ddrg/super_eurlex huggingface dataset:
1.

Is Article 44(2) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (1) to be interpreted as precluding an arrangement in one Member State whereby child-raising periods completed in another Member State of the European Union are to be recognised as such periods completed in the former Member State only if the child-raising parent was habitually resident abroad with the child and paid compulsory contributions during the raising or immediately before the birth of the child because of employment or self-employment there or, where spouses or partners were resident abroad together, if the spouse or partner of the child-raising parent paid such compulsory contributions or did not do so solely because he or she was a person as referred to in Paragraph 5(1) and (4) of Sozialgesetzbuch VI (Social Code VI; ‘SGB VI’) or was exempted from compulsory insurance pursuant to Paragraph 6 SGB VI (Paragraphs 56(3), second and third sentences; 57; 249 SGB VI)?
2.

If the first question is answered in the affirmative, is a national law which does not provide for a rule implementing Directive 1999/70/EC to have retroactive effect from the date by which the Directive was to be transposed into domestic law contrary to Community law?
EN Official Journal of the European Union C 38/5

Action brought on 23 November 2010 — European Commission v Czech Republic

(Case C-545/10)

2011/C 38/06

Language of the case: Czech

Parties

Applicant: European Commission (represented by: M. Šimerdová and H. Støvlbæk, acting as Agents

Defendant: Czech Republic

Form of order sought

— declare that the Czech Republic has failed to fulfil its obligations under Articles 4(1), 6(2), 7(3), 11 and 30(5) of Directive 2001/14/EC (1) of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification;

— and under Article 10(7) of Council Directive 91/440/EEC (2) of 29 July 1991 on the development of the Community's railways;

— order the Czech Republic to pay the costs.

Pleas in law and main arguments

The Czech Republic has infringed Article 4(1) of Directive 2001/14/EC by laying down a maximum amount for charges for the use of infrastructure, which the infrastructure manager may not exceed. The infrastructure manager is required to carry out the imposition and levying of charges for the use of infrastructure in accordance with the provisions of Article 4(1) of Directive 2001/14/EC. Member States are entitled only to lay down the framework of charges for the use of infrastructure.

The Czech Republic has infringed Article 6(2) of Directive 2001/14/EC by failing to adopt measures providing infrastructure managers with incentives to reduce the costs of provision of infrastructure and the level of access charges.

The Czech Republic has infringed Article 7(3) of Directive 2001/14/EC by failing to ensure that charges for the minimum access package and track access to service facilities be set at the cost that is directly incurred as a result of operating the train service.

The Czech Republic has infringed Article 11 of Directive 2001/14/EC by failing to introduce a performance scheme encouraging railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network.

The Czech Republic has infringed Article 30(5) of Directive 2001/14/EC by incorrectly transposing it into its domestic legal system.

The Czech Republic has infringed Article 10(7) of Directive 91/440/EEC by failing to ensure the establishment of an entity in relation to the Czech Republic which could be regarded as an entity in accordance with Article 10(7) and fulfil the functions laid down by that provision.

(1) OJ 2001 L 75, p. 29.

(2) OJ 1991 L 237, p. 25.
EN Official Journal of the European Union C 46/5

Appeal brought on 25 November 2010 by the European Commission against the judgment delivered by the General Court (Sixth Chamber) on 13 September 2010 in Case T-452/04 Éditions Jacob v European Commission

(Case C-553/10 P)

2011/C 46/07

Language of the case: French

Parties

Appellant: European Commission (represented by: A. Bouquet, O. Beynet and S. Noë, Agents)

Other parties to the proceedings: Éditions Odile Jacob SAS, Wendel Investissement SA, Lagardère SCA

Form of order sought

— set aside the judgment of 13 September 2010 in Case T-452/04 Éditions Odile Jacob SAS v Commission in so far as it annulled Commission Decision D(2004) 203365 of 30 July 2004 relating to the approval of Wendel Investissement as purchaser of the assets sold in accordance with Commission Decision 2004/422/EC of 7 January 2004 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.2978 — Lagardère/Natexis/VUP); (1)

— rule, if appropriate, definitively on the issues which form the subject-matter of this appeal and dismiss the action for annulment, and

— order Éditions Jacob to pay the costs of both instances.

Pleas in law and main arguments

The appellant puts forward three grounds in support of its appeal.

By its first ground of appeal, the Commission submits that the General Court erred in law in that it failed to examine the consequences of the possible lack of independence of the trustee vis-à-vis Editis in respect of the trustee's duties in relation to Wendel. In the appellant's submission, the lack of independence of a person responsible for assessing a candidate is of no legal significance unless it is established that that person took account in his assessment of an interest other than that of the proper exercise of his duties.

By its second ground of appeal, the appellant alleges that the General Court erred in law and misinterpreted the facts in so far as it found that the trustee's report had a decisive influence on the contested decision, whereas, in actual fact, even if the Commission is required to take it into account, it is not bound by the trustee's opinion and is still required to undertake the necessary investigation in order to ascertain that the purchaser does indeed satisfy the approval criteria.

By its third ground of appeal, which is in two parts, the Commission alleges, first, a misinterpretation of the law as regards the relevance of the plea raised by the applicant at first instance on the validity of the contested decision and, second, an infringement of the obligation to state reasons in that connection.

(1) OJ 2004 L 125, p. 54.
EN Official Journal of the European Union C 72/11

Action brought on 16 December 2010 — European Commission v French Republic

(Case C-596/10)

2011/C 72/18

Language of the case: French

Parties

Applicant: European Commission (represented by: F. Dintilhac and M. Afonso, acting as Agents)

Defendant: French Republic

Form of order sought

— declare that, in applying a reduced rate of VAT to transactions relating to equidae and in particular to horses, where they are not as a matter of course intended for use in the preparation of foodstuffs or in agricultural production, the French Republic has failed to fulfil its obligations under Articles 96 to 99 of the VAT Directive (1) and of Annex III thereto;

— order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission raises two complaints in support of its action relating to the non-compliance with the VAT Directive by the national legislation that, firstly, makes transactions that do not fall within the exceptions set out in Annex III to that directive subject to a reduced rate of 5,5 % and, secondly, makes some transactions subject to a reduced rate of 2,1 %.

In its first complaint, the applicant points out that, apart from the fact that it applies a reduced rate of VAT of 5,5 % to transactions concerning live equidae without differentiating as to their use, the French legislation lays down yet more provisions which are not in accordance with the VAT Directive and, in particular, with paragraphs (1) and (11) of Annex III to that directive.

In its second complaint, the Commission criticises the defendant’s administrative practice of applying a rate of 2,1 % to sales to persons not subject to VAT of live animals not intended for use as meat and meat products, and in particular horses for racing, competitions, pleasure and riding.

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1)
1.

Does the second subparagraph of Article 17(6) of the Sixth Directive (1) preclude amendments to deduction-limiting legislation such as that in question, according to which a Member State has sought to take advantage of the possibility, for which that provision provides, of (retaining) the exclusion of deduction in respect of certain goods and services if, as a consequence of those amendments, the amount excluded from deduction has been increased in most cases, but the approach and scheme of the deduction-limiting legislation have remained unchanged?
EN Official Journal of the European Union C 72/3

Appeal brought on 26 November 2010 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Fifth Chamber) delivered on 9 September 2010 in Case T-300/07: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission

(Case C-560/10 P)

2011/C 72/04

Language of the case: English

Parties

Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: N. Korogiannakis, M. Dermitzakis, Attorneys at Law)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the decision of the General Court;

— annul the decision of the Commission (DG ENTR) to reject the bid of the Appellant in Lot 1, filed in response to the Call for Tender ENTR/05/078 — YOUR EUROPE Lot 1 (Editorial Work and Translations) for ‘Your Europe Portal Management and Maintenance’ (OJ 2006/S 143-153057) and to award the same Call for Tender to another bidder;

— refer the case to the General Court in order that the latter examines the remaining issues in both Lots, including the request for Damages, not examined yet by the General Court;

— order the Commission to pay the Appellant's legal and other costs including those incurred in connection with the initial procedure, even if the current Appeal is rejected as well as those of the current Appeal, in case it is accepted.

Pleas in law and main arguments

The Appellant submits that in the contested Judgment the General Court erred in law and wrongly interpreted article 100 (2) of the Financial Regulation (1) and Article 149 of the Implementing Rules by accepting that, since the Appellant's tender did not reach the 70 % threshold, the Commission rightfully did not communicate to the Appellant the relative merits of the winning tenderer. Furthermore the Appellant maintains that the Judgment is insufficiently motivated since the General Court failed to examine thoroughly and individually the plea concerning the infringement of the principle of transparency and equal treatment.

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities

OJ L 248, p. 1
3.

In so far as Regulation No 562/2006 excludes all possibility of entry into the territory of the Member States for third-party nationals who hold only a temporary residence permit issued pending examination of a first application for a residence permit or an application for asylum, contrary to what was allowed under the Convention of 19 June 1990 implementing the Schengen Agreement, in the version prior to its amendment by that regulation, did the principles of legal certainty and protection of legitimate expectations require that transitional measures should be laid down in respect of third-country nationals who left the territory of those States when they were holders of only a temporary residence permit issued pending examination of a first application for a residence permit or an application for asylum, and wish to return there after the entry into force of Regulation No 562/2006?
EN Official Journal of the European Union C 103/12

Action brought on 29 December 2010 — European Commission v French Republic

(Case C-625/10)

2011/C 103/21

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-P. Keppenne and H. Støvlbæk, acting as Agents)

Defendant: French Republic

Form of order sought

— Declare that, as a result of the inadequacy of the measures adopted to implement the first railway package, the French Republic has failed to fulfil its obligations under: — Article 6(3) of and Annex II to Directive 91/440/EEC, as amended, (1) and Article 14(2) of Directive 2001/14/EC; (2) — Article 6(2) to (5) of Directive 2001/14/EC; — Article 11 of Directive 2001/14/EC;

— order French Republic to pay the costs.

Pleas in law and main arguments

The Commission relies on two pleas in support of its action.

First, it criticises the defendant for failing to comply with all the obligations laid down in the first railway package, which requires not only the separation of the entities responsible for operating rail transport services (in France, the SNCF) from those responsible for managing the infrastructure (in France, RFF) but also that the ‘essential’ functions of the allocation of railway capacity, the setting of charges for the use of the infrastructure and the issuing of licences be carried out by independent bodies. However, the SNCF has responsibility for certain essential functions relating to the allocation of train paths which it performs via the Direction des Circulations Ferroviaires (DCF). That specialist service is not legally independent of the SNCF and nor is it independent in terms of organisation or decision making.

Second, the Commission submits that the national legislation does not transpose correctly or fully the requirements under Directive 2001/14/EC concerning the establishment of a performance scheme relating to the charges made for access to the railway infrastructure. A further difficulty with the French legislation is that it fails to provide sufficient incentives to reduce the costs of provision of infrastructure and the level of access charges.

(1) Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25).

(2) Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29).
1.

In Article 3(1) of Directive 96/9/EC (1) on the legal protection of databases what is meant by ‘databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation’ and in particular: a) should the intellectual effort and skill of creating data be excluded? b) does ‘selection or arrangement’ include adding important significance to a pre-existing item of data (as in fixing the date of a football match); c) does ‘author's own intellectual creation’ require more than significant labour and skill from the author, if so what?
—

declare that, by failing to adopt all the necessary legal provisions to transpose Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community, (1) or by failing to notify them to the Commission, the Republic of Estonia has failed to fulfil its obligations under the directive;
EN Official Journal of the European Union C 103/14

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 January 2011 — Criminal Proceedings against Titus Alexander Jochen Donner

(Case C-5/11)

2011/C 103/24

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Titus Alexander Jochen Donner

Other party to the proceedings: Generalbundesanwalt beim Bundesgerichtshof

Question referred

Are Articles 34 and 36 TFEU governing the free movement of goods to be interpreted as precluding the criminal offence of aiding and abetting the prohibited distribution of copyright-protected works resulting from the application of national criminal law where, on a cross-border sale of a work that is copyright protected in Germany

— that work is taken to Germany from a Member State of the European Union and de facto power of disposal thereof is transferred in Germany,
EN Official Journal of the European Union C 89/12

Reference for a preliminary ruling from the Consiglio di Stato — Second Chamber (Italy) lodged on 24 January 2011 — Pioneer HI-Bred Italia Srl v Ministero delle Politiche Agricole e Forestali

(Case C-36/11)

2011/C 89/22

Language of the case: Italian

Referring court

Consiglio di Stato — Second Chamber

Parties to the main proceedings

Applicant: Pioneer HI-Bred Italia Srl

Defendant: Ministero delle Politiche Agricole e Forestali

Question referred

Where a Member State has chosen to make authorisation to cultivate GMOs, even those listed in the European common catalogue, conditional upon compliance with appropriate general measures for ensuring coexistence with conventional and organic farming, must Article 26a of Directive 2001/18/EC, (1) read in the light of Recommendation 2003/556/EC (2) and subsequent Recommendation [2010/C 200/01], (3) be interpreted as meaning that, in the period preceding adoption of the general measures: (a) authorisation must be issued where the application concerns GMOs listed in the European common catalogue; or (b) consideration of the application for authorisation must be suspended until such time as the general measures have been adopted; or (c) authorisation must be issued, but coupled with appropriate requirements for preventing, in the specific case, contact — including unintended contact — between authorised GM crops and surrounding conventional or organic crops?

(1) OJ 2001 L 106, p. 1.

(2) OJ 2003 L 189, p. 36.

(3) OJ 2010 C 200, p. 1.
2.

Does the second paragraph of Article 110 of the Treaty on the Functioning of the European Union (formerly Article 90 of the Treaty establishing the European Community), which is intended to eliminate factors liable to protect the national market and to breach the principles of competition, preclude the establishment of a pollution tax for motor vehicles which is levied upon the first registration in Romania of second-hand imported motor vehicles which have previously been registered in other Member States, account being taken of the fact that exemption from payment of the pollution tax was granted under Government Emergency Order No 218/2008 for motor vehicles in category M1 and pollution class Euro 4, with a cylinder capacity of not more than 2 000 cc, and all motor vehicles in category N1 and pollution class Euro 4, which were registered for the first time in Romania or in another Member State of the European Union between 15 December 2008 and 31 December 2009 inclusive, that is to say, for the category of motor vehicle which possesses the technical characteristics of the motor vehicles manufactured in Romania, thus favouring the domestic motor vehicle manufacturing industry?
2.

Is Article 14(5)(b) and (5)(c) of Legislative Decree No 286/98, as subsequently amended, incompatible with Articles 15 and 16 of the directive referred to above, with the effect that this court is obliged to disapply the domestic legislation in question?
EN Official Journal of the European Union C 130/9

Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 28 January 2011 — VBV — Vorsorgekasse AG v Finanzmarktaufsichtsbehörde (FMA)

(Case C-39/11)

2011/C 130/17

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: VBV — Vorsorgekasse AG

Defendant: Finanzmarktaufsichtsbehörde (FMA)

Question referred

Is a provision which permits a severance fund to invest assets allocated to a collective investment fund only in shares in investment funds which are authorised to sell in Austria compatible with the freedom of movement of capital set out in Article 63 et seq. TFEU?
EN Official Journal of the European Union C 120/6

Appeal brought on 21 February 2011 by Tresplain Investments Ltd against the judgment of the General Court (Eighth Chamber) delivered on 9 December 2010 in Case T-303/08: Tresplain Investments Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Hoo Hing Holdings Ltd

(Case C-76/11 P)

2011/C 120/11

Language of the case: English

Parties

Appellant: Tresplain Investments Ltd (represented by: B. Brandreth, Barrister, J. Stobbs, Attorney)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Hoo Hing Holdings Ltd

Form of order sought

The appellant claims that the Court should:

— set aside the contested judgment of the General Court and the contested decision of the Board of Appeal of OHIM;

— order OHIM to pay the appellant's costs incurred before the General Court and the Court of Justice of the European Union

Pleas in law and main arguments

The appellant submits that the General Court's Decision erred in law in its interpretation and application of Article 8(4) CTMR (1) in the following ways:

1. The General Court and Board of Appeal wrongly concluded that the existence of goodwill created a right of more than mere local significance. It does not do so unless the goodwill is of more than mere local significance;

2. The General Court and Board of Appeal wrongly concluded that the evidence of concurrent trading was evidence relevant only to the likelihood of a misrepresentation. Consideration should also have been given to the argument that the existence of concurrent goodwill would have rendered misrepresentation impossible.

3. The General Court and Board of Appeal erred in treating the evidence of use as indicating that the goodwill was associated with the earlier sign relied upon.

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

OJ L 11, 14.1.1994, p. 1