ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 128/18

Action brought on 12 February 2008 — Commission of the European Communities v French Republic

(Case C-50/08)

(2008/C 128/31)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: J.-P. Keppenne and M H. Støvlbæk, Agents)

Defendant: French Republic

Form of order sought

The applicant claims that the Court should:

— declare that, by laying down a nationality requirement for access to the profession of notary, the French Republic has failed to fulfil its obligations under the EC Treaty, in particular Articles 43 EC and 45 EC;

— order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission alleges that the defendant, by laying down a nationality requirement for access to the profession of notary and its practice, disproportionately restricts the freedom of establishment laid down in Article 43 EC. Admittedly, Article 45 EC exempts from the application of the chapter relating to the right of establishment activities connected directly and specifically with the exercise of public authority. According to the Commission, the tasks entrusted to notaries under French law are so distantly connected to the exercise of public authority that they do not fall within the scope of that article or warrant such a restriction of the freedom of establishment.

First, those tasks do not in fact confer on notaries a genuine power of coercion and the respective rights and duties of a judge and notary are completely separate.

Secondly, less restrictive measures than a nationality requirement could be laid down by the national legislature, such as subjecting the operators concerned to strict conditions for access to the profession, specific professional duties and/or a specific test.
1.

Is it compatible with the fundamental principles of the Treaty on the establishment of the European Community and of the Treaty on Union (OJ 2006 C 321 E/1) and the freedoms arising from those treaties for an EU citizen, who in the light of his theoretical and practical education and training and his relevant professional experience acquired over many years and his qualifications is entitled, formally and in practice, to teach driving theory and practice to learner drivers and most recently also to teach driving school instructors and to establish, operate and manage a driving school in a Member State, to be denied the right to manage a driving school in his own Member State, by virtue of a requirement to hold a diploma (‘Diplomzwang’) which is laid down by statute and which cannot in practice be met?
—

declare that, by failing to adopt all the all the laws, regulations and administrative provisions necessary to comply with Directive 2006/48/EC (1) of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions and in particular: Article 68(2), Article 72, Article 73(3), Article 74, Articles 99, 100 and 101, Articles 110 to 114, Articles 118 and 119, Articles 124 to 127, Articles 129 to 132, Article 133, Article 136, Articles 144 and 145, Article 149, Article 152, Article 154(1), Article 155, Annex V, Annex VI (except part I), Annex VII to XII (except Annex X parts I, II and III), and in any event, by failing to communicate those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under the directive;
EN Official Journal of the European Union C 158/12

Reference for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña, Spain lodged on 14 April 2008 — N.N. Renta, S.A. v Generalitat de Catalunya

(Case C-151/08)

(2008/C 158/17)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Cataluña, Spain

Parties to the main proceedings

Applicant: N.N. Renta, S.A.

Defendants: Generalitat de Catalunya

Question referred

Is it compatible with Article 33 of the Sixth Council Directive 77/388/EEC (1) of 17 May 1977 to maintain the variable or proportional amount of the duty on documented legal transactions when the latter is chargeable on the conclusion of a purchase by an undertaking whose business activity consists of buying and selling immovable property or purchasing immovable property for development or letting, the chargeable event or transaction, the basis of assessment and the taxable person in respect of the duty on documented legal transactions being the same as those in respect of value added tax, which is chargeable simultaneously in respect of the same purchase?

(1) OJ L 145, p. 1; EE 09/01, p. 54.
5.

Are the principles and duties of transparency mentioned in Question 1 and Article 86(1) EC, referring also if necessary to Article 2(1)(b) and (2) of the Transparency Directive 80/723/EEC (1) and Article 1(9) of the Procurement Coordination Directive 2004/18/EC (2), to be interpreted as meaning that an undertaking is subject to those duties of transparency, as a public undertaking or contracting authority, if — it was set up by a regional or local authority for the purpose of waste disposal and street cleaning but also operates in the free market, — it belongs to that regional or local authority to the extent of a 51 % holding, but decisions of shareholders can be taken only by a three-quarters majority, — the regional or local authority appoints only a quarter of the members of the supervisory board of the undertaking, including the chairman, and — it achieves more than half its turnover from bilateral contracts for waste disposal and street cleaning in the territory of that regional or local authority, which reimburses itself by means of municipal taxes on its residents?
—

Declare that by not adopting the laws regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania (1) and, in any event, by not having informed the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 2 of that directive;
6.

Does the prohibition in Article 24 of Regulation No 2201/2003 of review of the jurisdiction of the court of the Member State of origin mean that, if it has received an application for recognition or non-recognition of a decision of a foreign court and is unable to establish the jurisdiction of the court of the Member State of origin and unable to identify any other grounds set out in Article 23 of Regulation No 2201/2003 as a basis for non-recognition of decisions, the national court is obliged to recognise the decision of the court of the Member State of origin ordering the child's return in the case where the court of the Member State of origin failed to observe the procedures laid down in the regulation when deciding on the issue of the child's return?
1.

Is a national provision such as Paragraph 50(1)(1) of the Energy Tax Law (Energiesteuergesetz), as amended by the Biofuel Quota Law (Biokraftstoffquotengesetz) of 18 December 2006, which does not accord an advantage to that part of a fuel blend consisting of a biofuel composed of vegetable oil meeting the DIN V 51605 standard (as it stood in July 2006) contrary to Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport (Biofuel Directive) (1), particularly in the light of recitals 10, 12, 14, 19, 22 and 27 therein?
3.

Is it consistent with the VAT-law principle of neutrality for a building business which, under the legislation of the Member State in question — based on Article 5(7) and Article 6(3) of the Sixth Directive — is required to pay VAT on its internal supplies in connection with the construction of buildings on its own account with a view to subsequent sale, to have only a partial right to deduct VAT for general costs for the purposes of the building business, given that the subsequent sale of the real estate is, under the Member State's VAT legislation, exempt from VAT on the basis of Article 28(3)(b) of the Sixth VAT Directive, read in conjunction with point 16 of Annex F?
EN Official Journal of the European Union C 183/15

Action brought on 22 May 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-219/08)

(2008/C 183/30)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and J.-P. Keppenne, Agents)

Defendant: Kingdom of Belgium

Form of order sought

— declare that, by requiring, in the event that workers who are nationals of third countries are posted by Community undertakings in the framework of a provision of services: (a) authorisation prior to the exercise of the economic activity; (b) that the residence permit issued in the State in which the employer is established must be valid three months beyond the end of the service provided; (c) that a worker must have been in the service of the same employer providing the services for at least sixth months; the Kingdom of Belgium has failed to fulfil its obligations under Article 49 EC.

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission claims, in essence, that the requirements imposed by the defendant in the event that workers who are nationals of third countries are posted by providers of services established in a Member State other than Belgium restrict the free provision of services and at the same time discriminate against those providers in relation to their competitors established in Belgium.

By its first complaint, the Commission claims that the system of authorisation prior to the exercise of an economic activity represents a disproportionate obstacle to the free provision of services. That obstacle cannot moreover be justified by any reason of general interest, or by reference to the rules of the Schengen acquis.

By its second complaint, the applicant calls in question the disproportionate nature of the requirement that the residence permit issued in the Member State in which the employer is established must be valid three months beyond the end of the service provided.

By its third complaint, the Commission states that despite the positive legislative amendments effected by the defendant, the requirement that a worker must have been in the service of the same employer providing the services for at least six months represents an unjustified restriction on the free provision of services.
—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (1) or, in any event, by failing to inform the Commission thereof, the Grand Duchy of Luxembourg has failed to fulfil its obligations under this directive;
EN Official Journal of the European Union C 223/29

Reference for a preliminary ruling from the Juzgado de lo Social No 23 de Madrid (Spain) lodged on 26 June 2008 — Francisco Vicente Pereda v Madrid Movilidad S.A.

(Case C-277/08)

(2008/C 223/45)

Language of the case: Spanish

Referring court

Juzgado de lo Social No 23 de Madrid

Parties to the main proceedings

Applicant: Francisco Vicente Pereda

Defendant: Madrid Movilidad S.A.

Question referred

Must Article 7(1) of Directive 2003/88/EC (1) be interpreted as meaning that when the period of leave allocated in the undertaking's annual planning of leave coincides in time with a temporary disability following an accident at work which happened before that period of leave began, the employee affected, once he returns to work, has the right to use his leave on dates different from those originally allocated, irrespective of whether the calendar year to which they relate has ended?

(1) Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).
EN Official Journal of the European Union C 223/25

Action brought on 10 June 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-250/08)

(2008/C 223/38)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and P. van Nuffel, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

— Declare that, by taking into account, in the Flemish Region, for the assessment of a tax advantage upon the purchase of immovable property intended as a new principal place of residence, the amount of registration fees paid upon the purchase of a previous principal place of residence only where the latter was situated in the Flemish Region but not where it was in a Member State other than Belgium or in an EEA State, the Kingdom of Belgium has failed to fulfil its obligations under Articles 18, 43 and 56 of the EC Treaty and Articles 31 and 40 of the EEA Agreement;

— order Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

Upon the purchase of a principal place of residence in the Flemish region, the Belgian legislation on registration fees, as in force in the Flemish Region, provides for a reduction of registration fees in an amount corresponding to the registration fees paid upon the purchase of a previous principal place of residence in the Flemish Region, provided that the previous principal place of residence is sold in the same period. The Commission considers that this legislation discriminates against Union citizens who exercise the right of free movement, that it discriminates against Union citizens who exercise the right of establishment, and that it restricts investment in immovable property in the Flemish Region with capital from Member States other than Belgium and therefore that this legislation in principle conflicts with Articles 18, and 43 of the EC Treaty and Article 31 of the EEA Agreement, and Article 56 of the EC Treaty and Article 40 of the EEA Agreement, respectively. The Commission submits that there are no overriding reasons of public interest that could justify these breaches. Nor can the defendant rely on the need to ensure the cohesion of the tax system, because this case concerns two separate fiscal situations, each of which is governed by its own rules applicable to the situation in question.
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 on 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’) (1), or in any event by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive in its territory of Gibraltar;
2.

Or is the provision in question (Article 23) to be read in conjunction with Article 3 of Directive 2003/55/EC (which provides that Member States may impose on undertakings operating in the gas sector, in the general economic interest, public service obligations which may relate inter alia to the price of supplies) as meaning that it is not contrary to those provisions of Community law for a national provision which, having regard to the particular circumstances of the market, still characterised by an absence of conditions of ‘effective competition’, at least in the wholesale sector, to allow a public authority to set a reference price for natural gas which has to be quoted by every supplier in its commercial offers to its domestic customers within the scope of the universal service concept, despite the fact that all customers must be treated as ‘free’?
EN Official Journal of the European Union C 223/36

Action brought on 9 July 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-306/08)

(2008/C 223/58)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: A. Alcover San Pedro and D. Kukovec, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

— Declare that, in awarding the Integrated Action Programmes in accordance with Law 6/1994 of 15 November, regulating development activities in the Valencian Community, the Kingdom of Spain has failed to fulfil its obligations under Council Directive 93/37/EEC (1) of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, and particularly Articles 1, 6(6), 11, 12 and Title II of Capital IV thereof (Articles 24 to 29), and that, in awarding the Integrated Action Programmes in accordance with Law 16/2005, Valencian development law, implemented by Decree 67/2006 of the Region of Valencia of 12 May, establishing the Regulation of Town Planning and Management, the Kingdom of Spain has failed to fulfil its obligations under Articles 2, 6, 24, 30, 31(4)(a), 48(2) and 53 of Directive 2004/18/EC (2) of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission states that the awarding of the Integrated Action Programmes (IAP), an urban development measure established by Law 6/1994 of 15 November, Valencian Law on development activities (‘LRAU’) and its successor, Law 16/205, Valencian development law (‘LUV’) relates to public works contracts which should be awarded in accordance with Directive 93/37/EC and Directive 2004/18/EC. In other words, the Commission affirms that the IAP are public works contracts awarded by local bodies which include the carrying out of public infrastructure works by urban developers chosen by the local authorities.

The Commission considers that the LUV infringes the Community public procurement directives in various aspects, in relation, inter alia, to the privileged position of the first bidder, the experience of bidders in similar contracts, the provision of alternatives to the proposal of the first bidder ‘in open envelope’, the regulation of variants, the criteria for awarding IAP contracts, the possibility of amending the contract after it has been awarded (for example, the possibility of increasing development fees) and the regulation of cases of incomplete execution of the contract by the bidder to which the contract has been awarded. Some of those infringements concern both the LRAU and the LUV, and others just the LUV.

(1) OJ 1993 L 199, p. 54.

(2) OJ 2004 L 134, p. 114.
2.

Does the consumer protection provided by Directive 93/13/EEC require the national court of its own motion — irrespective of the type of proceedings in question and of whether or not they are contentious — to determine that the contract before it contains unfair terms, even where no application contesting the unfair nature of the term has been lodged, thereby carrying out, of its own motion, a review of the terms introduced by the seller or supplier in the context of exercising control over its own jurisdiction?
2.

Must Article 1(2)(b) of the Brussels I Regulation, in conjunction with Article 7(1) of the Insolvency Regulation, be interpreted as meaning that it follows from the fact that an asset to which a reservation of title applies is situated, at the time of the opening of insolvency proceedings against the purchaser, in the Member State in which those insolvency proceedings are opened, that a claim of the seller based on that reservation of title, such as that of German Graphics, must be regarded as a claim which relates to bankruptcy or the winding-up of an insolvent company, within the meaning of Article 1(2)(b) of the Brussels I Regulation, and which therefore falls outside the material scope of that regulation?
1.

Does the entitlement to reimbursement under Article 34(4) and (5) of Regulation (EEC) No 574/72 (1) cover the costs of emergency treatment incurred by a pensioner entitled to benefits under Article 31 of Regulation (EEC) No 1408/71 in a private clinic in the place of stay if the competent hospital has refused to provide the treatment by way of benefit in kind on the ground of overcrowding?
1.

Is it compatible with the Community principles upholding freedom of competition and freedom to provide services, laid down inter alia in Articles 49 EC, 81 EC, 82 EC, 83 EC, 84 EC, 85 EC and 86 EC, to impose on pharmacies the abovementioned prohibitions — whereby they are not allowed either to decline to take an annual holiday or to remain open whenever they so desire, beyond the maximum limits at present allowed under the abovementioned provisions of Lazio Regional Law No 26/2002 — and the concomitant additional requirement, under Article 10(2) of that Regional Law, of a prior discretionary assessment by the Administration (carried out in agreement with the bodies and organisations specified in that article) as to the special nature of the municipal area in which the applicant pharmacies are located, as a precondition for obtaining a derogation from those prohibitions within the Municipality of Rome?
—

Declare that, by not adopting the laws, regulations or administrative provisions necessary to transpose Council Directive 2006/100/EC of 20 November 2006 (1) adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania, or by not communicating them to the Commission, the Republic of Austria has infringed its obligations under Article 2 of that directive;
EN Official Journal of the European Union C 285/25

Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 18 August 2008 — EGN B.V. — Filiale Italiana v Agenzia delle Entrate

(Case C-377/08)

(2008/C 285/41)

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicant: EGN B.V. — Filiale Italiana

Defendant: Agenzia delle Entrate

Question referred

Is it permissible under Article 17(3)(a) of Council Directive 77/388/EEC (1) of 17 May 1977, in cases involving the supply of telecommunications services between taxable persons resident in different Member States of the Community and where the recipient is liable to value added tax, for the supplier to deduct the tax payable on the acquisition or importation of goods connected with such transactions which that supplier would be entitled to deduct if he provided the same services within his own country?

(1) OJ 1977 L 145, p. 1.
1.

Does it follow from Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) (‘the regulation’) that the divorced wife, who is not in employment, of a man who lives in Austria, and who is not self-employed, maintains her right to family allowance (in respect of a child) vis-à-vis Austria, if she establishes a permanent residence in another Member State and centres her life there, and if she continues not to be in employment there?