ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 287/16

Reference for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 4 May 2012 — Helmut Butz, Christel Bachman-Butz, Frederike Butz v Société Air France SA

(Case C-212/12)

2012/C 287/28

Language of the case: German

Referring court

Amtsgericht Düsseldorf

Parties to the main proceedings

Applicant: Helmut Butz, Christel Bachman-Butz, Frederike Butz

Defendant: Société Air France SA

Question referred

Is a passenger entitled to compensation under Article 7 of Regulation (EC) No 261/2004 (1) if the first flight is delayed by a period of time which falls within the limit defined in Article 6(1) of Regulation (EC) No 261/2004, but the connecting flight is delayed by a period of time which exceeds that limit and arrives at the place of final destination at least three hours after the scheduled time of arrival?

(1) Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).
1.

Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where — an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet); — an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet); — the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and the Netherlands, and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15(1) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms; — in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin submitted met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates, compatible with Article 34 of the Treaty on the Functioning of the European Union and Article 11 of the EEA Agreement and/or Article 36 of that Treaty and Article 13 of the EEA Agreement?’
2.

Must the provisions of Article 15(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, whereby the Romanian Government was required to inform the Secretary General of the Council of Europe of its intention to adopt measures to reduce remuneration and to specify the time-limit laid down for implementing them, be interpreted as rendering invalid Law No 118/2010 and Law No 285/2010?
EN Official Journal of the European Union C 235/6

Reference for a preliminary ruling from the Cour de cassation du Grand-Duché de Luxembourg lodged on 8 May 2012 — Caisse nationale des prestations familiales v Bornand, Pierre-Louis

(Case C-217/12)

2012/C 235/11

Language of the case: French

Referring court

Cour de cassation du Grand-Duché de Luxembourg

Parties to the main proceedings

Applicant: Caisse nationale des prestations familiales

Respondent: Bornand, Pierre-Louis

Question referred

Does a benefit such as the parental leave allowance provided for by Articles 306 to 308 of the [Luxembourg] Code de la Sécurité Sociale constitute a family benefit within the meaning of Article 1(u)(i) and Article 4(1)(h) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to the members of their families moving within the Community, (1) as amended and updated and applicable in accordance with Annex II, Section A, (1) of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons and the Final Act signed in Luxembourg on 21 June 1999? (2)

(1) OJ 1971, L 149, p. 2.

(2) OJ 2002, L 114, p. 6.
EN Official Journal of the European Union C 217/9

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 14 May 2012 — Fastweb SpA v Autorità per le Garanzie nelle Comunicazioni and Others

(Case C-229/12)

2012/C 217/18

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Fastweb SpA

Defendant: Autorità per le Garanzie nelle Comunicazioni and Others

Question referred

Are the Community provisions in the sector, and in particular the provisions of Directive No 2002/20/EC, (1) to be interpreted as precluding the national rules referred to, in particular Law No 266 of 2005, as those provisions are actually applied by regulation included.

(1) Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive); OJ 2002 L 108, p. 21.
1.

Is the direct and immediate link, which is regarded by the case-law of the Court of Justice of the European Union as being determinant for interpreting the term ‘for the purposes of his taxable transactions’ within the meaning of Article 17(2)(a) of Directive 77/388/EEC, (1) to be determined: — according to the objective content of the supply acquired by the taxable person (in the present case: the activity of a criminal defence lawyer with a view to preventing the conviction of a natural person); or — according to the fact which gave rise to the supply acquired (in the present case: the economic activity of the taxable person during which a criminal act was purportedly committed by a natural person)?
EN Official Journal of the European Union C 200/9

Appeal brought on 22 May 2012 by Northern Ireland Department of Agriculture and Rural Development against the order of the General Court (Eighth Chamber) delivered on 6 March 2012 in Case T-453/10: Northern Ireland Department of Agriculture and Rural Development v European Commission

(Case C-248/12 P)

2012/C 200/17

Language of the case: English

Parties

Appellant: Northern Ireland Department of Agriculture and Rural Development (represented by: K.J. Brown, Departmental Solicitor's office, D. Wyatt QC, V. Wakefield, Barristers)

Other party to the proceedings: European Commission

Form of order sought

The applicant claim that the Court should:

— the Order of the General Court be set aside;

— DARD's action for annulment be declared admissible and the case be referred back to the General Court so that it may examine the substance of DARD's action for annulment;

— the Commission be ordered to pay DARD's costs of the present proceedings and those arising at first instance relating to the plea of inadmissibility; and

— costs be reserved as to the remainder.

Pleas in law and main arguments

First plea, that the General Court failed to identify and apply the proper legal test, namely that Piraiki-Patraiki and Dreyfus are merely examples of a broader principle of law, namely that a Union measure will be treated as of direct concern to those whose legal situation it affects where its implementation in that way is a ‘foregone conclusion’, or any other possibility is ‘purely theoretical’, or it is ‘obvious’ that any discretionary power will be exercised in a certain way. That principle must be applied to the facts of each case.

Second plea, that the General Court committed an error of law, and acted contrary to the principle of legal certainty, in its attempts to limit the scope of Piraiki-Patraiki and Dreyfus (in particular by restricting the former to cases in which the Union measure is adopted in response to a request by a Member State, and by restricting the latter to cases with a ‘very specific factual context’).

Third plea, that the General Court committed an error of law in narrowing the test for standing under Article 263. This is contrary to the proper interpretation of Article 263 as amended by the Treaty of Lisbon, in particular by reference to its purpose and to the principle of effective judicial protection.

Fourth plea, that if the General Court had applied the correct legal principles to the present case, DARD would have been found to be ‘directly concerned’. In particular, the constitutional position in the United Kingdom is that the devolved administration — in this case DARD — is directly responsible for bearing the cost of the disallowance. The chain of causation is direct and automatic. The United Kingdom devolutionary arrangements are well established (see Case C-428/07 Horvath [2009] ECR 1-6355) and any argument that their application is less than a ‘foregone conclusion’ should fail.
EN Official Journal of the European Union C 200/9

Appeal brought on 18 May 2012 by Ellinika Nafpigia AE against the judgment of the General Court (Seventh Chamber) of 15 March 2012 in Case T-391/08 Ellinika Nafpigia v European Commission

(Case C-246/12 P)

2012/C 200/16

Language of the case: Greek

Parties

Appellant: Ellinika Nafpigia AE (represented by: I. Drosos, lawyer. V. Karagiannis, lawyer)

Other party to the appeal proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal of the General Court in Case Τ-391/08.

— annul Articles 1(2), 2, 3, 5, 6, 8(2), 9, 11, 12, 13, 14, 15, 16, 18 and 19 of the initially contested Commission decision of 2 July 2008:‘On the measures C 16/2004 (ex NN 29/2004, CP 71/2002 and CP 133/2005) implemented by Greece in favour of Hellenic Shipyards [Ellinika Nafpigia A.E]’.

— in the alternative, set aside the judgment under appeal in part to the extent that it applies to the measures Ε12b, Ε13a, Ε13b, Ε14, Ε16 and Ε17 in the initially contested decision and annul the initially contested decision to the same extent.

— in the further alternative, set aside the judgment under appeal in part to the extent that it applies to the measure Ε7 in the initially contested decision and annul the initially contested decision to the same extent.

— order the Commission to pay the appellant’s costs both in the proceedings before the General Court and before the Court of Justice.

Grounds of appeal and main arguments

By the first ground of appeal the appellant claims that the judgment under appeal erred in its interpretation and application of Article 346 TFEU, which means that it must be set aside in its entirety on all counts and in respect of its operative part, or in particular respects as set out in the appeal. By the second ground of appeal the appellant claims that the judgment under appeal erred in its interpretation and application of Article 348 TFEU, which means that it must be set aside in its entirety on all counts and in respect of its operative part, or in particular respects as set out in the appeal. By the third ground of appeal the appellant claims that the judgment under appeal erroneously rejected its claims concerning the infringement of its procedural rights by the initially contested decision, an error which means that the judgment under appeal must be set aside to the extent set out in the appeal.
1.

Can Article 4(2) of Council Directive 93/13/EEC (1) be interpreted as meaning that ‘main subject matter of the contract’ and ‘price’, as referred to in that provision, cover the elements which make up the consideration to which a credit institution is entitled by virtue of a consumer credit agreement, that is to say, the annual percentage rate of charge under a credit agreement, formed in particular by the interest rate, whether fixed or variable, bank commissions, and the other fees included and defined in the agreement?
1.

Should the words ‘premises and land from which the buyer has operated during the contract period’ used in Article 5(b) of [Commission] Regulation [(EC) No] 2790/1999 (1) be understood as meaning that they are limited to the place or physical space from which goods were sold or services provided while the agreement was in effect or can they apply to the entire territory in which the purchaser operated during the contract period?
3.

Are the tax authorities in the requested Member State obliged, when providing information in accordance with Directive 77/799/EEC, to observe a certain minimum content of their answer, so that it is clear from what sources and by what method the requested tax authorities have obtained the information provided? May the taxpayer challenge the correctness of the information thus provided, for example on grounds of procedural defects of the proceedings in the requested State which preceded the provision of the information? Or does the principle of mutual trust and cooperation apply, according to which the information provided by the requested tax authorities may not be called in question?
EN Official Journal of the European Union C 227/14

Appeal brought on 29 May 2012 by Annunziata Del Prete against the judgment delivered by the General Court (Second Chamber) on 27 March 2012 in Case T-420/10 Girogio Armani v OHIM

(Case C-261/12 P)

2012/C 227/20

Language of the case: Italian

Parties

Appellant: Annunziata Del Prete (represented by: R. Bocchini, avvocato)

Other parties to the proceedings: Girogio Armani SpA, Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

— Set aside in full the judgment of the General Court of the European Union of 27 March 2012 and, accordingly, uphold the decision of the Second Board of Appeal of OHIM delivered on 8 July 2010 and notified on 19 July 2010, on the ground that the latter fully complied with and applied the rules laid down in the Regulation on the Community trade mark, (1) in particular Article 8(1)(b) thereof, the only provision relied on in Opposition No B1309485.

— Order the other parties to the proceedings to pay the costs.

Pleas in law and main arguments

1. It is disputed that there is graphic similarity between Community trade mark No 6314462 ‘AMICI JUNIOR’ and Italian national figurative mark Nos 912114 ‘AJ ARMANI JEANS’ and 998554 ‘ARMANI JUNIOR’, or any aural similarity.

2. Article 8(5) of Regulation No 207/2009 and the princple that marks must be well known were applied in the judgment under appeal, even though Girogio Armani S.p.A. did not make any express reference to or rely on that provision or princple.

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

set aside, in its entirety or in part, the judgment of the General Court of 29 March 2012 in Case T-336/07 Telefónica and Telefónica de España v Commission;

on the basis of the information at its disposal, annul, in its entirety or in part, the decision of the European Commission of 4 July 2007 in Case COMP/38.784 — Wanadoo España v Telefónica;

revoke or reduce the fine pursuant to Article 261 TFEU;

revoke or reduce the fine as a result of the unjustifiable duration of the proceedings before the General Court; and

order the Commission and the parties intervening in support of the Commission to pay the costs of both these proceedings and those before the General Court.
3.

If Question 2 is answered in the negative: (a) Is the criterion of selectivity not satisfied if the public undertaking which operates the airport offers the same conditions, and in a transparent manner, to all airlines which opt to use the airport? (b) Is this still the case if the airport operator adopts a specific business model (cooperation with ‘low-cost carriers’, in this instance), which tailors its conditions of use to such customers, with the result that those conditions are not equally attractive to all airlines? (c) Is there a selective measure, at any rate, if the vast majority of the airport’s passengers has been attributable to a single airline for a number of years?
3.

If the answer to the first question or the second question is in the affirmative and an injunction is therefore to be issued against the user’s access provider in accordance with Article 8(3) of the Information Directive: Is it compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to quite simply prohibit an access provider from allowing its customers access to a certain website (without ordering specific measures) as long as the material available on that website is provided exclusively or predominantly without the rightholder’s consent, if the access provider can avoid incurring preventive penalties for breach of the prohibition by showing that it had nevertheless taken all reasonable measures?
—

declare that, by not bringing into force all of the laws, regulations and administrative provisions necessary to transpose Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, (1) and in any event by not notifying the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 40(1) of that directive;
EN Official Journal of the European Union C 295/19

Appeal brought on 16 July 2012 by Pi-Design AG, Bodum France and Bodum Logistics A/S against the judgment of the General Court (Fourth Chamber) delivered on 8 May 2012 in Case T-331/10: Yoshida Metal Industry Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-337/12 P)

2012/C 295/33

Language of the case: English

Parties

Appellants: Pi-Design AG, Bodum France, and Bodum Logistics A/S, (represented by: H. Pernez, Advocate)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Yoshida Metal Industry Co. Ltd

Form of order sought

The appellants claim that the Court should:

— Squash the judgment of the General Court

— Annul the Community trademark 1 371 244

Subsidiairily

— Refer the case back to the General Court with the obligation to refer the case back to the Board of Appeal in the case of annulment of the latter's decision.

— Order YOSHIDA METAL INDUSTRY CO. LTD. to bear the costs.

Pleas in law and main arguments

The appellants submit that the contested judgment should be annulled on the ground that the General court infringed Article 7(1)(e)(ii) of the Community trade mark regulation by applying incorrect criteria in the identification of the essential characteristics of the contested sign and by distorting the evidence before it.
—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council, (1) and in any event by not informing the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 25 of that directive;
1.

Where under the law of a Member State a taxpayer can choose between two alternative causes of action in order to claim restitution of taxes levied contrary to Articles 49 and 63 TFEU and one of those causes of action benefits from a longer limitation period, is it compatible with the principles of effectiveness, legal certainty and legitimate expectations for that Member State to enact legislation curtailing that longer limitation period without notice and retrospectively to the date of the public announcement of the proposed new legislation?
EN Official Journal of the European Union C 287/27

Reference for a preliminary ruling from the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg), lodged on 20 July 2012 — Caisse nationale des prestations familiales v Ulrike Wiering, Markus Wiering

(Case C-347/12)

2012/C 287/52

Language of the case: French

Referring court

Cour de cassation du Grand-Duché de Luxembourg

Parties to the main proceedings

Appellant: Caisse nationale des prestations familiales

Respondents: Ulrike Wiering, Markus Wiering

Question referred

For the calculation of any differential allowance that may be due, in accordance with Articles 1(u)(i), 4(1)(h) and 76 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, (1) as amended, and with Article 10[(1)](b)(i) of Council Regulation (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71, (2) by the competent institution of the State of the place of work, is it necessary to take into account, as family benefits of the same kind, all of the benefits received by the family of the migrant worker in the State of residence, in the present case the ‘Elterngeld’ and ‘Kindergeld’ provided for by German legislation?

(1) OJ, English Special Edition 1971(II), p. 416.

(2) OJ, English Special Edition 1972(I), p. 160.
First plea : the General Court made an error of law and/or failed to provide adequate reasoning with regard to the assessment of the objective necessity of the alleged restriction of competition. Specifically, the General Court misapplied the well-established test of objective necessity. Rather than applying the proper test under which a restriction is objectively necessary if it is either impossible or difficult to achieve the main operation without it, the General Court applied an incomplete test according to which a restriction is objectively necessary only if, without it, the main operation is incapable of functioning. In addition, the General Court; (i) failed to assess the alleged restriction, and therefore objective necessity, in its proper context; (ii) erroneously substituted its own assessment for that of the Commission; and (iii) failed to apply the right standard of review.
EN Official Journal of the European Union C 295/24

Reference for a preliminary ruling from the Cour administrative d’appel de Nantes (France) lodged on 2 August 2012 — Adiamix v Ministre de l’Économie et des Finances

(Case C-368/12)

2012/C 295/43

Language of the case: French

Referring court

Cour administrative d’appel de Nantes

Parties to the main proceedings

Appellant: Adiamix

Respondent: Ministre de l’Économie et des Finances

Question referred

Is Commission Decision 2004/343/EC of 16 December 2003, (1) on which the payment order at issue is necessarily contingent, valid?

(1) 2004/343/EC: Commission Decision of 16 December 2003 on the aid scheme implemented by France for the takeover of firms in difficulty (OJ 2004 L 108, p. 38).