ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 247/7

Action brought on 11 July 2008 — Commission of the European Communities v Republic of Poland

(Case C-309/08)

(2008/C 247/12)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: A. Nijenhuis and K. Mojzesowicz, acting as Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by failing to ensure the proper implementation in national law of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (1), in particular Article 3(2) and (3) concerning the requirements that national regulatory authorities be independent and that they exercise their powers impartially and transparently, the Republic of Poland has failed to fulfil its obligations under that directive;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

Poland has failed to ensure an effective separation of regulatory functions from activities linked to the exercise of rights of property or control.

The Polish State has extensive shareholdings in numerous telecommunications undertakings. At the same time, the national regulatory authority in Poland is appointed by the Prime Minister, who is entitled freely to dismiss it at any time without providing reasons and on whom the Minister for Finance and the Minister for Infrastructures are also fully dependent.

The absence of provisions defining the duration of the term of the national regulatory authority and the lack of an exhaustive list of conditions allowing for its dismissal results in its being dependent to a significant extent on the Prime Minister and fails to guarantee that those market participants in which the State holds shares will be treated in the same way as other market participants.

(1) OJ L 108, 24.4.2002, p. 33-50.
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE (1) of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage and, in any event, by failing to communicate such measures to the Commission, the Republic of Finland has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 247/3

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 18 June 2008 — Bundesfinanzdirektion West v HEKO Industrieerzeugnisse GmbH

(Case C-260/08)

(2008/C 247/04)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Bundesfinanzdirektion West

Respondent: HEKO Industrieerzeugnisse GmbH

Question referred

Is the only substantial processing or working of products coming under heading 7312 of the Combined Nomenclature which confers non-preferential origin in accordance with Article 24 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1) that which has the effect that the product resulting from that processing or working is to be classified under a different heading of the Combined Nomenclature?

(1) OJ 1992 L 302, p. 1.
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Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2004/107/EC of the European Parliament and of the Council of 15 December 2004 relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air (1), the French Republic has failed to fulfil its obligations under Article 10 of that directive;
2.

As a subordinate point, in the case of an affirmative answer to the first question, whether the protective clause referred to in Article 7(2) of the Directive applies.
EN Official Journal of the European Union C 285/28

Appeal brought on 12 September 2008 by Zipcar, Inc. against the judgment of the Court of First Instance (Eighth Chamber) delivered on 25 June 2008 in Case T-36/07 Zipcar, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-394/08 P)

(2008/C 285/47)

Language of the case: English

Parties

Appellants: Zipcar, Inc. (represented by: M. Elmslie, Solicitor, N. Saunders, Barrister)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Canary Islands Car SL

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment of the Court of First Instance of 25 June 2008 in case T-36/07 in its entirety

— Remit the application to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to allow it to preceed

— Order that the Respondent shall pay the Appellant's costs of this Appeal and of the Appeal before the Court of First Instance

Pleas in law and main arguments

The Appellant submits that the contested judgment should be set aside on the following grounds:

1) Improper extension of the factual and legal context of the review of the legality of the decision under appeal. It is submitted that the Court of First Instance in its judgment changed the subject matter of the proceedings before the Board of Appeal of the OHIM and took into account facts and matters which extended the factual and legal context of the dispute before the OHIM.

2) Breach of Art 8(1)(b) of Regulation 40/94 (1). The Court of First Instance stated in effect that the relevant public must be considered to be solely Spanish speaking ‘even if it is accepted that in certain regions of Spain, such as the Canary Islands, English is commonly spoken or that some Spanish consumers have knowledge of English’. This amounts to an error in law because it is in effect a ruling that in assessing the linguistic capacity and understanding of the average consumer in any particular case, the only question is one of determining the main or primary language of the Member State in which the earlier right subsists, without regard to other facts which are relevant to determining the nature of the relevant consumer.

3) Further breach of Art 8(1)(b) of Regulation 40/94. Having identified three categories of similarity between the goods and services of the application and those of the alleged prior right, namely ‘in part identical’, ‘in part very similar’, and ‘in part not materially different’ the Court erred in law by failing to consider the effect of these three different categories in assessing whether there was a likelihood of confusion.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, 14.1.1994, p. 1).
—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 concerning environmental liability with regard to the prevention and remedying of environmental damage (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;
1.

Should the importer of goods which originate in the West Bank be granted the preferential treatment requested in any event in light of the fact that preferential treatment is provided under two agreements which come under consideration in the present case — namely the ‘Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part’ (EMA) (1) and the ‘Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part’ (EMI-PLO) (2) — for goods originating in the territory of the State of Israel or in the West Bank, even if only a formal certificate of origin from Israel is submitted? If Question 1 is to be answered in the negative:
1.

By its first plea on appeal, the appellant submits that there was a breach of the rights of the defence, including a breach of the right to a fair hearing. The appellant submits that the Court of First Instance failed to observe the principles that apply with regard to the legal consequences of a refusal to grant access to incriminating documents and the withholding of exculpatory evidence. By the first part of this plea, the appellant submits that the Commission's decision should have been annulled, because the Commission denied the appellant access to incriminating evidence on which the decision was subsequently based. By the second part of the first plea, the appellant submits that the judgment under appeal involved a separate breach of the appellant's rights of defence, given that the Commission also illegally withheld exculpatory evidence, which likewise should have led to the annulment of the decision.
2.

Do the ‘polluterpays’ principle (Article 174(2) (formerly Article 130r(2) of the Treaty of the European Communities) and the provisions of Directive 2004/35/EC of 21 April 2004, referred to above, preclude national legislation which allows the public authorities to impute liability to make good the environmental damage in a particular form to the person who owns the property rights and/or carries on commercial activities on the contaminated site without having to assess in advance whether there is a causal link between the conduct of that person and the occurrence of the contamination, by virtue merely of that person's ‘situation’ (namely, that of being an operator whose activities are carried on inside the site)?
4.

If there can be no regularisation under Article 78 of the Code and given that there was a customs debt under Article 203 of the Code and given that it is common ground that there was a special situation as contemplated by Article 899 IR, was it in the circumstances and in the light of the findings that follow open to the Tribunal to conclude that there was no obvious negligence present, so that the customs debt should be remitted under Article 239 of the Code and the demand for customs duty should be withdrawn? In particular, in considering whether there has been obvious negligence on the part of the trader concerned, are the competent authorities entitled to take into account the fact that the revenue authority's own failing in its duty of care and management has contributed to the errors giving rise to the customs debt?
—

Declare that, by failing to adopt and publish the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications or, in any event, by failing to notify the Commission of such measures, the Portuguese Republic has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 6/11

Action brought on 7 October 2008 — Commission of the European Communities v French Republic

(Case C-443/08)

(2009/C 6/18)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: A. Alcover San Pedro and J.-B. Laignelot, Agents)

Defendant: French Republic

Form of order sought

The applicant claims that the Court should:

— declare that, by failing to adopt all the laws and regulations necessary to correctly transpose Article 2(3), Article 2(4) and Article 4(4) of Council Directive 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations (1) as regards the definition of the concepts of ‘small installation’ and ‘substantial change’ and the obligations applying to existing installations, the French Republic has failed to fulfil its obligations under that directive;

— order French Republic to pay the costs.

Pleas in law and main arguments

The applicant submits that the concepts of ‘small installation’ and ‘substantial change’, as defined in Articles 2(3) and 2(4) of Directive 1999/13/EC, are necessary in order to ensure a harmonised and efficient application of that directive in so far as they specify the obligations applying to certain categories of industrial installations referred to by that directive. There are many omissions in that regard in the transposition of the directive into French law because the defendant did not include any definition of the concept ‘small installation’, while its definition of the concept ‘substantial change’ does not take into account the thresholds for the increase of emissions of volatile organic compounds, above which the change in an installation must be considered to be substantial.

The applicant also criticises the lack of precision and clarity in the transposition of Article 4(4) of the Directive concerning the obligations applying to substantial changes in existing installations. The rules relating to new installations being stricter than those applicable to old installations, clearer rules should in fact be drawn up also in the cases where an existing installation undergoes significant changes in order to ensure the directive, the purpose of which is to guarantee a high level of protection of the environment, remains effective.

(1) OJ 1999 L 85, p. 1.
5.

Given that: (i) there can be no regularisation under Article 78 of the Code and (ii) there was a customs debt and (iii) there was a special situation as contemplated by Article 899 1R, was it open to the Tribunal to conclude that there was no obvious negligence present, so that the customs debt should be remitted under Article 239 of the Code?
3.

Does Community law preclude a provision whereby the credit method is to apply to non-member-country equity holdings of less than 25 % (10 %) which fall within the scope of free movement of capital where the production of evidence of payment of a previous foreign charge to (corporation) tax is an impossible or disproportionately costly task because of the small size of the equity holdings, whilst provision is made for the exemption method to apply to domestic equity holdings in general — that is to say, irrespective of the size of the equity holdings — and relief from double economic taxation is therefore obtained in any event? 3.1 If the answer to the third question should be in the affirmative: Does Community law preclude the refusal of exemption for income from non-member-country equity holdings where the size of the equity holding is less than 25 % (10 %) even though exemption for income from equity holdings of more than 25 % (10 %) is not linked to satisfaction of particular requirements compliance with which could be examined only by obtaining information from the competent authorities of the country concerned and exemption is granted in such cases without any other conditions being attached? 3.2 If the answer to the third question should be in the negative: Does Community law preclude the refusal of a credit for foreign corporation tax for income from non-member-country equity holdings where the size of the equity holding is less than 25 % (10 %) even though tax exemption for income from holdings of more than 25 % (10 %) is not linked to satisfaction of particular requirements compliance with which could be examined only by obtaining information from the competent authorities of the country concerned and exemption is granted in such cases without any other conditions being attached?
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC (1) of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies, the Kingdom of Spain has failed to fulfil its obligations under Article 19 of that directive;
EN Official Journal of the European Union C 32/19

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 25 November 2008 — Verbraucherzentrale Nordrhein-Westfalen e.V. v Handelsgesellschaft Heinrich Heine GmbH

(Case C-511/08)

(2009/C 32/30)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Verbraucherzentrale Nordrhein-Westfalen e.V.

Defendant: Handelsgesellschaft Heinrich Heine GmbH

Question referred

Are the provisions of Article 6(1), sentence 2, and Article 6(2) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (1) to be interpreted as precluding national legislation which allows the costs of delivering the goods to be charged to the consumer even where he has withdrawn from the contract?

(1) OJ L 144, p. 19.
—

Declare that, by failing to adopt, in full, the laws, regulations and administrative provisions necessary to 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, as the case may be, by failing to fully inform the Commission of those provisions, the Federal Republic of Germany has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 32/20

Reference for a preliminary ruling from the Tribunal de première instance de Namur (Belgium) lodged on 26 November 2008 — Atenor Group SA v Belgian State — SPF Finances

(Case C-514/08)

(2009/C 32/32)

Language of the case: French

Referring court

Tribunal de première instance de Namur

Parties to the main proceedings

Applicant: Atenor Group SA

Defendant: Belgian State — SPF Finances

Question referred

Does the first indent of Article 4 of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (1) preclude national legislation making the deduction of dividends received as definitively taxed income subject to the existence of a taxable profit of the parent company?

(1) OJ 1990 L 225, p. 6.
EN Official Journal of the European Union C 32/17

Appeal brought on 17 November 2008 by Prana Haus GmbH against the judgment of the Court of First Instance (Eighth Chamber) delivered on 17 September 2008 in Case T-226/07 Prana Haus GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-494/08 P)

(2009/C 32/26)

Language of the case: German

Parties

Appellant: Prana Haus GmbH (represented by: N. Hebeis, Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

— set aside the judgment of the Court of First Instance of the European Communities (Eighth Chamber) of 17 September 2008 in Case T-226/07 Prana Haus GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs);

— order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings.

Pleas in law and main arguments

The subject-matter of the dispute is the question whether the term ‘PRANAHAUS’ may be registered as a trade mark for the goods ‘recorded image and sound recording carriers of all kind; printed matter’ and for ‘retail services … for essential commodities …’. The Court of First Instance held that ‘PRANAHAUS’ was an indication directly and specifically describing the goods and services in question.

In its appeal, the appellant claims infringement of the absolute grounds for refusal of protection of a descriptive indication under Article 7(1)(c)of the Community Trade Mark Regulation.

According to the appellant, the Court of First Instance interpreted too broadly the legal term ‘to designate’ in Article 7(1)(c), contrary to the actual wording of the provision and the case-law of the Court of Justice. Furthermore, it erred in the assessment as to whether the designation ‘PRANAHAUS’ showed a sufficiently direct and specific relationship to the goods and services in question that the relevant public could ‘without further thought or analysis’ see in the term a ‘designation’ of the goods and services within the meaning of Article 7(1)(c). In doing so, the Court of First Instance failed to take into account the fact that several complex logical steps are required in order to identify even a hidden meaning in the term ‘PRANAHAUS’. In that context the Court of First Instance also failed to consider facts which would have had a bearing on the resolution of the case and as a result distorted the factual basis. Furthermore, the Court of First Instance failed to provide the required statement of reasons as regards the extent to which the term ‘PRANAHAUS’ could be considered to be descriptive of the specific goods and services. In addition, failing to have regard for the case-law of the Court of Justice, the Court of First Instance assumed that there was a need for the designation ‘PRANAHAUS’ to be kept free for competitors.
EN Official Journal of the European Union C 44/29

Action brought on 25 November 2008 — Commission of the European Communities v French Republic

(Case C-512/08)

(2009/C 44/48)

Language of the case: French

Parties

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

Defendant: French Republic

Form of order sought

— declare that: — by making, pursuant to Article R-332-4 of the Social Security Code, the reimbursement for medical services available at a general practitioner's surgery requiring the use of the extensive material supplies in part II of Article R-712-2 of the Public Health Code, subject to the grant of prior authorisation; — by failing to provide, in Article R-332-4, or in any other provision of French law, for the possibility of granting a patient — insured under the French social security system — additional reimbursement in the circumstances set out in paragraph 53 of the judgment of 12 July 2001 in Case C-368/98 Vanbraekel and Others, the French Republic has failed to fulfil its obligations under Article 49 of the EC Treaty;

— order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission raises two complaints in support of its action.

By its first complaint, the Commission contests the requirement — imposed by the defendant — of obtaining prior authorisation in order to receive reimbursement of expenses for certain non-hospital treatment provided in another Member State. While that requirement can be justified where it concerns medical services provided in a hospital, on account of the need to ensure both adequate and permanent access to a balanced range of high-quality hospital treatment, and a control of the costs which that involves, such a requirement seems disproportionate as regards non-hospital services. Several factors are capable of limiting the possible financial impact of abolishing the prior authorisation, such as the option, for the Member States, to determine the scope of the medical cover to which the insured are entitled, or the national conditions for the granting of benefits, provided that they are not discriminatory and do not constitute an obstacle to the free movement of persons.

By its second complaint, the Commission further objects to the absence, in French law, of a provision allowing the patient — insured under the French social security system — to be granted additional reimbursement in the circumstances set out in paragraph 53 of the judgment of 12 July 2001 in Vanbraekel and Others, that is to say, a reimbursement covering the difference in relation to the amount to which that patient would have been entitled if the hospital treatment had been provided in his own Member State. Consequently, those patients, insured under the French social security system, do not benefit fully from the rights which they are granted under Article 49 EC, as interpreted by the Court of Justice.