ddrg/super_eurlex huggingface dataset:
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declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC, of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania (1), or in any event by failing to communicate them to the Commission, the United Kingdom has failed to fulfil its obligations under the Directive;
EN Official Journal of the European Union C 247/10

Action brought on 30 July 2008 — Commission of the European Communities v Republic of Austria

(Case C-356/08)

(2008/C 247/17)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and A. Böhlke, Agents)

Defendant: Republic of Austria

Form of order sought

— declare that, by imposing an obligation on every medical doctor becoming established in Oberösterreich (Land of Upper Austria) to open a bank account with the Oberösterreichische Landesbank to which fees for benefits in kind are to be transferred by the health insurance funds, the Republic of Austria has failed to comply with its obligations under Articles 43 EC, 49 EC and 56 EC;

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The mandatory opening of an account, to which, moreover, all fees for benefits in kind from health insurance funds must be transferred, is disproportionate to the need to ensure the proper calculation and levying of the contributions payable to the medical councils by medical doctors established in Oberösterreich. The disputed rules for that reason amount to unjustified restrictions of three fundamental freedoms guaranteed by the Treaty, namely the freedom of establishment of medical doctors established in other Member States and that of banks, their freedom to provide services and the free movement of capital.
EN Official Journal of the European Union C 236/11

Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Lucia Anna Giorgia Iacono v Telecom Italia SpA

(Case C-319/08)

(2008/C 236/17)

Language of the case: Italian

Referring court

Giudice di Pace di Ischia

Parties to the main proceedings

Applicant: Lucia Anna Giorgia Iacono

Defendant: Telecom Italia SpA

Question referred

Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

(1) OJ L 108, p. 51.

(2) OJ L 171, p. 12.

(3) Commission Recommendation.

(4) Commission Recommendation.
EN Official Journal of the European Union C 260/10

Reference for a preliminary ruling from the Tribunal Superior de Justicia Murcia (Spain) lodged on 30 July 2008 — Aurelio Choque Cabrera v Delegación del Gobierno en Murcia

(Case C-348/08)

(2008/C 260/17)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia Murcia

Parties to the main proceedings

Applicant: Aurelio Choque Cabrera

Defendant: Delegación del Gobierno en Murcia

Question referred

Should Article 62(1) and (2)(a) of the Treaty Establishing the European Community and Articles 5, 11 and 13 of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (1) be interpreted as precluding national legislation, and the case-law which interprets it, which permits the substitution of the expulsion of any ‘third country national’ who does not have documentation authorising him to enter and remain in the territory of the European Union by the imposition of a fine?

(1) OJ 2006 L 105, p. 1.
Is the right of residence and employment acquired as a member of the family pursuant to the second indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council by the spouse of a Turkish worker who is duly registered as belonging to the labour force of a Member State retained even after a divorce?

If the reply to the first question is in the affirmative:
1.

In the case where goods bearing a trade mark proprietor's mark have previously been placed on the market within the EEA, but not by him or with his express consent, must the same criteria be applied in determining whether this has occurred with the (implicit) consent of the trade mark proprietor, within the meaning of Article 7(1) of First Council Directive 89/104/EEC (1) of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as are applied in the case where such goods have previously been placed on the market outside the EEA by the trade mark proprietor or with his consent?
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (1) or by failing to inform the Commission of such provisions, the Republic of Hungary has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 285/25

Appeal brought on 14 August 2008 by Atlantic Dawn Ltd, Antarctic Fishing Co. Ltd, Atlantean Ltd, Killybegs Fishing Enterprises Ltd, Doyle Fishing Co. Ltd, Western Seaboard Fishing Co. Ltd, O'Shea Fishing Co. Ltd, Aine Fishing Co. Ltd, Brendelen Ltd, Cavankee Fishing Co. Ltd, Ocean Trawlers Ltd, Eileen Oglesby, Noel McGing, Mullglen Ltd, Bradan Fishing Co. Ltd, Larry Murphy, Pauric Conneely, Thomas Flaherty, Carmarose Trawling Co. Ltd, Colmcille Fishing Ltd against the order of the Court of First Instance (Seventh Chamber) delivered on 2 June 2008 in Case T-172/07 Atlantic Dawn Ltd, Antarctic Fishing Co. Ltd, Atlantean Ltd, Killybegs Fishing Enterprises Ltd, Doyle Fishing Co. Ltd, Western Seaboard Fishing Co. Ltd, O'Shea Fishing Co. Ltd, Aine Fishing Co. Ltd, Brendelen Ltd, Cavankee Fishing Co. Ltd, Ocean Trawlers Ltd, Eileen Oglesby, Noel McGing, Mullglen Ltd, Bradan Fishing Co. Ltd, Larry Murphy, Pauric Conneely, Thomas Flaherty, Carmarose Trawling Co. Ltd, Colmcille Fishing Ltd v Commission of the European Communities

(Case C-372/08 P)

(2008/C 285/40)

Language of the case: English

Parties

Appellants: Atlantic Dawn Ltd, Antarctic Fishing Co. Ltd, Atlantean Ltd, Killybegs Fishing Enterprises Ltd, Doyle Fishing Co. Ltd, Western Seaboard Fishing Co. Ltd, O'Shea Fishing Co. Ltd, Aine Fishing Co. Ltd, Brendelen Ltd, Cavankee Fishing Co. Ltd, Ocean Trawlers Ltd, Eileen Oglesby, Noel McGing, Mullglen Ltd, Bradan Fishing Co. Ltd, Larry Murphy, Pauric Conneely, Thomas Flaherty, Carmarose Trawling Co. Ltd, Colmcille Fishing Ltd (represented by: G. Hogan SC, N. Travers BL, T. O'Sullivan BL, D. Barry, Solicitor)

Other parties to the proceedings: Commission of the European Communities, Kingdom of Spain

Form of order sought

The applicants claim that the Court should:

— set aside the order of the Court of First Instance in its entirety;

— remit the case to the Court of First Instance for judgment on the substance of the application, the balance of the objection of inadmissibility of the Commission of 7 September 2007 to be reserved for the said decision on the merits;

— order the Commission to pay the costs incurred by the appellants in respect of this appeal.

Pleas in law and main arguments

The appellants base this appeal on three alleged infringements of Community law made in the order under appeal. The appellants submit that the Court of First Instance has, firstly, misconstrued Article 20 of Regulation No 2371/2002 (1) and, in particular, the scope of the residual powers of Member States under Article 20(3) thereof. Secondly, it has misconstrued Article 20(5) in relying upon the possibility of inter-Member State quota exchanges to exclude direct concern for the appellants. Lastly, it has erroneously ignored the fact that the appellants are directly concerned, as a closed group of individuals, by the contested regulation.

(1) Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ L 358, p. 59).
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declare that, by failing to adopt the domestic legal provisions necessary to comply fully with Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (1), and, in particular, by failing to implement Article 8, Article 9 in its entirety, Articles 13, 15 to 18 and 20(2) to (4) thereof, the Czech Republic has failed to fulfil its obligations under that directive, in particular those under Article 22(1) thereof;
EN Official Journal of the European Union C 285/27

Reference for a preliminary ruling from the Grondwettelijk Hof (Belgium) lodged on 8 September 2008 — Base NV, Euphony Benelux NV, Mobistar NV, Uninet International NV, T2 Belgium NV and KPN Belgium NV v Ministerraad, other party: Belgacom NV

(Case C-389/08)

(2008/C 285/44)

Language of the case: Dutch

Referring court

Grondwettelijk Hof

Parties to the main proceedings

Applicants: Base NV, Euphony Benelux NV, Mobistar NV, Uninet International NV, T2 Belgium NV and KPN Belgium NV

Defendant: Ministerraad

Other Party: Belgacom NV

Question referred

Can Article 12 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (1) be interpreted as allowing the competent legislature of a Member State, acting in the capacity of the national regulatory authority, to determine generally and on the basis of the calculation of the net costs of the universal service provider — previously the sole provider — that the provision of universal service may represent an ‘unfair burden’ for those undertakings designated as universal service providers?

(1) OJ 2002 L 108, p. 51.
EN Official Journal of the European Union C 301/25

Appeal brought on 22 September 2008 by Apple Computer, Inc. against the judgment of the Court of First Instance (Third Chamber) delivered on 1 July 2008 in Case T-328/05 Apple Computer, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-416/08 P)

(2008/C 301/38)

Language of the case: English

Parties

Appellants: Apple Computer, Inc. (represented by: M. Hart, N. Kearley, Solicitors)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), TKS-Teknosoft SA

Form of order sought

The appellant claims that the Court should order that:

— The appeal by the applicant to the European Court of Justice be allowed;

— The judgment of the Court of First Instance of the European Communities (CFI) in case T-328/05 of 1 July 2008 be set aside;

— The case be referred back to the CFI; and

— The costs in the case be reserved.

Pleas in law and main arguments

1. Apple, Inc., (the applicant) has applied to register a Community Trademark for the word mark ‘QUARTZ’. Its application covers: ‘A computer operating system functionality specially intended for use by IT developers with the aim of improving and accelerating the reproduction of digital images in application programs, except products intended for the banking sector’ in Class 9.

2. TKS-Teknosoft S.A. (the ‘Opponent’) is the registered proprietor of a Community Trade Mark Registration for the figurative mark ‘QUARTZ’, which was in respect of, amongst other things: (a) ‘packets of programs for banking’ in Class 9; and (b) ‘computer programming, computer data processing, computer software development, assistance and consulting services in the computer field electronic data processing, computer software design and development, licensing of computer software and computer applications; all these services being linked to banking’ in Class 42.

The Opponent opposes the registration of the Applicant's QUARTZ mark on the basis that there would be a likelihood of confusion between the two marks. The Court of First Instance agreed.

The Applicant submits that the CFI erred in law because:

(a) the goods in respect of which the two marks would be registered and used are clearly different and the CFI failed to take into account those relevant differences;

(b) it did not correctly identify the relevant ‘public’ for the purposes of assessing whether confusion was likely. In particular, it did not give sufficient weight to the fact that the relevant public must logically be software specialists employed in or providing services to the banking sector; and
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declare that, by not adopting the laws, regulations and administrative provisions necessary to comply fully with Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, and in any event by not notifying those provisions to the Commission, the Republic of Cyprus has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 327/12

Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 23 September 2008 — Yasar Erdil v Land Berlin

(Case C-420/08)

(2008/C 327/20)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Yasar Erdil

Defendant: Land Berlin

Question referred

Can a Turkish national whose legal status is derived from the second indent of the first paragraph of Article 7 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association between the European Economic Community and Turkey and who has lived in Germany since his birth in 1989 rely on the special protection against expulsion under Article 28(3)(a) of Directive 2004/38/EC (1) of 29 April 2004?

(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 2004 L 158, p. 77). (Corrigendum to 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 2004 L 229, p. 35)).
If the reply to the first question is in the negative:

Is heading 1515 of the Combined Nomenclature to be interpreted as meaning that granulated starch capsule casings containing 580 mg of concentrated wheat-germ oil determine the character of the goods in such a way that the goods are excluded from heading 1515 of the Combined Nomenclature?
EN Official Journal of the European Union C 19/21

Action brought on 4 December 2008 — Commission of the European Communities v Portuguese Republic

(Case C-543/08)

(2009/C 19/40)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by G. Braun, P. Guerra e Andrade and M. Teles Romão, Agents)

Defendant: Portuguese Republic

Form of order sought

— a declaration that, by maintaining the State's special rights in the EDP — Energias de Portugal, granted in connection with the State's golden shares, the Portuguese Republic has failed to fulfil its obligations under Articles 56 EC and 43 EC;

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

Pleas in law and main arguments

The EDP's articles of association provide for one vote for every share, but do not take into consideration the votes attaching to ordinary shares not held by the State cast by a shareholder exceeding 5 % of all votes corresponding to share capital.

Under the Portuguese legislation, the State has special rights in the EDP regardless of the number of shares it holds. Those special rights are, in particular, the right to veto resolutions of the general meeting relating to changes to the memorandum and articles of association (including decisions to increase capital, and merger, demerger and winding-up decisions), to the conclusion of joint contracts relating to groups or subsidiaries and to the abolition or limitation of the preferential subscription right of shareholders on an increase of capital.

The State also has the special right to appoint an administrator when it has voted against the choice of administrators proposed and approved.

The Commission believes that both the limiting of votes and the special rights amount to a restriction of the movement of capital and of freedom of establishment. Those measures constitute an obstacle to direct investment in the EDP, an obstacle to portfolio investment and an obstacle to the exercise of freedom of establishment.

Those special rights of the State constitute State measures, for the golden shares do not stem from the normal application of company law.

The limiting of votes, in the circumstances in which it was introduced, also amounts to a State measure.

Those golden shares and the limiting of votes do not respond to legitimate objectives in the common interest or, in particular, to those pleaded by the Portuguese State, namely, public safety and security of supply and the concession of a public service.

In any case, the Portuguese State has failed to observe the principle of proportionality, for the measures in question are not apt to ensure the attainment of the objectives pursued and they go beyond what is necessary in order to achieve them.
2.

If the reply to the first question is affirmative, is that provision to be interpreted as meaning that the guarantee of protection which it provides is infringed by a provision of domestic law that, with the object of fixing the amount of pension for total permanent invalidity on account of occupational disease, takes into consideration the pay received by the worker concerned and the contributions actually made on the basis of that pay in the 12 months before the operative event, during the greater part of which the worker made use of that leave with a reduction in her working day, pay and contributions, but does not provide any correcting factor making it possible to ensure that the object of that provision of Community law is achieved?
EN Official Journal of the European Union C 19/13

Appeal brought on 6 November 2008 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the Court of First Instance (Third Chamber) delivered on 10 September 2008 in Case T-59/05 Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Commission of the European Communities

(Case C-476/08 P)

(2009/C 19/23)

Language of the case: English

Parties

Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: N. Korogiannakis, P. Katsimani, Δικηγόροι)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellant claim that the Court should:

— Set aside the decision of the Court of First Instance;

— annul the decision of the Commission (DG Agriculture) to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

— order the Commission to pay the applicant's legal and other costs and expenses incurred in connection with the initial procedure, even if the current Appeal is rejected as well as those of the current Appeal, in case it is accepted

Pleas in law and main arguments

The appellant bases its appeal against the judgment T-59/05 of the Court of First Instance on the following grounds:

It is submitted that the Court of First Instance committed a breach of procedure by refusing to recognise an evident discrepancy between the award criteria as set out in section 5.2 of the EvCo Report and those mentioned in section 5.4 of the same Report and by misinterpreting the relevant procedural rules on the burden of proof. More specifically, the Court of First Instance does not refer to any evidence in support of its qualification as ‘typographical error’ of an obvious discrepancy, and no such evidence can by any means be deduced from the content of the Evaluation Report itself.

Further, the judgment fails to observe the consequences of the Commission's infringement of its duty of diligence and of the principle of good administration. Since the Court of First Instance, despite observing that the Commission infringed the rule of law, did not proceed into annulling the Commission's Decision on this ground, the Court of First Instance undoubtedly failed in applying the relevant provisions.

It is submitted that the Court of First Instance also failed to apply the relevant provisions on the duty of the contracting authority to provide reasons, which would lead it to annul the award decision; only scores and some general comments from the Evaluation Report have been submitted to the Appellant by the letter of 10 December 2004. In this sense the Court of First Instance distorted the evidence adduced before it, and for this reason its judgment should be annulled.
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to fully comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1), or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive;