ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 39/10

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 2 December 2011 — Bahía de Bizcaia Electricidad, S.L. v Gas Natural SDG, S.A., Endesa, S.A., Hidroeléctrica del Cantábrico, S.A. and Spanish State

(Case C-620/11)

2012/C 39/20

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Appellant: Bahía de Bizcaia Electricidad, S.L.

Other parties: Gas Natural SDG, S.A., Endesa, S.A., Hidroeléctrica del Cantábrico, S.A. and Spanish State

Question referred

May Article 10 of Directive 2003/87/EC (1) of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC be interpreted as not preventing application of national legislative measures of the kind under review in these proceedings, the purpose and effect of which are to reduce remuneration for the activity of electricity production by an amount equivalent to the value of the greenhouse gas emission allowances allocated free of charge during the relevant period?

(1) OJ 2003 L 275, p. 32.
1.

Is the second sentence of Article 2(2) of Directive 2003/4/EC (1) of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC to be interpreted as meaning that bodies and institutions are acting in a legislative capacity when their activities relate to legislation by the executive on the basis of authorisation given by a law enacted by Parliament?
2.

Is Article 16(6)(c) of the CIVA, as interpreted in the judgment under appeal (to the effect that the commercial advertising screening tax does not constitute an amount paid in the name and on behalf of the customer of the services, even though it is accounted for in third party suspense accounts and is intended to be paid to public bodies, so that it is not excluded from the taxable amount for the purposes of VAT) compatible with Article 11(A)(3)(c) of Directive 77/388/EC (now Article 79(c) of Council Directive 2006/112/EC of 28 November 2006) and, in particular, with the concept of ‘amounts received by a taxable person from his purchaser or customer as repayment for expenses paid out in the name and for the account of the latter and which are entered in his books in a suspense account’?
EN Official Journal of the European Union C 49/15

Reference for a preliminary ruling from the Verwaltungsgericht Karlsruhe (Germany) lodged on 24 November 2011 — Philipp Seeberger v Studentenwerk Heidelberg

(Case C-585/11)

2012/C 49/24

Language of the case: German

Referring court

Verwaltungsgericht Karlsruhe

Parties to the main proceedings

Claimant: Philipp Seeberger

Defendant: Studentenwerk Heidelberg

Question referred

Does European Union law preclude national legislation which denies an education or training grant for studies in another Member State solely on the ground that the student, who has exercised the right to freedom of movement, has not, at the commencement of the studies, had his permanent residence in his Member State of origin for at least three years? (1)

(1) Interpretation of Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU) — Citizenship of the Union and free movement.
EN Official Journal of the European Union C 65/2

Reference for a preliminary ruling from the Landgericht Mönchengladbach (Germany) lodged on 2 November 2011 — Gisbert Thöne v MF Global UK Ltd and Frank Kucksdorf

(Case C-552/11)

2012/C 65/04

Language of the case: German

Referring court

Landgericht Mönchengladbach

Parties to the main proceedings

Applicant: Gisbert Thöne

Defendant: MF Global UK Ltd and Frank Kucksdorf

This Case was removed from the Register of the Court by Order of the Court of 8 December 2011.
3.

Is it a breach of the principles of effectiveness and/or of equivalence to require a claimant to pursue the principal reimbursement claim and the claim for simple interest in one set of proceedings before the Tax Tribunal and the balance of the remedy required by EU law in respect of the use value of the overpayment and/or interest in separate proceedings before the High Court?
3.

If the case falls within the scope of Article 18 TFEU (formerly Article 12 EC) (question 1) but the requirement for permission is not itself found to be discriminatory (question 2), may the grant of permission to make an inward flight in respect of the appellant’s flight services from non-member countries to the Federal Republic of Germany be made conditional, on pain of an administrative fine, and without breaching the prohibition of discrimination, on whether the airline of the Member State proves to the authority which grants permission that airlines with an operating licence in the Federal Republic of Germany are not in a position to carry out the flights (non-availability declaration)?
1.

Are Articles 43 EC and 49 EC to be interpreted as in principle precluding legislation of a Member State, such as Article 88 of the Testo unico delle leggi di pubblica sicurezza (Consolidated Law on public security; ‘the TULPS’), under which ‘a permit to organise betting may be granted exclusively to persons holding a licence or authorisation issued by a Ministry or another body to which the law reserves the right to organise and manage betting, and also to persons to whom that responsibility has been entrusted by the licence-holder or by the holder of an authorisation, by virtue of such licence or authorisation’, and Article 2(2b) of Decree-Law No 40 of 25 March 2010, converted by Law No 73/2010, under which ‘Article 88 of the (TULPS), which references to Royal Decree No 773 of 18 June 1931, as subsequently amended, is to be interpreted as meaning that the permit provided for therein, where it is granted for commercial businesses involving gaming and the collection of bets for cash prizes, shall be deemed to be effective only after the operators of those businesses have been granted the appropriate license to carry on such gaming and collect such bets by the Independent Authority for the Administration of State Monopolies of the Ministry of Economic and Financial Affairs’?
2.

In particular: — Must the period scrutinised, in all instances — if the scrutiny is not to be marred by an irregularity which the person scrutinised may rely on against the decision giving due effect to the results of the scrutiny — end during the twelve month period which precedes the ‘scrutiny’ period during which the scrutiny operations are carried out? — In the event of a positive reply to the preceding question, how must the option, expressly provided for by the regulation, to extend the period of scrutiny for periods ‘following the 12-month period’ be understood? — In the event of a negative reply to the first question, must the scrutiny period nevertheless — if the scrutiny is not to be marred by an irregularity which the scrutinised person may rely on against the decision giving due effect to the results of the scrutiny — include a twelve month period which ends during the scrutiny period preceding that during which the scrutiny was carried out, or, on the contrary, may the scrutiny cover only a period which ends before the beginning of the preceding scrutiny period?
4.

If, in view of the reply to the earlier questions, forfeiture of the guarantee constitutes a penalty applicable where the time limit for export is exceeded by the successful tenderer, is it necessary to apply retroactively and, if so, in accordance with what rules — for the purposes of calculating the amount of the guarantee to be forfeited for failure to comply with the time limit for export set for invitations to tender Nos 170/94 EC and 171/94 EC by Commission Regulation (EC) No 360/95 of 22 February 1995 as amended — the provisions of Article 91(12) of Commission Regulation (EC) No 1623/2000 of 25 July 2000, even though, first, the latter regulation neither explicitly amended nor repealed the provisions of Article 5 of Regulation (EC) No 360/95 which specifically govern invitations to tender Nos 170/94 EC and 171/94 EC, but only those of Commission Regulation (EC) No 377/93 of 12 February 1993 (4) which laid down the ordinary rules for invitations to tender relating to alcohol from distillation operations held by the intervention agencies and referred, as regards the rules for release of the performance guarantees lodged by the successful tenderers, to Commission Regulation (EEC) No 2220/85 of 22 July 1985 (5) from which the provisions of Article 5 of Commission Regulation (EC) No 360/95 of 22 February 1995 explicitly derogate, and even though, second, Regulation (EC) No 1623/2000 was drawn up after reform of the common organisation of the markets in wine in 1999, it substantially amended the invitations to tender system and the system of guarantees given in that context, both with regard to their purpose and their amount and the rules for their forfeiture and their release and, finally, it removed Brazil from the list of third countries to which the export, for exclusive use as motor fuel, of the alcohol awarded is authorised?
3.

If question 1 is answered in the affirmative and question 2 in the negative, in the light of recital 20 in the preamble to, and Article 6(1) of, Regulation No 562/2006, and Article 47 of the Charter of Fundamental Rights of the European Union, does Article 13(3) of Regulation No 562/2006 require the Member States to guarantee an effective remedy before an administrative body which, from an institutional and functional perspective, provides the same guarantees as a court of law?
EN Official Journal of the European Union C 174/14

Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 6 March 2012 — Josef Probst v mr.nexnet GmbH

(Case C-119/12)

2012/C 174/21

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellant on a point of law: Josef Probst

Respondent in the appeal on a point of law: mr.nexnet GmbH

Question referred

Does Article 6(2) and (5) of Directive 2002/58/EC (1) permit the passing of traffic data from the service provider to the assignee of a claim for payment in respect of telecommunications services in the case where the assignment effected with a view to the collection of transferred debts includes, in addition to the general obligation to respect the privacy of telecommunications and to ensure data protection as provided for under the applicable legislation, the following contractual stipulations:

the service provider and the assignee undertake to process and use the protected data only within the framework of their cooperation and exclusively for the purpose of the contract and in the manner prescribed therein;

as soon as the information in the protected data is no longer required for such purpose, all protected data held in that connection are to be irreversibly erased or returned;

each contracting party is entitled to check that the other party has ensured data protection and data security in accordance with this agreement;

confidential documents and information transferred may be made accessible only to such employees as require these for the purposes of performing the contract;

the contracting parties are to require those employees to maintain confidentiality in accordance with this agreement;

on request, or at the latest on termination of the cooperation between the contracting parties, all confidential data held in that connection are to be irreversibly erased or returned to the other party?

(1) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37).
1.

Must the ‘scrutiny period’ from 1 July of one year to 30 June of the following year, as referred to in Article 2(4) of Council Regulation No 4045/89 of 21 December 1989 on scrutiny by Member States of transactions forming part of the system of financing by the Guarantee Section of the EAGGF, (1) be understood as the period during which the authorities responsible for the scrutiny must inform the producer organisation of the planned inspection, and commence and complete the scrutiny procedure in its entirety on-site and on paper and communicate the results of that scrutiny, or must it be understood as the period during which only some of those procedural steps have to be carried out?
EN Official Journal of the European Union C 89/17

Appeal brought on 27 January 2012 by Gascogne Sack Deutschland GmbH, formerly Sachsa Verpackung GmbH, against the judgment of the General Court (Fourth Chamber) delivered on 16 November 2011 in Case T-79/06, Sachsa Verpackung v Commission

(Case C-40/12 P)

2012/C 89/27

Language of the case: French

Parties

Appellant: Gascogne Sack Deutschland GmbH, formerly Sachsa Verpackung GmbH (represented by: F. Puel and L. François-Martin, avocats)

Other party to the proceedings: European Commission

Form of order sought

— Set aside the judgment of 16 November 2011 delivered by the Fourth Chamber of the General Court of the European Union in Case T-79/06 … and refer the case back to the General Court for judgment as may be required by the Court, including judgment on the financial consequences for the appellant of the time in excess of a reasonable period which has expired;

— reduce the amount of the fine to take account of the financial consequences for the appellant of the time in excess of a reasonable period which has expired;

— order the defendant to pay the costs of both sets of proceedings.

Grounds of appeal and main arguments

The appellant relies on four grounds in support of its appeal.

By its first ground, the appellant submits that the General Court erred in law by failing to draw the conclusions from the entry into force of the [amended provisions] of the Treaty on European Union on 1 December 2009, and in particular of [amended] Article 6 thereof, which confers the same legal value on the Charter of Fundamental Rights of the European Union as the Treaties.

By its second ground, the appellant submits that the General court failed to provide sufficient grounds for its decision with regard to the application of Article 23(2) of Regulation No 1/2003 (1) or of Article 15 of Regulation No 17. (2)

By its third ground, the appellant submits that the General Court has failed to exercise its powers of review and has failed properly to review the grounds and the reasoning of the Commission concerning the impact of the practice on the market.

By its fourth ground, the appellant submits, in the alternative, that the General Court has failed to comply with the procedure, by breaching the principle of the right to fair legal process within a reasonable period enshrined in Article 6 ECHR and the principle of effective judicial protection. That ground leads the appellant to seek to have the judgment under appeal set aside and, in the alternative, to reduce the amount of the fine to take account of the financial consequences for the appellant of the time in excess of a reasonable period which has elapsed.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1).

(2) Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition, 1959-1962, p. 87).
EN Official Journal of the European Union C 98/17

Reference for a preliminary ruling from the Okresný súd Prešov (Slovakia) lodged on 23 January 2012 — Valeria Marcinová v Pohotovosť, s.r.o.

(Case C-30/12)

2012/C 98/27

Language of the case: Slovak

Referring court

Okresný súd Prešov

Parties to the main proceedings

Applicant: Valeria Marcinová

Defendant: Pohotovosť, s.r.o.

Question referred

Do Articles 38 and 17 of the Charter of Fundamental Rights of the European Union in conjunction with Article 169 TFEU preclude the application of national legislation under which, on the basis of an agreement on deductions from salary, such deductions are made from the consumer in the absence of any judicial control of unfair clauses and according to which the consumer has no direct possibility of annulling those deductions?
2.

Does a national law, specifically Article 48(4) of the Estatuto de los Trabajadores, which, in the case of childbirth, recognises the primary right of mothers, but not of fathers, to suspend their contract of employment and to return to the same job, paid for by the social security system, even once the six week period following the birth has elapsed, except in cases where the mother’s health is at risk, so that the taking of leave by a male employee is dependent on the child’s mother also having the status of an employed person, contravene the principle of equal treatment, which prohibits discrimination on grounds of sex?
(b)

The phrase ‘surrogate mother’ shall refer to circumstances where a woman has been pregnant and given birth to a child on behalf of an intended mother. 1. Do Article 1(1) and/or Article 2(c) and/or Article 8(1) and/or Article 11(2)(b) of the Pregnant Workers Directive 92/85/EEC (1) provide a right to receive maternity leave to an intended mother who has a baby through a surrogacy arrangement? 2. Does the Pregnant Workers Directive 92/85/EEC provide a right to receive maternity leave to an intended mother who has a baby through a surrogacy arrangement, in circumstances where she: (a) may breastfeed following birth and/or (b) does breastfeed following birth? 3. Is it a breach of Article 14, taken with Article 2(l)(a) and/or (b) and/or 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC (2) for an employer to refuse to provide maternity leave to an intended mother who has a baby through a surrogacy arrangement? 4. Is it by reason of the employee's association with the surrogate mother of the baby a potential breach of Article 14, taken with Article 2(l)(a) and/or (b) and/or 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC to refuse to provide maternity leave to an intended mother who has a baby through a surrogacy arrangement? 5. Is it by reason of the intended mother's association with the surrogate mother of the baby a potential breach of Article 14, taken with Article 2(l)(a) and/or (b) and/or 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC to subject an intended mother who has a baby through a surrogacy arrangement to less favourable treatment? 6. If the answer to questions 4 is ‘yes’, is the intended mother's status as intended mother sufficient to entitle her to maternity leave on the basis of her association with the surrogate mother of the baby? 7. If the answer to any of questions 1,2,3 and 4 is ‘yes’:- 7.1. Is the Pregnant Workers Directive 92/85/EEC, in the relevant respects, directly effective; and 7.2. Is the Recast Equal Treatment Directive 2006/54/EC, in the relevant respects directly effective.
2.

In the light of the principles of sincere cooperation and the effectiveness of directives, do Articles 2, 15 and 16 of Directive 2008/115/EC preclude the possibility that, subsequent to the adoption of the directive, a Member State may enact legislation which provides that a third-country national illegally staying in that Member State may be liable to a fine, for which an enforceable order for expulsion with immediate effect is substituted by way of criminal-law sanction, without respecting the procedure and rights of the foreign national laid down in the directive?
EN Official Journal of the European Union C 217/6

Reference for a preliminary ruling from the Székesfehérvári Törvényszék (Hungary) lodged on 19 April 2012 — Gábor Fekete v Nemzeti Adó- és Vámhivatal Középdunántúli Regionális Vám- és Pénzügyőri Főigazgatósága

(Case C-182/12)

2012/C 217/10

Language of the case: Hungarian

Referring court

Székesfehérvári Törvényszék

Parties to the main proceedings

Applicant: Gábor Fekete

Defendant: Nemzeti Adó- és Vámhivatal Középdunántúli Regionális Vám- és Pénzügyőri Főigazgatósága

Question referred

Under Article 561(2) of Commission Regulation (EEC) No 2454/93 (1) of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (‘the implementing Regulation’) is authorisation granted by the owner of the means of transport established outside the (customs) territory sufficient to establish private use of the means of transport or is private use of the means of transport only possible in the framework of an employment relationship, and thus where provided for (by the owner) in the contract of employment?

(1) 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; OJ L 253, 11.10.1993, p. 1.
3.

Is the ‘opportunity to have the case tried’ before a ‘court having jurisdiction in particular in criminal matters’ under Article 1(a)(iii) of the Framework Decision maintained even if the person concerned cannot have a case tried before a ‘court having jurisdiction in particular in criminal matters’ directly, but must first contest a decision of an authority other than a court of law (an administrative authority), the submission of such a contestation rendering that authority’s decision ineffective and leading to the initiation of an ordinary procedure before the same authority, and only against its decision in that ordinary procedure may an appeal be brought before a ‘court having jurisdiction in particular in criminal matters’? In relation to maintaining the ‘opportunity to have the case tried’, is it necessary to decide questions of whether an appeal heard by a ‘court having jurisdiction in particular in criminal matters’ is in the nature of an ordinary appeal (i.e. an appeal against a decision not yet final) or an extraordinary appeal (i.e. an appeal against a final decision) and whether a ‘court having jurisdiction in particular in criminal matters’, on the basis of that appeal, has the authority to review the case in its entirety both in fact and in law?