ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 80/16

Reference for a preliminary ruling from the Cour d’appel (Luxembourg) lodged on 18 January 2010 — Heiko Koelzsch v État du Grand-Duché de Luxembourg

(Case C-29/10)

2010/C 80/30

Language of the case: French

Referring court

Cour d’appel

Parties to the main proceedings

Applicant: Heiko Koelzsch

Defendant: État du Grand-Duché de Luxembourg

Questions referred

Is the rule of conflict in Article 6(2)(a) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations, (1) which states that an employment contract is governed by the law of the country in which the employee habitually carries out his work in performance of the contract, to be interpreted as meaning that, in the situation where the employee works in more than one country, but returns systematically to one of them, that country must be regarded as that in which the employee habitually carries out his work?

(1) Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1).
2.

Are national provisions which also use the model of the European pet passport, as contained in Commission Decision 2003/803/EC of 26 November 2003 establishing a model passport for the intra-Community movements of dogs, cats and ferrets, as proof of the identification and registration of dogs and in so doing make provision for third parties to make changes regarding the identification of the owner and the animal in Parts I to III of such a passport by means of identification stickers, technical regulations within the meaning of Article 1 of Directive 98/34/EC (3) 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, which under Article 8 of that directive must be communicated to the European Commission before they are enacted?
EN Official Journal of the European Union C 113/16

Action brought on 20 January 2010 — European Commission v Kingdom of Denmark

(Case C-33/10)

2010/C 113/24

Language of the case: Danish

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro, H. Støvlbæk, acting as Agents)

Defendant: Kingdom of Denmark

Form of order sought

— Declare that, by not adopting all the measures necessary to ensure that by, 30 October 2007, all permits were reconsidered and, where necessary, updated, the Kingdom of Denmark has failed to comply with its obligations under Article 5(1) of Directive 2008/1/EC (1) of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control;

— order Kingdom of Denmark to pay the costs.

Pleas in law and main arguments

Article 5(1) of the Directive requires all Member States to enact measures with a view to implementing a permit and/or review procedure for existing installations by 30 October 2007. That time-limit applies without exception and the Directive does not allow the Member States to rely on exceptional circumstances as grounds for not complying with the obligation.

It is not sufficient that measures have been adopted in Denmark with a view to ensuring closure of all cases relating to compliance with Article 5(1) of the Directive by the end of 2009. Nor can delays resulting from the municipal reform of 1 January 2007 be accorded any weight in the assessment of whether Denmark has complied with its obligations under Article 5(1). The time-limit laid down for legalising installations expired on 30 October 2007 and was notified to Member States as early as 22 September 2005. Denmark has thus had a number of years in which to adopt the necessary measures to comply with the Directive.

Denmark has not contested its failure to implement requirements for the granting of permits for existing installations. It is thus uncontested that a significant number of the eight Danish installations are operated without permits under the Directive, contrary to Article 5(1) of the Directive.

(1) OJ 2008 L 24, p. 8.
2.

If Article 12(1) of the Seveso II Directive is also addressed to the planning permission authorities who have to take a non-discretionary decision on the authorisation of a project in an already built-up area: Do the abovementioned obligations include the prohibition on authorising the siting of a building of public use which fails to maintain — as required by the principles applicable to overall planning — an appropriate distance from an existing establishment, where there are already several comparable buildings of public use close to the establishment, where the operator does not — as a result of the new project — have to reckon with additional requirements concerning the limitation of the consequences of an accident, and where the requirements relating to healthy living and working conditions are satisfied?
3.

that a refund of VAT is made by means of a tax assessment notice, in which the amount subject to a refund is set off against VAT debts assessed by the same notice and against other tax debts and State claims for various tax periods and interest charged on those sums up to the date of issue of the tax assessment notice, if at the tax inspection it has been established that the amount of the tax refund declared was correct and at the same time the following circumstances exist: (a) in the tax inspection procedure, the provision of provisional security in respect of the State’s future claims which might be established in the course of the procedure up to the issue of the tax assessment notice, has not been allowed, (b) national legislation does not provide for setting off against claims of the State as a means of compulsory enforcement or as a measure for providing security, (c) the periods for challenging and voluntarily paying the principal sums and interest which had been offset had not expired, because they had been assessed by means of the same tax assessment notice, and part of them had also been challenged before the court?
—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/81/EC of 28 November 2005 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings, (1) and in any event by not communicating such measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
1.

Does the scope of Article 22(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) also extend to proceedings in which a company or legal person objects, with regard to a claim made against it stemming from a legal transaction, that decisions of its organs which led to the conclusion of the legal transaction are ineffective as a result of infringements of its articles of association?
2.

Does Article 67 of the Treaty on the Functioning of the European Union, signed at Lisbon on 13 December 2007, preclude legislation such as that resulting from Article 78-2, paragraph 4, of the Code of Criminal Procedure, which provides that ‘in a zone between the land border of France with the States party to the Convention signed at Schengen on 19 June 1990 and a line traced 20 kilometres inside that border, and in the zones accessible to the public of ports, airports and railway or bus stations open to international traffic and designated by order, the identity of any person may also be controlled, in accordance with the procedure provided for in paragraph 1, in order to check that the obligations laid down by the law to hold, carry and present papers and documents are observed. Where that control takes place on board an international train, it may be carried out on the part of the journey between the border and the first stop situated beyond the twenty kilometres from the border. However, on international trains on lines with particular service characteristics the control may also be carried out between that stop and a stop situated within the next fifty kilometres. Those lines and those stops are designated by Ministerial order. Where there is a section of motorway starting in the zone referred to in the first sentence of this paragraph and the first motorway toll is beyond the twenty kilometre line, the control may also take place up to that first toll, on parking areas and on the site of that toll and the adjoining parking areas. The tolls concerned by that provision shall be designated by order’?
2.

If the answer to the first question is that the Postal Directive does not, as such, preclude Member States from imposing on the providers of non-universal postal services a mandatory external complaints scheme as envisaged by the first subparagraph of Article 19(2) for the providers of universal postal services, must the principles relating to the free movement of services (Article 49 et seq. EC; now Article 56 et seq. TFEU) be interpreted in such a way that restrictions on the free movement of services, introduced by a Member State on grounds of compelling reasons in the general interest relating to consumer protection, whereby the providers of non-universal postal services are made subject to a mandatory external complaints scheme as envisaged by the first subparagraph of Article 19(2) for the providers of universal postal services, can be considered compatible with the TFEU even if, in the application of the complaints scheme concerned, no distinction is made between the complaints of consumers and those of other end-users, although the vast majority of the users of those services (in the present case, express and courier services) are professional users?
1.

Is the introduction of a pollution tax for the period from 1 July 2008 to 15 December 2008 under the Romanian legislation in question (Emergency Order No 50/2008) consistent with the principles of customs union and the prohibition on double taxation established in Articles 23 TEC, 25 TEC and 90 TEC, in so far as those Treaty provisions permit the introduction of a pollution tax for the purpose set out by the Romanian legislature in the preamble to Emergency Order No 50/2008, a purpose which is also provided for in Article 174 TEC et seq, namely to ensure the protection of the environment through the implementation of programmes and projects intended to improve air quality and to attain the limit values laid down by the relevant Community legislation? In other words, more specifically: where a pollution tax is introduced in a Member State of the European Union which is levied on the first registration in that State of new or second-hand motor vehicles imported from another Member State, can the provisions in Article 174 TEC et seq be regarded as justifying the disapplication of Articles 23 TEC, 25 TEC and 90 TEC?
1.

Is a system of penalties under which it is mandatory to impose identical financial penalties of up to HUF 100 000 for any breach of the requirements laid down in Articles 13 to 16 of Council Regulation No 3821/85/EEC (1) concerning the use of record sheets for recording equipment in road transport consistent with the requirement of proportionality laid down by Article 19(1) and (4) of Regulation (EC) No 561/2006 (2) of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85?
EN Official Journal of the European Union C 179/19

Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 14 April 2010 — Mathilde Grasser v Freistaat Bayern

(Case C-184/10)

2010/C 179/31

Language of the case: German

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Mathilde Grasser

Defendant: Freistaat Bayern

Question referred

Are Articles 1(2) and 8(2) and (4) of Directive 91/439/EEC (1) to be interpreted as meaning that a host Member State is entitled to refuse to recognise a driving licence issued by another Member State where entries appearing in the driving licence show that Article 7(1)(b) of that directive has been infringed, if the host Member State has not previously applied to the holder of the licence a measure under Article 8(2) of Directive 91/439/EEC?

(1) Council Directive 91/439/EEC of 29 July 1991 on driving licences; OJ 1991 L 237, p. 1.
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (1), and in any event by not communicating such measures to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;
1.

Are Articles 1, 2 and 3 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (1) to be interpreted as applying to a termination of activities as a result of a declaration that the employer is insolvent or a judicial decision ordering the dissolution and winding-up, on grounds of insolvency, of the credit institution which is the employer on the basis of Article 61(l)(a) and (b) of the amended Law of 5 April 1993 relating to the financial sector, in respect of which termination the national legislation provides for the termination of employment contracts with immediate effect?
EN Official Journal of the European Union C 221/25

Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 31 May 2010 — Lotta Gistö

(Case C-270/10)

()

2010/C 221/39

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: Lotta Gistö

Other party: Veronsaajien oikeudenvalvontayksikkö

Question referred

Is Article 14 of the Protocol (1) to be interpreted in Lotta Gistö’s case as meaning that, in accordance with the provisions of the Protocol, her residence for tax purposes in 2007 is still Finland, or does the Protocol mean in this case that ultimately, however, the provisions of the domestic legislation of the Member State decide the question of general tax liability in a Member State, in this case Finland?

(1) Protocol (No 36) on the privileges and immunities of the European Communities (1965),

OJ 2006 C 321 E, p. 318.
1.

Is Article 5(3) of Regulation (EC) No 261/2004 (1) 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, to be interpreted as meaning that an air carrier is required, in order to be found to have taken all reasonable measures to avoid extraordinary circumstances, to organise its resources in good time so that it is possible to operate a programmed flight once the unforeseen extraordinary circumstances have ceased to obtain, that is to say, during a certain period following the scheduled departure time?
EN Official Journal of the European Union C 234/28

Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 1 July 2010 — Danske Svineproducenter v Justitsministeriet

(Case C-316/10)

()

2010/C 234/45

Language of the case: Danish

Referring court

Vestre Landsret

Parties to the main proceedings

Applicant: Danske Svineproducenter

Defendant: Justitsministeriet

Question referred

Is the second paragraph of Article 249 EC [now the second paragraph of Article 267 TFEU] and Article 37 of Council Regulation No 1/2005 (1) on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97, and also Article 3(f) and (g), together with point 1.1(f) and point 1.2 of Chapter II, together with Part D of Chapter VII of Annex I to that regulation to be interpreted as meaning that Member States are precluded from adopting national rules which lay down detailed requirements for internal transport height, inspection height and loading density?

(1) Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 (OJ 2005 L 3, p. 1)
2.

Are Articles 17(1), 17(2)(a), 17(3)(a) and 18(1)(a) of Directive 77/388 [now Articles 167, 168(a), 169(a) and 178(a) of Directive 2006/112] to be interpreted as meaning that provision must be made in national procedural law to ensure that the taxability and liability to tax of one and the same service are assessed in the same way in relation to the trader providing the service and the trader receiving it, even where the two traders fall within the jurisdiction of different tax authorities?
EN Official Journal of the European Union C 246/19

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 7 June 2010 — Telefónica de España, S.A. v Administración del Estado

(Case C-284/10)

()

2010/C 246/32

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Telefónica de España, S.A

Defendant: Administración del Estado

Question referred

Does Directive 97/13/EC (1) of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services and, in particular, Article 6 thereof, permit Member States to charge holders of general authorisations an annual fee which is calculated on the basis of a percentage of gross operating income invoiced in the relevant year, subject to such amount not exceeding two per thousand, and which is applied for the purpose of defraying the costs, including management costs, incurred by the telecommunications regulatory body in the implementation of the scheme of licences and general authorisations, as provided for in Article 71 of Law 11/1998 of 24 April 1998 on telecommunications?

(1) OJ 1997 L 117, p. 15.
EN Official Journal of the European Union C 234/29

Action brought on 7 July 2010 — European Commission v Kingdom of Spain

(Case C-343/10)

()

2010/C 234/47

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: S. Pardo Quintillán, Agent)

Defendant: Kingdom of Spain

Form of order sought

— Declare that, by failing to ensure that — urban waste water from the agglomerations with a population equivalent of more than 15 000 of Valle de Güimar, Noreste (Valle Guerra), Valle de la Orotava, Arenys de Mar, Alcossebre and Cariño is collected in conformity with Article 3 of Directive 91/271/EEC, (1) and — urban waste water from the agglomerations with a population equivalent of more than 15 000 of Arroyo de la Miel, Arroyo de la Víbora, Estepota (San Pedro de Alcántara), Alhaurín el Grande, Coín, Barbate, Chipiona, Isla Cristina, Matalascañas, Nerja, Tarifa, Torrox Costa, Vejer de la Frontera, Gijón-Este, Llanes, Valles de Güimar, Noreste (Valle Guerra), Los Llanos de Aridane, Arenys de Mar, Pineda de Mar, Ceuta, Alcossebre, Benicarló, Elx (Arenales), Peñíscola, Teulada Moraira (Rada Moraira), Vinaròs, A Coruña, Cariño, Tui, Vigo, Aguiño-Carreira-Ribeira, Baiona, Noia, Santiago, Viveiro and Irán (Hondarribia) is treated in conformity with Article 4(1), (3) and, where applicable, (4) of the directive, the Kingdom of Spain has failed to fulfil its obligations under the cited provisions of Directive 91/271/EEC;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

In accordance with Article 3(1) and Article 4(1) of Directive 91/271/EEC, agglomerations with a population equivalent of more than 15 000 had to be provided with collecting systems and subjected to secondary treatment or an equivalent for urban waste water by 31 December 2000 at the latest.

In accordance with Article 3(2) of the directive, the collecting systems for urban waste water have to satisfy the requirements of Annex I (A).

As regards the obligations to treat urban waste water, Article 4(1) of the directive imposes on the Member States the obligation to ensure that, before discharge, waste water entering collecting systems is subjected to secondary treatment or an equivalent treatment.

Pursuant to Article 4(3) of the directive, discharges from treatment plants are to satisfy the relevant requirements of Annex I (B). For its part, Annex I (B) referred to the requirements set out in table I of that annex. Finally, the methods for monitoring set out in Annex I (D) make it possible to verify whether discharges from urban waste water treatment plants satisfy the requirements laid down in Annex I (B).

In respect of the 38 agglomerations concerned, the Kingdom of Spain has failed to satisfy the requirements laid down in the directive.

(1) Council Directive of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40).
—

Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), (1) or in any event by not communicating such measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 246/20

Reference for a preliminary ruling from the Rechtbank van Koophandel te Dendermonde (Belgium) lodged on 2 June 2010 — Wamo BVBA v JBC NV and Modemakers Fashion NV

(Case C-288/10)

()

2010/C 246/34

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Dendermonde

Parties to the main proceedings

Applicant: Wamo BVBA

Defendants:

JBC NV

Modemakers Fashion NV

Question referred

Does Directive 2005/29/EC (1) of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices preclude a national provision such as that laid down in Article 53 of the Wet van 14 juli 1991 betreffende de handelspraktijken en de voorlichting en bescherming van de consument (Law of 14 July 1991 on commercial practices and consumer information and protection, ‘WHP’) which prohibits announcements of price decreases and suggestions of such decreases during defined periods?

(1) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).
EN Official Journal of the European Union C 260/4

Reference for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 16 June 2010 — Land Berlin v Alexander Mai

(Case C-298/10)

()

2010/C 260/04

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: Land Berlin

Defendant: Alexander Mai

Question referred

Taking into account the right of parties to a collective agreement to collective bargaining which is guaranteed by primary law (now Article 28 of the Charter of Fundamental Rights of the European Union, ‘CFREU’), does a collective pay agreement for public sector employees, which, as in Paragraph 27 of the Bundes-angestelltentarifvertrag (Federal collective agreement for contractual public sector employees, ‘BAT’) in conjunction with the Vergütungstarifvertrag (collective pay agreement) No 35 under the BAT, determines basic pay in individual salary groups by age categories, infringe the primary-law prohibition of age discrimination (now Article 21(1) of the CFREU) as given expression by Directive 2000/78/EC? (1)

(1) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; OJ 2000 L 303, p. 16.