ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 282/11

Action brought on 12 July 2011 — European Commission v Italian Republic

(Case C-369/11)

2011/C 282/21

Language of the case: Italian

Parties

Applicant: European Commission (represented by: E. Montaguti and H. Støvlbæk, acting as Agents)

Defendant: Italian Republic

Form of order sought

— Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Article 6(3) and Annex II of Directive 91/440/EEC (1), as amended, and with Articles 4(2), 14(2), 4(1), 30(3) and 30(1) of Directive 2001/14/EC (2), the Italian Republic has failed to fulfil its obligations under those provisions.

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission’s complaints concern the independence of the body carrying out essential functions in the matter of access to infrastructure and the imposition of dues for railway access and the powers and autonomy of the body regulating the railway sector.

The Commission argues that the regime governing the exercise by the infrastructure manager of essential functions concerning access to the infrastructure does not provide sufficient guarantees that that manager operates independently of the holding company of the group of which it forms part, which also includes the main railway undertaking on the market.

Moreover, given that it is for the Minister for Transport to determine dues for access to the network, whereas the infrastructure manager can only make a proposal on the matter and has only the operating duty of calculating the dues actually payable by a single railway undertaking, the latter is deprived of an essential management tool, in contrast with the requirement for independent management.

Finally, the necessary full independence of the body for regulating all railway undertakings has not yet been assured, since the staff of the regulatory body consists of officials of the Ministry of Transport and the latter continues to exercise a decisive influence on the holding company of the group which includes the main Italian railway undertaking, and thus also on the latter.

(1) OJ 1991 L 237, p. 25.

(2) OJ 2001 L 75, p. 29.
EN Official Journal of the European Union C 298/10

Reference for a preliminary ruling from the Cour d’Appel de Paris (France) lodged on 29 June 2011 — Alexandre Achughbabian v Préfet du Val-de-Marne

(Case C-329/11)

2011/C 298/19

Language of the case: French

Referring court

Cour d’Appel de Paris

Parties to the main proceedings

Applicant: Alexandre Achughbabian

Defendant: Préfet du Val-de-Marne

Question referred

Taking into account its scope, does Directive 2008/115/EC of 16 December 2008 (1) preclude national legislation, such as Article L.621-1 of the code de l'entrée et du séjour des étrangers et du droit d'asile (Code on the entry and stay of foreign nationals and on the right to asylum), which provides for the imposition of a sentence of imprisonment on a third-country national on the sole ground of his illegal entry or residence in national territory?

(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 L 348, 24.12.2008, p. 98).
2.

For the purposes of the rules governing the denominator used in the calculation of the percentage of the deductible proportion, is Article 11A(1)(a), in conjunction with Articles 17(5) and 19(1), of the Sixth Directive (1) to be interpreted as requiring such a degree of harmonisation that it precludes the adoption in the Member States of different solutions in legislation or case-law with regard to the inclusion in the taxable amount for VAT of the portion of the card price allocated to the payment of winnings?
EN Official Journal of the European Union C 319/10

Action brought on 1 September 2011 — European Commission v Portuguese Republic

(Case C-450/11)

2011/C 319/18

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: M. Afonso and L. Lozano Palacios, Agents)

Defendant: Portuguese Republic

Form of order sought

— Declare that, by applying the special VAT scheme for travel agents to travel services sold to persons other than travellers, as provided for by Decree-Law No 221/85 of 3 July 1985, the Portuguese Republic has failed to fulfil its obligations under Articles 306 to 310 of the VAT Directive. (1)

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Commission considers that, in so far as the Portuguese Republic applies the special scheme in question to the services supplied by travel agents to other travel agents or to other persons liable to VAT other than travellers, its application of that scheme is not consistent with the provisions of the European Union legislation in that field, since in accordance with the VAT Directive the special scheme must be applied only to services supplied to travellers.

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
EN Official Journal of the European Union C 311/29

Appeal brought on 31 August 2011 by SNIA SpA against the judgment delivered by the General Court (Sixth Chamber, extended composition) on 16 June 2011 in Case T-194/06 SNIA v Commission

(Case C-448/11 P)

2011/C 311/47

Language of the case: Italian

Parties

Appellant: SNIA SpA (represented by: A. Santa Maria, C. Biscaretti di Ruffia and E. Gambaro, lawyers)

Other party to the proceedings: European Commission

Form of order sought

— Set aside the judgment dismissing SNIA SpA’s application and, accordingly, annul Commission Decision C(2006) 1766 final of 3 May 2006 in so far as it includes SNIA SpA among the addressees of the decision, imposing on it, jointly and severally with Caffaro Srl, a fine of EUR 1 078 million;

— In the alternative, refer the case back to the General Court for a fresh decision in accordance with any guidance and criteria which the Court is minded to provide in the present appeal proceedings;

— In any event, order the Commission to pay the costs of both sets of proceedings.

Pleas in law and main arguments

By its first ground of appeal, SNIA claims that the General Court erred in law in that it automatically assumed that SNIA was liable on the basis that it had merged with Caffaro SpA and misapplied the rules governing the attribution of liability in competition matters, in particular with regard to what is referred to as the criterion of ‘economic continuity’, and the rules relating to the burden of proof. According to the appellant, the court at first instance also incorrectly categorised the case and distorted some of the evidence.

By its second ground of appeal, SNIA claims that the judgment under appeal failed to establish the inconsistency between the statement of objections and the contested decision with regard to the merger of SNIA and Caffaro SpA. In particular, the appellant alleges that the General Court infringed and misapplied Article 27 of Regulation (EC) No 1/2003, (1) breach of its rights of defence and incorrect legal characterisation and distortion of the facts and evidence.

By the third ground of appeal, SNIA alleges misapplication of Article 296 TFEU, incorrect appraisal of the evidence such as distort its content and scope and breach of the rights of the defence. In particular, the appellant criticises the judgment under appeal in that if failed to establish that the reasons given in the contested decision were inadequate and contradictory, in so far as it concluded that SNIA was jointly and severally liable. Moreover, the appellant claims ‘distortion’ of the content of the contested decision and breach of its rights of defence, since the General Court found that it was liable on the basis of factors upon which SNIA did not have the opportunity to comment, either during the administrative procedure or the proceedings at first instance.

(1) OJ 2003 L 1. p. 1.
—

order the Commission to pay the Appellant's legal and other costs including those incurred in connection with the initial procedure, even if the current Appeal is rejected as well as those of the current Appeal, in case it is accepted.
1.

In circumstances where there is prima facie indirect gender discrimination in pay, in breach of Article 141 (now Article 157 TFEU) and Council Directive 75/117/EEC (1), in order to establish objective justification, does the employer have to provide: (a) Justification in respect of the deployment of the comparators in the posts occupied by them; (b) Justification of the payment of a higher rate of pay to the comparators; or (c) Justification of the payment of a lower rate of pay to the complainants?
EN Official Journal of the European Union C 340/10

Appeal brought on 2 September 2011 by Timehouse GmbH against the judgment of the General Court (Third Chamber) delivered on 6 July 2011 in Case T-235/10 Timehouse GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-453/11 P)

2011/C 340/16

Language of the case: German

Parties

Appellant: Timehouse GmbH (represented by: V. Knies, 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 General Court of the European Union of 6 July 2011 in Case T-235/10 in its entirety and annul the decision of the First Board of appeal of 11 March 2010 in Case R 0492/2009-1 and order the respondent to pay the costs;

— in the alternative, set aside the judgment of the General Court of the European Union of 6 July 2011 in Case T-235/10 in its entirety and refer the case back to the General Court of the European Union to rehear and decide in the light of the view of the Court of Justice of the European Union and order the respondent to pay the costs of the appeal.

Pleas in law and main arguments

The General Court of the European Union misapplied the material criterion for assessing distinctive character in accordance with Article 7(1)(2) of Regulation (EC) No 207/2009 (1) of the overall appearance of the contested trade mark 7 378 888 for the goods to be registered ‘jewellery; clocks and watches and chronometric instruments’, in that it based its decision solely on an examination of the lack of distinctive character of the individual components of the mark. By drawing conclusions from the (supposed) lack of distinctive character of the individual components of the mark to the lack of distinctive character of the mark applied for as regards its overall appearance, the contested decision was based on the impermissible presumption/conclusion that a mark whose individual components do not have distinctive character cannot have distinctive character in the combination of the components. Since the mark as a whole has distinctive character, however, the decision of the Board of Appeal that was upheld by the General Court was itself wrong.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
1.

Must Article 1 of the First Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms be interpreted as allowing the salaries of staff paid from public funds to be reduced by 25 %, pursuant to Article 1(1) of Law No 118/2010 laying down certain measures necessary to restore budgetary balance?
EN Official Journal of the European Union C 347/10

Reference for a preliminary ruling from the Verwaltungsgericht Giessen (Germany) lodged on 1 September 2011 — Natthaya Dülger v District of Wetterau

(Case C-451/11)

2011/C 347/15

Language of the case: German

Referring court

Verwaltungsgericht Giessen

Parties to the main proceedings

Applicant: Natthaya Dülger

Defendant: District of Wetterau

Question referred

May a Thai national, who was married to a Turkish worker duly registered as belonging to the labour force of a Member State and who, after receiving authorisation to join him, lived with him without interruption for more than three years, rely on the rights arising from the first indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council, with the consequence that she has a right of residence because of the direct effect of that provision?
B.

With regard to letter (a) of the first sentence of Article 6 of Directive 2005/36/EC: Do the rules adopted in implementation of Directive 2005/36/EC amending Paragraph 3(1) and (3) of the Hessisches Gesetz über die Berufsvertretungen, die Berufsausübung, die Weiterbildung und die Berufsgerichtsbarkeit der Ärzte, Zahnärzte, Tierärzte, Apotheker, Psychologischen Psychotherapeuten und Kinder- und Jugendlichenpsychotherapeuten (Hesse Law on professional associations, professional practice, further training and jurisdiction of professional disciplinary tribunals for doctors, dentists, veterinarians, pharmacists, psychological psychotherapists and child and youth psychotherapists (‘Law on the medical profession’)), in the version published on 7 February 2003 (Gesetz- und Verordnungsblatt (GVBl.) I, p. 123), last amended by the Law of 24 March 2010 (GVBl. I, p. 123), by the Drittes Gesetz zur Änderung des Heilberufsgesetzes (Third Law amending the Law on the medical profession) of 16 October 2006 (GVBl. I, p. 519), represent the correct implementation of the abovementioned provisions of Directive 2005/36/EC, in that both the relevant codes of conduct and the provisions governing jurisdiction of professional disciplinary tribunals in the Sixth Section of the Law on the medical profession are declared to be fully applicable to service providers (here: doctors) who are working temporarily in the host State exercising freedom to provide services under Article 57 TFEU (formerly Article 50 EC)?
1.

On the basis of the international obligations resting upon Germany (Articles 2 and 5(2) of the London Agreement, etc.), are the alleged civil immunity from the Italian courts in relation to the facts of the present case, which, from 11 March 2004 onwards (the judgment in Ferrini), Germany may no longer claim, and the agreement reached with the Italian Government on 18 November 2008 in Trieste to initiate proceedings before the International Court (No 143/2008 General list), together with the related Italian Law No 89/2010, which renders unenforceable Italian judgments based on serious crimes against humanity, inconsistent with Article 6 of the Treaty of Lisbon and Articles 17, 47 and 52 of the Charter of Fundamental Rights of the European Union of 18 December 2000?
1.

Is Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be interpreted as prohibiting refusal of the individual registration number that identifies a taxable person, on the basis that the holder of the taxable person’s shares previously obtained on various occasions the individual number for other undertakings, which did not carry out any real economic activity, and the shares of which were transferred by the holder to other persons immediately after obtaining the individual number?
As regards the infringement in Germany, the General Court erred in law in finding that the Commission did not manifestly exceed its margin of appreciation in assessing Kone's contribution to the opening of the investigation and the finding of the infringement in the Decision. The General Court's error of law meant that Kone was wrongly disqualified from immunity under the 2002 Notice on immunity from fines and reduction of fines in cartel cases (the ‘2002 Notice’).
2.

Is Article 17 of Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations, OJ 2007 L 315, p. 14, to be interpreted as meaning that a railway undertaking may exclude its obligation to pay compensation of the ticket price in cases of force majeure, either through application by analogy of the grounds for exclusion provided for in Regulations (EC) No 261/2004, (EU) No 1177/2010 and (EU) No 181/2011 or by taking into account the exclusions from liability provided for in Article 32(2) of the Uniform Rules concerning the contract for international carriage of passengers and luggage by rail (CIV, Annex I to the Regulation) also for cases of compensation for the ticket price?
3.

If the composite cables, made of polypropylene and steel thread, whose maximum transversal section exceeds 3 mm, like those at issue in this case, are nevertheless included under subheading 7312 90 98 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, are such cables also covered by Article 1 of Council Regulation (EC) No 1601/2001 (2) of 2 August 2001 imposing a definitive anti-dumping duty and definitively collecting the provisional anti-dumping duty imposed on imports of certain iron or steel ropes and cables originating in the Czech Republic, Russia, Thailand and Turkey?
Appeal brought on 24 November 2011 by Rügen Fisch AG against the Judgment of the General Court (Third Chamber) delivered on 21 September 2011 in Case T-201/09 Rügen Fisch AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs); other party to the proceedings: Schwaaner Fischwaren GmbH

(Case C-582/11 P)

(2012/C 25/73)

Language of the case: German

Parties

Appellant: Rügen Fisch AG (represented by: O. Spuhler and M. Geitz, Rechtanwälte)

Other parties to the proceedings:

— Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

— Schwaaner Fischwaren GmbH

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of the European Union of 21 September 2011 in Case T-201/09 and annul the decision of the Fourth Board of Appeal of OHIM of 20 March 2009 in appeal case R 230/2007-4;

— in the alternative, set aside the judgment referred to above and refer the case back to the General Court of the European Union;

— order the respondent to pay the costs of the proceedings.

Grounds of appeal and main arguments

The appellant basis its appeal on the following grounds:

In the judgment under appeal, the General Court wrongly assumed that the registration of the word sign SCOMBER MIX as a Community trade mark was precluded by the absolute ground for refusal in Article 7(1)(c) of Regulation No 207/2009 (1) as a result of the descriptive character of the mark in dispute.

The General Court's assumption constitutes an infringement of Article 7(1)(c) in conjunction with Article 51(1)(a) of Regulation No 207/2009. The word sign SCOMBER MIX is not descriptive since, from the point of view of the relevant consumer, it is a purely fanciful name, which is clearly understood to be a trade mark.

The goods and services covered by the trade mark application at issue were determined with the average consumer in mind. However, the average consumer is not familiar with the Latin language or the zoological term ‘scomber’. The word sign SCOMBER MIX therefore satisfies the minimum level of distinctiveness required under European Union law for the registration of a Community trade mark.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
1.

Can a legislative scheme be regarded as establishing ‘fair compensation’ for the purposes of Article 5(2)(b) of Directive 2001/29/EC, where (a) the persons entitled under Article 2 of Directive 2001/29/EC have a right to equitable remuneration, exercisable only through a collecting society, against persons who, acting on a commercial basis and for remuneration, are first to place on the domestic market recording media capable of reproducing the works of the rightholders, (b) this right applies irrespective of whether the media are marketed to intermediaries, to natural or legal persons for use other than for private purposes or to natural persons for use for private purposes, and (c) the person who uses the media for reproduction with the authorisation of the rightholder or who prior to its sale to the final consumer re-exports the media has an enforceable right against the collecting society to obtain reimbursement of the remuneration?
—

Exercise its full Jurisdiction and annul the decision of the Commission (DG Taxation and Customs Union) to reject the bid of the Appellant, filed in response to the Call for Tender (the ‘CfT’) TAXUD/2005/AO-001 for specification, development, maintenance and support of customs IT services relating to IT projects of the DG-TAXUD ‘CUST-DEV’ (OJ 2005/S 187-183846) and to award the same Call for Tender to another bidder, communicated to the applicant by letter dated 19 June 2006 and award the requested Damages
Official Journal of the European Union

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 24 October 2011 — Staatssecretaris van Financiën, other party: Codirex Expeditie BV

(Case C-542/11)

(2012/C 25/55)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Staatssecretaris van Financiën

Respondent: Codirex Expeditie BV

Question referred

At what point in time are non-Community goods assignated a customs-approved treatment or use within the meaning of Article 50 (1) of the Community Customs Code where goods with the status of goods ‘in temporary storage’ are declared for placing under the external Community customs transit procedure?

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).
EN Official Journal of the European Union C 39/10

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 21 November 2011 — Tarragona Power S.L. v Gas Natural SDG, S.A., Spanish State, Hidroeléctrica del Cantábrico, S.A. and Endesa, S.A.

(Case C-580/11)

2012/C 39/17

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Appellant: Tarragona Power S.L.

Other parties: Gas Natural SDG, S.A., Spanish State, Hidroeléctrica del Cantábrico, S.A. and Endesa, S.A.

Question referred

May Article 10 of Directive 2003/87/EC (1) of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC be interpreted as not preventing application of national legislative measures of the kind under review in these proceedings, the purpose and effect of which are to reduce remuneration for the activity of electricity production by an amount equivalent to the value of the greenhouse gas emission allowances allocated free of charge during the relevant period?

(1) OJ 2003 L 275, p. 32.
3.

Or, on the contrary, must Community law and, in particular, the provisions in Articles 5 to 8, 22, 32, 34, 35 and 56 of Council Regulation (EC) No 1083/2006 of 11 July 2006 and Articles 174, 175 and 176 of the Treaty on the Functioning of the European Union, be interpreted as meaning that they do not preclude the existence of exceptions to the principle of territorial eligibility of expenditure, allowing national authorities to establish rules that allow the expenditure relating to operations co-financed by the Structural Funds and by the Cohesion Fund to be considered as eligible under the Operational Programmes, even though it is not effected in the NUTS II regions covered by each of those Operational Programmes, particularly when those exceptions relate to expenditure/operations with a relevant spill-over effect, that is, justified according to the nature of the operations and the multiplying effect that they give rise to in regions other than those in which the investment is made?