ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 326/13

Appeal brought on 16 June 2016 by the Portuguese Republic against the order of the General Court (Eighth Chamber) delivered on 19 April 2016 in Case T-556/15 Portugal v Commission

(Case C-339/16 P)

(2016/C 326/23)

Language of the case: Portuguese

Parties

Appellant: Portuguese Republic (represented by: L. Inez Fernandes, M. Figueiredo, P. Estêvão and J. Saraiva de Almeida, acting as Agents)

Other party to the proceedings: European Commission

Form of order sought

— Set aside the judgment under appeal in so far as, in that judgment, the General Court accepted the plea of inadmissibility raised by the Commission in the present proceedings;

— Declare that the appeal of the contested decision has been validly brought within the period laid down in Article 263 TFEU.

— Order the European Commission to pay all of the costs.

Pleas in law and main arguments

The Portuguese Republic considers that the decision is invalid on the following grounds:

A — First ground — Calculation of the time-limit for bringing proceedings against the decision of 20 July 2015

First argument

Infringement of Article 263 TFEU.

Second argument

Calculation of the time-limit for bringing proceedings from the date of notification of the final decision on 20 July 2015.

B — Second Ground — Calculation of the time-limit for bringing proceedings from the date of publication of the contested decision in the Official Journal

First argument

The wording of Article 263(6) TFEU.

Second argument

The consistent practice of publishing such decisions and identical prior legal proceedings.

C — Third Ground — The General Court erred in law in so far as it did not favour an interpretation that did not result in lapse of the right to bring proceedings
3.

In what way does the principle of proportionality play a role in the assessment of whether a declaration of undesirability can be imposed on a Union citizen to whom Article 1(F)(a) and (b) of the Refugee Convention has been declared applicable, as in the present case? Should the factors mentioned in Article 28(1) of the Residence Directive be involved, either as part of such an assessment, or separately? Should the period of ten years’ residence in the host country mentioned in Article 28(3)(a) be taken into account, either as part of such an assessment, or separately? Should the factors listed in paragraph 3.3 of the Guidance for better transposition and application of Directive 2004/38/EC, (COM (2009)313), be fully involved?
EN Official Journal of the European Union C 335/41

Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 11 July 2016 — Salvador Benjumea Bravo de Laguna v Esteban Torras Ferrazzuolo

(Case C-381/16)

(2016/C 335/55)

Language of the case: Spanish

Referring court

Tribunal Supremo, Sala Primera de lo Civil

Parties to the main proceedings

Applicant: Salvador Benjumea Bravo de Laguna

Defendant: Esteban Torras Ferrazzuolo

Question referred

Is the claim for the recovery of ownership of a Community trade mark on grounds other than those set out in Article 18 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (1) and, in particular, in accordance with the cases provided for in Article 2(2) of Spanish Law 17 of 7 December 2001 on Trade Marks (BOE No 294 of 8 December 2001), compatible with EU law and in particular with that regulation?

(1) OJ 2009 L 78, p. 1.
3.

If in the answer to Question 2 it is established that each individual payment of rent in return for access to the premises and utilities does constitute a commercial transaction, must Articles 1(1), 2(1) and 12(4) (and recital 3) of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions be interpreted as meaning that the Member States can exclude application of the directive to letting contracts concluded before 16 March 2013 in cases where late individual payments of rent occur after that date?
EN Official Journal of the European Union C 343/34

Request for a preliminary ruling from the Finanzgericht Rheinland-Pfalz (Germany) lodged on 11 July 2016 — Hornbach-Baumarkt-AG v Finanzamt Landau

(Case C-382/16)

(2016/C 343/46)

Language of the case: German

Referring court

Finanzgericht Rheinland-Pfalz

Parties to the main proceedings

Applicant: Hornbach-Baumarkt-AG

Defendant: Finanzamt Landau

Question referred

Does Article 49 of the Treaty on the Functioning of the European Union (TFEU), in conjunction with Article 54 TFEU, (formerly Article 43 of the Treaty establishing the European Community (TEC), in conjunction with Article 48 EC), preclude legislation of a Member State which provides that income of a resident taxpayer derived from business relations with a company established in another Member State in which that taxpayer has a direct or indirect shareholding of at least 25 % and with which that taxpayer has agreed terms that depart from those that would have been agreed on by unrelated third parties under the same or similar circumstances must be calculated as if that income had been earned pursuant to terms agreed on between unrelated third parties, if such a correction is not made in respect of income from business relations with a resident company and the legislation in question does not afford the resident taxpayer the opportunity to present evidence that the terms were agreed on for commercial reasons resulting from its status as a shareholder of the company established in the other Member State?
EN Official Journal of the European Union C 343/23

Appeal brought on 20 May 2016 by Zoohaus Bürstadt, Helmut Ofenloch GmbH & Co. KG against the judgment of the General Court (Eighth Chamber) delivered on 17 March 2016 in Case T-817/14, Zoofachhandel Züpke GmbH and Others v European Commission

(Case C-311/16 P)

(2016/C 343/35)

Language of the case: German

Parties

Appellants: Zoohaus Bürstadt, Helmut Ofenloch GmbH & Co. KG (represented by: E. Hauk, lawyer)

Other party to the proceedings: European Commission

This case was removed from the register of the Court by order of the Court of 20 July 2016.
1.

Is the concept of refusal in Article 90(1) of Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax (‘the VAT Directive’) to be interpreted as including a situation in which, under a closed-end financial leasing agreement, the lessor under the lease (‘the lessor’) may no longer claim payment of the leasing instalment from the lessee under the lease (‘the lessee’) because the lessor has terminated the agreement owing to breach of contract by the lessee?
—

declare that the Republic of Poland has failed to comply with its obligations under Article 13(1), in conjunction with Annex XI, Article 23(1), second subparagraph, and Article 22(3), in conjunction with Annex XI, of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (1) by reason of the facts that: — since 2007 and up to at least 2013, the daily limit values for particulate matter PM10 were exceeded in 35 ambient air quality zones and the annual limit values for particulate matter PM10 were exceeded in 9 ambient air quality zones, and no information has been provided to indicate that this situation has improved; — no appropriate measures have been incorporated in the ambient air quality programmes in order to minimise the period in which the limit values for particulate matter PM10 in the air are exceeded; — the daily limit values, increased by the tolerance margin, were exceeded from 1 January 2010 to 10 June 2011 in zone 14.17 — City of Radom –, in zone 14.18 — Pruszków-Żyrardów –, and in zone 16.15 — Kędzierzyn-Koźle — as well as from 1 January 2011 to 10 June 2011 in zone 30.3 — Ostrów-Kępno — and; — Article 23(1), second subparagraph, of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe was not correctly implemented; — order the Republic of Poland to pay the costs.
—

declare that the Hellenic Republic, by failing to take within the prescribed time-limits all the measures required for the implementation of the Commission Decision of 27 March 2014 in Case SA.34572 on the State aid implemented by Greece for Larco General Mining & Metallurgical Company S.A. or, in any event, by failing adequately to inform the Commission of the measures taken in accordance with Article 5 of the Decision, failed to fulfil its obligations under Articles 3, 4 and 5 of that decision and under the Treaty on the Functioning of the European Union;
2.

In the event that the first question is answered in the negative, do the rules on exclusive industrial rights in respect of registered designs, regard being had to the balancing of the interests referred to in the first question, preclude the application of the repair clause to replica complementary products that may be selected freely by the customer, on the basis that the repair clause is to be interpreted restrictively and may be relied upon only with respect to spare parts that come in one particular form only, that is to say, component parts the form of which has been determined in practically immutable fashion with respect to the external appearance of the complex product, to the exclusion of component parts that may be regarded as interchangeable and that may be applied freely, in accordance with the customer wishes?
3)

If the answer to the previous question supports application of the Spanish rule to prevent overlapping (as developed by case-law) to the case at issue, even failing any express law concerning benefits or income acquired abroad, is the 20 % supplement, which, under Spanish Social Security legislation, is received by workers who are recognised as having total permanent incapacity to perform their normal occupation and are over 55 years old, as has been described, to be considered the same as or different from a retirement pension under the Swiss Social Security system? Does the definition of the various branches of Social Security in Article 4 (1) of Regulation No 1408/71 and Article 3(1) of Regulation No 883/2004 have Community scope or must the definition given by the national legislation be followed for every specific benefit? If the definition has Community scope, is the 20 % supplement to the regulatory base of the total permanent incapacity benefit, which is the subject matter of these proceedings, to be regarded as an invalidity benefit or an unemployment benefit, in light of the fact that it supplements the pension for total permanent incapacity to perform the normal occupation owing to the difficulty people more than 55 years old have in finding other employment, so that payment of that supplement is suspended if the beneficiary does work?
2.

If the Court answers Question 1 in the affirmative: From which point of view is it to be assessed whether the individual design features of a product have been chosen solely on the basis of considerations of functionality? Is an ‘objective observer’ required and, if so, how is such an observer to be defined?
Must clause 4 of the Framework Agreement annexed to Directive 1999/70/EC (1) be construed as precluding rules such as those described from allowing a reduction in working hours solely because the person involved is an interim civil servant [(funcionario interino (person appointed to a civil service post on a temporary basis))]?

If the answer is in the affirmative:

Can the economic situation, which makes a reduction in expenditure necessary, and which has been compelled by the reduction in the budget appropriation, be regarded as an objective ground which justifies this difference in treatment?

Can the administration’s prerogative to organise itself be regarded as an objective ground which justifies this difference in treatment?
EN Official Journal of the European Union C 428/2

Appeal brought on 11 February 2016 by Kenzo Tsujimoto against the judgment of the General Court (First Chamber) delivered on 2 December 2015 in Case T-528/13: Kenzo v EUIPO — Tsujimoto (KENZO ESTATE)

(Case C-87/16 P)

(2016/C 428/02)

Language of the case: English

Parties

Appellant: Kenzo Tsujimoto (represented by: A. Wenninger-Lenz, M. Ring, W. von der Osten-Sacken, Rechtsanwälte)

Other parties to the proceedings: Kenzo, European Union Intellectual Property Office (EUIPO)

By order of 21 July 2016 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.
EN Official Journal of the European Union C 475/10

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 September 2016 — Julia Markmann and Others v TUIfly GmbH

(Case C-479/16)

(2016/C 475/15)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicants: Julia Markmann, Rene Markmann, Emilia Markmann, Jana Markmann

Defendant: TUIfly GmbH

The case was removed from the Register of the Court of Justice by order of the Court of 11 October 2016.
Request for a preliminary ruling from the Tribunal da Relação de Évora (Portugal) lodged on 23 September 2016 — Luis Isidro Delgado Mendes v Crédito Agrícola Seguros — Companhia de Seguros de Ramos Reais, SA

(Case C-503/16)

(2016/C 454/33)

Language of the case: Portuguese

Referring court

Tribunal da Relação de Évora

Parties to the main proceedings

Applicant: Luis Isidro Delgado Mendes

Defendant: Crédito Agrícola Seguros — Companhia de Seguros de Ramos Reais, SA

Question referred

In the case of a road traffic accident resulting in personal injury and damage to property of a pedestrian who was intentionally run over by a motor vehicle of which he is the owner, which was being driven by the person who stole the car, does EU law, specifically Articles 12(3) and 13(1) of Directive 2009/103/EC (1) of the European Parliament and of the Council [of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability] preclude the exclusion by national law of any form of compensation for the pedestrian in question as a result of the fact that he is the owner of the vehicle and the insurance policyholder thereof?

(1) Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11).
1.

If, in infringement proceedings, facts concerning the effects of any charging of discriminatory prices by an undertaking in a dominant position in relation to one of the retail undertakings, which prejudice that undertaking with regard to its competitors, are proven or evidenced, in order for that conduct to be characterised as placing at a competitive disadvantage within the meaning of subparagraph (c) of [the second paragraph of] Article 102 TFEU must there have been an additional assessment of the gravity, relevance or importance of those effects on the affected undertaking’s competitive position and/or ability to compete, in particular as regards its capacity to absorb the difference in the costs incurred in the context of the wholesale service?
3.

Does the exemption of certain economic operators from a food safety tax, which is levied on certain retail food outlets (essentially large retail food undertakings) and which is intended to fund the costs related to carrying out official controls in the area of food safety, animal protection and animal health, plant protection and plant health, constitute State aid incompatible with the internal market, in so far as it distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods within the meaning of Article 107(1) of the TFEU or, at least, does that tax exemption constitute an integral part of a State aid that is subject to notification to the European Commission within the meaning of Article 108(3) of the TFEU?
(1)

Can the classification, made by a Member State in a declaration submitted pursuant to Article 9 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, of a particular benefit as concerning a specific branch of social security referred to in Article 3 of that regulation be subject to assessment by a national authority or court?
EN Official Journal of the European Union C 22/2

Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 16 September 2016 — AZ v Minister Finansów

(Case C-499/16)

(2017/C 022/03)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

AZ, Minister Finansów

Question referred

Does the fact of making the rate of taxation for pastry goods and cakes depend solely on the criterion of the ‘use-by date’ and the ‘best-before date’, as in the case of those goods in Article 41(2) of the Ustawa o podatku od towarów i usług (Law on tax on goods and services) of 11 March [2004] (Dziennik Ustaw of 2011, No 177, item 1054, as amended), in conjunction with Heading 32 of Annex 3 to that law, infringe the principle of VAT neutrality and the prohibition of unequal treatment of goods within the meaning of Article 98(1) and (2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax? (1)

(1) OJ 2006 L 347, p. 1.
1.

First plea-in-law. The Court has failed to demonstrate that the Settlement Agreements constitute infringements ‘by object’, within the meaning of the Cartes Bancaires judgment. In particular, the Court does not explain how the Settlement Agreements reveal in themselves a sufficient degree of harm to competition without the need to assess their actual and potential effects. Instead, the Court expresses doubt and uncertainty in relation to critical points of the analysis of the Settlement Agreements.
4.

The General Court appears to take the view that a possibility of individualisation under the second variation in the fourth paragraph of Article 263 TFEU following the Plaumann case-law must already be rejected if there may be other undertakings that are affected by the effects on competition of the granting of aid in the same way as the appellant. In view of the case-law, however, in particular in Case C-309/89 Codorniu, this appears to be a legally incorrect, and, moreover, a restrictive, interpretation. Furthermore, the appellant refers to its submissions concerning the facts in the application, which make clear a sufficient possibility of individualisation but which clearly were not, or were not adequately, taken into account by the General Court.
1

Does Article 2(4) of Commission Decision 2001/672/EC (1) of 20 August 2001 laying down special rules applicable to movements of bovine animals when put out to summer grazing in mountain areas (hereinafter: ‘the Commission decision’), as amended by Commission Decision 2010/300/EU (2) of 25 May 2010, preclude a provision of national law, such as Paragraph 6(6) of the Verordnung des Bundesministers für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft über die Kennzeichnung und Registrierung von Rindern (Order of the Federal Minister for Agriculture, Forestry, the Environment and Water Management on the identification and registration of bovine animals) (‘2008 Bovine Animal Identification Order’)), BGBl II No 201/2008, which, as regards compliance with all the time-limits covered by that provision — and thus also that relating to notification of movement to summer pasture — regards receipt of the relevant notification as the determining factor?
EN Official Journal of the European Union C 38/7

Request for a preliminary ruling from the Tribunalul Specializat Mureș (Romania) lodged on 21 October 2016 — Michael Tibor Bachman v FAER IFN SA

(Case C-535/16)

(2017/C 038/09)

Language of the case: Romanian

Referring court

Tribunalul Specializat Mureș

Parties to the main proceedings

Applicant: Michael Tibor Bachman

Defendant: FAER IFN SA

Question referred

Must Article 2([b]) of Directive 93/13/EEC, (1) which defines the term ‘consumer’, be interpreted as covering also a natural person who, by means of a novation agreement, has undertaken to repay to a commercial operator, which is a professional lending institution, loans originally granted to a company for purposes inherent in that company’s business activity, that is to say, for investment in the business of the carriage of goods by road, in the case where [that] natural person has no evident link with that company but acted in that way on the basis of links, outside his trade, business or profession, with the person who controlled the company which received the original loans and also with the persons who signed contracts ancillary to the original loan contracts (contracts of guarantee, contracts providing immovable property as security/mortgages)?

(1) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
EN Official Journal of the European Union C 63/12

Request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany lodged on 16 November 2016 — Trinseo Deutschland Anlagengesellschaft mbH v Bundesrepublik Deutschland

(Case C-577/16)

(2017/C 063/18)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Trinseo Deutschland Anlagengesellschaft mbH

Defendant: Bundesrepublik Deutschland

Questions referred

1. Must Article 1 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, in conjunction with Annex I thereto, be interpreted as meaning that the production of polymers and of the polymer polycarbonate in particular in installations with a production capacity exceeding 100 tonnes per day falls within the activity defined therein as production of bulk organic chemicals by cracking, reforming, partial or full oxidation or by similar processes?

2. If Question (1) is answered in the affirmative, does the operator of such an installation have a claim to free allocation of emissions allowances arising from a direct application of the rules of Directive 2003/87/EC and Commission Decision 2011/278/EU, (2) if there can be no free allocation of emissions allowances under national law solely because the Member State in question did not include installations for the production of polymers in the scope of the national law implementing Directive 2003/87/EC and such installations do not take part in emissions trading for that reason alone?

(1) Directive 2003/87/EC 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 (OJ 2003 L 275, p. 32).

(2) 2011/278/EU: Commission Decision of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1).