ddrg/super_eurlex huggingface dataset:
2.

If the answer to Question 1 is affirmative: Does the provision in Article 10a of Directive 85/337 — that under certain circumstances the public concerned is to have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of a decision — imply that there is also a requirement that the public concerned is to be entitled to challenge a decision of a court in planning consent proceedings in a case where the public concerned has had the opportunity of participating in the court's examination of the question of planning consent and of submitting its views to that court?
EN Official Journal of the European Union C 223/20

Reference for a preliminary ruling from the Audiencia Provincial, Salamanca (Spain) lodged on 26 May 2008 — Eva Martín Martín v EDP Editores, S.L and Juan Caballo Bueno

(Case C-227/08)

(2008/C 223/32)

Language of the case: Spanish

Referring court

Audiencia Provincial, Salamanca

Parties to the main proceedings

Applicant: Eva Martín Martín

Defendant: EDP Editores, S.L and Juan Caballo Bueno

Question referred

Must Article 153 EC, in conjunction with Articles 3 EC and 95 EC, Article 38 of the Charter of Fundamental Rights of the European Union, and Council Directive 85/577/EEC (1) of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises, specifically Article 4 thereof, be interpreted as meaning that a court seised of an appeal against a judgment given at first instance may, of its own motion, declare a contract which falls within the scope of that directive void, where no plea of nullity was raised at any point by the defendant consumer when submitting a defence to the order for payment procedure, at the hearing, or during the appeal?

(1) OJ L 372, p. 31 — EE 15/06, p. 131.
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Declare that the Kingdom of Spain, by not adopting the laws, regulations and administrative provisions necessary to transpose Council Directive 2004/83/EC (1) of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and, in any event, by not communicating those provisions to the Commission, has failed to fulfil its obligations under Article 38 of that directive.
In the event that Question 1 is answered in the negative:

Inasmuch as Article 2(a) in conjunction with paragraph (f) of the Annex to 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 together with Article 5(1) of the same directive in the event of a profit distribution by a German subsidiary establishes an exemption from withholding tax in favour of French parent companies taking the legal form of a ‘société anonyme’, ‘société en commandite par actions’ or ‘société à responsabilite limitee’ not, however, French parent companies taking the legal form of a ‘société par actions simplifiée’ do such provisions infringe Articles 43 EC and 48 EC or Article 56(1) EC and Article 58(1)(a) and (3) EC?
In its first plea, the Commission submits that the Court of First Instance erred in declaring the action brought by the Kingdom of the Netherlands to be admissible.

In the view of the Commission, it is clear from the Court's case-law, and in particular from its order in Case C-164/02, that a Member State cannot seek the annulment of a Commission decision by which the Commission declares an aid measure notified by that Member State to be compatible with the common market.
EN Official Journal of the European Union C 247/6

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 9 July 2008 — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH

(Case C-304/08)

(2008/C 247/10)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

Defendant: Plus Warenhandelsgesellschaft mbH

Question referred

Is Article 5(2) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council Directive 2005/29/EC (1) on unfair commercial practices to be interpreted as meaning that that provision precludes a national provision which states that a commercial practice whereby the participation of consumers in a prize competition or lottery is made conditional on the purchase of goods or the supply of services is in principle unlawful, irrespective of whether, in any particular case, the advertising in question affects consumers' interests?

(1) OJ 2005 L 149, p. 22.
EN Official Journal of the European Union C 260/8

Reference for a preliminary ruling from House of Lords (United Kingdom) lodged on 23 July 2008 — The Queen (on the application of M) (FC) v Her Majesty's Treasury and two other actions

(Case C-340/08)

(2008/C 260/13)

Language of the case: English

Referring court

House of Lords

Parties to the main proceedings

Applicant: The Queen (on the application of M) (FC)

Defendant: Her Majesty's Treasury and two other actions

Question referred

Does Article 2(2) of Council Regulation (EC) No 881/2002 (1) apply to the provision by the State of social security or social assistance benefits to the spouse of a person designated by the Sanctions Committee established pursuant to United Nations Resolution 1267 (1999) on the ground only that the spouse lives with the designated person and will or may use some of the money to pay for goods and services which the latter will consume or from which he will benefit?

(1) Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ L 139, p. 9).
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declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2005/14/EC (1) of the European Parliament and of the Council of 11 May 2005 amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles, or in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE 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 (1), or in any event by failing to notify those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 19 of that directive;
1.

Does Article 43 of the EC Treaty in conjunction with Article 48 and, as appropriate, Article 12 of the Treaty, preclude legislation of a Member State which, like that at issue, results in taxation of a company resident in Belgium on an exceptional or gratuitous advantage which it granted to a company established in another Member State with which the Belgian company is, directly or indirectly, in a relationship of interdependence, whereas in identical circumstances the company resident in Belgium may not be taxed on an exceptional or gratuitous advantage where that advantage is granted to another company established in Belgium with which the Belgian company is, directly or indirectly, in a relationship of interdependence?
EN Official Journal of the European Union C 285/18

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

(Case C-354/08)

(2008/C 285/31)

Language of the case: French

Parties

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

Defendant: French Republic

Form of order sought

— declare that, by providing for priority to the outgoing licensee in the course of putting out to competitive tender licences in respect of works using hydraulic energy, in particular by adopting the provisions of Article 29(3) of decree No 99/225 of 22 March 1999 relating to the licence and the declaration of public use of works using hydraulic energy, the French Republic has failed to fulfil its obligations under Article 43 EC;

— order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission claims that granting priority to the outgoing licensee, upon renewal and granting of licences in respect of works using hydraulic energy, infringes the principle of non-discrimination and hinders freedom of establishment. By favouring companies which have a licence and which are therefore established in France, French legislation makes the establishment of companies set up in other Member States more difficult.

Moreover, the French authorities did not rely on the derogations provided for in Articles 45 and 46 of the Treaty or overriding reasons in the public interest in order to justify the measure in question which was, in any event, disproportionate in the light of the objective pursued. Accordingly, financial charges borne by the outgoing licensee may, for example, be offset by other obligations imposed on all new competitors.
3.

If the answers to Questions 1 and 2(b) are affirmative: Is the second paragraph of Part II of Annex I to Council Directive 2001/113/EC of 20 December 2001 relating to fruit jams, jellies and marmalades and sweetened chestnut purée intended for human consumption (2) to be interpreted as meaning that the name extra jam can be authorised also in respect of jams which have a soluble dry matter content of less than 60 % where in the case of such jams no less strict requirements are imposed on the name jam?
1)

The CFI erred in law in interpreting and applying Community law with regard to the conditions under which the Community may incur non-contractual liability pursuant to Article 288(2) EC. First it is submitted that the contested judgement is vitiated by an error of law in so far as the CFI has totally failed to consider the illegal conduct complained of in the context of assessing the causal link and failed to investigate it in its legal context although it ought to have done so in order to determine the Community's legal responsibility. The CFI erred in law by failing to correctly assess, in accordance with Community law, the existence of a direct causal nexus between the conduct of the Community Institutions and the resulting damage suffered by the appellants and in finding that there was no sufficiently direct causal link between the conduct of the Community Institutions and the resulting damage on the grounds that either the appellants failed to demonstrate reasonable diligence and/or that the fault is attributed exclusively to the German Authorities.
3.

If BH is covered by the legislative implementation of the Directive, do the requirements of Article 7 of the Directive concerning ‘adequate protection and guarantees to enable them to perform properly the duties which have been assigned to them’ preclude an implementation of Article 7 of the Directive in section 8 of the [Law on informing and consulting employees], which reads as follows: ‘The representatives who are to be informed and consulted on behalf of the employees shall be protected against dismissal or other adverse consequences for their conditions of employment in the same manner as union representatives in the same or a similar professional field’, if the implementation does not contain a high standard of protection against dismissal for professional groups which are not covered by a collective agreement?
2.

Is it permitted, for the purposes of the provisions of that regulation, to use in the marine area of a Member State with a Mediterranean coastline fishing gear which is not included among the gear specified as being in principle prohibited in Article 2(3) and Article 3(1) and (1a) of the regulation and whose use was prohibited before the regulation entered into force by a national provision of the Member State?
If the first question is to be answered in the affirmative:

Is heading 1517 of the Combined Nomenclature to be interpreted as meaning that the addition of concentrated vitamin E (d-alpha-tocopherol concentrate) in a quantity of 22,8 mg to 600 mg of concentrated fish oil (Incromega EPA SR 500 TG) leads to the exclusion of the goods from that heading?
5.

Is a gaming operator who has been granted a licence to operate certain gaming activities in a State and is supervised by the competent authority in that State entitled to market its gaming products in other Member States through, for example, advertisements in newspapers, without first applying for a licence from those States' competent authorities? If this question is answered in the affirmative, does this mean that a Member State's rules which are based on the imposition of criminal penalties on the promotion of participation in lotteries organised abroad constitute an obstacle to the freedom of establishment and the freedom to provide services which can never be accepted on the basis of overriding reasons in the general interest? Is it of any significance for the answer to the first question whether the Member State where the gaming operator is established invokes the same overriding reasons in the general interest as the State where the operator wishes to market its gaming activities?
EN Official Journal of the European Union C 19/13

Reference for a preliminary ruling from the Helsingin käräjäoikeus (Finland) lodged on 4 November 2008 — Sanna Maria Parviainen v Finnair Oyj

(Case C-471/08)

(2009/C 19/22)

Language of the case: Finnish

Referring court

Helsingin käräjäoikeus

Parties to the main proceedings

Applicant: Sanna Maria Parviainen

Defendant: Finnair Oyj

Question referred

Is Article 11(1) of the Protection of Pregnant Workers Directive (1) to be interpreted as meaning that a worker who is transferred to other lower-paid work because of her pregnancy must, on the basis of that provision, be paid as much as she received on average before the transfer, and is it relevant in that respect what kind of allowances and on what basis the worker was paid in addition to her basic monthly pay?

(1) Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) OJ L 348, 1992, p. 1.
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Declare that by not bringing into force 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 Hellenic Republic has failed to fulfil its obligations under the first paragraph of Article 19 of that directive;
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 (1) on cross-border mergers of limited liability companies with regard to financial companies needing support from a public source, in particular banks and insurance companies, the Kingdom of Sweden has failed to fulfil its obligations under that directive;
2.

Consequently, does Article 4(2) of Directive 93/13/EEC of 5 April 1993, read in conjunction with Article 8 thereof, preclude a Member State from providing in its legislation, for the benefit of consumers, that the assessment as to whether contractual terms are unfair is to be carried out also in respect of terms which relate to ‘the definition of the main subject matter of the contract’ or to ‘the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange’, even where those terms are in plain, intelligible language?
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2/A as a primary remedy: (2/A.1) annul the contested decision; (2/A.2) annul, in so far as necessary, calculation No 58; (2/A.3) annul, to the extent necessary, the decision to reject the complaint in full; (2/A.4) order the defendant to pay to the appellant, on an interim basis, the sum of EUR 324.09 or such higher or lower amount as the Court may deem to be just and equitable; (2A/.5) order the defendant, in so far as necessary, to pay to the appellant, in accordance with the applicable rules, the sum which is due to him but remains unpaid in respect of the cost of his medical examination of 28 September 2005; (2/A.6) order the defendant to pay to the appellant default interest on the amounts referred to at 2/A.4 and 2/A.5, for the period from the date on which they became due until the date of actual payment, to be determined in accordance with the applicable rules: (2/A.7) order the defendant to pay to the appellant all the costs and expenses of the proceedings; or
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 (1) on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing or, in any event, by failing to notify the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;
2.

If the answer to Question 1 is in the affirmative: Is the fact that an agent's website can be consulted on the internet sufficient to justify a finding that activities are being ‘directed’ within the terms of Article 15(1)(c) of Regulation No 44/2001?
2.

If the answer to the first question is in the affirmative, do Article 6(2) and Article 17(2) and (6) of the Sixth Directive leave room for national legislation such as that at issue in the proceedings, which was adopted before that Directive entered into force and under which a taxable person may not deduct in full the VAT paid on the acquisition of certain goods and services which are used partly for business purposes and partly for private purposes of the staff, but may do so only to the extent that the VAT is attributable to use for business purposes?
7.

If the view is taken that the measures adopted in Presidential Decree No 164/2004 are not effective and the legal regime existing before it (Article 8(3) of Law No 2112/1920) is applicable, within the framework of the obligation to interpret national law in conformity with Community law, is it compatible with Community law to interpret national rules which are formally higher-ranking (Article 103(8) of the Constitution) as prohibiting absolutely the conversion of fixed-term contracts into contracts of indefinite duration, even where it is apparent that in reality those contracts have been entered into by way of an abuse on the legal basis of provisions designed to cover needs that are exceptional and temporary generally, because the contracts covered fixed and permanent needs of a public-sector employer (to this effect, Judgments No 19/2007 and No 20/2007 of the Arios Pagos (Full Court)), when a possible interpretation is also that that prohibition must be limited solely to fixed-term employment contracts which have in fact been entered into to cover temporary, unforeseen, urgent or exceptional needs and not also cover cases where they have in reality been entered into to cover fixed and permanent needs (to this effect, Judgment No 18/2006 of the Arios Pagos (Full Court))?
EN Official Journal of the European Union C 69/16

Action brought on 25 September 2008 — Commission of the European Communities v Federal Republic of Germany

(Case C-424/08)

(2009/C 69/27)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: B. Schima and B. Sipos, Agents)

Defendant: Federal Republic of Germany

Form of order sought

— declare that the Federal Republic of Germany has failed to fulfil its obligations under Article 11(1)(c) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, inasmuch as the competent German authorities have failed to draw up external emergency plans for all establishments to which Article 9 of the said Directive applies;

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

Article 11(1)(c) of Directive 96/82/EC requires Member States to ensure that, for all establishments to which Article 9 applies, the competent authorities draw up an external emergency plan for the measures to be taken outside the establishment. The external emergency plans must contain not only information concerning remedial measures on-site and off-site, but also specific information for the public concerning the accident and the requisite behaviour to be adopted. In addition, the information intended for the emergency services of other Member States in the case of a major accident which is capable of causing transboundary effects must also appear in the external emergency plans.

The present action seeks a declaration that the Federal Republic of Germany has failed to fulfil its obligations under Article 11(1)(c) of Directive 96/82/EC, inasmuch as it has failed to draw up external emergency plans for all establishments to which Article 9 of the said Directive applies.
If the answer to the first question is in the affirmative:

Must that provision also be applied to a change in reservation which was not instigated by the air carrier, but by the tour operator alone?
EN Official Journal of the European Union C 220/17

Reference for a preliminary ruling from the Court of Appeal in Northern Ireland (United Kingdom) lodged on 16 October 2008 — Seaport Investments Ltd v Department of the Environment for Northern Ireland

(Case C-454/08)

2009/C 220/30

Language of the case: English

Referring court

Court of Appeal in Northern Ireland

Parties to the main proceedings

Applicant: Seaport Investments Ltd

Defendant: Department of the Environment for Northern Ireland

By order of 20 May 2009, the Court of Justice (Sixth Chamber) declared the reference for a preliminary ruling inadmissible.