ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 123/11

Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 31 January 2013 — Posteshop SpA — Divisione Franchising Kipoint v Autorità Garante della Concorrenza e del Mercato, Presidenza del Consiglio dei Ministri

(Case C-52/13)

2013/C 123/16

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Posteshop SpA — Divisione Franchising Kipoint

Defendants: Autorità Garante della Concorrenza e del Mercato, Presidenza del Consiglio dei Ministri

Question referred

With regard to the protection to be afforded to traders, is Directive 2006/114/EC (1) to be interpreted as referring to advertising that is misleading and at the same time based on unlawful comparison, or to two separate offences, each of which may be relevant in its own right, namely misleading advertising and unlawful comparative advertising?

(1) Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (OJ 2006 L 376, p. 21.
EN Official Journal of the European Union C 114/24

Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 15 January 2013 — Simon, Evers & Co GmbH v Hauptzollamt Hamburg-Hafen

(Case C-21/13)

2013/C 114/37

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicants: Simon, Evers & Co GmbH

Defendant: Hauptzollamt Hamburg-Hafen

Question referred

Is Council Regulation (EC) No 499/2009 of 11 June 2009 extending the definitive anti-dumping duty imposed by Council Regulation (EC) No 1174/2005 on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China to imports of the same product consigned from Thailand, whether declared as originating in Thailand or not, (1) invalid because the Commission, by misjudging the requirements arising from Article 13 of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community concerning the finding of a circumvention of anti-dumping duty measures, (2) presumed that there was a circumvention merely because the volume of exports in question from Thailand increased significantly after the imposition of the measures, although the Commission, with reference to the lack of cooperation from Thai exporters, made no further specific findings?

(1) OJ 2009 L 151, p. 1.

(2) OJ 1996 L 56, p. 1.
1.

Does Article 41(1) of the Additional Protocol of 23 November 1970 to the Agreement of 12 September 1963 establishing an Association between the European Economic Community and Turkey for the transitional stage of the Association (Additional Protocol) preclude a provision of national law which was introduced for the first time after the abovementioned provisions had come into force and which makes the first entry of a member of the family of a Turkish national who enjoys the legal status under Article 41(1) of the Additional Protocol conditional on the requirement that, prior to entry, the family member can demonstrate the ability to communicate, in a basic way, in the German language?
EN Official Journal of the European Union C 156/22

Action brought on 19 March 2013 — European Commission v Kingdom of Belgium

(Case C-139/13)

2013/C 156/34

Language of the case: French

Parties

Applicant: European Commission (represented by: D. Maidani and G. Wils, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

— declare that as it did not apply, by 28 June 2009, the time-limit laid down by Article 6 of Regulation (EC) No 2252/2004 (1), the technical specifications for issuing biometric passports containing fingerprints, in accordance with the provisions contained in Commission Decision C(2006) 2909 of 28 June 2006, the Kingdom of Belgium failed to fulfil its obligations under that regulation,

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

In its application, the Commission claims that the Kingdom of Belgium has not adopted the measures necessary to ensure that biometric passports integrating fingerprints are issued within the time-limit laid down by Regulation (EC) No 2252/2004.

(1) Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1)
—

declare that, by not adopting the laws, regulations and administrative provisions necessary to ensure the application of Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities, (1) with regard to self-employed drivers, and in any event by not notifying the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under Articles 2(1), 3 to 7 and 11 of that directive;
EN Official Journal of the European Union C 171/15

Request for a preliminary ruling from the Tribunalul Specializat Cluj (Romania) lodged on 20 March 2013 — Bogdan Matei, Ioana Ofelia Matei v SC Volksbank România SA

(Case C-143/13)

2013/C 171/29

Language of the case: Romanian

Referring court

Tribunalul Specializat Cluj

Parties to the main proceedings

Applicants: Bogdan Matei, Ioana Ofelia Matei

Defendant: SC Volksbank România SA

Questions referred

Having regard to the fact that, in accordance with Article 4(2) of Directive 93/13/EEC, (1) the assessment of the unfair nature of contractual terms must relate neither to the definition of the main subject-matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, in so far as these terms are in plain intelligible language;

and

given that, under Article 2(1)(a) of Directive 2008/48/EC, (2) the definition provided in Article 3(g) of that directive of the total cost of the credit to the consumer, which includes all the fees which the consumer is required to pay in connection with the credit agreement, does not apply for the purposes of determining the subject-matter of a credit agreement secured by a mortgage;

Then:

can the concepts of ‘subject-matter’ and/or of ‘price’ referred to in Article 4(2) of Directive 93/13/EEC be interpreted as meaning that such terms — namely the ‘subject-matter’ and/or the ‘price’ of a credit agreement secured by a mortgage — also cover, among the elements which make up the consideration owed to the credit institution, the annual percentage rate of such a credit agreement secured by a mortgage, which is in particular made up of: the interest rate, whether fixed or variable; bank charges; and other costs included and defined in the credit agreement?

(1) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

(2) Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).
EN Official Journal of the European Union C 178/5

Appeal brought on 16 April 2013 by the Kingdom of Spain against the judgment of the General Court (Eighth Chamber) delivered on 31 January 2013 in Case T-540/10 Spain v Commission

(Case C-197/13 P)

2013/C 178/10

Language of the case: Spanish

Parties

Appellant: Kingdom of Spain (represented by: A. Rubio González, agent)

Other party to the proceedings: European Commission

Form of order sought

— Declare, in any event, that the present appeal is well founded and set aside the judgment of the General Court of 31 January 2013 in Case T-540/10 Spain v Commission.

— Annul Commission Decision C (2010) 6154 of 13 September 2010 reducing the assistance granted from the Cohesion Fund to the project stages: ‘High Speed Line Madrid-Zaragoza-Barcelona-French border. Section Lleida-Martorell (Platform). Subsection IX-A’ (CCI No 2001.ES.16.C.PT.005); ‘High Speed Line Madrid-Zaragoza-Barcelona-French border. Section Lleida-Martorell (Platform). Subsection X-B (Avinyonet del Penedés-Sant Sadurní d’Anoia)’ (CCI No 2001.ES.16.C.PT.008); ‘High Speed Line Madrid-Zaragoza-Barcelona-French border. Section Lleida-Martorell (Platform). Subsections XI-A and XI-B (Sant Sadurní d’Anoia-Gelida)’ (CCI No 2001.ES.16.C.PT.009) and ‘High Speed Line Madrid-Zaragoza-Barcelona-French border. Section Lleida-Martorell (Platform). Subsection IX-C’ (CCI No 2001.ES.16.C.PT.010);

— Order, in any event, the respondent to bear the costs.

Pleas in law and main arguments

Error of law with respect to the effects of the period of time referred to in Article H(2) of Annex II to Council Regulation (EC) No 1164/94 (1) of 16 May 1994 establishing a Cohesion Fund . After the expiry of the period referred to, the Commission may no longer adopt any financial correction measures and, therefore, it is obliged to make payment and the correction applied is unlawful.

Error of law in relation to the concept of an award of a contract within the meaning of Council Directive 93/38/EEC (2) of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors . Points (e) and (f) of Article 20(2) of Directive 93/38 do not apply generally to any amendments whatsoever to public contracts agreed during their execution stage, but to substantive amendments only. A substantive amendment such as to constitute a new award of a contract can be regarded as having arisen only when the conditions laid down in the judgment in Pressetext Nachrichtenagentur (3) are met.

(1) OJ 1994 L 130, p. 1

(2) OJ 1993 L 199, p. 84

(3) Case C-454/06 Pressetext Nachrichtenagentur [2008] ECR I-4401
3.

If the answer to question 2b is in the negative: what circumstances may the national courts take into account when determining the legal consequences, and in particular may they take into account whether it is likely that, without the infringement by the authorities of the European law principle of respect for the rights of the defence, the proceedings would have had a different outcome?
3.

In the event that, also under the abovementioned conditions, the time at which the application was filed is relevant: Is the trade mark to be declared invalid if it is not clarified, and can no longer be clarified, whether it had acquired a distinctive character, following the use made of it, at the time when the application was filed? Or does the declaration of invalidity require the applicant seeking that declaration to prove that the trade mark had not acquired a distinctive character, following the use made of it, at the time when the application was filed?
EN Official Journal of the European Union C 189/5

Appeal brought on 15 April 2013 by nfon AG against the judgment of the General Court (Fourth Chamber) delivered on 29 January 2013 in Case T-283/11 Fon Wireless Ltd. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-193/13 P)

2013/C 189/09

Language of the case: German

Parties

Appellant: nfon AG (represented by: V. von Bomhard, Rechtsanwältin)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Fon Wireless Ltd.

Form of order sought

— Set aside the judgment under appeal;

— In the alternative, set aside the judgment in so far as it upholds a likelihood of confusion on the basis of the earlier Community trade mark No 4719738 ‘fon’ (figure);

— Order the applicant in the proceedings at first instance to pay the costs.

Pleas in law and main arguments

The present appeal is directed against the judgment of the General Court of 29 January 2013 in Case T-283/11, by which the General Court altered the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 March 2011 (Case R 1017/2009-4) relating to opposition proceedings between Fon Wireless Ltd. and nfon AG to the effect that nfon AG’s appeal to the Board of Appeal was dismissed.

The only ground of appeal relied upon by the appellant is an infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. (1) There must, in the examination of the likelihood of confusion under Article 8(1)(b) of Regulation No 207/2009, be a detailed assessment of all the relevant facts of the individual case. The appeal claims that there has been a failure to comply with that requirement in three respects: first, the error of law made in the identification of the distinctive elements of the opposing marks in the comparison of the signs, second, the error made in automatically assuming the existence of a likelihood of confusion and, third, the lack of a comprehensive assessment of the likelihood of confusion on account of the failure to take into account sufficiently the limited distinctiveness of the element ‘fon’.

(1) OJ 2009 L 78, p. 1.
EN Official Journal of the European Union C 207/16

Appeal brought on 29 April 2013 by Metropolitan SpA, formerly Metropolitan Srl, against the order of the General Court (Fourth Chamber) of 20 February 2013 in Joined Cases T-278/00 to T-280/00, T-282/00 to T-286/00 and T-288/00 to T-295/00 Albergo Quattro Fontane and Others v Commission

(Case C-230/13 P)

2013/C 207/28

Language of the case: Italian

Parties

Appellant: Metropolitan SpA, formerly Metropolitan Srl (represented by: A. Bianchini and F. Busetto, avvocati)

Other parties to the proceedings: European Commission, Comitato ‘Venezia vuole vivere’

Form of order sought

— Set aside the order of the General Court under appeal

— Uphold the forms of order sought at first instance and, accordingly, — annul, in so far as is reasonable and in so far as it concerns the appellant, European Commission Decision No 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995; — in the alternative, annul that decision in so far as it imposes an obligation to recover the relief granted and in so far as it requires interest to be added to the amount of relief to be recovered for the periods taken into consideration in the judgment;

— order the Commission to pay the costs incurred both at first instance and on appeal.

Grounds of appeal and main arguments

In support of the appeal, the appellant raises nine grounds of appeal:

First ground: the General Court erred in not taking into consideration the fact that the measures in question did not confer any advantage upon their beneficiaries given their compensatory nature.

Second ground: the Court erred in not excluding, or at least assessing, the likelihood that the measures in question would affect competition and intra-Community trade.

Third ground: the Court erred in holding that the derogations in Article 87(2)(b) EC (now Article 107(2)(b) TFEU) and Article 87(3)(b) EC (now Article 107(3)(b) TFEU) were inapplicable.

Fourth ground: the Court erred in holding that the derogation in Article 87(3)(c) EC (now Article 107(3)(c) TFEU) was inapplicable.

Fifth ground: the Court erred in holding that the derogations in Article 87(3)(d) and (e) EC (now Article 107(3)(d) and (e) TFEU) were inapplicable.

Sixth ground: the Court erred in holding that the derogation in Article 86(2) EC (now Article 106(2) TFEU) was inapplicable.

Seventh ground: the Court erred in not recognising the existence of the aid, thus infringing Article 88(3) EC (now Article 108(3) TFEU) and Article 15 of Regulation No 659/1999. (1)

Eighth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the recovery order.

Ninth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the addition of interest.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).
EN Official Journal of the European Union C 207/14

Appeal brought on 29 April 2013 by Hotel Gabrielli srl, formerly Hotel Gabrielli Sandwirth SpA, against the order of the General Court (Fourth Chamber) of 20 February 2013 in Joined Cases T-278/00 to T-280/00, T-282/00 to T-286/00 and T-288/00 to T-295/00 Albergo Quattro Fontane and Others v Commission

(Case C-228/13 P)

2013/C 207/26

Language of the case: Italian

Parties

Appellant: Hotel Gabrielli srl, formerly Hotel Gabrielli Sandwirth SpA (represented by: A. Bianchini and F. Busetto, avvocati)

Other parties to the proceedings: European Commission, Comitato ‘Venezia vuole vivere’

Form of order sought

— Set aside the order of the General Court under appeal

— Uphold the forms of order sought at first instance and, accordingly, — annul, in so far as is reasonable and in so far as it concerns the appellant, European Commission Decision No 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995; — in the alternative, annul that decision in so far as it imposes an obligation to recover the relief granted and in so far as it requires interest to be added to the amount of relief to be recovered for the periods taken into consideration in the judgment;

— order the Commission to pay the costs incurred both at first instance and on appeal.

Grounds in law and main arguments

In support of the appeal, the appellant raises nine grounds of appeal:

First ground: the General Court erred in not taking into consideration the fact that the measures in question did not confer any advantage upon their beneficiaries given their compensatory nature.

Second ground: the Court erred in not excluding, or at least assessing, the likelihood that the measures in question would affect competition and intra-Community trade.

Third ground: the Court erred in holding that the derogations in Article 87(2)(b) EC (now Article 107(2)(b) TFEU) and Article 87(3)(b) EC (now Article 107(3)(b) TFEU) were inapplicable.

Fourth ground: the Court erred in holding that the derogation in Article 87(3)(c) EC (now Article 107(3)(c) TFEU) was inapplicable.

Fifth ground: the Court erred in holding that the derogations in Article 87(3)(d) and (e) EC (now Article 107(3)(d) and (e) TFEU) were inapplicable.

Sixth ground: the Court erred in holding that the derogation in Article 86(2) EC (now Article 106(2) TFEU) was inapplicable.

Seventh ground: the Court erred in not recognising the existence of the aid, thus infringing Article 88(3) EC (now Article 108(3) TFEU) and Article 15 of Regulation No 659/1999. (1)

Eighth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the recovery order.

Ninth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the addition of interest.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).
EN Official Journal of the European Union C 207/9

Action brought on 16 April 2013 — European Commission v Italian Republic

(Case C-196/13)

2013/C 207/16

Language of the case: Italian

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro and D. Recchia, acting as Agents)

Defendant: Italian Republic

Form of order sought

— Declare that, by having failed to take all the necessary measures to comply with the judgment of the Court of Justice of the European Communities of 26 April 2007 in Case C-135/05, in which it was declared that the Italian Republic had failed to fulfil its obligations under Articles 4, 8 and 9 of Directive 75/442/EEC, (1) as amended by Directive 91/156/EEC, (2) under Article 2(1) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, (3) and under Article 14(a) to (c) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, (4) the Italian Republic has failed to fulfil its obligations under Article 260(1) TFEU;

— Order the Italian Republic to pay to the Commission a daily penalty payment in an amount of EUR 256 819,2 for the delay in complying with the judgment in Case C-135/05, from the date of judgment in the present case until the date on which the judgment in Case C-135/05 is complied with;

— Order the Italian Republic to pay to the Commission a lump sum, the amount of which is calculated by multiplying a daily amount of EUR 28 089,6 by the number of days over which the failure to fulfil obligations continues, from the date of delivery of the judgment in Case C-135/05 until the date of judgment in the present case;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

With regard to the infringement of Articles 4, 8 and 9 of Directive 75/442/EEC, as amended by Directive 91/156/EEC, and of Article 2(1) of Directive 91/689/EEC on hazardous waste, according to the information provided by the Italian authorities, there are still at least 218 illegal landfills in Italy, located across all the Italian regions. Since they have not been authorised, the 218 illegal landfills do not comply with the abovementioned provisions.

With regard to the infringement of Article 14(a) to (c) of Directive 1999/31/EC on the landfill of waste, according to the information provided by the Italian authorities, there continue to be five landfills in respect of which the relevant conditioning plans have not been submitted or approved and which have nevertheless not been closed by the competent authorities, in breach of the abovementioned provisions.

The proposed penalty (daily penalty payment and lump sum) is proportionate to the gravity and duration of the infringement, taking account, inter alia, of the need to ensure that the penalty acts as an effective deterrent.

(1) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39).

(2) Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).

(3) Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20).

(4) Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ 1999 L 182, p. 1).
1.

In so far as it provides that ‘[t]he refusal by a worker to be transferred from full-time to part-time work or vice-versa should not in itself constitute a valid reason for termination of employment, without prejudice to the possibility, under national laws, collective agreements and practice, of termination for other reasons such as may arise from the operational requirements of the establishment concerned’, must Clause 5.2 of the Agreement implemented by Directive 97/81/EC (1) be construed as meaning that provision may not be made in the legislation of Member States for employers to be able to convert a part-time employment relationship into a full-time relationship even where the employee does not consent?
1.

On a proper construction of Article 6 ECHR and of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, do those provisions preclude the application of Articles 70, 71 and 72 of the [Italian] Criminal Procedure Code in so far as they require criminal proceedings to be stayed indefinitely and, in addition, regular expert assessments to be carried out in respect of the defendant, once it has been ascertained that that defendant is incapable of taking part in the proceedings in a state of full awareness, by reason of a medical condition which is irreversible and unlikely to improve?