ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 69/17

Appeal brought on 18 November 2008 by Fornaci Laterizi Danesi SpA against the judgment delivered on 9 September 2008 in Case T-224/08 Fornaci Laterizi Danesi SpA v Commission of the European Communities

(Case C-498/08 P)

(2009/C 69/31)

Language of the case: Italian

Parties

Appellant: Fornaci Laterizi Danesi SpA (represented by: M. Salvi, L. de Nora, M. Manganiello, P. Rivetta, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— Set aside the order of 9 September 2008 of the Court of First Instance in Case T-224/08, notified by fax of 12 September 2008 and refer the case back to the Court of First Instance for judgment on the merits;

— In the alternative, in the event that the case is not referred back to the Court of First Instance, uphold the forms of order sought by the applicant at first instance;

— In any event, order the Commission to pay the costs.

Pleas in law and main arguments

Incorrect legal assumptions, incorrect reasons for judgment, incorrect application of the legal rule in question, failure to make inquiries (fifth paragraph of Article 230 EC, Article 249 EC and Article 254 EC, also in relation to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms).
EN Official Journal of the European Union C 69/29

Appeal brought on 29 January 2009 by the Hellenic Republic against the judgment delivered by the Court of First Instance (Eighth Chamber) on 19 November 2008 in Case T-404/05 Hellenic Republic v Commission of the European Communities

(Case C-43/09 P)

(2009/C 69/53)

Language of the case: Greek

Parties

Appellant: Hellenic Republic (represented by: Kharalampos Meidanis and M. Tassopoulou)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— hold the present appeal admissible and well founded;

— set aside in its entirety the judgment of the Court of First Instance of 19 November 2008 in Case T-404/05 Hellenic Republic v Commission of the European Communities which constitutes the subject of the present appeal;

— order the opposing party to pay all the costs.

Grounds of appeal and main arguments

By the judgment of 19 November 2008, the setting aside of which is sought in the present appeal, the Court of First Instance dismissed the action in its entirety.

The Hellenic Republic puts forward three grounds in support of its appeal against that judgment.

It submits in its first ground of appeal that the Court of First Instance misinterpreted and misapplied Community law with regard to the Commission's power ratione temporis to impose the particular financial correction, and that its judgment contains contradictory reasoning.

The second ground is based on the submission that the Court of First Instance misinterpreted and misapplied Community law as regards infringement of the principle of non-retroactivity in connection with failure to comply with publicity measures, and that its judgment contains contradictory reasoning in this regard.

The third ground is based on the submission that the Court of First Instance infringed the Community law principle of proportionality.
—

a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/17/EC (1) of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells or, at any event, by failing to communicate those measures to the Commission, the Portuguese Republic has failed to fulfil its obligations under that directive
EN Official Journal of the European Union C 82/21

Appeal brought on 6 February 2009 by the Hellenic Republic against the judgment of the Court of First Instance (Fifth Chamber) delivered on 11 December 2008 in Case T-339/06 Hellenic Republic v Commission of the European Communities

(Case C-54/09 P)

(2009/C 82/37)

Language of the case: Greek

Parties

Appellant: Hellenic Republic (represented by: I. Khalkias and M. Tassopoulou)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— allow the appeal;

— set aside the judgment of the Court of First Instance;

— uphold the action in accordance with the form of order sought;

— order the Commission to pay all the appellant's costs.

Grounds of appeal and main arguments

The Hellenic Republic submits: (i) that the Court of First Instance misinterpreted Articles 16(1) and (2) and 17 of Regulation No 1227/2000 in finding that the time-limit laid down in Article 16(1) is binding, when it is in fact indicative — as is apparent from the interpretation of Article 16(2) and 17 of the regulation; (ii) that the Court of First Instance misinterpreted Article 10 of the Treaty and general principles of law because the Commission, in agreeing that it was aware of the corrected data 23 days prior to adoption of the contested decision but did not take them into account, and that it accepts data which are submitted belatedly by other Member States while refusing to do the same in Greece's case, infringes the principles of cooperation in good faith, sound administration and equal treatment; and (iii) that the judgment of the Court of First Instance under appeal contains contradictory reasoning given that the recognition of the binding nature of the time-limit conflicts with the recognition and admission that the Commission accepts information submitted after expiry of the time-limit too.
1.

May the national court stay proceedings concerning the obligation to recover State aid until the Commission of the European Communities has ruled, by way of a final decision, on the compatibility of the aid with the rules of the common market, where a first decision of the Commission declaring that aid to be compatible has been annulled by the Community judicature?
EN Official Journal of the European Union C 90/8

Reference for a preliminary ruling from Court of Appeal (United Kingdom) made on 19 January 2009 — The Motor Insurers’ Bureau v Helphire (UK) Limited, Angel Assistance Limited

(Case C-26/09)

2009/C 90/13

Language of the case: English

Referring court

Court of Appeal

Parties to the main proceedings

Applicant: The Motor Insurers’ Bureau

Defendants: Helphire (UK) Limited, Angel Assistance Limited

Questions referred

Question 1

(a) Where the national law of the member state provides that the charges incurred by the victim of a motor accident in subsequently hiring a replacement vehicle are recoverable from the person responsible, does Article 1.4 of the Directive (1) permit MIB to exclude any liability for such charges where compensation will ultimately be paid over to the insurer who issued a post-accident policy covering the hire charges in the event of non-recovery from the person responsible?

(b) If the answer to Question 1(a) is in the negative, is it permissible for the compensation by MIB to be limited to the premium, if any, payable to the insurers who have paid the hire charges?

Question 2

If the answer to Question 1(a) is in the negative:

Is the national court required to interpret the Uninsured Drivers Agreement so as to give effect to the Directive in accordance with the principles stated by the Court of Justice in Case C-106/89 Marleasing v La Comercial Internacional de Alimentacion [1990] ECR I-4135? In other words, does ‘the whole body of rules of national law’ to which the third indent of paragraph 120 of the judgment of the Court of Justice in Joined Cases C-397/01 to C-403/01 Pfeiffer v Deutsches Rotes Kruz [2004] ECR I-8835 refers, include an agreement such as the Uninsured Drivers Agreement?

Question 3

If the answer to Question 1(a) is the negative:

Does Article 1.4 of the Directive have direct effect?

Question 4

If the answer to Question 3 is in the affirmative:

(a) For the purposes of determining whether a body such as MIB is one against which the provisions of a directive which are capable of having direct effect may be relied upon: (i) Are the criteria identified by the Court of Justice in Case C-188/89 Foster v British Gas [1990] ECR 1-3313 the criteria by reference to which such a determination should be made? (ii) If the determination should be made by reference to some (but not all) of such criteria and/or to additional criteria, by reference to which criteria should the determination be made?

(b) Is it solely for the domestic court to determine whether a body fulfils the relevant criteria?

(c) Does a body with the characteristics of MIB fulfil the criteria such that the provisions of a directive which have direct effect may be relied upon against it?

(1) Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles OJ L 8, p. 17
Is the second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) (‘Regulation No 44/2001’) applicable in the case of a contract for the provision of services also where the services are, by agreement, provided in several Member States?

If the answer to that question is in the affirmative,

Should the provision referred to be interpreted as meaning that
EN Official Journal of the European Union C 102/13

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 20 February 2009 — Gowan Comercio Internacional e Servicos Limitada v Ministero della Salute

(Case C-77/09)

2009/C 102/21

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Gowan Comercio Internacional e Servicos Limitada

Defendant: Ministero della Salute

Question referred

In view of the fact that the conclusion of the technical and scientific assessment carried out by the Rapporteur State appears to be that the risk arising from the use of fenarimol is acceptable, is Directive 2006/134/EC, which significantly limited such use, valid?
1.

Are Articles 138 and 20 of Council Directive [2006/112/EC] on the common system of value added tax (1) to be interpreted as meaning that the transport out of the territory of the State of origin must begin within a certain period of time for the sale to be exempt from tax and for there to be an intra-Community acquisition?
EN Official Journal of the European Union C 113/25

Action brought on 6 March 2009 — Commission of the European Communities v French Republic

(Case C-94/09)

2009/C 113/47

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Alfonso, Agent)

Defendant: French Republic

Form of order sought

— Declare that, by not applying a single rate of VAT to all services provided by funeral directors, or to related supplies of goods, the French Republic has failed to fulfil its obligations under Articles 96 to 99(1) of the VAT Directive (1);

— Order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission claims that French tax legislation distorts the functioning of the VAT system to the extent that it applies two VAT rates to services and goods supplied by funeral directors to the families of deceased persons whereas they constitute, in practice, a single complex transaction which should be subject to a single rate of tax.

The applicant complains in particular about the unjustified splitting off by the defendant of the service involving the transportation of the body by a vehicle designed especially for that purpose, for which a reduced VAT rate is applicable, from the other services carried out by funeral directors, such as the use of persons to move the body or the supply of a coffin, which, for their part, are subject to the normal rate of VAT. According to settled case-law, a transaction which comprises a single supply from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system. In the circumstances, the vast majority of families requesting the undertaking to organise funerals would moreover consider the activities in question as forming the same single supply.

The Commission also contests the defendant’s choice to apply variable reduced rates to the services provided by funeral directors. Article 98(1) of the VAT Directive does not allow a reduced rate to be applied to certain transportation services and a normal rate to other services carried out by the undertakings in question, since that is bound to make the actual rate of tax lower than the normal rate applicable in France. In addition, the level of that reduced tax varies from transaction to transaction according to the relative extent, in each case, of the services provided at a reduced rate, which is also prohibited by the directive.

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
3.

If there is an agricultural area (Question 1), which is also used for an agricultural activity (Question 2): Does the allocation of an agricultural area to a holding (agricultural area of the holding in the sense of Article 44(2) of Regulation (EC) No 1782/2003) require: (a) that it be at the disposal of the holding against payment on the basis of a lease or another similar temporary transaction? (b) If (a) is to be answered in the negative: is it without prejudice to the allocation to the holding if occupation of the areas is allowed, without charge or in return only for taking over the contributions to the trade association, for use of a specific nature and for a limited period of time in accordance with the objectives of nature conservation? (c) If (a) is to be answered in the affirmative: is it without prejudice to the allocation to the holding if the holding is obliged to carry out certain tasks on the land in return for payment?
—

Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies, (1) and in particular Articles 1 to 4, 5 to 8, 9(2), 13 and 16 thereof, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 19 of that directive;
1.

Does it constitute a serious non-political crime or an act contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(b) and (c) of Council Directive 2004/83/EC (1) of 29 April 2004 if a foreign national was for many years involved as a combatant and an official — including for a time as a member of its governing body — in an organisation (in this case, the PKK) which repeatedly employed terrorist methods in its armed struggle against the state (in this case, Turkey) and is included in the list of persons, groups and entities annexed to the Council Common Position on the application of specific measures to combat terrorism, and the foreign national thereby actively supported its armed struggle in a prominent position?
EN Official Journal of the European Union C 153/26

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 24 April 2009 — Prof. Dr. Claus Scholl v Stadtwerke Aachen AG

(Case C-146/09)

2009/C 153/49

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Prof. Dr. Claus Scholl

Defendant: Stadtwerke Aachen AG

Question referred

Is the third example in the third indent of Article 6(3) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (1) to be interpreted as meaning that there is no right of withdrawal in respect of distance contracts for the mains supply of electricity and gas?

(1) OJ 1997 L 144, p. 19.
2.

In the event that Question 1 is answered in the affirmative: Is it compatible with Directive 89/48/EEC to interpret Paragraph 24 of the Bundesgesetz über den freien Dienstleistungsverkehr und die Niederlassung von europäischen Rechtsanwälten in Österreich (Federal law on the free movement of services and the establishment of European lawyers in Austria, ‘EuRAG’) as meaning that obtaining an Austrian degree in law and attaining the entitlement to use the Spanish title ‘Licenciado en Derecho’ after taking supplementary examinations at a Spanish university over a period of less than three years of study is not sufficient for admission to the aptitude test in Austria under Paragraph 24(1) of the EuRAG without proof of the practice required under national law (Paragraph 2(2) of the Rechtsanwaltsordnung (Lawyers’ Code, ‘RAO’), even if the applicant has been admitted as an ‘abogado’ in Spain without a comparable requirement for practice and had pursued the profession there for three weeks before making the application and for five months at the most before the first instance decision?
—

Declare that, by failing to adopt all the laws, regulation and administrative provisions necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (1) and, in any event, by failing to notify them to the Commission, the French Republic has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 193/8

Appeal brought on 1 June 2009 by Kaul GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 25 March 2009 in Case T-402/07: Kaul GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) — Bayer AG

(Case C-193/09 P)

2009/C 193/08

Language of the case: English

Parties

Appellant: Kaul GmbH (represented by: R. Kunze, Rechtsanwalt and Solicitor, G. Würtenberger, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bayer AG

Form of order sought

The appellant requests that:

— the judgment of the Court of First Instance of the European Communities of 25 March 2009 in Case T-402/07 Kaul GmbH v OHIM — Bayer (the judgment under appeal), by which that court dismissed the action brought against the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trademarks & Designs) (OHIM) of 1 August 2007 upholding the decision of the Opposition Division, by which the opposition directed against Community trademark application no. 000 195 370‘ACRCOL’ was rejected, be set aside;

— following the conclusion of the written proceedings, an oral hearing before the Court of Justice be scheduled;

— the Defendant pay the costs of the proceedings.

Pleas in law and main arguments

The appellant submits that the Court of First Instance's decision constitutes an infringement of the pertinent provisions of Regulation EC 40/94 (1) and, moreover, is in breach of fundamental procedural principles. Hence, the appeal directed against the decision issued by the Court of First Instance dated 25 March 2009 is well founded on the ground that

— the Court of First Instance has incorrectly interpreted Article 74(2) Community Trademark Regulation 40/94/EC, and hence was in breach of said provision when issuing the judgment under appeal;

— the Court of First Instance in the judgment under appeal, according to which an infringement of the right to be heard was immaterial for the outcome of the proceedings, is flawed and in breach of Article 61(2) and Article 73 of Community Trademark Regulation 40/94/EC, AND

— the Court of Justice was incorrect in upholding the Board of Appeal's assessment pertaining to the criteria of likelihood of confusion pursuant to Article 8(1)(b) Community Trademark Regulation 40/94/EC.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark OJ L 11, p. 1
EN Official Journal of the European Union C 180/29

Action brought on 15 May 2009 — Grand Duchy of Luxembourg v European Parliament and Council of the European Union

(Case C-176/09)

2009/C 180/50

Language of the case: French

Parties

Applicant: Grand Duchy of Luxembourg (represented by: C. Schiltz, acting as Agent and P. Kinsch, avocat)

Defendants: European Parliament and Council of the European Union

Form of order sought

— Delete, in Article 1(2) of Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (1), the following phrase: ‘and to the airport with the highest passenger movement in each Member State’;

— Alternatively, annul the directive in its entirety;

— Order the European Parliament and the Council of the European Union to pay the costs.

Pleas in law and main arguments

The Grand Duchy of Luxembourg raises two pleas in support of its action.

By its first plea, the applicant alleges a breach of the principle of non discrimination in so far as an airport such as that of Luxembourg-Findel, as a result of the extension of the scope of Directive 2009/12/EC to airports ‘with the highest passenger movement in each Member State’, finds itself subject to administrative and financial obligations which other airports in a comparable situation are able to avoid, without such difference in treatment being objectively justified. The applicant invokes in particular, in that regard, the situation of Hahn and Charleroi airports, serving the same catchment area as Findel airport and each generating a higher volume of passengers than Findel, but which are not subject to the same obligations. The existence of borders between the three airports can in no way justify that they be treated differently.

By its second plea, the applicant claims furthermore that the provision at issue does not comply with the principles of subsidiarity and proportionality. First, action at European level is not necessary so as to regulate a situation which could perfectly well have been regulated at national level as long as the threshold of 5 million passengers is not reached. Secondly, the application of the directive would result in supplementary procedures and costs which are not justified for an airport such as Findel, which has the sole particularity of having the highest passenger movement in a Member State, without that having a real relevance with regard to the objectives of the directive.

(1) OJ 2009 L 70, p. 11.