ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 32/4

Reference for a preliminary ruling from the Tribunal Central Administrativo Norte (Portugal) lodged on 9 November 2012 — IPTM-Instituto Portuário e dos Transportes Marítimos v Navileme-Consultadoria Náutica, Lda, Nautizende — Consultadoria Náutica, Lda

(Case C-509/12)

2013/C 32/05

Language of the case: Portuguese

Referring court

Tribunal Central Administrativo Norte

Parties to the main proceedings

Applicant: IPTM-Instituto Portuário e dos Transportes Marítimos

Defendants: Navileme-Consultadoria Náutica, Lda, Nautizende — Consultadoria Náutica, Lda

Question referred

Must the law of the European Union, having regard to the principle of prohibition of discrimination between nationals of one Member State and nationals of another Member State (Article 18 TFEU, formerly Article 12 EC), having regard to the free movement of persons in the EU and exceptions thereto (Article 45(3) TFEU, formerly Article 39 EC) and having regard to the freedom to provide services and possible restrictions thereof (Article 52 TFEU, formerly Article 46 EC, by virtue of Article 62 TFEU, formerly Article 55 EC), be interpreted as precluding a provision of national law which requires residence within national territory as a precondition for the issue of a recreational boating licence?
EN Official Journal of the European Union C 32/8

Action brought on 27 November 2012 — European Commission v Republic of Cyprus

(Case C-545/12)

2013/C 32/11

Language of the case: Greek

Parties

Applicant: European Commission (represented by: P. Hetsch, J. Hottiaux and Μ. Constantinidis, Agents)

Defendant: Republic of Cyprus

Form of order sought

The applicant claims that the Court should:

— Declare that by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (recast) (OJ 2006 L 403 p. 18) and, in any event, by not communicating to the Commission the text of those provisions, the Republic of Cyprus failed to fulfil its obligations under Article 16 of that directive;

— impose on the Republic of Cyprus, pursuant to Article 260(3) TFEU, payment of a daily penalty payment amounting to EUR 6 504,96 from the date of publication of the judgment of the Court;

— order the Republic of Cyprus to pay the costs.

Pleas in law and main arguments

Article 16(1) of Directive 2006/126/EC obliges the Member States to adopt and publish, no later than 19 January 2011, the laws, regulations and administrative provisions necessary to comply with the new provisions which the directive concerned introduces and specifies.

The Republic of Cyprus has not fully transposed into domestic law the provisions of the directive. In particular, the Commission has ascertained that, at the date of lodging of the action, the Republic of Cyprus had not transposed into its domestic law Articles 1(1), 3, 7(1), 7(3), 7(5), 10 and 15 or Annex Ι, point 2, Annex ΙΙ, point 5.2 or Annexes IV, V and VI of the directive.

Consequently, the Commission considers that the Republic of Cyprus failed to fulfil its obligations under Article 260(3) TFEU.
EN Official Journal of the European Union C 32/7

Appeal brought on 22 November 2012 by the Société nationale maritime Corse-Méditerranée (SNCM) SA against the judgment delivered by the General Court (Fourth Chamber) on 11 September 2012 in Case T-565/08 Corsica Ferries France SAS v European Commission

(Case C-533/12 P)

2013/C 32/09

Language of the case: French

Parties

Appellant: Société nationale maritime Corse-Méditerranée (SNCM) SA (represented by: A. Winckler and F.-C. Laprévote, lawyers)

Other parties to the proceedings: Corsica Ferries France SAS, European Commission, French Republic

Form of order sought

The appellant claims that the Court should:

— annul in part the judgment delivered by the General Court on 11 September 2012 in Case T-565/08 Corsica Ferries France SAS v European Commission in so far as it annuls the second and third paragraphs of Article 1 of Commission Decision 2009/611/EC of 8 July 2008 concerning the measures C-58/02 (ex N 118/02) which France has implemented in favour of the Société Nationale Maritime Corse-Méditerranée (SNCM) (1) on the grounds (i) that the Commission has committed an error in law and manifest errors of assessment so far as concerns its analyses of the negative sale price of EUR 158 million, of the capital contribution in conjunction and simultaneous with CGMF for an amount of EUR 8,75 million and aid to individuals for an amount of EUR 38,5 million; and (ii) that the analysis, by the Commission, of the balance for restructuring, for a final amount of EUR 15,81 million, was based on an incorrect premiss;

— order Corsica Ferries to pay the costs.

Pleas in law and main arguments

The appellant raises four grounds of appeal seeking that the judgment of the General Court be set aside in part.

Firstly, in respect of the sale at a negative price, the appellant submits that the General Court has not only failed to have regard to the Commission’s discretion for the purposes of the application of the test of the private investor in a market economy, but has also committed an error of law as regards the interpretation of that test. The General Court distorted the Commission’s decision and failed to fulfil its obligation to state reasons in adopting an interpretation of the test of the private investor in a market economy which was contrary to Article 345 TFEU.

Secondly, in respect of the capital contribution, the appellant criticises the General Court for having distorted the Commission’s decision, in holding that that decision did not take into account all the relevant factors in its assessment of the comparable nature of the investment conditions of the private capital contributions made simultaneously.

Thirdly, in respect of measures involving aid to individuals, the General Court not only distorted the Commission’s decision, but it also committed an error of law and failed to fulfil its obligation to state reasons as regards the advantage from which it held the SNCM benefited.

Fourthly, having regard to the foregoing, the General Court’s reasoning relating to the balance for restructuring, calculated at EUR 15,81, is misplaced.

(1) OJ 2009 L 225, p. 180
(b)

If the answer to Question (a) is in the affirmative, must Article 30(2) of Directive 2004/18 then be interpreted as allowing the contracting authority in the course of negotiations after opening the tenders to alter the mandatory requirements of the technical specifications, provided that the subject-matter of the contract is not altered and equal treatment of all tenderers is ensured?
EN Official Journal of the European Union C 101/5

Request for a preliminary ruling from the Landgericht Krefeld (Germany) lodged on 30 November 2012 — Marc Brogsitter v Fabrication de Montres Normandes Eurl, Karsten Fräßdorf

(Case C-548/12)

2013/C 101/11

Language of the case: German

Referring court

Landgericht Krefeld

Parties to the main proceedings

Applicant and defendant to the counterclaim: Marc Brogsitter

Defendants and counterclaimants: Fabrication de Montres Normandes Eurl, Karsten Fräßdorf

Question referred

Must Article 5(1) of Regulation No 44/2001 (1) be interpreted as meaning that a claimant who alleges that he has suffered damage by an anticompetitive act of his contractual partner domiciled in another Contracting State, which is to be regarded in German law as a tortious act, is raising claims against that person based on contract, even in so far as he bases his action on claims relating to tort?

(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ 2001 L 12, p. 1.
EN Official Journal of the European Union C 63/10

Appeal brought on 13 December 2012 by El Corte Inglès, S.A. against the judgment of the General Court (Sixth Chamber) of 27 September 2012 in Case T-357/09 Pucci International/OHIM v El Corte Inglès (Emidio Tucci)

(Case C-584/12 P)

2013/C 63/17

Language of the case: Spanish

Parties

Appellant: El Corte Inglès, S.A. (represented by: J.L. Rivas Zurdo y E. Seijo Veiguela, lawyers)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Emilio Pucci International BV

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court in Case T-357/09 of 27 September 2012 in its entirety

— order OHIM to pay the costs of El Corte Inglés, S.A.

— order Emilio Pucci International BV to pay the costs of El Corte Inglés, S.A.

Pleas in law and main arguments

The opposing party has not proved use for glasses, as established by the Board of Appeal of OHIM. In addition, that criterion in particular, i.e. non-consideration of genuine use in relation to the mere appearance of the trademark on or next to photographs, was specifically considered by the General Court in the judgment in Case T-39/10, (1) in paragraph 31. Accordingly, the judgment should not have considered proved the use for glasses of class 9 of previously mentioned trademark 274991.

Concerning the risk of confusion, Article 8(1) of Regulation No 40/94 (2) and the relevant case-law require it to be assessed globally taking into account all factors relevant to the circumstances of the case. The Second Board of Appeal of OHIM found that those factors differed in their nature, in their purpose and in their method of use, adequately substantiating that argument (paragraph 102 of the contested decision). Whilst cosmetics or jewellery may retain a link with the broad and at the same time heterogeneous fashion sector, it does not mean they have a link with or should be considered similar to the goods contained in classes 18, 24 and 25.

The extension of the effects of Article 8(5) of Regulation No 207/2009 (3) to other goods of class 9 (glasses) and 14 (jewellery, imitation jewellery and watches) and to toilet paper (class 16) is inadequately reasoned and is based on presumptions which have not been proved by the applicant in Case T-357/09. (4) Especially in such cases, as noted by that very judgment at paragraphs 70 and 71, mere hypotheses cannot be admitted and nor can marks of great repute benefit from that extension per se, as the existence of future risks needs to be proved, which the applicant has not done.

(1) Judgment of the General Court in Case T-39/10 El Corte Inglès v OHIM of 27 September 2012, not yet published

(2) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 011 p. 1)

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

(4) Judgment of the General Court in Case T-357/09 Pucci International v OHIM/El Corte Inglès (Emidio Tucci) of 27 September 2012, not yet published
EN Official Journal of the European Union C 79/6

Request for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Wien (Austria), lodged on 10 December 2012 — Michaela Hopfgartner

(Case C-577/12)

2013/C 79/10

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Wien

Parties to the main proceedings

Applicant: Michaela Hopfgartner

Defendant authority: Finanzamt Wien

Question referred

Does European Union law, in particular the provisions on the freedom to provide services (Article 56 et seq. TFEU), preclude a rule of national law under which an extension of the right to family allowance exists only if — along with other preconditions — the place in which voluntary practical help is provided is situated within national territory?
EN Official Journal of the European Union C 101/8

Request for a preliminary ruling from the Verwaltungsgericht Giessen (Germany) lodged on 27 December 2012 — Johannes Peter v Bundeseisenbahnvermögen

(Case C-610/12)

2013/C 101/17

Language of the case: German

Referring court

Verwaltungsgericht Giessen

Parties to the main proceedings

Applicant: Johannes Peter

Defendant: Bundeseisenbahnvermögen

Question referred

In a case of unequal treatment that has already been found to exist in the past, between married civil servants and those living in registered life partnerships, is it in accordance with Directive 2000/78/EC (1) to grant, pursuant to the applicable constitutional principles in the Federal Republic of Germany, a retrospective claim for equal treatment under the law on remuneration only with effect from the beginning of the financial year in which the civil servant first made the claim to his employer?

(1) Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).
Firstly, in view of the facts before the General Court, it is clear that there is no evidence that the Union fasteners industry was suffering injury caused by dumped imports from China, in the sense of Article 3 (2), (5) and (6) of the basic anti-dumping Regulation (3). This first ground is divided into the following two parts: (i) The General Court distorted the clear sense of the evidence before it when it considered that the profit margin achieved by the Union fasteners industry during the period under consideration (from 1 January 2003 until 30 September 2007) was negatively affected, in a material way, by dumped imports from China; whereas the evidence in the file shows that profits fluctuated during that period, and were at their second highest during the last year (4.4 %), which is also when dumped imports from China were the highest, and were close to their maximum historical level of 4.7 % (in 2004), which is just below the target profit (5 %) used by the Commission to calculate the underselling margin. (ii) The evidence before the Court depicts a growing and more prosperous Union industry, notably during the investigation period. It does not depict a case of material injury but rather a case of a hypothetical missed opportunity to take full advantage of the growing domestic EU market. By deciding on this basis that the EU Institutions were right to consider that there was material injury caused by dumped imports, the General Court erred in the legal categorisation of the facts it had established, so that Article 3 (2), (5) and (6) of the basic Regulation was not applied properly.
EN Official Journal of the European Union C 225/53

Appeal brought on 29 November 2012 by Doru Cristian Ioanovici against the order of the General Court (Fourth Chamber) delivered on 25 September 2012 in Case T-313/12: Ioanovici v Commission

(Case C-568/12 P)

2013/C 225/96

Language of the case: English

Parties

Appellant: Doru Cristian Ioanovici (represented by: R. Neagu, avocat)

Other party to the proceedings: European Commission

By order of 27 June 2013 the Court of Justice (Seventh Chamber) held that the appeal was inadmissible.
—

annul the decision of the European Central Bank (‘ECB’) communicated by letters dated 17 September 2010 and 21 October 2010, refusing to grant access to the documents requested by the Appellants pursuant to the Decision of the ECB of 4 March 2004 (ECB/2004/3) on public access to ECB documents (1). The Court should annul that decision on the basis that: i) the ECB made a manifest error of assessment and/or abused its powers in reaching that decision; and ii) the only lawful course was for the ECB to permit access to those documents, as requested.
—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Article 2(15), (16), (22), (34) and (35), Article 3(4) and (9), Article 6(1) to (3) and Article 7(1) and (3); Article 9, Article 14 and Articles 17 to 23; Articles 10 and 11; Article 16; Article 26(2)(c), second sentence et seq., and Article 26(2)(d), third and fourth sentences; Article 26(3); Article 27(2); Article 29; Article 31; Article 36; Article 42(1) to (4); Article 43(1), (4) and (8); and Article 44 of, and points 1 and 2 of Annex I to, Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, (1) and in any event by not notifying the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 54(1) of that directive;
1.

Is the ‘place where the harmful event occurred or may occur’ in Article 5(3) of Regulation (EC) No 44/2001 (1) (‘Regulation No 44/2001’) to be interpreted, in relation to product liability, as meaning: 1.1 that the place of the event giving rise to the damage (Handlungsort) is the place where the manufacturer is established; 1.2 that the place of the event giving rise to the damage (Handlungsort) is the place where the product is put into circulation; 1.3 that the place of the event giving rise to the damage (Handlungsort) is the place where the product is put into circulation;
1.

Do Articles 18, 45, 49 and 56 of the Treaty on the Functioning of the European Union preclude provisions under which an employer established in one Member State is obliged to make advance payments of tax on the income of workers (nationals of another Member State) temporarily assigned to the employer by a temporary work agency established in another Member State through a branch established in the first Member State?
1.

Is it inconsistent with the correct application of Articles 3(2) and 216 TFEU — according to which the Union has exclusive competence for the conclusion of an international agreement when that conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope, with the twofold consequence that, first, the power to conclude with non-member States agreements that affect common rules or alter their operation, or [affect] a sector completely governed by Community law and for which the Union has exclusive competence, is centralised within the European Union itself and, secondly, that such authority no longer resides individually or collectively with the Member States — and of Article 5 of Directive 2001/77/EC, for a national provision ([Article] 20(3) of Legislative Decree No 387 of 2003) to make the recognition of the guarantees of origin issued by third States subject to the conclusion of an appropriate international agreement between the Italian State and the third State in question?
3.

In the light also of recital 44 in the preamble to Directive 2006/112, is Article 205, in conjunction with Article 168(a) and Article 193, to be interpreted as meaning that the Member States are permitted to refuse to allow the recipient of a supply to deduct input tax by applying only such criteria as they themselves have laid down in their national legislation, according to which a liability to tax is imposed on a person other than the taxable person where in such a case the ultimate tax outcome would differ from the outcome if the rules established by the Member State had been strictly observed?
2.

(a) Must the standstill rule in Article 13 of Decision No 1/80 or the standstill rule in Article 41 of the Additional Protocol be interpreted as precluding the introduction of a prohibition, as referred to in Article 2(1) of the Wet arbeid vreemdelingen 1994, for principal contractors to have work carried out in the Netherlands by workers who are nationals of a third country, in this case Turkey, without a work permit, if those workers are in the employ of a German undertaking and work for the principal contractor in the Netherlands via a Netherlands user undertaking? (b) Is it significant in that regard that an employer was already prohibited, before both the standstill rule in Article 41 of the Additional Protocol and the standstill rule in Article 13 of Decision No 1/80 entered into force, from having work carried out by a foreign national without a work permit under a contract of employment and that that prohibition was extended, likewise before the standstill rule in Article 13 of Decision No 1/80 entered into force, to user undertakings to which foreign nationals are posted?
1.

Is the right to be heard in all proceedings, which is an integral part of the fundamental principle of respect for the rights of the defence and is furthermore enshrined by Article 41 of the Charter of Fundamental Rights of the European Union, to be interpreted as requiring that, where the administration intends to issue a return decision in respect of an illegally staying alien, irrespective of whether or not that return decision is taken after a refusal of a residence permit, and in particular in a situation where there is a risk of absconding, the administration must enable the interested party to present observations?
If the answer to Question 1 is in the affirmative:

What are the legal consequences for the procedure if the application for review is successful; may recourse be had in that connection, mutatis mutandis, in particular to Article 20(3) or Article 17(1) of Regulation No 1896/2006?
1.

On a proper construction of Article 10 or of any other provision of Directive 2001/83/EC (1) of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, has the manufacturer of a reference medicinal product an individual right to bring an action challenging the decision of a competent authority by which a generic medicinal product of another manufacturer of medicinal products was registered, using as the reference medicinal product the product registered by the manufacturer of the reference medicinal product? In other words, does that Directive confer on the manufacturer of the reference medicinal product the right to a judicial remedy, the object of which is to determine whether the manufacturer of the generic medicinal product made lawful, well-founded reference to the product registered by the manufacturer of the reference medicinal product, relying on Article 10 of the Directive?
—

declare that, in so far as the German authorities use the construction products lists to demand additional approvals for effective market access and the use of construction products, instead of incorporating the required assessment methods and criteria within the framework of the harmonised European standards, the defendant has failed to fulfil its obligations under Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products, (1) and, in particular, under Article 4(2) and Article 6(1) thereof;
4.

The General Court erroneously considered that the reasons given for imposing restrictive measures against Bank Mellat did not satisfy the conditions for designation in the relevant legal acts and were not substantiated, insofar as: — it failed to pay due respect to a finding by the United Nations Security Council concerning Bank Mellat's facilitation of transactions for Iranian nuclear, missile and defence entities; — it failed to take due account of the fact that the evidence for Bank Mellat's support to Iran's nuclear activities comes from confidential sources; — it wrongly considered that Bank Mellat's admitted provision of banking services to an entity involved in Iran's nuclear proliferation activities before that entity's designation by the UN Security Council was insufficient to justify the imposition of restrictive measures against Bank Mellat.
3.

Can a contractual clause which enables the lending financial institution unilaterally to cancel the loan agreement on totally objective grounds, some of which have no connection with the loan agreement itself and, in the circumstances at issue in these proceedings, because of the failure to pay four monthly mortgage instalments, be regarded as unfair, both in itself and in the manner in which it is specifically applied to this case, in the light of Article 3(1) and (3) of Directive 93/13/EEC and points 1(e) and (g) and 2(a) of the annex thereto?