ddrg/super_eurlex huggingface dataset:
Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 16 September 2021 — Staatssecretaris van Justitie en Veiligheid; Other parties: E. and S., also on behalf of their minor children

(Case C-568/21)

(2022/C 2/26)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Staatssecretaris van Justitie en Veiligheid

Respondents: E. and S., also on behalf of their minor children

Question referred

Must Article 2(1) of the Dublin Regulation (1) be interpreted as meaning that a diplomatic card issued by a Member State under the Vienna Convention on Diplomatic Relations is a residence document within the meaning of that provision?

(1) Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31).
2.

Does it make a difference in this regard: — whether the joint undertaking is temporary or not temporary (enduring); — that the collaborating persons are themselves economic operators; — that the collaborating persons operate their own undertakings which are similar to the joint undertaking, or at least are active in the same market; — that the joint undertaking is not a legal person; — that the joint undertaking may have (recoverable) assets that are separate (from the assets of the partners); — whether the joint undertaking has the authority under national law to represent the collaborating persons in answering the questions of the European Single Procurement Document; — that under national law, in the case of a general partnership, it is the partners who assume the obligations arising from the contract and are jointly and severally liable for fulfilling them (and not therefore the general partnership itself)?
Appeal brought on 25 November 2021 by Françoise Grossetête (T-722/19) against the judgment of the General Court (Fifth Chamber) delivered on 15 September 2021 in Joined Cases T-720/19 to T-725/19, Ashworth and Others v Parliament

(Case C-714/21 P)

(2022/C 37/29)

Language of the case: French

Parties

Appellant: Françoise Grossetête (represented by: J. M. Martínez Gimeno, abogado, D. Sarmiento Ramírez-Escudero, abogado, E. Arnaldos Orts, abogado, and F. Doumont, avocat)

Other party to the proceedings: European Parliament

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal in its entirety;

— rule on the dispute and annul the Parliament’s decision contained in the notice fixing the additional pension rights owed to the appellant in so far as it introduces a special levy of 5 % of the nominal amount of her pension, payable directly into the additional voluntary pension fund;

— order the Parliament to pay the costs of the appeal proceedings and the costs of the proceedings before the General Court in Case T-722/19.

Grounds of appeal and main arguments

The grounds of appeal allege: (i) the Bureau’s lack of competence to take the decision of the Bureau of 2018, inter alia in so far as it lays down substantive conditions for rights conferring prospective entitlement before the entry into force of the Staff Regulations; (ii) infringement of the first sentence of Article 27(2) of the Staff Regulations by reason of non-observance of rights conferring prospective entitlement prior to the entry into force of the Staff Regulations; (iii) infringement of the principle of equality and non-discrimination and of the principle of proportionality; and (iv) infringement of the principle of legal certainty (lack of transitional measures) and the principle of legitimate expectations.
1.

Is Article 3(1) of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, (1) read in conjunction with point 1 of Annex I B to that directive and in the light of recital 17 of the Directive, to be interpreted as meaning that, in order to distinguish from amongst techniques/methods of mutagenesis those techniques/methods which have conventionally been used in a number of applications and have a long safety record, within the meaning of the judgment of the Court of Justice of 25 July 2018, consideration need be given only to the methods by which the mutageneous agent modifies the genetic material of the organism, or must account be taken of all the variations in the organism induced by the process used, including somaclonal variations, which may affect human health and the environment?
2.

Does the principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union, preclude a provision of national law, such as that contained in Article 99(ș) of Legea nr. 303/2004 privind statutul judecătorilor și procurorilor (Law No 303/2004 on the rules governing judges and prosecutors), which provides for the initiation of disciplinary proceedings and the application of disciplinary penalties in respect of a judge for failure to comply with a decision of the Constitutional Court, where that judge is called upon to acknowledge the primacy of EU law over the grounds of a decision of the Constitutional Court, that provision of national law depriving him or her of the possibility of applying a judgment of the Court of Justice of the European Union which he or she regards as taking precedence?
1.

Is the second sentence of Article 38(3) of Regulation (EU) 2016/679 (1) (the General Data Protection Regulation; ‘the GDPR’) to be interpreted as precluding a provision of national law, such as, in the present case, the first sentence of Paragraph 6(4) of the Bundesdatenschutzgesetz (Federal Law on data protection), which makes dismissal of the data protection officer by the controller, who is his or her employer, subject to the conditions set out therein, irrespective of whether such dismissal relates to the performance of his or her tasks? If the answer to the first question is in the affirmative:
Request for a preliminary ruling from the Tribunal Judicial da Comarca do Porto — Juízo Central Cível da Póvoa de Varzim (Portugal) lodged on 9 November 2021 — Gencoal S.A. v Conceito Norte — Consultadoria de Gestão, Lda., BT

(Case C-669/21)

(2022/C 64/24)

Language of the case: Portuguese

Referring court

Tribunal Judicial da Comarca do Porto — Juízo Central Cível da Póvoa de Varzim

Parties to the main proceedings

Applicant: Gencoal S.A.

Defendant: Conceito Norte — Consultadoria de Gestão, Lda., BT

Question referred for a preliminary ruling

The question which is referred in connection with the examination of this dispute is whether Article 31(1) and (4) of Royal Decree 1624/1992 of 29 December 1992 approving the Spanish VAT Regulations and Article 15(1) of Directive 2008/9/EC (1) of 12 February 2008, by providing, in the case of the former, that the period for the filing of an application for a VAT refund by traders or professional practitioners not established in the territory of application of the tax but established within the Community [European Union] starts to run [on the day] following the last day of each calendar quarter or each calendar year and ends on 30 September of the year following the calendar year in which the tax concerned was paid, and, in the case of the latter, that the refund application must be submitted to the Member State of establishment not later than 30 September of the calendar year following the refund period, infringe the principle of fiscal neutrality (with consequences for neutrality in the context of competition and the principle of equal treatment from the point of view of the prohibition of discrimination) which flows from the common system of VAT as derived from recitals 4, 5 and 7 and Articles 167, 170, 171 and 178 of Council Directive 2006/112/EC (2) of 28 November 2006, as amended by Council Directive 2008/8/EC (3) of 12 February 2008, and the fundamental right enshrined in Article 41(1) of the Charter of Fundamental Rights of the European Union.

(1) Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (OJ 2008 L 44, p. 23).

(2) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

(3) Council Directive 2008/8/EC of 12 February 2008 amending Directive 2006/112/EC as regards the place of supply of services (OJ 2008 L 44, p. 11).
3.

In the case of a quantitative difference that exceeds the quantity of goods stated in the customs declaration, does the consignee of the goods have any procedural remedy under the [abovementioned] regulation enabling the consignee to correct the errors without incurring administrative or criminal penalties?
1.

The General Court failed to raise ex officio the lack of an adequate statement of reasons. The General Court erred in law by failing in its duty to raise ex officio a plea pertaining to the adequacy of the statement of reasons in the contested acts and thus to assess such point of law. The General Court concluded that ‘the teratogenic effect, and not the subacute toxicity by inhalation, is the decisive factor for the assessment of the unacceptable risks for human health posed by Pareva’s PHMB’ (paragraph 133) in spite of the fact that there is no reference to that factor in the statement of reasons pertaining to the contested acts. In accordance with the settled case law of the Court, the General Court had a duty to consider and conclude on whether the contested acts were vitiated by a failure of the Defendant to provide an adequate statement of reasons by reference to the alleged teratogenicity factor as required by Article 296 TFEU.
Request for a preliminary ruling from the Finanzgericht Köln (Germany) lodged on 9 November 2021 — BA v Finanzamt X

(Case C-670/21)

(2022/C 64/25)

Language of the case: German

Referring court

Finanzgericht Köln

Parties to the main proceedings

Applicant: BA

Defendant: Finanzamt X

Question referred

Are Articles 63(1), 64 and 65 TFEU to be interpreted as precluding national legislation of a Member State on the levying of inheritance tax which, for the purposes of calculating inheritance tax, provides that developed immovable property forming part of personal assets which is located in a third country (in this case: Canada) and is let for residential purposes is to be taken into account at its full value, whereas immovable property forming part of personal assets which is located within the national territory, in a Member State of the European Union or in a State of the European Economic Area and is let for residential purposes is to be taken into account at only 90 % of its value in the calculation of inheritance tax?
Appeal brought on 16 December 2021 by the Federal Republic of Germany against the judgment of the General Court (Third Chamber) delivered on 6 October 2021 in Case T-196/19, AZ v Commission

(Case C-793/21 P)

(2022/C 73/29)

Language of the case: German

Parties

Appellant: Federal Republic of Germany (represented by: J. Möller and R. Kanitz, acting as Agents)

Other parties to the proceedings: AZ, European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal of the General Court of the European Union of 6 October 2021 in Case T-196/19, in so far as it dismissed the action as unfounded;

— annul the Commission’s Decision of 28 May 2018 on State aid SA.34045 (2013/c) (ex 2012/NN) implemented by Germany for baseload consumers under Paragraph 19 StromNEV C(2018) 3166 final, for the years 2012 and 2013 in accordance with Article 61(1) of the Statute of the Court of Justice;

— order the Commission to pay the costs before the General Court and the Court of Justice.

Grounds of appeal and main arguments

The appellant relies on a single ground of appeal, in which it alleges an infringement of Article 107(1) TFEU. According to the appellant, the General Court erred in law in assuming that the scheme in Paragraph 19(2) of the German Stromnetzentgeltverordnung (StromNEV) (Regulation on electricity network charges) constitutes a State aid as provided for in Article 107(1) TFEU.

First, the General Court erred in law in finding, in the context of the assessment of the State nature of the network charges, that the existence of a mandatory charge on consumers or end users and the State control over the funds or over the administrators of those funds constituted two factors that were ‘part of an alternative’.

Secondly, the General Court erred in law in finding, in the context of the assessment whether there is a ‘mandatory charge on consumers or end users’, that the relationship between an electricity supplier and electricity end users was irrelevant. In addition, the General Court erred in law by taking into account the obligation to levy and not the legal obligation to pay network charges.

Thirdly, the General Court erred in law in holding, in the context of the assessment whether State control or State power to dispose of funds exists, that the exclusive use of the network charges collected did not rule out that the State could dispose of those funds.
Appeal brought on 18 November 2021 by EDP España, S.A. against the judgment of the General Court (Seventh Chamber) delivered on 8 September 2021 in Case T-328/18, Naturgy Energy Group v Commission

(Case C-693/21 P)

(2022/C 73/15)

Language of the case: Spanish

Parties

Appellant: EDP España, S.A. (represented by: J.L. Buendía Sierra, A. Lamadrid de Pablo, V. Romero Algarra, lawyers)

Other parties to the proceedings: Naturgy Energy Group, S.A., formerly Gas Natural SDG, S.A., European Commission, Viesgo Producción, S.L., sucessor in title to Viesgo Generación, S.L.

Form of order sought

The appellant claims that the Court should:

— declare admissible and well-founded the grounds of appeal set out in the present appeal,

— set aside the judgment of the General Court of 8 September 2021 in Case T-328/18, Naturgy Energy Group, S.A. v Commission,

— annul Commission Decision of 27 November 2017 concerning State Aid SA.47912 (2017/NN) (1) — Environmental incentive adopted by Spain in favour of coal-fired power plants, initiating the formal investigation procedure laid down by Article 108(2) of the Treaty on the Functioning of the European Union.

— Order the European Commission to pay the costs.

Pleas in law and main arguments

The appellant respectfully requests that the judgment under appeal should be set aside on the following grounds:

First ground of appeal: the Court misinterpreted and misapplied the obligation to state reasons with respect to the concept of selectivity.

The appellant submits that the Court should avoid drawing the legal inference which arises from the case-law of the Courts of the European Union, the application of which it disputes in the present case, that is to say that as a consequence of the failure to state reasons in relation to the concept of selectivity, the decision to initiate must be annulled. Moreover, the Court seeks to remedy that failure to state reasons by reconstructing it, contrary to the case-law, in an attempt to state reasons on the basis of various paragraphs of the decision.

Second ground of appeal: in the event that the Court of Justice does not uphold the first ground of appeal, the General Court incorrectly interpreted and applied Article 107(1) TFEU, in relation to the concept of selectivity.

In particular, the appellant submits that the Court erred in considering that its review should be limited to the issue of whether the Commission committed a manifest error of assessment. The General Court erred in that it focused its analysis on whether the parties had ‘manifestly’ succeeded in proving that the Commission erred in its analysis and not on the relevant issue, that is to say whether or not the Commission erred in analysing the selectivity. In any event, even if that were the applicable test, the General Court should have concluded that the Commission committed a manifest error of assessment in examining the requirement of selectivity.

(1) OJ 2018 C 80, p. 20.
1.

According to the case-law of the Court of Justice, the assessment as to whether the features of appearance of a product are dictated exclusively by its technical function must be made having regard to the design at issue, (1) the objective circumstances indicative of the reasons which dictated the choice of features of appearance of the product concerned, information on its use or the existence of alternative designs which fulfil the same technical function (Court of Justice of the European Union, judgment of 8 March 2018, DOCERAM, C-395/16, EU:C:2018:172). With regard to the aspect of the existence of other designs, what significance is attached to the fact that the proprietor of the design also holds design rights for numerous alternative designs?
1.

Must the first and second sentences of Article 47(4) of Directive 2012/34/EU (1) be interpreted as unambiguously prohibiting the establishment of a national legal regulation which provides that, in the event of congested infrastructure, the intensity of the use of railway infrastructure can be taken into account at the time of capacity allocation? Does it have a bearing on this assessment whether the railway infrastructure utilisation rate is linked to the actual utilisation of that infrastructure in the past or to the planned utilisation during the period for which the relevant timetable is in force? Do the provisions of Articles 45 and 46 of Directive 2012/34/EU, which confer a broad discretion on the public infrastructure manager or on the entity making decisions on the capacity to coordinate the requested capacity, and the implementation of those provisions in national law have any significance for that assessment? Does the fact that infrastructure is identified as congested in a particular case due to the capacity applied for by two or more railway undertakings in respect of the carriage of the same freight have any significance for that assessment?
Official Journal of the European Union

Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 August 2021 — Finanzamt X v Y

(Case C-516/21)

(2022/C 95/08)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Defendant: Finanzamt X

Applicant: Y

Question referred

Does the tax liability for the leasing of permanently installed equipment and machinery pursuant to Article 135(2), first subparagraph, point (c) of Directive 2006/112/EC (1) (‘the VAT Directive’) cover

— only the isolated (independent) leasing of such equipment and machinery or also

— the leasing (letting) of such equipment and machinery which is exempt by virtue of (and as a supply ancillary to) a letting of a building, effected between the same parties, pursuant to Article 135(1)(l) of the VAT Directive?

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
Official Journal of the European Union

Appeal brought on 21 September 2021 by AM.VI. Srl, Quinam Limited, the successor in law to Fashioneast Sàrl against the judgment of the General Court (Third Chamber) delivered on 14 July 2021 in Case T-297/20, Fashioneast and AM.VI. v EUIPO — Moschillo (RICH JOHN RICHMOND)

(Case C-599/21 P)

(2022/C 95/09)

Language of the case: English

Parties

Appellants: AM.VI. Srl, Quinam Limited, the successor in law to Fashioneast Sàrl (represented by: A. Camusso, M. Baghetti, avvocati, A. Boros, ügyvéd)

Other party to the proceedings: European Union Intellectual Property Office

By order of 17 January 2022, the Court of Justice (Chamber determining whether appeals may proceed) held that the appeal was not allowed to proceed and that AM. VI. and Quinam Limited shall bear their own costs
Request for a preliminary ruling from the Landesverwaltungsgericht Tirol (Austria) lodged on 6 September 2021 — C.G. v Bezirkshauptmannschaft Landeck

(Case C-548/21)

(2022/C 109/20)

Language of the case: German

Referring court

Landesverwaltungsgericht Tirol

Parties to the main proceedings

Complainant: C.G.

Respondent authority: Bezirkshauptmannschaft Landeck

Questions referred

1. Is Article 15(1) (possibly read in combination with Article 5) of Directive 2002/58/EC, (1) as amended by Directive 2009/136/EC, (2) read in the light of Articles 7 and 8 of the Charter of Fundamental Rights, to be interpreted as meaning that public authorities’ access to data stored on mobile telephones entails interference with fundamental rights enshrined in those articles of the Charter which is sufficiently serious to entail that access being limited, in areas of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime?

2. Is Article 15(1) of Directive 2002/58/EC, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, to be interpreted as meaning that it precludes a national rule, such as that enacted in Paragraph 18 of the Strafprozessordnung (Austrian Code of Criminal Procedure), read in combination with Paragraph 99(1) thereof, which allows security authorities to grant themselves full and uncontrolled access to all digital data stored on a mobile telephone in the course of a criminal investigation without the authorisation of a court or independent administrative body?

3. Is Article 47 of the Charter of Fundamental Rights, possibly read in combination with Articles 41 and 52 thereof, to be interpreted, from the point of view of equality of arms and from the point of view of an effective remedy, as meaning that it precludes a national rule, such as that enacted in Paragraph 18 of the Code of Criminal Procedure, read in combination with Paragraph 99(1) thereof, which allows data processing of a mobile telephone without advising the data subject before or, at the very least, after the measure is taken?

(1) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37).

(2) Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (OJ 2009 L 337, p. 11).
Request for a preliminary ruling from the Verwaltungsgericht Wiesbaden (Germany) lodged on 14 December 2021 — TR v Land Hessen

(Case C-768/21)

(2022/C 138/09)

Language of the case: German

Referring court

Verwaltungsgericht Wiesbaden

Parties to the main proceedings

Applicant: TR

Defendant: Land Hessen

Question referred

Are Article 57(1)(a) and (f) and Article 58(2)(a) to (j) of Regulation (EU) 2016/679, (1) read in combination with Article 77(1) thereof, to be understood as meaning that, where the supervisory authority finds that data processing has infringed the data subject’s rights, the supervisory authority must always take action in accordance with Article 58(2) of that regulation?

(1) Regulation of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).