum of EUR 4 771,20 multiplied by the number of days between the judgment in Case C-188/08 and the judgment in the present proceedings (or full compliance by Ireland with the judgment in Case C-188/08 if that should be achieved during the pendency of these proceedings);

— order Ireland to pay to the Commission a daily penalty payment of EUR 26 173,44 from the date of the judgment in the present proceedings to the date of compliance by Ireland with the judgment in Case C-188/08; and

— order Ireland to pay the costs of this action.

Pleas in law and main arguments

More than one and a half years have elapsed since the Court’s judgment in Case C-188/08. The Commission considers that this should have been sufficient time for Ireland to comply with the judgment of the Court. It notes, indeed, that Ireland announced that it intended to have the required legislation adopted by the end of 2010. However that goal has not been respected and Ireland does not appear to be close to achieving full compliance. Accordingly, the Commission considers that Ireland has failed to satisfy its obligation under Article 260(1) TFEU.
1.

Must Article 15 of Regulation No 343/2003 (1) be interpreted as meaning that a Member State prima facie not responsible for examining the asylum claim of a person in accordance with the rules of Articles 6 to 14 of that regulation becomes automatically responsible if in that country the asylum-seeker has a daughter-in-law who is seriously ill and, on account of cultural factors, at risk or has grandchildren below the age of majority who, as a result of the daughter-in-law’s illness, are in need of care and the asylum-seeker is both willing and able to support her daughter-in-law and grandchildren? Does the same apply even if the Member State prima facie responsible has not made a request in accordance with the second sentence of Article 15(1) of Regulation No 343/2003?
EN Official Journal of the European Union C 290/6

Action brought on 27 July 2011 — European Commission v Kingdom of Spain

(Case C-403/11)

2011/C 290/09

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: G. Valero Jordana and I. Hadjiyiannis, Agents)

Defendant: Kingdom of Spain

Form of order sought

The Commission claims that the Court should:

— Declare that the Kingdom of Spain has failed to fulfil its obligations under Article 13(1), (2), (3) and (6) (with the exception of the river basin district of Catalonia), Article 14(1)(c) (with the exception of the river basin management plans for the river basin district of Catalonia, the Balearic Islands, Tenerife, Guadiana, Guadalquivir, Andalusian Mediterranean basin, Tinto-Odiel-Piedras, Guadalete-Barbate, Galicia-Costa, Miño-Sil, Duero, Cantábrico Occidental and Cantábrico Oriental), and Article 15(1) (with the exception of the river basin district of Catalonia) of Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (‘the directive’).

— Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Infringement of Articles 13 and 15 of the directive:

Since Spain has not adopted or published national river basin management plans (with the exception of the management plan for the river basin district of Catalonia), the Commission did not receive a copy of these plans either by 22 March 2010, the time-limit laid down in the directive, and has not received them to date. Consequently, the Commission considers that Spain has failed to fulfil its obligations under Article 15(1) of the directive (with the exception of the management plan for the river basin district of Catalonia).

Infringement of Article 14 of the directive:

With regard to Article 14(1)(c) of the framework directive, in conjunction with Article 13(6) of that directive, the Commission considers that, in addition to the river basin district of Catalonia whose plan has already been adopted, the public information and consultation process in relation to the draft river basin management plans has already begun in twelve other river basin districts: the Balearic Islands, Tenerife, Guadiana, Guadalquivir, Andalusian Mediterranean basin, Tinto-Odiel-Piedras, Guadalete-Barbate, Galicia-Costa, Miño-Sil, Duero, Cantábrico Occidental and Cantábrico Oriental.

The Commission concludes that, with the exception of those thirteen river basin districts, Spain has failed to fulfil its obligations under Article 14(1)(c) of the directive.

(1) OJ 2000 L 327, p. 1.
EN Official Journal of the European Union C 282/3

Reference for a preliminary ruling from the Juzgado de lo Mercantil de A Coruña (Spain) lodged on 28 June 2011 — Germán Rodríguez Cachafeiro and Maria Reyes Martínez-Reboredo Varela-Villamayor v Iberia Líneas Aéreas de España S.A.

(Case C-321/11)

2011/C 282/04

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil de A Coruña

Parties to the main proceedings

Applicants: Germán Rodríguez Cachafeiro and Maria Reyes Martínez-Reboredo Varela-Villamayor

Defendant: Iberia Líneas Aéreas de España S.A.

Question referred

May the definition of ‘denied boarding’ contained in Article 2(j), in conjunction with Article 3(2) and 4(3), of Regulation (EC) No 261/2004, (1) be regarded as including a situation in which an airline refuses to allow boarding because the first flight included in the ticket is subject to a delay ascribable to the airline and the latter erroneously expects the passengers not to arrive in time to catch the second flight, and so allows their seats to be taken by other passengers?

(1) Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004

establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (Text with EEA relevance) — Commission Statement; OJ 2004 L 46, p. 1.
3.

Under Articles 27 and 70 of the TRIPS Agreement, do patents covered by the reservation in Article 167(2) of the 1973 Munich Convention which were granted before 7 February 1992, that is to say, before the above agreement entered into force, and concerned the invention of pharmaceutical products, but which, because of the aforementioned reservation, were granted solely to protect their production process, fall within the protection for all patents pursuant to the provisions of the TRIPS Agreement and, if so, what is the extent and content of that protection, that is to say, have the pharmaceutical products themselves also been protected since the above agreement entered into force or does protection continue to apply to their production process only or must a distinction be made based on the content of the application for grant of a patent, that is to say, as to whether, by describing the invention and the relevant claims, protection was sought at the outset for the product or the production process or both?
EN Official Journal of the European Union C 298/12

Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 18 July 2011 — DI. VI. Finanziaria S.A.P.A. di Diego della Valle & C. v Administration des contributions directes

(Case C-380/11)

2011/C 298/23

Language of the case: French

Referring court

Tribunal administratif

Parties to the main proceedings

Applicant: DI. VI. Finanziaria S.A.P.A. di Diego della Valle & C.

Defendant: Administration des contributions directes

Question referred

Is Article 49 of the Treaty on the Functioning of the European Union to be interpreted as precluding a measure, such as that governed by Paragraph 8a of the Law on capital tax of 16 October 1934, as amended, subparagraph 1 of which makes the grant of a reduction in capital tax conditional upon remaining liable to Luxembourg capital tax for the next five tax years?