ddrg/super_eurlex huggingface dataset:
Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 11 October 2021 — Funke Sp. zo.o.

(Case C-626/21)

(2022/C 37/18)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Appellant on a point of law: Funke Sp. zo.o.

Defendant authority before the Verwaltungsgericht Wien (Austria): Landespolizeidirektion Wien

Questions referred

Are

— Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety, (1) as amended by Regulation (EC) No 765/2008 (2) and Regulation (EC) No 596/2009, (3) in particular Article 12 and Annex II,

— Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93, in particular Articles 20 and 22, and

— Commission Implementing Decision (EU) 2019/417 of 8 November 2018 laying down guidelines for the management of the European Union Rapid Information System ‘RAPEX’ established under Article 12 of Directive 2001/95/EC on general product safety and its notification system (4) to be interpreted as meaning that

1. the right of an economic operator to complete a RAPEX notification arises directly from those provisions?

2. the European Commission is competent to decide on such a request? or

3. the authority of the Member State concerned is competent to decide on such a request? (If Question 3 is answered in the affirmative)

4. the (national) judicial protection against such a decision is sufficient where it is not afforded to everyone but only to the economic operator affected by the (obligatory) measure against the (obligatory) measure taken by the authority?

(1) OJ 2002 L 11, p. 4.

(2) Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (OJ 2008 L 218, p. 30).

(3) Regulation (EC) No 596/2009 of the European Parliament and of the Council of 18 June 2009 adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC with regard to the regulatory procedure with scrutiny — Adaptation to the regulatory procedure with scrutiny — Part Four (OJ 2009 L 188, p. 14).

(4) OJ 2019 L 73, p. 121.
1.

Must Articles 4(3) and 19(1) TEU, having regard to the principle of equivalence which arises from the case-law of the Court of Justice of the European Union, be interpreted as meaning that a judgment of the Court of Justice of the European Union concerning the interpretation of EU law given pursuant to Article 267(1) TFEU constitutes grounds for reopening civil proceedings which ended with a final judgment, if a provision of national law, such as Article 4011 of the Code of Civil Procedure, allows proceedings to be reopened in the event that a final judgment is given on the basis of a provision which has been held by a judgment of the Trybunał Konstytucyjny (Constitutional Court, Poland) to be incompatible with a higher-ranking law?
Request for a preliminary ruling from the Juzgado de lo Social n.1 de Madrid (Spain) lodged on 20 September 2021 — TA v BA, DA, DV and CG

(Case C-585/21)

(2022/C 51/25)

Language of the case: Spanish

Referring court

Juzgado de lo Social n.1 de Madrid

Parties to the main proceedings

Applicant: TA

Defendants: BA, DA, DV and CG

Question referred

Does Article 1(1)(a) of Council Directive (EC) 2001/23 of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, (1) and consequently the contents of the directive, apply to a situation in which the notary in post in a notary’s office — who is both a public official and also the private-sector employer of the office’s employees, with the employment relationship being governed by general employment legislation and by a sectoral Collective Agreement — succeeds the outgoing post-holder, takes on the previous notary’s Protocol, continues to provide services at the same place of work using the same material facilities, and takes on the staff who had worked for the previous notary who had held that post?

(1) OJ 2001 L 82, p. 16.
4.

In the second scenario, does Article 33(1) of Regulation (EC) No 44/2001, pursuant to which it has been held that a judicial decision must move within the Member States with the same scope and the same effects as it has in the Member State in which it was given, require that reference is made to the law of the court of origin or does it allow, with regard to the procedural consequences attached to it, the law of the court in which enforcement is sought to be applied?
If Question 1. is answered in the negative and Question 2. in the affirmative:

Does Article 14(3) of Directive 2008/48 preclude a rule in the national law of a Member State under which a consumer who has effectively exercised his or her right of withdrawal based on Article 14(1) of Directive 2008/48 has a right to have the creditor surrender the benefits that it has derived from the payments that the consumer has made to it up to the time of withdrawal?
—

declare that, by failing to connect the Bulgarian commercial register to the Business Registers Interconnection System (BRIS), the Republic of Bulgaria has failed to fulfil its obligations under Directive (EU) 2017/1132 (1) of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (OJ 2017 L 169, p. 46), and in particular Article 166 of Directive 2017/1132 and Annex III thereto, Parts A and B, footnote 2;
Request for a preliminary ruling from the Corte costituzionale (Italy) lodged on 22 November 2021 — E.D.L.

(Case C-699/21)

(2022/C 73/18)

Language of the case: Italian

Referring court

Corte costituzionale

Party to the main proceedings

E.D.L.

Question referred

Must Article 1(3) of Council Framework Decision 2002/584/JHA on the European arrest warrant, (1) examined in the light of Articles 3, 4 and 35 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that, where it considers that the surrender of a person suffering from a serious chronic and potentially irreversible disease may expose that person to the risk of suffering serious harm to his or her health, the executing judicial authority must request that the issuing judicial authority provide information enabling the existence of such a risk to be ruled out, and must refuse to surrender the person in question if it does not obtain assurances to that effect within a reasonable period of time?

(1) Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).
2.

Must Article 2(1) and (2) of Council Directive 2000/78/[E]C of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, together with Article 3(1)(c), in fine, of that directive, be interpreted as precluding national legislation, such as that laid down in Article 1(2) of Legea-cadru nr. 330 din 5 noiembrie 2009 privind salarizarea unitară a personalului plătit din fonduri publice (Framework Law No 330 of 5 November 2009 on the uniform remuneration of staff paid from the public purse), as interpreted by Decizia nr. 7/2019 (Decision No 7/2019) (published in Monitorul Oficial al României — Official Journal of Romania — No 343 of 6 May 2019), given by the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania), ruling on an appeal on a point of law, in circumstances in which the claimant did not have the legal possibility of requesting an increase in his or her employment allowance on entering the judiciary at a date after the entry into force of [Framework Law No 330/2009], a legislative act which expressly provided that remuneration rights are to be and remain exclusively as provided in [that] law, thus creating remuneration discrimination as compared with his or her colleagues, including on the basis of the criterion of age, which means in fact that only older judges, who were appointed before January 2010 (who benefited from court rulings in the period from 2006 to 2009, the operative parts of which were subject to interpretation in 2019 pursuant to Decision [No 7/2019 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice)]), received retroactive payment of remuneration rights (similar to those sought in the action which forms the subject matter of the present proceedings) during December 2019 and January 2020, in respect of the period from 2010 to 2015, even though during that period the claimant also acted as a judge and performed the same work, under the same conditions and in the same institution?
Appeal brought on 16 December 2021 by Nec Corp. against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 29 September 2021 in Case T-341/18, Nec v Commission

(Case C-786/21 P)

(2022/C 84/39)

Language of the case: English

Parties

Appellant: Nec Corp. (represented by: R. Bachour, Solicitor, A. Pliego Selie, W. Brouwer, R. Warning, advocaten)

Other party to the proceedings: European Commission

Form of order sought

The Appellant claims that the Court should:

— set aside the judgment under appeal;

— render final judgment in this appeal proceeding and annul the contested decision and/or reduce the fine as requested in this appeal, or, in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice; and

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

Pleas in law and main arguments

By the first ground of appeal, which is divided into three parts, the Appellant claims that the General Court committed an error of law and failed to provide sufficient or adequate reasoning in the review of whether the fine of the Appellant could be increased for recidivism.

First, the General Court erred in holding that the contested decision could impose a separate fine on the Appellant for recidivism despite the fact that its liability constitutes and is qualified as a derivative liability only.

Second, the General Court erred in upholding the increase of the fine for recidivism for a period before 20 May 2010, that is, before the Appellant was held and informed to have committed an infringement. This is neither correct in law nor proportionate, especially given the limited time between the Commission’s adoption of the Commission’s DRAMs Decision (1) and the end of the infringement of Tokin Corporation and the fact that the Appellant cannot, therefore, objectively be held to have accepted or in any way endorsed the infringement by Tokin Corporation.

Third, in any event, the judgment under appeal erred in law through misapplication of the principle of proportionality when reviewing the amount of the fine and establishing the period for which it is applied.

By the second ground of appeal, the Appellant claims that the General Court in the judgment under appeal distorted the contested decision and accepted a manifest inconsistency in the contested decision as regards the participation of the Appellant in the identified infringement by replacing the inconsistency concerning the qualification of Appellant’s liability with its own understanding of the facts and the Commission’s reasoning in the contested decision.

By the third ground of appeal, the Appellant claims that the judgment under appeal erred in law through misapplication of the principles of proportionality, and breached the duty to provide sufficient or adequate reasoning when reviewing the amount of the fine under the exercise of its unlimited jurisdiction.

(1) Commission Decision of 19 May 2010 relating to a proceeding under Article 101 of TFEU and Article 53 of the EEA Agreement (Case COMP/38.511 — DRAMs).
3.

(a) In the circumstances set out in question 1 above, if the executing judicial authority is satisfied that the proceedings leading to the subsequent conviction and enforcement order were not conducted in compliance with Article 6 of the European Convention on Human Rights and Fundamental Freedoms and, in particular, that the absence of the requested person involved a violation of the rights of the defence and/or of the requested person's right to a fair trial, is the executing judicial authority entitled and/or obliged (a) to refuse surrender of the requested person on the basis that such surrender would be contrary to Article 6 of the Convention and/or Articles 47 and 48(2) of the Charter of Fundamental Rights of the European Union and/or (b) to require the issuing judicial authority as a condition of surrender to provide a guarantee that the requested person will, upon surrender, be entitled to a retrial or appeal, in which they will have a right to participate and which allows for the merits of the case, including fresh evidence, to be re-examined which may lead to the original decision being reversed, in respect of the conviction leading to the enforcement order? (b) For the purposes of question 3 (a) above, is the applicable test whether the surrender of the requested person would breach the essence of their fundamental rights under Article 6 of the Convention and/or Articles 47 and 48(2) of the Charter and, if so, is the fact that the proceedings leading to the subsequent conviction and enforcement order were conducted in absentia, and that, in event of his surrender, the requested person will not have a right to a retrial or appeal, sufficient to permit the executing judicial authority to conclude that surrender would breach the essence of those rights?
2.

Should the term ‘container’ under subheading 8609 00 9000 of the Combined Nomenclature of the Common Customs Tariff, in the version set out in Annex I to Commission Regulation (EU) No 1001/2013 of 4 October 2013 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, be interpreted as covering an article which is a system for transporting pipes, consisting of a number of aluminium lifting profiles, two steel lifting poles per lifting profile and two M20 bolts per lifting profile used to secure the lifting profiles. The pipes are placed on top of the lifting profiles. A new set of lifting profiles are added and then pipes are placed on top of those lifting profiles, and so on until the desired quantity of pipes is packed. A set of lifting profiles are always used to finish the system. Once the pipes are finished being packed in the lifting profiles, steel chains are attached to the lifting poles through each of the four corners (via eyelets on the lifting poles) and the article is ready to be loaded either by crane or by forklift truck if transport is by land.
1.

Is it sufficient, in determining whether unavoidable and extraordinary circumstances occur at the place of destination of the trip or holiday within the meaning of the first sentence of Article 12(2) of Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (‘the Package Travel Directive’), (1) if the destination area of the trip or holiday is classified as a risk area by the specialist authority established at national level for the protection against communicable diseases, while the conditions for classification as a risk area are not satisfied at the place of origin?
2.

Must the second subparagraph of Article 19(1) of the Treaty on European Union, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, Article 4(3) of the Treaty on European Union, and Article 2 of the Treaty on European Union, be interpreted as meaning that, where provisions of national law make it possible for a final ruling of a court to be varied or set aside by means of a remedy such as an extraordinary appeal in the event of a breach of the principles enshrined in the Constitution of a Member State, those provisions may also be relied on as grounds for setting aside or varying a final ruling of a court in the event of a breach of EU law?
Request for a preliminary ruling from the Cour de cassation (Belgium) lodged on 23 December 2021 — UP v Centre public d’action sociale de Liège

(Case C-825/21)

(2022/C 158/04)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: UP

Defendant: Centre public d’action sociale de Liège

Question referred

Do Articles 6 and 8 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (1) preclude a rule of national law under which the consequence of granting authorisation conferring a right to stay in the context of the examination of an application for leave to remain for the purpose of medical treatment, considered to be admissible in the light of the criteria set out above, is that the third-country national is entitled to stay, even temporarily and irregularly, during the examination of that application and that the return decision previously adopted in an asylum procedure, with which the grant of such authorisation is incompatible, is impliedly withdrawn?

(1) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).
—

dispose of the case itself by upholding the claims of the appellants put forward at first instance, including the claim that the defendant be ordered to pay the costs; or in the alternative
Official Journal of the European Union

Appeal brought on 12 May 2021 by João Miguel Barata against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 3 March 2021 in Case T-723/18, Barata v Parliament

(Case C-305/21 P)

(2022/C 207/13)

Language of the case: English

Parties

Appellant: João Miguel Barata (represented by: G. Pandey, D. Rovetta, avocats, V. Villante, avvocato)

Other party to the proceedings: European Parliament

By order of 31 March 2022, the Court of Justice (Eighth Chamber) held that the appeal be dismissed as in part manifestly inadmissible and in part manifestly unfounded and that Mr João Miguel Barata should bear his own costs.
Official Journal of the European Union

Appeal brought on 20 September 2021 by Svenska Metallkompaniet AB against the order of the General Court (Fifth Chamber) delivered on 5 July 2021 in Case T-191/21, Svenska Metallkompaniet v EUIPO — Otlav (Window fittings)

(Case C-610/21 P)

(2022/C 191/06)

Language of the case: English

Parties

Appellant: Svenska Metallkompaniet AB

Other party to the proceedings: European Union Intellectual Property Office (EUIPO)

By order of 11 February 2022, the Vice-President of the Court of Justice held that the appeal was dismissed as inadmissible and that Svenska Metallkompaniet AB should bear its own costs.
2.

If the answer is that repayment in full does include statutory interest: 2.1. Do Article 6(1) and Article 7(1) of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts preclude the national civil procedural law principles of the delimitation of the subject matter of an action by the parties and of the correlation between the claims put forward in the action and the rulings contained in the operative part where the action is not seeking repayment in full of the statutory interest accrued on the amounts to be repaid? 2.2. Do Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts preclude national courts from upholding a claim that is not seeking the entirety of the statutory interest due on the amounts to be repaid? 2.3. Does the principle of effectiveness laid down in Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts preclude national courts from declining to award part of the interest accrued on the amounts to be repaid where the applicant has not claimed that interest? 2.4. Do the principles of effectiveness and of repayment in full laid down in Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts permit or require national courts to decide to increase the amount of the claim to cover amounts not claimed in the application in order to achieve repayment in full, including the part of the statutory interest that was not claimed in the application, where this is done for the consumer’s benefit?
Request for a preliminary ruling from the Visoki trgovački sud Republike Hrvatske (Croatia) lodged on 8 September 2021 — Financijska agencija v HANN-INVEST d.o.o.

(Case C-554/21)

(2022/C 222/10)

Language of the case: Hungarian

Referring court

Visoki trgovački sud Republike Hrvatske

Parties to the main proceedings

Appellant: Financijska agencija

Respondent: HANN-INVEST d.o.o.

Question referred

Can the rule laid down in the second part of the first sentence and in the second sentence of Article 177(3) of the Sudski poslovnik (Rules of Procedure of the Courts), which provides that ‘a case before a court of second instance shall be deemed to be closed on the date on which the decision is sent from the court office, after the case has been returned by the Registration Service. The Registration Service shall be required to return the file to the court office as promptly as possible after receipt thereof. The decision shall then be notified within a further period of eight days’ be considered compatible with Article 19(1) TEU and Article 47 of the Charter?
2.

Must the EU rules on State aid, in particular the first alternative of the definition of ‘start of works’ in paragraph 19(44) of the Commission Communication ‘Guidelines on State aid for environmental protection and energy 2014-2020’, namely ‘start of construction works on the investment’, be interpreted as meaning that, in a situation in which the competent authority of the Member State has established the start of the construction works in connection with an investment, that authority must, in accordance with the principle of the protection of legitimate expectations, additionally assess the stage of development of the investment project and the likelihood of completion of that project?
1.

Must CN heading 9403 be interpreted as meaning that cat scratching posts, made up of a variety of materials, intended to be placed on the floor in (living) areas and to remain there so that cats can climb into them, sit on them, lie on them and scratch them, are not covered by this CN heading because they are of a different nature as referred to in Commission Implementing Regulation (EU) No 1229/2013 (1) of 28 November 2013 and Commission Implementing Regulation (EU) No 350/2014 (2) of 3 April 2014? If there is a different nature that precludes classification under CN heading 9403, what constitutes that different nature?