ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 128/24

Reference for a preliminary ruling from the Hof van Cassatie (Belgium) lodged on 17 March 2008 — C. Meerts v Proost NV

(Case C-116/08)

(2008/C 128/43)

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Appellant: C. Meerts

Respondent: Proost NV

Question referred

Are clauses 2.4, 2.5, 2.6 and 2.7 of the framework agreement on parental leave concluded on 14 December 1995 by the general cross-industry organisations UNICE, CEEP and the ETUC which is annexed to Council Directive 96/34/EC (1) of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC to be interpreted as meaning that, where an employer unilaterally terminates an employment contract without urgent cause or without compliance with the statutory period of notice at a time when the worker is availing himself of arrangements for reduced working hours, the payment in lieu of notice that is due to the worker must be determined by reference to the base salary calculated as if the worker had not reduced his working hours as a form of parental leave in accordance with clause [2].3(a) of the framework agreement?

(1) OJ 1996 L 145, p. 4.
3.

For the purposes of the answer to the preceding questions, taking account of the fact that the system of monitoring has been seriously and further undermined by the reform of company law, above all in relation to cooperatives that are predominantly rather than fully mutual, under Law No 311 of 2004, and regardless of whether the tax relief measures in question can be classified as state aid, can the use of the legal form of a cooperative society, even in cases not involving fraud or deception, be regarded as an abuse of law, where that form is used solely or predominantly in order to achieve a tax saving?
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declare that, by failing to adopt the laws, regulations and administrative provisions necessary for the purpose of giving effect to Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments (1), or in any event by failing to inform the Commission of the adoption of such measures, the Republic of Poland has failed to fulfil its obligations arising under that directive;
EN Official Journal of the European Union C 128/22

Appeal brought on 3 March 2008 by Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV against the judgment of the Court of First Instance (Second Chamber) delivered on 12 December 2007 in Case T-112/05: Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV v Commission of the European Communities

(Case C-97/08 P)

(2008/C 128/38)

Language of the case: English

Parties

Appellants: Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV (represented by: Mr C. Swaak, advocaat, Mr M. van der Woude, avocat, Ms M. Mollica, avvocato)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellants claim that the Court should rule:

— that the judgment of the Court of First Instance of 12 December 2007 in Case T-112/05 be set aside, insofar as it rejected the plea that responsibility was wrongfully attributed — jointly and severally — to Akzo Nobel NV;

— that the Contested Decision be annulled, in as far as it attributed responsibility to Akzo Nobel NV;

— that the Commission pay the costs of this appeal and of the proceedings before the Court of First Instance in as far as they concern the plea raised in the present appeal.

Pleas in law and main arguments

The applicants consider that the Court of First Instance has misapplied the concept of ‘undertaking’ within the meaning of Article 81 EC and Article 23(2) of Regulation 1/2003 (1), as interpreted by the Court in its case-law on the imputation of the unlawful conduct of a subsidiary to its parent company.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, p. 1).
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Declare that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings (1) or by not informing the Commission thereof, the Kingdom of Belgium has failed to fulfil its obligations under Article 15 of the Directive;
EN Official Journal of the European Union C 142/13

Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Vorarlberg (Austria) lodged on 6 March 2008 — Arthur Gottwald v Bezirkshauptmannschaft Bregenz

(Case C-103/08)

(2008/C 142/20)

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat des Landes Vorarlberg

Parties to the main proceedings

Appellant: Arthur Gottwald

Respondent: Bezirkshauptmannschaft Bregenz

Question referred

Is Article 12 EC to be interpreted as precluding the application of a provision of national law which provides that an annual disc in respect of a motor vehicle for the use of federal toll roads is made available free of charge only to those persons with a defined disability who are resident or ordinarily resident in national territory?
4.

If question 1 is answered in the affirmative, where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which forms an integral part of Directive 1999/70/EC, already existed in the national legal order before that directive entered into force, as in the case of Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the choice made by the Greek legislature, in transposing the above directive into Greek law, on the one hand, to exclude the said cases of abuse in which the worker has concluded a single fixed-time contract, under which, in fact, the worker was to provide services to meet ‘fixed and permanent’ (rather than temporary, exceptional or urgent) requirements, from the scope of protection of the above Presidential Decree 164/2004, and on the other hand,not to enact a similar, effective measure/legal consequence specific to the case, affording to workers in such cases of abuse protection over and above the general protection which is provided as standard under general Greek employment law whenever work is provided under an invalid contract, irrespective of whether or not there has been abuse within the meaning of the Framework Agreement, and which includes a claim on the part of the worker to payment of his wages and severance pay, regardless of whether or not he worked under a valid contract, an unacceptable reduction in the general level of protection afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement, bearing in mind (a) that the obligation to pay wages and severance pay is provided for under national law for all employment relationships and is not intended specifically to prevent abuse within the meaning of the Framework Agreement, and (b) that the legal consequence of the application of the earlier equivalent legal measure is that a (single) fixed-term contract of employment is recognised as a contract of indefinite duration?
4.

However, the Commission considers that the services supplied to the Autonomous Communities by land registrars must be subject to VAT in accordance with the general rule contained in Article 2 of the Sixth Directive. That position is derived from the fact that registrars/settlement agents act as professionals who organise autonomously and independently the human and material resources needed to supply the service, as required by Article 4(1) of that Directive, and, that being so, do not have the characteristics of subordination and dependence which are a prerequisitite if the services in question are to be considered to have been supplied by an official to the administration to which he belongs and, therefore, not subject to VAT. A registrar/settlement agent is neither an administrative body of the Autonomous Community, nor an intrinsic element, incorporated into that body or internal to it, but an independent and distinct party with which the Autonomous Community has concluded a contract for the supply of services for consideration.
(1)

Must Article 2(1) of Commission Regulation (EEC) No 1593/91 (1) of 12 June 1991, read in conjunction with Article 11(1) of the Convention of 14 November 1975 on the International Transport of Goods under Cover of TIR Carnets (TIR Convention), be interpreted as meaning that the period laid down in Article 11(1) of the TIR Convention applies only for the benefit of the guaranteeing organisation, but not for that of the carnet holder, and that exceeding the period of one year from the date of acceptance of the TIR carnet in respect of the carnet holder affects entitlement to recover the customs debt or the excise duties and special excise duties and the liability for payment, and that exceeding the period of one year prejudices the right of the competent customs authorities to proceed to recovery of that debt?
2.

If Question 1 is answered in the affirmative: Must the Member State (Germany) which has naturalised the citizen of the Union and now wishes to revoke the naturalisation obtained by deception, having due regard to Community law, refrain altogether or temporarily from revoking the naturalisation if or as long as revocation would have the legal consequence of loss of Union citizenship (and of the associated rights and fundamental freedoms) described in Question 1, or is the other Member State (Austria) of former nationality obliged, having due regard to Community law, to interpret and apply, or even adjust, its national law so that that legal consequence does not supervene?
EN Official Journal of the European Union C 197/6

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 30 April 2008 — Glaxco Wellcome GmbH & Co v Finanzamt München II

(Case C-182/08)

(2008/C 197/09)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Glaxco Wellcome GmbH & Co.

Defendant: Finanzamt München II

Question referred

Do Article 52 of the EC Treaty (now Article 43 EC) or Article 73b of the EC Treaty (now Article 56 EC) preclude legislation of a Member State which, in the framework of a national system of corporation tax credits, excludes the reduction in the value of shares as a result of a profits distribution from the basis of assessment for that tax when a taxpayer who is entitled to a corporation tax credit has acquired shares in a company which is fully taxable from a shareholder who is not entitled to a tax credit, whereas had the acquisition taken place from a shareholder who was entitled to a tax credit such a reduction in value would have reduced the basis of assessment for the tax of the purchaser?
EN Official Journal of the European Union C 183/12

Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Roma (Italy) lodged on 25 April 2008 — Pontina Ambiente Srl v Regione Lazio

(Case C-172/08)

(2008/C 183/23)

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Roma

Parties to the main proceedings

Applicant: Pontina Ambiente Srl

Defendant: Regione Lazio

Question referred

Is Article 3(26) and (31) of Law No 549/95 incompatible with Articles 12, 14, 43 and 46 of the EEC Treaty and with Directives 35/2000/EC (1) and 31/1999/EC (2), with reference in particular to the principles laid down in the preamble to Directive 35/2000/EC and Article 10 of Directive 31/1999/EC, according to which, in particular, the Member States are required to prevent situations of inequality throughout the Community market by adopting provisions to combat late payments in order to prohibit abuse of freedom of contract to the disadvantage of the creditor where the principal purpose of a contract is to procure the debtor additional liquidity at the expense of the creditor and by making provision for compensation for the loss suffered by the creditor in the event of late payment by the debtor?

(1) OJ 2000 L 200, p. 35.

(2) OJ 1999 L 182, p. 1.
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declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/83/EC (1) of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted or, in any event, by failing to notify those provisions to it, the Republic of Malta has failed to fulfil its obligations under the Directive;
2.

If the answer to the first question is negative, are Paragraphs 8 and 11 of Swedish Ordinance (1998:944) on, inter alia, prohibition in certain cases in connection with the trade in, and importation and exportation of chemical products, which are based on the considerations stated above, compatible with Articles 29 EC and 30 EC in the case where those provisions are applied to amalgam containing mercury for dental use which bears the CE marking?
EN Official Journal of the European Union C 209/21

Reference for a preliminary ruling from the Umweltsenat (Austria) lodged on 19 May 2008 — Umweltanwalt von Kärnten, other parties Kärnter Landesregierung, Alpe Adria Energia SpA

(Case C-205/08)

(2008/C 209/30)

Language of the case: German

Referring court

Umweltsenat

Parties to the main proceedings

Applicant: Umweltanwalt von Kärnten

Other parties: Kärnter Landesregierung, Alpe Adria Energia SpA

Question referred

Is Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (1), as amended by the Amending Directive, Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (2) and the Public Participation Directive, Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (3), to be interpreted as meaning that a Member State must provide for an obligation to carry out an assessment in the case of types of projects listed in Annex I to the directive, in particular in point 20 (construction of overhead electrical power lines with a voltage of 220 kV or more and a length of more than 15 km), where the proposed scheme is to extend over the territory of two or more Member States, even if the threshold giving rise to the obligation to carry out an assessment (here, a length of 15 kilometres) is not reached or exceeded by the part of the scheme situated on its national territory but is reached or exceeded by adding the parts of the scheme proposed to be situated in a neighbouring State or States?

(1) OJ 1985 L 175, p. 40.

(2) OJ 1997 L 73, p. 5.

(3) OJ 2003 L 156, p. 17.
7.

What criteria should be used to assess whether a minimum period of service before retirement is appropriate or necessary? (a) Is the need for a minimum period of service justified solely as a form of compensation for having acquired, exclusively at the employer's expense, a qualification with the employer (professional qualification for a middle-ranking post in the fire service), in the interests of ensuring, with regard to such a qualification, an adequate subsequent period of service with that employer, so that the costs of training the officer are thus gradually worked off? (b) What is the maximum permissible length of the service period phase that follows the period of training? Can it exceed five years? If so, under what conditions? (c) Irrespective of question 7(a), can the appropriateness or necessity of a minimum period of service be justified by the consideration that, in the case of officials whose pensions are financed solely by the employer, the estimated period of active service from recruitment to likely retirement date must suffice to earn in full the minimum pension guaranteed by law by serving for a period which is at present 19.51 years? (d) Conversely, is a refusal to recruit someone justified under Article 6(1) of Directive 2000/78/EC only if the person would be recruited at an age which, given his likely retirement date, would result in the minimum pension being payable although it had not yet been fully earned?
3.

The Commission also considers that Article 3(2) of Directive 79/409/EEC has not been fully and/or correctly transposed, since the transposing measure does not permit review of the lawfulness of the designation of an area as a special protection area (SPA), does not contain any provision for the protection of habitats outside the SPAs but in their vicinity and also makes no provision as regards re-establishment of destroyed biotopes and the creation of biotopes, despite their being important objectives of the directive.
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/29/EC (1) 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 (‘Unfair Commercial Practices Directive’), or in any event, by failing to inform the Commission thereof, the Kingdom of Spain has failed to fulfil its obligations under that directive.
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a declaration that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2006/22/EC (1) of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC or, in any case, by failing to communicate them to the Commission, the Portuguese Republic has failed to fulfil its obligations under that directive;
5.

Must the entry of the amount of duty in the accounts required by Article 221(1) of the Community Customs Code precede its communication to the debtor on pain of the annulment or expiry of the right to proceed to recovery or post-clearance recovery of the customs debt? In other words, should Article 221(1) be understood to mean that, if the amount of duty is brought to the attention of the debtor by the customs authorities in accordance with appropriate procedures, but without the amount of duty having been entered in the accounts by the customs authorities prior to that notification, the amount of duty cannot be recovered, unless the customs authorities again bring the amount of duty to the debtor's attention in accordance with appropriate procedures after the amount of duty has been entered in the accounts and in so far as that occurs within the limitation period laid down in Article 221 of the Community Customs Code?
2.

Is the legal rule in Article 49(1)(g) of the Workers' Statute, which establishes for workers who lose their jobs as a result of the death, retirement or incapacity of the employer compensation limited to one month's remuneration, excluding them from the scope of Article 51 of the Statute and failing to comply with Articles 1, 2, 3, 4 and 6 of the Directive, also contrary to Council Directive 98/59/EC?
1.

May the statutory regulation of a maximum age limit for admission to practice a profession (here: to work as a panel dentist) be an objective and reasonable measure to protect a legitimate aim (here: the health of patients insured under the statutory health insurance scheme) and an appropriate and necessary means of achieving that aim within the meaning of Article 6 of Directive 2000/78/EC if it is derived solely from an assumption (1), based on ‘general experience’, that a general drop in performance occurs from a certain age, without any account being taken of the individual performance of the person in question?
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declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC (1) of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, and in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under Article 19(1) of that directive;
EN Official Journal of the European Union C 272/11

Reference for a preliminary ruling from the Bundessozialgericht (Germany) lodged on 4 August 2008 — Christian Grimme v Deutsche Angestellten Krankenkasse

(Case C-351/08)

(2008/C 272/19)

Language of the case: German

Referring court

Bundessozialgericht

Parties to the main proceedings

Applicant: Christian Grimme

Defendant: Deutsche Angestellten Krankenkasse

Question referred

Are the provisions 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 (OJ 2002 L 114, p. 6) (1), in particular Articles 1, 5, 7 and 16 thereof and Articles 12, 17, 18 and 19 of Annex I thereto, to be interpreted as meaning that they preclude a rule which obliges a member of a managing board of a company limited by shares governed by Swiss law who is employed in Germany to be insured in the German statutory pension insurance scheme, whereas members of managing boards of companies limited by shares governed by German law are exempt from that obligation?

(1) OJ 2002 L 114, p. 6.
2.

If question 1 is to be answered in the negative: Does Article 39 EC require that the only criterion for an assessment of equivalence which is consistent with European law is whether the university diploma obtained by the EU citizen in the EU together with the additional evidence submitted by him of educational performance and experience is comparable from the point of view of the (intellectual) level of education and the extent of that education to the first German State examination in law?
EN Official Journal of the European Union C 285/24

Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 14 August 2008 — Nural Örnek v Land Baden-Württemberg

(Case C-371/08)

(2008/C 285/39)

Language of the case: German

Referring court

Verwaltungsgerichtshof Baden-Württemberg

Parties to the main proceedings

Appellant: Nural Örnek

Respondent: Land Baden-Württemberg

Question referred

Is the protection against expulsion provided for in Article 14(1) of Decision No 1/80 of the EEC-Turkey Association Council and enjoyed by a Turkish national, whose legal status derives from the second indent of the first paragraph of Article 7 of Decision No 1/80 and who has resided for the previous ten years in the Member State in respect of which this legal status applies, to be determined in accordance with Article 28(3)(a) of Directive 2004/38/EC (1), as implemented by the relevant Member State, with the result that expulsion is permitted only on imperative grounds of public security, as defined by Member States?

(1) OJ 2004 L 158, p. 77.
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (1), the French Republic has failed to fulfil its obligations under Article 19 of that directive;