ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 223/39

Action brought on 18 July 2008 — Commission of the European Communities v Italian Republic

(Case C-334/08)

(2008/C 223/65)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: A. Aresu and A. Caeiros, acting as Agents)

Defendant: Italian Republic

Form of order sought

— declare that the Italian Republic has failed to fulfil its obligations under Article 10 EC, Article 8 of Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities' own resources (1), and Articles 2, 6, 10, 11 and 17 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources (2) by refusing to make available to the Commission the own resources corresponding to the customs obligation deriving from the issue, from 27 February 1997, by the departmental head office of customs of the Regions of Apulia and Basilicata, located in Bari, of irregular authorisations to create and operate Type C customs bonded warehouses in Taranto, followed by consecutive authorisations for processing under customs control and to use the inward processing procedure, until their revocation on 4 December 2002;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

By the present action the Commission of the European Communities complains that the Italian Government has refused to make available to the European Communities the own resources — quantified at approximately EUR 23 million — corresponding to certain irregular customs authorisations issued in Taranto in the period from February 1997 to December 2002 inclusive.

The contested subject-matter concerns, essentially, liability for the amounts relating to the resources not collected owing to the irregular transactions in question. The Italian Government submits that it is not liable for the missing revenue caused by those irregularities, since the latter were solely attributable to the officials who caused the loss, whereas the Commission takes the view that the Community legislation in force requires the Italian State to make itself responsible for all the financial consequences deriving from the action — including irregular action — of officials who act in its name and on its behalf.

(1) OJ L 253 of 7.10.2000, p. 42.

(2) OJ L 130 of 31.5.2000, p. 1.
EN Official Journal of the European Union C 236/8

Reference for a preliminary ruling from the Cour de cassation (France) lodged on 30 June 2008 — Société Moteurs Leroy Somer v Société Dalkia France, Société Ace Europe

(Case C-285/08)

(2008/C 236/12)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Appellant: Société Moteurs Leroy Somer

Respondents: Société Dalkia France, Société Ace Europe

Question referred

Do Articles 9 and 13 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (1) preclude the interpretation of domestic law or settled domestic case-law such that it enables the victim to seek compensation for damage to an item of property intended for professional use and employed for that use, where that victim simply proves damage, the defect in the product and the causal link between that defect and the damage?

(1) OJ 1985 L 210, p. 29.
EN Official Journal of the European Union C 223/38

Action brought on 15 July 2008 — Commission of the European Communities v Kingdom of Sweden

(Case C-322/08)

(2008/C 223/63)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: M. Condou-Durande and J. Enegren, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

— Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/83/EC of 29 April 2004 (1) or in any event by failing to notify the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

— order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The period prescribed for the implementation of the Directive expired on 10 October 2006.

(1) on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12).
EN Official Journal of the European Union C 247/8

Reference for a preliminary ruling from Court of Appeal (Civil Division) (England and Wales) lodged on 11 July 2008 — London Borough of Harrow v Nimco Hassan Ibrahim and Secretary of State for the Home Department

(Case C-310/08)

(2008/C 247/13)

Language of the case: English

Referring court

Court of Appeal (Civil Division) (England and Wales)

Parties to the main proceedings

Applicant: London Borough of Harrow

Defendants: Nimco Hassan Ibrahim, Secretary of State for the Home Department

Questions referred

In circumstances where (i) a non-EU national spouse and her EU national children accompanied an EU national who came to the United Kingdom (ii) the EU national was in the United Kingdom as a worker (iii) the EU national then ceased to be a worker and subsequently left the United Kingdom (iv) the EU national, the non-EU national spouse and children are not self-sufficient and are dependent upon social assistance in the United Kingdom (v) the children commenced primary education in the United Kingdom shortly after their arrival there while the EU national was a worker:

(1) do the spouse and children only enjoy a right of residence in the United Kingdom if they satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 (1)?; OR

(2) (i) do they enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968 (2), as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and (ii) if so, must they have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?;

(3) if the answer to question 1 is yes, is the position different in circumstances such as the present case where the children commenced primary education and the EU-national worker ceased working prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States?

(1) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, p. 77).

(2) Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ L 257, p. 2).
2.

Are the provisions of Italian law contained in Article 3(22) and (19) and Article 34 of the Public Contracts Code, enacted by Legislative Decree No 163/2006, which provide, respectively: that ‘the term “economic operator” shall include a contractor, supplier, service provider or a group or consortium of these’ and ‘the terms “contractor”, “supplier” and “service provider” shall mean any natural or legal person, or body without legal personality, including a European Economic Interest Group (EEIG) formed pursuant to Legislative Decree No 240 of 23 July 1991, which “offers on the market”, respectively, the execution of works or a work, the supply of products or the provision of services’, contrary to Directive 2004/18/EC if interpreted as restricting participation in tendering procedures to professional providers of such services and excluding entities whose primary objects are not-for-profit, such as research?
1.

Is Article 24 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1) to be interpreted as meaning that the separating, cleaning and crushing of silicon metal blocks and the subsequent sieving, sorting and packaging of the silicon grains resulting from the crushing constitutes origin-conferring processing or working?
EN Official Journal of the European Union C 260/9

Action brought on 25 July 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-346/08)

(2008/C 260/16)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: P. Oliver and A. Alcover San Pedro, Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

— declare that, by refusing to apply Directive 2001/80/EC (1) on the limitation of emissions of certain pollutants into the air from large combustion plants to the Lynemouth Power Plant, the United Kingdom has failed to fulfil its obligations under that Directive;

— order United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

The Commission submits that the coal-fired power plant at Lynemouth in Northumberland constitutes a combustion plant within the meaning of the directive. Initially, the United Kingdom shared this view but, following a radical change of position, now vigorously contests it.

If the Lynemouth power plant is covered by the directive, as the Commission claims, then it is plainly an ‘existing plant’ within the meaning of Article 2(10) of the directive. It is common ground between the parties that the original operating licence was granted before 1 July 1987. It follows that, in the Commission's view, emissions from the plant should have been significantly reduced by 1 January 2008 in accordance with Article 4(3).

The Commission submits that, by failing to apply the directive to the Lynemouth power plant, the United Kingdom has acted in breach of that directive. The failure to significantly reduce emissions from the plant by 1 January 2008 constitutes a continuing breach of Community law.

(1) JO L 309, p. 1.
EN Official Journal of the European Union C 272/7

Action brought on 4 July 2008 — Commission of the European Communities v French Republic

(Case C-299/08)

(2008/C 272/08)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and D. Kukovec, acting as Agents)

Defendant: French Republic

Form of order sought

— Declare that, by adopting and keeping in force Articles 73 and 74-IV of the Code des marchés publics (Public Procurement Code) adopted by Decree No 2006-975 of 1 August 2006, inasmuch as those provisions lay down a procedure for the award of marchés de definition (public contracts for designing the parameters, including the purpose, of a public works, supply or service contract) under which it is possible for the awarding authority to award a public works, supply or service contract to one of the holders of the initial marchés de definition without opening it afresh to competition or, at most, by opening it to competition limited to those holders, the French Republic has failed to fulfil its obligations under Articles 2, 28 and 31 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1);

— order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission alleges that the defendant permits the award of contracts on the basis of mutual agreement — or with limited competition — in situations not provided for by Directive 2004/18/EC. By drawing a distinction between marchés de definition and public works, supply or service contracts and by allowing, in certain circumstances, the award of the latter contracts to one of the holders of the initial marchés de definition without again opening them to competition or, at the very least, by opening them to competition limited only to those holders, the French legislation disregards the fundamental principles of equality and transparency inherent to Directive 2004/18/EC. In the Commission's view, it is impossible by definition for the subject-matter and criteria for the award of a public procurement contract to be known precisely before the project itself has been defined. The marché de definition and the public works, supply or service contract are two entirely distinct types of public procurement contract, each having its own subject-matter and criteria for award and, on those grounds, they must both comply with the stipulations of Directive 2004/18/EC.

(1) OJ L 134, p. 114.
In the event that the first question is answered in the affirmative:

Is Article 16 of Council Regulation (EC) No 318/2006 of 20 February 2006 compatible with primary law, in particular with the principle of proportionality and the principle of non-discrimination derived from Article 34 EC?
1.

Is Note 5(B) to Chapter 84 of the Combined Nomenclature of the Common Customs Tariff in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (1), as amended by the Annex to Commission Regulation (EC) No 1810/2004 of 7 September 2004 (2), to be so interpreted that it allows an electrical adapter, which is designed to provide the electrical connection between an automatic programming machine and electrical components to be programmed, to be classified under heading 8471 of the Combined Nomenclature?
EN Official Journal of the European Union C 313/17

Appeal brought on 1 October 2008 by Luigi Marcuccio against the judgment delivered on 9 July 2008 in Joined Cases T-296/05 and T-408/05 Marcuccio v Commission

(Case C-432/08 P)

(2008/C 313/25)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (represented by: G. Cipressa, avvocato)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— 1. In any event: (1.a) annul the judgment under appeal in its entirety; (1.b) declare that both the pending actions are fully admissible; and in addition:

— 2/A., primarily, grant the forms of order sought by the applicant at first instance, that is to say: (2/A.1) annul the contested decisions; (2/A.2) annul, in so far as necessary, both decisions dismissing the claims in question; (2/A.3) order the defendant, by way of reimbursement of the amount of the medical costs incurred by the applicant and referred to in the claims in question seeking 100 % reimbursement, or by way of compensation for the damage resulting from the unlawful conduct of the defendant, to pay to the applicant sums equal to EUR 2 572,32 (two thousand five hundred and seventy two point three two) and EUR 381,04 (three hundred and eight one point zero four), or greater or lesser sums than those stated above as the Court deems fair and equitable; (2/A.4) order the defendant to pay the applicant default interest on the sums stated above in point 2/A.3 of this appeal, in the amount to be capitalised on the start and end date in accordance with what is stated in the case-files; (2/A.5) order the defendant to pay the applicant's costs relating to this appeal and also to the pending cases; or

— 2/B., in the alternative, refer both the cases in question back to the Court of First Instance for it to give another ruling on the same.

Pleas in law and main arguments

Distortion and misrepresentation of the facts and statements of the applicant in its pleadings, following also from the material inaccuracy of the findings of the Court of First Instance (in particular, paragraphs 30, 44, 46 and 49 of the judgment under appeal).

Misinterpretation and misapplication of the concept of a challengeable act, also for confusion, unreasonableness and illogicalness, infringement of Article 231 of the EC Treaty and failure to appreciate the case-law concerning the effects of annulment by the Community courts of a decision issued by a Community institution, infringement of the principle of the authority of res judicata, infringement of the principle of the separation of powers (in particular, paragraphs 43, 44 and 49 of the judgment under appeal).

Complete absence of preliminary investigations and failure to rule on a fundamental issue of the dispute (in particular, paragraph 12 and paragraphs 43 to 51 inclusive of the judgment under appeal).
EN Official Journal of the European Union C 327/19

Action brought on 21 October 2008 — Commission of the European Communities v Portuguese Republic

(Case C-458/08)

(2008/C 327/31)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

— A declaration that the Portuguese Republic, by imposing in respect of the provision of building services in Portugal the same requirements as in respect of establishment, has failed to fulfil its obligations under Article 49 EC;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The Portuguese law on access to construction activity and continued operation therein (Decree-Law No 12/2004) makes the exercise of construction activity in Portugal subject to a licence.

No undertaking, without exception, may carry on in Portugal building, rebuilding, extension, alteration, repair, conservation, cleaning, restoration or demolition work or, in general terms, any work whatsoever related to construction without prior authorisation issued by the Portuguese authorities.

The Portuguese competition legislation prohibiting undertakings, including Community undertakings, from providing construction services in Portugal without prior authorisation to enter the construction industry issued by the Portuguese authorities constitutes an infringement of Article 49 EC.

The requirements for access to the building industry, as laid down in the Portuguese legislation, are establishment requirements. The Portuguese legislation does not distinguish establishment from the provision of services of a temporary nature.

In order to provide services in Portugal undertakings established in another Member State are obliged to satisfy all the conditions necessary for establishment, which means in practice that there is no solution for those construction companies other than to establish themselves in Portugal. Such a requirement seriously restricts freedom to provide services.

The requirements in relation to continuing to operate also amount to restrictions of the freedom to provide services, for they make it impossible to provide construction services of a temporary nature.

The reasons given by the Portuguese State in order to justify the restrictions in question have not been substantiated and cannot be taken into consideration.
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC (1) of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing or, in any event, by failing to notify them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 45 of that directive;
EN Official Journal of the European Union C 6/15

Reference for a preliminary ruling from the Gerechtshof te Arnhem (Netherlands), lodged on 3 November 2008 — K. van Dijk v Gemeente Kampen

(Case C-470/08)

(2009/C 6/24)

Language of the case: Dutch

Referring court

Gerechtshof te Arnhem

Parties to the main proceedings

Appellant: K. van Dijk

Respondent: Gemeente Kampen

Questions referred

1. Do Regulation No 1782/2003 (1) and Regulation No 795/2004 (2), or the general principles of Community law, in particular the principle of the prohibition of unjustified enrichment, require a lessee, in the absence of national rules in this respect, to deliver the leased land, including the payment entitlements accumulated thereon or relating thereto, to the lessor on the expiry of the lease?

2. If the answer to Question 1 is in the affirmative: do Regulation No 1782/2003 and Regulation No 795/2004, or the general principles of Community law, in particular the principle of the prohibition of unjustified enrichment, require a lessor, in the absence of national rules in this respect, to pay to the lessee compensation for the payment entitlements transferred to the lessor, and if so, should the lessor compensate the lessee for the full value of those entitlements or for only a proportion of that value, and, if the latter, for what proportion?

3. If the answer to Question 1 is in the negative: do Regulation No 1782/2003 and Regulation No 795/2004, or the general principles of Community law, in particular the principle of the prohibition of unjustified enrichment, require a lessee, in the absence of national rules in this respect, to pay to the lessor compensation for the payment entitlements retained by the lessee, and if so, should the lessee compensate the lessor for the full value of those entitlements or for only a proportion of that value, and, if the latter, for what proportion?

(1) Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

(2) Commission Regulation (EC) No 795/2004 of 21 April 2004 laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 1).
—

Declare that by failing to adopt the laws, regulations and administrative provisions necessary to implement Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1) or, at least, by failing to communicate those provisions to the Commission, the Republic of Hungary has failed to fulfil its obligations under that directive.
—

a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/68/EC (1) of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC, 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC or, in any case, by failing to communicate such provisions to the Commission, the Portuguese Republic has failed to fulfil its obligations under that Directive;
—

declare that, by not adopting the laws, regulations and administrative provisions necessary to implement Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis (1), and in any event by not informing the Commission of the adoption of those provisions, the Republic of Poland has failed to fulfil its obligations under that directive;