ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 226/13

Action brought on 19 May 2011 — French Republic v European Parliament

(Case C-238/11)

2011/C 226/25

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues and A. Adam)

Defendant: European Parliament

Form of order sought

— annul the deliberations of the European Parliament of 9 March 2011 relating to the calendar of periods of sessions of the Parliament for the year 2013;

— order the European Parliament to pay the costs.

Pleas in law and main arguments

The applicant puts forward a single plea in support of its action, alleging, first, infringement of the Protocol No 6 on the location of the seats of the institutions and of certain bodies, agencies and departments of the European Union, annexed to the TEU and the TFEU, and of Protocol No 3 on the location of the seats of the institutions and of certain bodies, agencies and departments of the European Union, annexed to the ECSC Treaty, and, second, non-compliance with the judgment of the Court of 1 October 1997 in Case C-345/95 France v Parliament [1997] ECR I-5235.

According to the French Government, in providing that two of the 12 periods of monthly plenary sessions which must be held each year in Strasbourg are to be reduced from four to two days and will take place, in 2013, during the same week of October, the European Parliament sought to circumvent the rule that the 12 periods of monthly plenary sessions, including the budget session, must be held in Strasbourg. The contested deliberation leads, in reality, to one of the 12 periods of monthly plenary sessions which must be held in Strasbourg being eliminated. Its sole objective is thus to diminish the length of time the MEPs are present at the seat of the European Parliament, without its being justified by internal organisational requirements relating to the work of the Parliament.
1.

With particular regard to Article 2(a) and Article 3(3) of Regulation (EC) No 1931/2006 (1) of the European Parliament and of the Council of 20 December 2006 (‘Local Border Traffic Regulation’), is the provision in Article 5 of that Regulation, which permits an uninterrupted stay not exceeding three months, to be interpreted in such a way that the Regulation allows multiple exits and entries, and an uninterrupted stay not exceeding three months on the basis of bilateral agreements between Member States and third countries under Article 13 in such a way that a border resident in possession of a local border traffic certificate may interrupt the uninterrupted stay prior to the expiry of the three-month period available for the stay, and then be entitled to a further uninterrupted stay of three months once he has crossed the border again?
3.

There is no trace in the Italian legislation of measures implementing that general obligation. Admittedly, there are the provisions of Law No 68/1999, which, in a number of areas, offer a level of assurance and facilitation which is higher even than that required under Article 5 of Directive 2000/78. However, those provisions do not concern all disabled persons; they are not enforceable against all employers; they do not concern all the various aspects of the employment relationship; or they merely indicate an objective which requires subsequent implementing measures if it is to be achieved.
In the first ground of appeal it is submitted that the General Court infringed various rules on the burden of proof and procedural rules on evidence, distorted certain pieces of evidence and did not provide reasons for its factual assessment. Although the General Court recalls the case law on the need to consider the overall body of evidence, the subsequent assessment reveals a very fragmentary approach by which evidence is viewed in isolation and dismissed on a piece-by-piece basis. This affects the analysis of individual contacts, which the Decision considers as manifestations of the Aalberts undertakings' participation in the on-going infringement. Evidence on the participation of the subsidiary companies Simplex and Aquatis in the continuous infringement are assessed by the General Court in isolation, although they belonged to one and the same undertaking (Aalberts). In addition, and with regard to these contacts, the General Court distorts certain key pieces of evidence or at least does not provide sufficient reasons for its conclusions as regards the probative value of certain pieces of evidence. The second ground of appeal is an alternative plea, in that even if its factual findings were to be upheld, the General Court was wrong to annul the decision in full, insofar as it only found a partial mistake in the Decision. The Judgment under Appeal is affected by at least two errors of law: — First , the General Court annulled the Commission's Decision on the ground that Aquatis had a different degree of awareness of the cartel, compared to the other participants of the FNAS meetings in France. However, in line with established case law, the differing degree of awareness by a cartel participant should not lead to the total annulment of the single and continuous infringement but it could, at most, lead to a partial annulment of the finding of an infringement, and probably a reduction of the fine. — Second , by completely annulling the Decision for Aalberts and its two subsidiaries in a case where a partial annulment would have been the most appropriate solution in line with the case law, the General Court exceeded its powers
EN Official Journal of the European Union C 238/4

Reference for a preliminary ruling from the Tribunale di Ragusa (Italy) lodged on 7 March 2011 — Criminal proceedings against Mohamed Ali Cherni

(Case C-113/11)

2011/C 238/05

Language of the case: Italian

Referring court

Tribunale di Ragusa (Italy)

Party to the main proceedings

Mohamed Ali Cherni

By order of 26 May 2011 the Court of Justice removed the case from the register.
1.

Does Article 50 of Directive 2002/83/EC (1) of the European Parliament and of the Council of 5 November 2002 concerning life assurance, which in paragraph 1 provides that, without prejudice to any subsequent harmonisation, every assurance contract shall be subject exclusively to the indirect taxes and parafiscal charges on assurance premiums in the Member State of the commitment, and which in paragraph 3 provides that, pending future harmonisation, each Member State shall apply to those assurance undertakings which cover commitments situated within its territory its own national provisions for measures to ensure the collection of indirect taxes and parafiscal charges due under paragraph 1, preclude a national rule as laid down in Article 173 and Article 175(3) of the Wetboek van diverse rechten en taksen, which provides that insurance transactions (including life assurance policies) are subject to an annual tax, when the risk is situated in Belgium, in particular if the policy-holder has his/her habitual residence in Belgium, or, if the policy-holder is a legal person, if the establishment of that legal person, to which the contract relates, is situated in Belgium, without any account being taken of the place of residence of the policy holder at the time that the contract was concluded?
EN Official Journal of the European Union C 269/24

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 3 June 2011 — GfBk Gesellschaft für Börsenkommunikation mbH v Finanzamt Bayreuth

(Case C-275/11)

2011/C 269/45

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: GfBk Gesellschaft für Börsenkommunikation mbH

Defendant: Finanzamt Bayreuth

Questions referred

For the purpose of interpreting the term ‘management of special investment funds’ within the meaning of Article 13B(d)(6) of Directive 77/388/EEC, (1) is the service provided by the third-party manager of a special investment fund sufficiently specific and hence exempt from taxation only if

(a) the manager performs a management function and not only an advisory function or if

(b) the service differs in nature from other services by reason of a characteristic feature that qualifies for tax exemption under this provision or if

(c) the manager operates on the basis of a delegation of functions under Article 5g of Directive 85/611/EEC, (2) as amended?

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

(2) Directive 2001/107/EC of the European Parliament and of the Council of 21 January 2002 amending Council Directive 85/611/EEC on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) with a view to regulating management companies and simplified prospectuses (OJ 2002 L 41, p. 20).
Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 17 June 2011 — ZZ v Secretary of State for the Home Department

(Case C-300/11)

2011/C 252/37

Language of the case: English

Referring court

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

Parties to the main proceedings

Applicant: ZZ

Defendant: Secretary of State for the Home Department

Question referred

‘Does the principle of effective judicial protection, set out in Article 30(2) of Directive 2004/38 (1), as interpreted in the light of Article 346(1)(a) of the Treaty on the Functioning of the European Union, require that a judicial body considering an appeal from a decision to exclude a European Union citizen from a member state on grounds of public policy and public security under Chapter VI of Directive 2004/38 ensure that the European Union citizen concerned is informed of the essence of the grounds against him, notwithstanding the fact that the authorities of the Member State and the relevant domestic court, after consideration of the totality of the evidence against the European Union citizen relied upon by the authorities of the Member State, conclude that the disclosure of the essence of the grounds against him would be contrary to the interests of state security?’
EN Official Journal of the European Union C 269/19

Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 9 March 2011 — Bundesrepublik Deutschland v Karen Dittrich

(Case C-124/11)

2011/C 269/33

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Bundesrepublik Deutschland

Defendant: Karen Dittrich

Question referred

Does Council Directive 2000/78/EC establishing a general framework for equal treatment in employment (1) and occupation apply to national legislation on the grant of assistance to public servants in cases of illness?

(1) OJ 2000 L 303, p. 16
3.

Is the investigation carried out by OLAF in Thailand invalid and may the information collected during OLAF’s investigation be used to challenge the origin applicable under ordinary law when: — the information was sought in the context of an investigation on preferential origin; — OLAF infringed Community legislation and in particular Regulation (EC) No 1073/1999 (1) as it did not act ‘in accordance with the cooperation agreements in force, in third countries’; — the competent local authority did not legally commit itself to providing assistance; — the information obtained was not communicated with the agreement of the competent local authority or in compliance with their domestic provisions applicable to the transfer of personal data to third countries; — the investigation was carried out unofficially, in complete confidentiality and without observing the rights of the defence?
1.

Is Article 10(1) of Decision No 1/80 (1) to be interpreted as meaning (a) that a Turkish worker who has been duly granted a permit to take up employment in the territory of a Member State for a particular period (which may be unlimited) that extends beyond the duration of his residence permit (‘overrunning work permit’) may exercise his rights under that permit for the whole of that period provided that this is not precluded on grounds relating to the protection of a legitimate national interest such as public policy, public security or public health, (b) and that a Member State is prohibited from refusing a priori to recognise that permit as having any effect on his residence status on the basis of national provisions in force at the time when the permit was granted which make the work permit dependent on the residence permit (in accordance with the judgments in Case C-416/96 El-Yassini [1999] ECR I-1209, paragraph 3 of the summary of the judgment, paragraphs 62 to 65 of the grounds, concerning the scope of Article 40(1) of the EEC-Morocco Agreement, and Case C-97/05 Gattoussi [2006] ECR I-11917, paragraph 2 of the summary of the judgment, paragraphs 36 to 43 of the grounds, concerning the scope of Article 64(1) of the EC-Tunisia Euro-Mediterranean Agreement)? If that question is to be answered in the affirmative:
EN Official Journal of the European Union C 282/4

Action brought on 30 June 2011 — European Commission v Slovak Republic

(Case C-331/11)

2011/C 282/07

Language of the case: Slovak

Parties

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

Defendant: Slovak Republic

Forms of order sought

— declare that, by authorising the operation of the Žilina — Považský Chlmec waste site without a conditioning plan for the waste site and without adopting a definite decision on whether operations might continue on the basis of the said conditioning plan, the Slovak Republic has failed to fulfil its obligations under Article 14(a), (b) and (c) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (1)

— order the Slovak Republic to pay the costs.

Pleas in law and main arguments

The Žilina — Považský Chlmec waste site is operated without any conditioning plan having been submitted and without the approval of any measures which might be needed on the basis of such a plan. The Commission therefore submits that the Court should declare that, by authorising the operation of the Žilina — Považský Chlmec waste site without a conditioning plan for the waste site and without adopting a definite decision on whether operations might continue on the basis of the said conditioning plan, the Slovak Republic has failed to fulfil its obligations under Article 14(a), (b) and (c) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste.

(1) OJ 1999 L 182, p. 1.
1.

Must Article 12(2) of Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the.eu Top Level Domain and the principles governing registration (1) be interpreted as meaning that, in a situation where the prior right concerned is a trade mark right, the words ‘licensees of prior rights’ may refer to a person who has been authorised by the proprietor of the trade mark solely to register, in his own name but on behalf of the licensor, a domain name identical or similar to the trade mark, but without being authorised to put the trade mark to other uses or to use the sign as a trade mark — for example, for the purpose of marketing of goods or services under the trade mark?
EN Official Journal of the European Union C 290/4

Appeal brought on 22 July 2011 by Région Nord-Pas-de-Calais against the judgment of the General Court (Eighth Chamber) delivered on 12 May 2011 in Joined Cases T-267/08 and T-279/08 Région Nord-Pas-de-Calais and Communauté d'Agglomération du Douaisis v Commission.

(Case C-389/11 P)

2011/C 290/06

Language of the case: French

Parties

Appellant: Région Nord-Pas-de-Calais (represented by: M. Cliquennois and F. Cavedon, avocats)

Other parties to the proceedings: Communauté d'Agglomération du Douaisis, European Commission

Form of order sought

— Set aside the judgment of the General Court of the European Union of 12 May 2011 in Joined Cases T-267/08 and T-279/08;

— grant the forms of order sought at first instance by the Région Nord-Pas-de-Calais;

— order the European Commission to pay the costs.

Pleas in law and main arguments

The appellant relies on two grounds in support of its appeal.

First, the Région Nord-Pas-de-Calais claims that the General Court erred in refusing to examine the grounds of complaint against Commission Decision C(2008) 1089 final of 2 April 2008, withdrawn and replaced by Commission Decision C(2010) 4112 final of 23 June 2010, both decisions relating to the same State aid, C 38/2007 (ex NN 45/2007). According to the appellant, the further decision was in fact a response to the written pleadings which the appellant had submitted in its initial action before the General Court, and the appellant was given no opportunity to be heard within a further prior administrative procedure.

Second, the appellant claims an infringement of the rights of the defence and the principle of the right to be heard within the administrative procedure in that the Commission adopted a further decision while absolving itself of the obligation to comply with the essential procedural requirements of that adoption. The Commission altered its analysis on the nature of the State measure at issue and revised the method for the calculation of the reference rates applicable when the State aid in favour of Arbel Fauvet Rail SA was granted.
EN Official Journal of the European Union C 311/18

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 28 July 2011 — Josef Egbringhoff v Stadtwerke Ahaus GmbH

(Case C-400/11)

2011/C 311/30

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Josef Egbringhoff

Defendant: Stadtwerke Ahaus GmbH

Question referred

Is Article 3(5) of, in conjunction with point (b) and/or (c) of Annex A to, Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules (1) for the internal market in electricity and repealing Directive 96/92/EC to be interpreted as meaning that a provision of national law on price variations in electricity delivery contracts with domestic customers, who are supplied electricity within the framework of the general duty to supply (standard-rate customers), satisfies the transparency requirements if, in that provision, the grounds, preconditions and scope of the price variation are not stipulated but customers are assured that electricity suppliers will give them sufficient advance notice of any price increases and they have the right to terminate the contract if they are unwilling to accept the amended contractual terms and conditions as communicated?

(1) Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC — Statements made with regard to decommissioning and waste management activities (OJ 2003 L 176, p. 37).
4.

If the answer to either of the first questions is affirmative, first, is it appropriate to limit the application of a deductible proportion of that kind to calculation of rights to deduct value added tax that has been charged on expenses incurred by the principal establishment for the benefit of foreign branches and, second, must income achieved abroad be taken into account in accordance with the rules applicable in the State of the branch or in the State of the principal establishment?
1.

Are the words ‘special investment funds’ in Article 13B(d)(6) of the Sixth VAT Directive (1) and Article 135(1)(g) of Directive 2006/112 (2) capable of including (i) an occupational pension scheme established by an employer that is intended to provide pension benefits to employees and/or (ii) a common investment fund in which the assets of several such pension schemes are pooled for investment purposes in circumstances where, in relation to the pension schemes in question: (a) the pension benefits receivable by a member are defined in advance in the legal documents creating the scheme (by reference to a formula based on the length of the member's service with the employer and the member's salary and not by reference to the value of the scheme assets; (b) the employer is obliged to make contributions to the scheme; (c) only employees of the employer can participate in the scheme and obtain pension benefits under it (a participant in the scheme is here referred to as a ‘member’); (d) an employee is free to decide whether or not to be a member; (e) an employee who is a member is normally obliged to make contributions to the scheme based on a percentage of his salary; (f) the contributions of the employer and the members are pooled by the scheme trustee and are invested (generally in securities) in order to provide a fund out of which the benefits provided for in the scheme are paid to the members; (g) if the scheme assets are greater than what is required to fund the benefits provided for under the scheme, the trustee of the scheme and/or the employer may, in accordance with the terms of the scheme and relevant provisions of national law, do anyone or combination of the following: (i) reduce the employer's contributions to the scheme; (ii) transfer all or a part of the benefit of the surplus to the employer; (iii) improve the benefits to members under the scheme; (h) if the scheme assets are less than what is required to fund the benefits provided for under the scheme, the employer is normally obliged to make up the deficit and, if the employer does not, or is unable to do so, the benefits received by members are reduced; (i) the scheme permits members to make additional voluntary contributions (‘AVCs’) which are not held by the scheme but are transferred to a third party for investment and the provision of additional benefits based on the performance of the investment made (such arrangements are not subject to VAT); (j) members have the right to transfer their accrued benefits under the scheme (valued by reference to the actuarial value of those benefits at the time of transfer) to other pension schemes; (k) the employer's and members' contributions to the scheme are not treated for the purposes of income tax levied by the Member State as income of the members; (l) pension benefits received by members under the scheme are treated for the purposes of income tax levied by the Member State as income of the members; and (m) the employer, and not the members of the scheme, bears the cost of charges made for the management of the scheme?