ddrg/super_eurlex huggingface dataset:
2.

In the absence of other prohibitive measures, does a provision which permits the specification, in the employment contract with a temporary employment agency, of a date on which that contract is to end, as well as its successive renewal, not on the basis of technical, organisational or production requirements of the agency in connection with the specific temporary employment relationship, but on the basis of general reasons relating to the worker, unconnected with the specific employment relationship, meet the requirements under Clause 5(1)(a) [of the framework agreement set out in the Annex to] Directive 1999/70/EC, or can it constitute a circumvention of that directive, and must the objective reasons referred to in Clause 5(1)(a) of [the above framework agreement] be set down in a document and must they relate to the specific temporary employment relationship and its successive renewal, rendering the reference to general objective requirements which served as justification for that somministrazione contract being drawn up incapable of meeting the condition set out in Clause 5(1)(a), or unsuitable for those purposes?
EN Official Journal of the European Union C 235/11

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 6 June 2012 — Trento Sviluppo Srl and Centrale Adriatica Soc. coop. v AGCM

(Case C-281/12)

2012/C 235/20

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellants: Trento Sviluppo srl, Centrale Adriatica Soc. coop.

Respondent: Autorità Garante della Concorrenza e del Mercato (AGCM)

Question referred

Is Article 6(1) of Directive 2005/29/EC, (1) as regards the part in which the Italian-language version uses the words ‘e in ogni caso’, to be understood as meaning that, in order for the existence of a misleading commercial practice to be established, it is sufficient if even only one of the elements referred to in the first part of that paragraph is present, or that, in order for the existence of such a commercial practice to be established, it is also necessary for the additional element to be present, that is to say, the commercial practice must be likely to interfere with a transactional decision adopted by a consumer?

(1) 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 (OJ 2005 L 149, p. 22).
2.

Are the interpretation and application of Article 3 of Law 241/1990 and of Article 3 of Sicilian Regional Law 10/1991 — in relation to Article 1 of Law 241/90, which requires the Italian administrative authorities to apply the principles of European Union law, pursuant to the obligation to state reasons for the acts of public authorities laid down in the second paragraph of Article 296 of the Treaty on the Functioning of the European Union and in Article 41(2)(c) of the Charter of Fundamental Rights of the European Union — to the effect that measures of public authorities in a private-law form (that is to say, measures which relate to individual rights and which are in any event mandatory in matters relating to pensions) may be exempt from the obligation to state reasons, compatible with European Union law, and does such a case amount to infringement of an essential procedural requirement governing an administrative measure?
2.

In the event that Question 1 is answered in the affirmative: must the principles of the judgment of the Court of Justice of the European Union in Case C-317/94 Elida Gibbs [1996] ECR I-5339 also be applied if the tour operator’s transaction which has been arranged by the intermediary falls within the special scheme under Article 26 of the Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes (77/388/EEC (1)) but the intermediary services of the travel agent do not fall within that provision?
EN Official Journal of the European Union C 303/14

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 11 July 2012 — Ralph Schmidt (in his capacity as liquidator in respect of the assets of Aletta Zimmerman) v Lilly Hertel

(Case C-328/12)

2012/C 303/26

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Ralph Schmidt (in his capacity as liquidator in respect of the assets of Aletta Zimmerman)

Defendant: Lilly Hertel

Question referred

The following question regarding the interpretation of Article 3(1) of Council Regulation (EC) No 1346/2000 on insolvency proceedings (1) is to be referred to the Court of Justice of the European Union for a preliminary ruling:

Do the courts of the Member State within the territory of which insolvency proceedings regarding the debtor’s assets have been opened have jurisdiction to decide an action to set a transaction aside by virtue of insolvency that is brought against a person whose place of residence or registered office is not within the territory of a Member State?

(1) OJ 2000 L 160, p. 1.
1.

May a taxable person having its principal place of business in a Member State of the European Union other than Romania, and that has identified for VAT purposes a tax representative in Romania, on the basis of the provisions of domestic law in force before Romania acceded to the European Union, be regarded as a ‘taxable person not established in the territory of the country’, within the meaning of Article 1 of Eighth Council Directive 79/1072/EEC (1) of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country?
EN Official Journal of the European Union C 295/22

Appeal brought on 25 July 2012 by Asa Sp. z o.o. against the judgment of the General Court (Third Chamber) delivered on 22 May 2012 in Case T-110/11 Asa v OHIM — Merck (FEMIFERAL)

(Case C-354/12 P)

2012/C 295/40

Language of the case: Polish

Parties

Appellant: Asa Sp. z o.o. (represented by: M. Chimiak, adwokat)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

— set aside the contested judgment of the General Court of the European Union delivered on 22 May 2012 in Case T-110/11;

— refer the case back to the General Court for re-examination;

— order the Office to pay the costs of the proceedings before the Court of Justice.

Pleas in law and main arguments

The appellant alleges that the General Court of the European Union infringed Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (1) by failing to have regard to the legal criteria of essential importance for the application of that provision, and by committing manifest errors in the assessment of those criteria in the circumstances of the present case.

Thus, the appellant alleges that the General Court did not apply correctly the interpretation relating to the criterion of the average consumer, a test which is relevant on the facts of the present case. The appellant further alleges that the General Court misappraised the inherent distinctive character of the earlier marks FEMINATAL, although the appellant submitted in its application to the General Court that the Board of Appeal of OHIM did not examine that question diligently and exhaustively. The appellant also takes the view that the General Court misappraised the trade marks’ visual and conceptual similarity. Finally, the appellant alleges that the General Court misappraised the likelihood of deceiving the average consumer.

Furthermore, the appellant alleges that the General Court infringed Article 9 of the Treaty on European Union through the application of other legal criteria in similar cases.

(1) OJ 2009 L 78, p. 1.
EN Official Journal of the European Union C 287/26

Action brought on 18 July 2012 — European Commission v Italian Republic

(Case C-344/12)

2012/C 287/49

Language of the case: Italian

Parties

Applicant: European Commission (represented by: D. Grespan and G. Conte, acting as Agents)

Defendant: Italian Republic

Form of order sought

— Declare that, by having failed to adopt, within the periods prescribed, all the measures necessary to implement Decision C(2009) 8112 of 19 November 2009 concerning State aids Nos C 38/A/2004 (ex NN 58/2004) and C 36/B/2006 (ex NN 38/2006) granted by Italy to Alcoa Trasformazioni, the Italian Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision and under Article 288 TFEU;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The subject-matter of the Commission’s action is the failure by the Italian Republic to give effect to the Commission’s decision relating to unlawful State aid granted to the company Alcoa.

First, pursuant to Article 4 of the decision in question, Italy was required to notify the Commission, by 20 January 2010, of the total amount of the aid to be recovered, of the measures adopted and envisaged for the purpose of complying with the decision and of the documents showing that the beneficiary had been required to repay the aid. Second, in accordance with Article 2, in conjunction with Article 3, of the decision, Italy was required to recover the aid from the beneficiary by 20 March 2010.

As at the date of commencement of this action, the defendant had not yet adopted all the measures necessary to comply with those obligations.
1.

Should the second indent of Article 12(a) of Directive 95/46/EC (1) of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data be interpreted to mean that there is a right to a copy of documents in which personal data have been processed, or is it sufficient if a full summary, in an intelligible form, of the personal data that have undergone processing in the documents concerned is provided?
EN Official Journal of the European Union C 366/24

Reference for a preliminary ruling from the Cour d’appel (Luxembourg) lodged on 27 August 2012 — État du Grand-duché de Luxembourg, Administration de l’enregistrement et des domaines v Edenred Luxembourg SA

(Case C-395/12)

2012/C 366/42

Language of the case: French

Referring court

Cour d’appel

Parties to the main proceedings

Applicants: État du Grand-duché de Luxembourg, Administration de l’enregistrement et des domaines

Defendant: Edenred Luxembourg SA

Question referred

Are services carried out by an organisation issuing luncheon vouchers in Luxembourg for a restaurateur who is a member of its acceptance network exempt, either in full or in part, from VAT pursuant to Article 13B(d)(3) of the Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended, if a luncheon voucher is not a fully-fledged financial security and those services are not intended to guarantee payment for a meal purchased by an employee of the business customer (ibid. Article 13B(d)(2)), in the case of luncheon vouchers allocated by an employer to its employees under the State legislation …, given that membership of a luncheon vouchers network allows a member to profit from the custom of employees of the business customers of the luncheon voucher operator and that that operator is paying the processing costs for those luncheon vouchers?

(1) OJ 1977 L 145, p. 1.
EN Official Journal of the European Union C 366/24

Reference for a preliminary ruling from the Székesfehérvári Törvényszék (Hungary) lodged on 13 August 2012 — Hervis Sport- és Divatkereskedelmi Kft. v Nemzeti Adó- és Vámhivatal Közép-dunántúli Regionális Adó Főigazgatósága

(Case C-385/12)

2012/C 366/41

Language of the case: Hungarian

Referring court

Székesfehérvári Törvényszék

Parties to the main proceedings

Applicant: Hervis Sport- és Divatkereskedelmi Kft.

Defendant: Nemzeti Adó- és Vámhivatal Közép-dunántúli Regionális Adó Főigazgatósága

Question referred

Is the fact that taxpayers engaged in store retail trade have to pay a special tax if their net annual turnover is higher than HUF 500 million compatible with the provisions of the EC Treaty governing the principle of the general prohibition of discrimination (Articles 18 TFEU and 26 TFEU), the principle of freedom of establishment (Article 49 TFEU), the principle of equal treatment (Article 54 TFEU), the principle of equal treatment as regards participation in the capital of companies or firms within the meaning of Article 54 (Article 55 TFEU), the principle of freedom to provide services (Article 56 TFEU), the principle of the free movement of capital (Articles 63 TFEU and 65 TFEU) and the principle of equality of taxation of companies (Article 110 TFEU)?
EN Official Journal of the European Union C 366/25

Reference for a preliminary ruling from the Arbeitsgericht Nienburg (Germany), lodged on 13 September 2012 — Bianca Brandes v Land Niedersachsen

(Case C-415/12)

2012/C 366/44

Language of the case: German

Referring court

Arbeitsgericht Nienburg

Parties to the main proceedings

Applicant: Bianca Brandes

Defendant: Land Niedersachsen

Question referred

Is the relevant European Union law, in particular Clause 4(1) and (2) of the Framework Agreement on part-time work contained in the Annex to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, (1) as amended by Directive 98/23, (2) to be interpreted as precluding national statutory or collective provisions or practices under which, in the event of a change in the scale of a worker’s employment associated with a change in the number of days worked per week, the scale of the entitlement to leave which the worker was unable to exercise during the reference period is adjusted in such a way that, although the amount of leave entitlement, expressed in weeks, remains the same, the leave entitlement, expressed in days, is converted to the new scale of employment?

(1) Council Directive 97/81/EC of 15 December 1997 (OJ 1998 L 14, p. 9).

(2) Council Directive 98/23/EC of 7 April 1998 on the extension of Directive 97/81/EC on the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC to the United Kingdom of Great Britain and Northern Ireland (OJ 1998 L 131, p. 10).
—

Declare that, by failing to adopt all the laws and other measures necessary to transpose Directive 2009/140/EC (1) of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC (2) on a common regulatory framework for electronic communications networks and services, 2002/19/EC (3) on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC (4) on the authorisation of electronic communications networks and services or, in any case, by failing to notify the Commission of such provisions, the Republic of Slovenia has failed to fulfil its obligations under Article 5 of that directive;
(b)

If the answer to question 1 is that expressed at the end of the question, is a rule of national law which provides that in the case of reproductions made by a natural person for private use and without any direct or indirect commercial objective, fair compensation is payable, regardless of whether the manufacture of those reproductions is authorised under Article 5(2) of the Copyright Directive — and without there being any infringement by that rule of the prohibition right of the rightholder and his entitlement to damages — contrary to Article 5 of the Copyright Directive, or to any other rule of European law? In the light of the ‘three-stage test’ of Article 5(5) of the Copyright Directive, is it important when answering that question that technical resources to combat the making of unauthorised private copies are not (yet) available?
3.

Does the principle of the fiscal neutrality of VAT permit a taxable person to be deprived of the right to deduct VAT, in circumstances in which: (i) the taxable person has paid the VAT incorrectly indicated in the invoice by a third party; (ii) the tax authorities have taken no active steps to request the third party to put right the incorrectly worded invoice; (iii) at present, as a result of the third party’s insolvency, it is impossible for the invoice to be corrected?
EN Official Journal of the European Union C 399/12

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 10 October 2012 — Pro Med Logistik GmbH v Finanzamt Dresden-Süd

(Case C-454/12)

2012/C 399/21

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Pro Med Logistik GmbH

Defendant: Finanzamt Dresden-Süd

Questions referred

1. Having regard to the principle of neutrality, do the third subparagraph of Article 12(3)(a) in conjunction with Annex H, Category 5, of Sixth Council Directive 77/388/EEC of 17 May 1977 (1) on the harmonisation of the laws of the Member States relating to turnover taxes and Article 98(1) in conjunction with Annex III, Category 5, of Council Directive 2006/112/EC of 28 November 2006 (2) on the common system of value added tax (OJ L 347, p. 1) preclude national rules which provide for a reduced rate of turnover tax for local passenger transport by taxi, whereas local passenger transport by minicab is subject to the standard rate of tax?

2. For the answer to the first question, is it relevant whether operators of hackney cabs and taxis and operators of minicabs perform journeys on the basis of special agreements with major customers under almost identical conditions?

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

(2) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; OJ L 347, p. 1.
EN Official Journal of the European Union C 366/27

Appeal brought on 3 October 2012 by Rivella International AG against the judgment of the General Court (Sixth Chamber) delivered on 12 July 2012 in Case T-170/11 Rivella International AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-445/12 P)

2012/C 366/48

Language of the case: German

Parties

Appellant: Rivella International AG (represented by: C. Spintig, S. Pietzcker and R. Jacobs, lawyers)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Baskaya di Baskaya Alim e C. Sas

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal and refer the case back to the General Court;

— order the respondent to pay the costs of the appeal proceedings and the proceedings at first instance.

Pleas in law and main arguments

By the present appeal the appellant challenges the judgment of the General Court (Sixth Chamber) of 12 July 2012 concerning an action brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 January 2011 (Case R 534/2010-4), relating to opposition proceedings between Rivella International AG and Baskaya di Baskaya Alim e C. Sas.

The appellant relies on the following grounds of appeal:

The General Court infringed Article 42(2) and (3) of Regulation No 207/2009 (1) in that it

— requested proof of genuine use of the mark on which the opposition is based although that mark is not a Community trade mark or an ‘earlier national trade mark’, but the German part of an internationally registered mark;

— took the view that the question of the territory in which an earlier (internationally) registered mark is used is exhaustively determined by Regulation No 207/2009 and that the national law of Member States to that extent applies only in a supplementary capacity;

— did not take into account the fact that such an interpretation leads to a result which is not desired by Regulation No 207/2009 and in particular by recital 3 in the preamble to that regulation, namely to a dissociation between registration and the possibility of using a Community trade mark in cases which are not expressly covered by the regulation.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
2.

If Question 1 is answered in the negative: Is Clause 4.1 of the Framework Agreement annexed to Council Directive 97/81/EC to be interpreted as meaning that unequal treatment of part-time workers, by means of a proportionate reduction in their entitlement to child allowance according to working time, is — having regard to the social partners’ wide discretion in the determination of a particular social and economic policy objective and of the measures capable of achieving it — objectively justified on the basis that a prohibition of a proportionate grant: (a) makes part-time work in the form of parental part-time working (Elternteilzeit) and/or minor activity during a period of parental leave (Elternkarenzurlaub) more difficult or impossible; and/or (b) leads to distortion of competition on account of the greater financial burden placed on employers who employ a larger number of part-time workers, and to a lesser willingness on the part of employers to take on part-time workers; and/or (c) leads to more favourable treatment of part-time workers who have additional part-time work and multiple entitlement to a benefit — such as child allowance — under a collective agreement; and/or (d) leads to more favourable treatment of part-time workers, because they have more free time than full-time workers and thus have better childcare options available to them?
3.

When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?
1.

Do the principles of freedom of establishment, non-discrimination and the preservation of competition under Article 49 et seq TFEU preclude national legislation which does not allow a pharmacist, who is qualified and entered in the relevant professional register but does not own a pharmacy included on the ‘pianta organica’ [territorial grid], also to offer for retail sale, in the para-pharmacy owned by that pharmacist, pharmaceutical products which are subject to a prescription in the form of a ‘ricetta bianca’ — that is to say, pharmaceutical products the cost of which is borne, not by the Italian national health service, but wholly by the citizen — and which thereby also establishes in that sector a prohibition on the sale of certain categories of pharmaceutical products, as well as a quota in relation to the number of commercial outlets which may be established within the national territory?