ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 113/7

Reference for a preliminary ruling from the Tribunale Ordinario Di Milano (Italy) lodged on 31 January 2011 — Criminal proceedings against Assane Samb

(Case C-43/11)

2011/C 113/12

Language of the case: Italian

Referring court

Tribunale Ordinario Di Milano

Defendant in the criminal proceedings

Assane Samb

Question referred

In the light of the principles of sincere cooperation and of the effectiveness of directives, do Articles 15 and 16 of Directive 2008/115/EC (1) preclude the possibility that a third-country national illegally staying in a Member State may be sentenced to a term of imprisonment of up to four years where he fails to comply with the first order issued by the Questore and a term of imprisonment of up to five years for failure to comply with subsequent orders (with the corresponding obligation for the police authorities to arrest those engaged in the commission of this offence) simply on account of his lack of cooperation in the deportation procedure, in particular his simple failure to comply with a removal order issued by the administrative authorities?

(1) OJ 2008 L 348, p. 98.
EN Official Journal of the European Union C 139/14

Reference for a preliminary ruling from the Tribunale di Bergamo (Italy) lodged on 28 February 2011 — Criminal proceedings against Survival Godwin

(Case C-94/11)

2011/C 139/26

Language of the case: Italian

Referring court

Tribunale di Bergamo

Party/parties to the main proceedings

Survival Godwin

Question(s) referred

In the light of the principles of sincere cooperation and the effectiveness of directives, do Articles 15 and 16 of Directive 2008/115/EC (1) preclude the possibility that the conduct of a third-country national illegally staying in a Member State may be categorised as punishable under criminal law — simply on account of his lack of cooperation in the deportation procedure, in particular his mere failure to comply with a removal order issued by the administrative authorities — by a sentence of imprisonment of up to four years for failure to comply with the initial order issued by the Questore and a term of imprisonment of up to five years for failure to comply with subsequent orders?

(1) OJ 2008 L 348, p. 98.
EN Official Journal of the European Union C 130/12

Appeal brought on 18 February 2011 by Frucona Košice a.s. against the judgment of the General Court (Second Chamber) delivered on 7 December 2010 in Case T-11/07: Frucona Košice a.s. v European Commission, St. Nicolaus — trade a.s.

(Case C-73/11 P)

2011/C 130/22

Language of the case: English

Parties

Appellant: Frucona Košice a.s. (represented by: P. Lasok QC, J. Holmes, Barrister, B. Hartnett, Barrister, O. Geiss, Rechtsanwalt)

Other parties to the proceedings: European Commission, St. Nicolaus — trade a.s.

Form of order sought

The appellant claims that the Court should:

1. set aside the General Court’s decision of 7 December 2010 in Case T-11/07 as it relates to the fourth and sixth pleas in the Appellant’s Application before the General Court;

2. uphold those pleas as well-founded;

3. refer the case back to the General Court so that it can decide upon the Appellant’s fifth, sixth, seventh, eighth and ninth pleas as they relate to the tax execution procedure; and

4. order the Commission to pay the Appellant’s costs.

Pleas in law and main arguments

In support of the action, the applicants rely on the following two pleas.

1. First plea: the General Court failed to assess the Commission’s application of the private creditor test against the correct legal standard.

2. Second plea: the General Court impermissibly sought to substitute its own reasoning for that of the Commission as regards the application of the private creditor test; and/or assessed the existing evidence relevant to that test in a manner that was manifestly incorrect, thereby distorting the clear sense of the evidence.
4.

If the second question is answered in the negative, the answers to the following questions are requested: Do Article 82 of the Treaty on the Functioning of the European Union, if appropriate Article 91(1)(c) of that Treaty, and the measures adopted on the basis of the provisions mentioned and the Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, allow the principle of mutual recognition of judgments and judicial decisions or the European Union law measures to improve road safety to not be applied to a decision on the imposition of a financial penalty arising from a road traffic offence according to the discretion of the Member State — the Member State having provided in a legislative act that the requirements of being able to challenge a decision before a court having jurisdiction in particular in criminal matters and the applicability of the procedural rules of national law on appeals in the event of being charged for committing a criminal offence are be disregarded — where at the same time the following applies to the decision in the circumstances of the main proceedings: (a) The offence is a traffic accident which has caused financial loss, must be characterised as having been committed intentionally or negligently, and is punishable as an administrative offence. (b) In accordance with the amount of the financial penalty provided for, the decision about its imposition cannot be challenged in court and the person concerned does not have the opportunity to prove that the offence with which he has been charged was not committed intentionally or negligently. (c) The number of points stated in the decision is deducted as an automatic legal consequence of the decision becoming final. (d) In the context of the system of driving licences which has been introduced, in which when they are issued a certain number of points is allocated to take into account offences committed, the deduction of points is also taken into account as an automatic legal consequence on the basis of penalty orders which cannot be challenged. (e) If the withdrawal of the driving licence due to disqualification from driving, which occurs as an automatic legal consequence of the deduction of the number of points granted on issue of the licence is challenged in court, there is no incidental judicial review of the legality of the penalty orders, by which points have been deducted and which are not subject to challenge.
2.

Is Article 80(1)(a) and (b) of Directive 2006/112 to be interpreted as meaning that, if the supplier has exercised the full right to deduct the input tax on goods and services which are the subject of subsequent supplies between connected persons at a value which is lower than the open market value, and that right to deduct input tax has not been corrected under Articles 173 to 177 of the Directive and the supply is not subject to a tax exemption within the meaning of Articles 132, 135, 136, 371, 375, 376, 377, 378(2), 379(2) and 380 to 390 of the Directive, a Member State is not permitted to adopt measures whereby the taxable amount is exclusively the open market value?
EN Official Journal of the European Union C 152/10

Appeal brought on 25 February 2011 by Fidelio KG against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-286/08 Fidelio KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-87/11 P)

2011/C 152/19

Language of the case: German

Parties

Appellant: Fidelio KG (represented by: M. Gail, Rechtsanwalt)

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

Form of order sought

— Set aside the judgment of the General Court of the European Union of 16 December 2010 in Case T-286/08;

— Uphold the claims presented at first instance;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

The General Court incorrectly accepted that the registration of the sign ‘Hallux’ for ‘orthopaedic article’ and ‘footwear’ falls within the scope of the absolute ground for refusal under Article 7(1)(c) of Regulation No 40/94. It is impossible to ascertain why the General Court, contrary to the submissions of the applicant, followed the arguments of OHIM and took the view that ‘hallux’, the Latin word for the big toe, is the usual abbreviation of ‘hallux valgus’, a disease of the big toe. That method of proceeding by the General Court fails to take account of the significance of the principle of ex proprio motu investigation and, further, infringes the duty to state reasons.

Further, the General Court incorrectly defined the goods and categories of goods. Since the expression ‘orthopaedic article’ is very broad and it is sufficient for the absolute ground for refusal to apply to part of the goods, it was possible for OHIM, had it so wished, to consider many types of goods in order to refuse a specific type of goods. That was not taken into account by the General Court.

So far as footwear is concerned, the General Court incorrectly assumed that a category of goods of ‘comfortable shoes’ exists. In reality, there is no difference between general footwear and so-called comfortable shoes.

In addition, in its definition of the relevant public in respect of ‘orthopaedic article’ and ‘footwear’, the General Court allowed itself to be guided by inappropriate considerations. In the submission of the applicant, the characteristics of the average consumer must be determined. However, an average consumer neither has knowledge of the Latin language nor is familiar with the foot disease hallux valgus. The mark ‘Hallux’ cannot therefore be understood as descriptive.

Finally, the General Court has also infringed Article 7(1)(b) of Regulation No 40/94, since it failed to examine the mark ‘Hallux’ in the light of that provision.
EN Official Journal of the European Union C 152/10

Appeal brought on 7 February 2011 by the Office for Harmonisation in the Internal Market against the judgment of the General Court (Fourth Chamber) delivered on 24 November 2010 in Case T-137/09 Nike International v OHIM — Muñoz Molina (R 10)

(Case C-53/11 P)

2011/C 152/17

Language of the case: Spanish

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: J. Crespo Carrillo, Agent)

Other parties to the proceedings: Nike International Ltd., Aurelio Muñoz Molina

Form of order sought

— That the Court set aside the judgment under appeal.

— That the Court deliver a fresh judgment on the substance, rejecting the appeal against the contested decision, or refer the case back to the General Court.

— That the Court order the applicant [before the General Court] to pay the costs.

Pleas in law and main arguments

1. Infringement of Rule 49 of the CTMIR (1) and Article 59 of the CTMR (2)

The legal basis of the contested decision is Rule 49(1) of the CTMIR, in relation to the current Article 59 of the CTMR. However, the judgment under appeal makes no reference at any point either to Rule 49(1) of the CTMIR or to Article 59 of the CTMR, and makes no ruling on their applicability to the particular case. OHIM considers that that constitutes an error of law and a failure to state sufficient reasons.

2. Infringement of the OHIM Guidelines and Rule 49(1) of the CTMIR

OHIM considers that its Guidelines are not applicable to the particular case. Nevertheless, the judgment under appeal states on two occasions that the Boards of Appeal are obliged to apply the OHIM Guidelines. That constitutes, in OHIM’s opinion, an error of law.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark

OJ 1995 L 303, p. 1

(2) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ 1994 L 11, p. 1
EN Official Journal of the European Union C 173/5

Reference for a preliminary ruling from the Oberlandesgericht Köln (Germany) lodged on 4 March 2011 — ebookers.com Deutschland GmbH v Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e. V.

(Case C-112/11)

2011/C 173/08

Language of the case: German

Referring court

Oberlandesgericht Köln

Parties to the main proceedings

Applicant: ebookers.com Deutschland GmbH

Defendant: Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e. V.

Question referred

Does Article 23(1) of the Regulation, (1) according to which optional price supplements are to be communicated in a clear, transparent and unambiguous way at the start of any booking process and are to be accepted by the customer on an opt-in basis, also apply to costs connected with air travel arising from services provided by third parties (in this case, an insurer offering travel cancellation insurance) and which are charged to the air traveller by the company organising the air travel together with the air fare as part of a total price?

(1) Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community, OJ 2008 L 293, p. 3.
1.

Are the designation rules in Title II of Regulation (EEC) No 1408/71 (1) applicable in a case such as the present, where an employed person with Netherlands nationality residing in Spain is employed as a seafarer by an employer established in the Netherlands, subject to Netherlands labour law, and carries out his work on board seagoing ships which navigate outside the territory of the Community under the flag of the Netherlands Antilles, with the result that the legislation of the Netherlands is designated as the legislation applicable, so that consequently Netherlands national insurance contributions may be levied, whereas judging solely on the basis of the national legislation of the Netherlands he is not affiliated to the Netherlands social security scheme as a result of the fact that he does not reside in the Netherlands?
EN Official Journal of the European Union C 186/14

Appeal brought on 15 April 2011 by Compañía Española de Tabaco en Rama, S.A. (Cetarsa) against the judgment delivered on 3 February 2011 in Case T-33/05, Compañía Española de Tabaco en Rama, S.A. v European Commission

(Case C-181/11 P)

2011/C 186/24

Language of the case: Spanish

Parties

Appellant: Compañía Española de Tabaco en Rama, S.A. (Cetarsa) (represented by: M. Araujo Boyd, J. Buendía Sierra and Á. Givaja Sanz, abogados)

Other party to the proceedings: European Commission

Form of order sought

— Set aside the judgment under appeal,

— annul Commission Decision C(2004) final of 20 October 2004, relating to a proceeding under Article 81(1) EC (Case COMP/C.38.238/B.2 — Raw Tobacco — Spain),

— alternatively, reduce the amount of the fine imposed on it under Article 3 of the contested Decision, setting the new amount of the fine at EUR 1 000 or, alternatively, if the fine imposed should not be the same as for the producers, set the fine at EUR 2 905 200, obtained by applying the attenuating factor of 40 % to the maximum limit of 10 % of the turnover, irrespective of the subsequent reduction applicable to Cetarsa by virtue of its cooperation with the investigation as acknowledged by the General Court,

— order the Commission to pay the costs.

Pleas in law and main arguments

The appellant claims that in the judgment under appeal the General Court erred in law in relation to the legal impact of the national legal framework on the legality of the conduct of Cetarsa.

The appellant also alleges that the General Court erred in law by distorting elements of the national legislation in force at the time of the infringement that led it, erroneously, to consider that the conduct of the processors was more harmful than that of the producers and that, by their actions, the processors went beyond what was allowed by the national legal framework.

Finally, the appellant claims that, unlike the case of the other companies involved, the reduction granted by virtue of the uncertainty caused by the national legislation has had no impact on the calculation of the fine imposed on Cetarsa.
2.

Should Article 450c(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as added by Article 1, point 53, of Commission Regulation (EC) No 2787/2000 of 15 December 2000, be interpreted as meaning that the guarantor who, after having received a notification as referred to in Article 450c(1)(a) within three years of the date of acceptance of the transit declaration, receives a notification in which other amounts are mentioned than the amounts which are later claimed from him, is released from his obligations?
1.

The obligation imposed on the Commission, to apportion individual liability on parties who are jointly and severally liable as between themselves, misconceives the limits on the powers and duties conferred on the Commission under Article 23 of Regulation No 1/2003 and encroaches on the national legal systems. Those powers and duties extend to the external relationship, in other words, the imposition of fines and when appropriate the determination that the parties to whom the decision is addressed should be jointly and severally liable. The internal relationship of parties who are jointly and severally liable as the result of a determination of joint and severally liability, which may include rights of recourse by one joint debtor against another is conversely, as a matter of principle, subject to the law of the Member States.
EN Official Journal of the European Union C 186/13

Action brought on 5 April 2011 — European Commission v French Republic

(Case C-164/11)

2011/C 186/22

Language of the case: French

Parties

Applicant: European Commission (represented by: W. Mölls, acting as Agent)

Defendant: French Republic

Form of order sought

— declare that, by failing to take the necessary measures to adapt its electricity taxation system to the provisions provided for by Directive 2003/96/EC (1), despite the expiry of the transitional period provided for in the second subparagraph of Article 18(10) of that directive, the French Republic has failed to fulfil its obligations under that directive;

— order the French Republic to pay the costs.

Pleas in law and main arguments

By its application, the Commission submits that, despite the expiry of the transitional period granted to the defendant, namely on 1 January 2009, it has still not adapted all the elements of its electricity taxation system to the provisions of the directive. According to the French authorities, Law No 2010-1488 of 7 December 2010, which was adopted and entered into force after the expiry of the period laid down in the reasoned opinion, transposes the provisions of that directive into domestic law. According to the Commission, the present action must be upheld by reference to the situation under national law which was applicable at the time when the period laid down in the reasoned opinion expired.

The Commission submits that, in any event, France has still not adapted all the elements of its electricity taxation system to comply with the provisions of the directive. The applicant therefore rejects the argument of the national authorities that the directive does not prohibit adjustments to the increase in excise duties according to the geographical areas concerned. On the contrary, the directive sets out the principle of a single tax for all electricity consumption which takes place in the same Member State and exhaustively lists the derogations to that principle in Articles 5, 14, 15 and 17.

Furthermore, the Commission rejects the argument defended by the French authorities that the ‘differentiation in tariffs applied’ does not lead to any risk of evasion, does not imply any additional burden for operators and does not constitute a barrier to the entry on the market of foreign providers.

(1) Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).
EN Official Journal of the European Union C 211/11

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 18 April 2011 — Econord SpA v Comune di Solbiate and Comune di Varese

(Case C-183/11)

2011/C 211/20

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Econord SpA

Defendants: Comune di Solbiate and Comune di Varese

Interested party: Aspem SpA

Question referred

Must the principle that the position of an individual public authority holding shares in a società strumentale [(a company set up to provide certain municipal services)] is immaterial also apply where one of the partner municipalities holds a single share in the società strumentale and the shareholders’ agreements entered into by the partner public authorities are not such as to give the shareholding municipality any effective power of control over the company, with the result that the company shareholding may be regarded merely as formal cover for a contract for the provision of services?
EN Official Journal of the European Union C 219/3

Reference for a preliminary ruling from the Arbeidsrechtbank Antwerpen (Belgium) lodged on 28 April 2011 — Anton Las v PSA Antwerp NV, previously Hesse Noord Natie NV

(Case C-202/11)

2011/C 219/04

Language of the case: Dutch

Referring court

Arbeidsrechtbank Antwerpen

Parties to the main proceedings

Applicant: Anton Las

Defendant: PSA Antwerp NV, previously Hesse Noord Natie NV

Question referred

Does the Decree of the Flemish Community of 19 July 1973 (B.S. 6 September 1973) infringe Article 39 of the EC Treaty concerning freedom of movement for workers within the European Union, in that it imposes an obligation on an undertaking situated in the Flemish language region when hiring a worker in the context of employment relations with an international character, to draft all documents relating to the employment relationship in Dutch, on pain of nullity?
2.

If the answer to the first question is in the negative: Is Article 81 EC (Article 101 TFEU) to be interpreted as meaning that the activity pursued by a private-law establishment in the field of drawing up technical standards and certifying products on the basis of those technical standards, as defined in paragraph 1, is to be regarded as ‘economic’ if the establishment is controlled by undertakings? If the first part of this question is answered in the affirmative: Is Article 81 to be interpreted as meaning that the drawing-up of technical standards and the certification of products on the basis of those technical standards by an association of undertakings is capable of impeding trade between the Member States if a product lawfully manufactured and distributed in another Member State cannot be distributed in the importing Member State, or can be distributed there only with considerable difficulty, because it does not meet the requirements of the technical standard and, in the light of the predominance of the technical standard on the market and of a legal provision adopted by the national legislature to the effect that a certificate from the association of undertakings must indicate compliance with the requirements laid down by law, distribution without such a certificate is virtually impossible, and if the technical standard would not be applicable if it had been adopted directly by the national legislature because it infringes the principles of the free movement of goods?