ddrg/super_eurlex huggingface dataset:
2.

If the answer to the first question is in the affirmative, does television broadcasting, whereby the public is enabled to have sensory perception of the graphic user interface of a computer program or part thereof, albeit without the possibility of actively exercising control over that program, constitute making a work or part thereof available to the public within the meaning of Article 3(1) of European Parliament and Council Directive 2001/29/EC (2) of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?
EN Official Journal of the European Union C 312/16

Action brought on 25 September 2009 — Commission of the European Communities v French Republic

(Case C-383/09)

2009/C 312/26

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: O. Beynet and D. Recchia, acting as Agents)

Defendant: French Republic

Form of order sought

— Declare that, by not establishing a programme of measures to ensure strict protection of the species Cricetus cricetus (the European Hamster), the French Republic has failed to fulfil its obligations under Article 12(1)(d) of Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (1);

— order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission of the European Communities claims that the French Republic has failed to establish, as required by Article 12 of Directive 92/43/EEC, a system of strict protection for the species Cricetus cricetus (the European Hamster) in Alsace, which is the area in France where this species is naturally distributed.

According to the applicant, a survey of the number of the animal’s burrows showed a significant fall in their numbers in recent years, since the number of burrows has gone from 1167 in 2001 to only 161 in 2007. That being the case, threatened both by unfavourable farming practices and by the pressure of urban development, the species is threatened with complete extinction in the very near future.

In its application, the Commission recognises that the defendant has taken those problems into account by adopting measures relating both to town planning and farming practices, but those measures are entirely inadequate.

First, the three priority action areas, which are the areas where the bulk of efforts to protect the species are concentrated, cover only a very small part of the territory which is the animal’s natural habitat since two thirds of the existing burrows are located outside those areas, which themselves represent no more than 2 % of the land which is favourable to the European Hamster. However, if the territory to be covered by the measures for the protection of this species is to be sufficient, it is necessary to take as the minimum point of reference the presence of the European Hamster in 1990, not in 2000.

Secondly, the protection measures are themselves greatly lacking. The Commission is particularly concerned by the lack of clarity in the legislation in relation to areas which can be re-occupied by the hamster. The national authority has much too great a discretion in the granting of derogations for urban development projects in territories which are the habitat of the hamsters and great uncertainty prevails as regards compensatory measures to be taken for the protection of this species.

(1) OJ 1992 L 206, p. 7
A.

The distinction between the procedural criterion relating to the point at which time starts to run for the purposes of bringing proceedings and verification that the conditions for liability have been satisfied: (i) contradictory nature of the grounds stated and (ii) non-compliance with Community case-law The grounds of the order under appeal are manifestly contradictory in so far as, on the one hand, the order refers to settled Community case-law according to which time for the purposes of bringing actions seeking to establish non-contractual liability on the part of the Community starts to run only upon fulfilment of all the conditions necessary for the creation of an obligation to pay compensation and, in particular, only when the damage in respect of which compensation is sought has become actual whereas, on the other hand, the order rejects the applicants’ argument that the damaging effects of the letter at issue became certain only upon the adoption of the Commission decision of 3 October 2006. (1) Moreover, the Court of First Instance distorted the Community case-law by determining the initial point from which time started to run for the purposes of bringing proceedings by reference to the material damage suffered by the applicants.
1.

For the purposes of Article 3(b) of Directive 89/48/EEC on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16), prior its repeal pursuant to Article 62 of Directive 2005/36/EC (OJ 2005 L 255, p. 22), does the recognition mechanism provided for therein apply to cases in which, in the Member State of origin, the profession in question is regulated within the meaning of the second subparagraph of Article 1(d) of the directive, but the person concerned is not a full member of an association or organisation which fulfils the conditions of that paragraph?
EN Official Journal of the European Union C 24/35

Appeal brought on 24 November 2009 by Dominio de la Vega, S. L against the judgment of the Court of First Instance (Seventh Chamber) of 16 September 2009 in Case T-458/07 Dominio de la Vega S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Ambrosio Velasco, S.A.

(Case C-459/09 P)

2010/C 24/64

Language of the case: Spanish

Parties

Appellant: Dominio de la Vega, S. L. (represented by: E. Caballero Oliver y A. Sanz-Bermell y Martínez, lawyers)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Ambrosio Velasco, S.A.

Form of order sought

— Set aside entirely the judgment under appeal in Case T-458/07 delivered on 16 September 2009, and consequently,

— Give final judgment in the case, declare that the signs at issue are not similar and therefore that there is no likelihood of confusion, and allow registration of the Community trade mark No 2 789 576‘Dominio de la Vega’ in Class 33, since it is not prohibited by Article 8(1)(b) of Regulation (EC) No 40/94, now Regulation No 201/2009.

— Alternatively, if necessary, refer the case back to the Court of First Instance of the European Communities for judgment in accordance with the binding criteria established by the Court of Justice.

— Order OHIM and the intervening party to pay the costs, both of these proceedings and of the earlier proceedings before the Court of First Instance of the European Communities.

Pleas in law and main arguments

1. Infringement of Article 8(1)(b) and also of Article 8(2)(i) and (ii) of formerly Regulation (EC) No 40/94 (1) now Regulation (EC) No 207/2009 (2). The earlier mark which is the ground of opposition in this case is the Community trade mark. An error of law is committed in the judgment under appeal, the fact that the mark is a Community mark is not taken into account, and the relevant public for the assessment of the likelihood of confusion between the marks at issue is considered to be a public which is incorrect and contrary to that prescribed in Regulation on the Community trade mark applicable to the case.

2. Error of Law in assessment and decision to hold documents produced as inadmissible, resulting in an incorrect assessment of the likelihood of confusion of the Spanish consumer. The Court of First Instance distorted the evidence in support of the coexistence of the marks in Spain, that error of law leading to an infringement of Article 8(1)(b) of Regulation No 40/94, now Regulation No 207/2009

(1) Council Regulation of 20 December 1993 on the Community trade mark, OJ L 11, p. 1.

(2) Council Regulation of 26 February 2009 on the Community trade mark (codified version) (Text with EEA relevance), OJ L 78, p. 1.
1.

The CFI erred in law by holding, in this case, that there are no exceptional circumstances which give rise to a legitimate expectation that the tax measure at issue is lawful, so as to preclude an order to recover the aid in accordance with Article 14(1) of Regulation No 659/1999 (1) which relates to the principle of the protection of legitimate expectations. The CFI distorted the issues in the case and infringed the rule that the parties should be heard. It also misinterpreted the case-law concerning the duty to give reasons for a decision. Neither the formal difference between the tax measure at issue and the measure which is the subject of Decision 93/337 (2), nor the fact that the Commission could have justified the selectivity criterion on information other than that which is explicitly mentioned in Decision 93/337, nor the finding of incompatibility in Decision 93/337, constitute sufficient reasons in law for the CFI not to determine whether there existed an exceptional circumstance that by itself or in combination with other circumstances in this case could preclude the Commission from ordering the recovery of the aid to which the contested decision relates. By holding that the measures at issue in Joined Cases T-30/01 to T-32/01 and T-86/02 to T-88/02 are not analogous to the tax measure at issue for technical tax reasons and the because of amount of the subsidy, the CFI has distorted the issues between the parties, has disregarded the rule that the parties should be heard and has clearly misinterpreted the case-law specifically relating to the duty to state reasons. The CFI erred in law by holding that the Commission's attitude with respect to the tax exemption and/or the 1993 tax credit — which, as is clear from the from the case file, has not been assessed by the CFI, contrary to the Rules of Procedure — does not constitute an exceptional circumstance which could have justified some kind of legitimate expectation that the tax measure was lawful which would have precluded the recovery of the aid under Article 14(1) of Regulation on the ground that it would be contrary to the principle of the protection of legitimate expectations.
EN Official Journal of the European Union C 24/45

Action brought on 8 December 2009 — European Commission v Italian Republic

(Case C-508/09)

2010/C 24/78

Language of the case: Italian

Parties

Applicant: European Commission (represented by: C. Zadra and D. Recchia, Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

— declare that the Italian Republic has failed to fulfil its obligations under Article 9 of Directive 79/409/EEC (1) in so far as the Region of Sardinia has adopted and applies legislation, relating to the authorisation of derogations from the rules for the protection of wild birds, which does not comply with the conditions laid down in Article 9 of Directive 79/409/EEC;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission maintains that the legislation adopted by the Region of Sardinia is not in conformity with the provisions laid down in Article 9 of Directive 79/409/EEC.

According to the Commission, Regional Law No 2 of 13 February 2004, which governs hunting carried out in reliance on a derogation, and Decrees No 3/V of 2004 and No 8/IV of 2006, which were adopted on the basis of that law, fail to comply with the requirements under Article 9 of Directive 79/409 inasmuch as:

— sometimes the opinion of the scientific body is sought but, if negative, ignored and sometimes the opinion of that body is not even sought;

— adequate reasons have not been stated (concerning the needs to be protected by means of hunting in reliance on a derogation; the other options explored; the probable results);

— there is no adequate control mechanism making it possible to check that the conditions governing derogation are complied with and to take action in good time;

— the regional law does not require compliance with the conditions laid down in Article 9(2) of Directive 79/409 and, accordingly, no reference is made to those conditions in the derogation measures.

Regional Law No 2 of 13 February 2004 was amended by Regional Law No 4 of 11 May 2006. Notwithstanding those amendments, neither Law No 2 of 13 February 2004 nor Decree No 2225/DecA/3 of 30 January 2009, which was adopted pursuant to that law, satisfies the requirements laid down in Article 9 of Directive 79/409, inasmuch as:

— the fact that provision has now been made for consultation of the scientific body does not preclude the adoption of derogation measures without adequate reasons or justification or even the adoption of derogation measures without the opinion of the scientific body;

— Regional Law No 2/2004, as amended, still does not provide that individual derogation measures must refer to the conditions laid down in Article 9(2) of Directive 79/409 (indeed Decree 2223 is also deficient in that respect).

(1) Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ L 103, 25.4.1979, p. 1).
EN Official Journal of the European Union C 51/23

Action brought on 21 December 2009 — European Commission v Kingdom of Belgium

(Case C-538/09)

2010/C 51/38

Language of the case: French

Parties

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

Defendant: Kingdom of Belgium

Form of order sought

— Declare that, as Belgian legislation does not require an appropriate environmental impact study for certain activities when those activities may affect a Natura 2000 site and as the Kingdom of Belgium has made certain activities subject to a declaratory scheme, the Kingdom of Belgium has failed to fulfil its obligations under the provisions of Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (1),

— Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission relies on a single plea in law in support of its action alleging that Article 6(3) of Directive 92/43/EEC (the ‘Habitats’ Directive) has been transposed incorrectly.

In that regard, the applicant submits that that provision requires that any plan or project not directly connected with or necessary to the management of a Natura 2000 site be subject to an appropriate environmental impact study. The Belgian legislation does not comply with Community law in so far as it does not require such an impact study as a matter of course and provides for a mere declaratory scheme in respect of certain activities which may affect a Natura 2000 site.

That is true, inter alia, of all the plans or projects which are not subject to an environmental permit in the Walloon Region.

(1) OJ 1992 L 206, p. 7.
—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/38/EC (1) of the European Parliament and of the Council of 17 May 2006 amending Directive 1999/62/EC on the charging of heavy goods vehicles for the use of certain infrastructures and, in any event, by failing to communicate them to the Commission, the Portuguese Republic has failed to fulfil its obligations under that directive.
1.

If, after a Member State has detected an irregularity in the customs treatment of a TIR transport operation and has made a claim for payment of the amount corresponding to the assessment issued to the local guaranteeing association, the place where the infringement was actually committed is determined, is it compatible with Article 454(3) and Article 455 of Commission Regulation (EEC) No 2454/93 (1) of 2 July 1993 for the Member State where the infringement was committed to initiate new proceedings to recover the duties owed by the persons principally liable and by the guaranteeing association of the place where the infringement was actually committed, up to the limit of its liability, where the place where the infringement was committed is determined after the expiry of the time-limit laid down in the Community legislation?
2.

If the first question is answered in the negative: must the expression ‘prevents an on-the-spot check [from being carried out]’ be interpreted as including, as well as deliberate acts or situations deliberately brought about that make it impossible to carry out that check, any act or omission that can be ascribed to the negligence of the farmer or of his representative if, as a result, it was not possible to carry out the check in its entirety?
Official Journal of the European Union

Appeal brought on 23 September 2009 by Constantin Hârsulescu against the order of the Court of First Instance (Sixth Chamber) delivered on 22 July 2009 in Case T-234/09 Hârsulescu v Romania

(Case C-374/09 P)

(2010/C 161/20)

Language of the case: Romanian

Parties

Appellant: Constantin Hârsulescu (represented by: C. Stanciu)

Other party to the proceedings: Romania

The Court of Justice (Fifth Chamber) dismissed the appeal by order of 4 March 2010.
4.

Regardless of the answer to Question 1, if a Member State has, on the basis of Article 3(2)(a) of Directive 89/104/EEC, decreed that a trade mark shall not be registered or if registered shall be liable to be declared invalid if the use of the trade mark can be prohibited by virtue of legislation other than the trade mark law of the Member State in question or Community law, is the view to be taken that, if the trade mark registration contains elements which infringe Regulation (EC) No 110/2008, on the basis of which the use of the trade mark can be prohibited, such a trade mark shall not be registered?
—

Declare that, by failing to adopt the national measures for the implementation of Article 12 of Regulation (EC) No 273/2004 (1) of the European Parliament and of the Council of 11 February 2004 on drug precursors, by failing to inform the Commission of those measures as required under Article 16 of that regulation, and by failing to adopt the national measures for the implementation of Article 31 of Council Regulation (EC) No 111/2005 (2) of 22 December 2004 laying down rules for the monitoring of trade between the Community and third countries in drug precursors, the Italian Republic has failed to fulfil its obligations under those regulations.
EN Official Journal of the European Union C 100/18

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 January 2010 — MINERVA Kulturreisen GmbH v Finanzamt Freital

(Case C-31/10)

2010/C 100/27

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Minerva Kulturreisen GmbH

Defendant: Finanzamt Freital

Question referred

Does the ‘special scheme for travel agents’ in Article 26 of Directive 77/388/EEC (1) apply also to the sale by a travel agent of opera tickets in isolation, without the provision of additional services?

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

Does Community law, in particular the principle of the freedom to provide services, as laid down in Articles 49 to 55 of the EC Treaty (now Articles 56 to 62 of the Treaty on the Functioning of the European Union), preclude a national legislative provision under which a person resident or established in the Netherlands who uses in the Netherlands a car registered and leased in another Member State is required, upon the commencement of use with that vehicle of the road network in the Netherlands, to pay a tax, whereby initially the full amount of tax is claimed and, subsequently, after the vehicle ceases to use the Netherlands road network, there is a refund of the excess amount of tax, without interest, as a result of which the amount owed and paid corresponds on balance to the period of use in the Netherlands?
3.

For the purpose of Articles 2, 3, 5, 6, 9, 13 and 15 of Directive 2000/60, is the transfer of water from a river basin district to a neighbouring river basin district permitted? Should the answer be in the affirmative, can the purpose of that transfer be only to meet water-supply needs or can irrigation and power generation also be served? Is it in any event a requirement, for the purpose of those provisions of the directive, that the administrative authorities have decided, stating reasons and on the basis of the necessary scientific study, that the receiving river basin district cannot meet with its own water resources the needs which it has in respect of water supply, irrigation and so forth? Should the Court of Justice of the European Communities hold, as regards Question 1, that Article 13(6) of Directive 2000/60 does not merely set an ultimate temporal limit (22 December 2009) for the drawing up of management plans for water resources, but lays down a special time-limit for transposition of the relevant provisions of Articles 3, 4, 5, 6, 9, 13 and 15 of that directive, the following question must additionally be referred for a preliminary ruling:
2.

In support of its action for annulment, the Commission raises four pleas in law: In the first place, it considers that the Council was not competent to act under the third subparagraph of Article 108(2) TFEU because the aid which it approved was existing aid which Lithuania had committed to eliminating by the end of 2009 when it accepted the appropriate measures proposed to it by the Commission. Secondly, it maintains that the Council has misused its powers, seeking to neutralise the determination that aid measures which Lithuania was free to retain until the end of 2009, but not after that date, could be kept in place until 2013. Thirdly, the contested decision was adopted in breach of the principle of sincere cooperation which applies to Member States and also between institutions. By its decision, the Council has released Lithuania from its obligation of cooperation with the Commission in relation to the appropriate measures accepted by that Member State regarding existing aid for purchase of State-owned agricultural land in the context of the cooperation established by Article 108(1) TFEU. Finally, the Commission maintains that the Council committed a manifest error of assessment insofar it found that exceptional circumstances existed which justify the adoption of the approved measure. The Commission submits that, to the extent that any exceptional circumstances did exist, the contested decision approves aid which either is incapable of addressing those exceptional circumstances or goes beyond what would be needed to resolve them, in violation of the principle of proportionality.
2.

Can the term ‘creditor’ in Article 3(4)(b) of Regulation No 1346/2000 be interpreted broadly to mean that a national authority which, under the law of the Member State to which it belongs, has power to request the opening of insolvency proceedings and acts in the public interest and as the representative of all the creditors, may also, in the present case, validly request the opening of territorial insolvency proceedings pursuant to Article 3(4)(b) of that regulation?
3.

If the answer to question II (a or b) is in the affirmative, what criterion must be used when answering the question whether there has been trade-mark infringement: should the criterion be the perception of an average consumer who is reasonably well-informed and reasonably observant and circumspect in the Benelux or alternatively in the European Union — who then in the given circumstances can only be determined in a fictional or abstract way — or must a different criterion be used in this case, for example, the perception of the consumer in the country to which the goods are exported?