ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 79/18

Appeal brought on 17 January 2008 by MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor against the judgment of the Court of First Instance (First Chamber) delivered on 8 November 2007 in Case T-459/05 MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-17/08 P)

(2008/C 79/31)

Language of the case: German

Parties

Appellant: MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor (represented by: W. Göpfert, Rechtsanwalt)

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

Form of order sought

— set aside the judgment under appeal insofar as the Court of First Instance dismissed the heads of claim submitted before it,

— annul the decision of the Second Board of Appeal of 19 October 2005 in the appeal proceedings R 1059/2004-2, and

— order the respondent to pay the costs of the appeal.

Pleas in law and main arguments

The appeal is based on errors in law in the interpretation in the judgment under appeal of Article 7(1)(b) and (c) of the Community Trade Mark Regulation.

That erroneous interpretation resulted in an erroneous outcome — rejection of the application for registration of the Community word mark ‘manufacturing score card’. In particular, not only did the Court of First Instance make a wrong assessment of the content; it also seriously misinterpreted the requirements of distinctive character and the need to keep terms free as formulated by the European Court of Justice in relation to applications for a Community trade mark and the relevant classes of persons.

It was not permissible for the Court of First Instance to divide the verbal composition submitted in the application into its constituent parts and to find, on that basis, that the mark was not eligible for protection. Dividing it up in this way does not correspond to how the ‘normal’ class of persons assesses and interprets the mark when it sees it as a whole. Moreover, the Court of First Instance was wrong to base its finding that the mark lacked distinctive character and that there was a need to keep the term free on the observation that the verbal composition consisted of parts which, in the course of trade, were normally used to explain the purpose and function of the services covered. The relevant trade circles would not, however, recognise any immediately obvious meaning in the application for a Community trade mark ‘manufacturing score card’, consisting of a combination of three English words. Consequently, the mark applied for has the minimum distinctive character required by Article 7(1)(b) of the Community Trade Mark Regulation and also does not designate characteristics of goods or services in accordance with Article 7(1)(c) of the Community Trade Mark Regulation.
EN Official Journal of the European Union C 92/23

Action brought on 25 February 2008 — Commission of the European Communities v Republic of Malta

(Case C-76/08)

(2008/C 92/43)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: D. Recchia and D. Lawunmi, Agents)

Defendant: Republic of Malta

The applicant claims that the Court should:

— declare that, by failing to meet the conditions set out in Article 9 of Council Directive 79/409/EEC on the conservation of wild birds (1) the Republic of Malta has failed to fulfil its obligations under Article 7 of the said Directive for the hunting of Quails (coturnix coturnix) and Turtle Doves (streptopelia turtur) on spring migration;

— order the Republic of Malta to pay the costs.

Pleas in law and main arguments

Council Directive 79/409/EEC on the conservation of wild birds concerns the conservation of all species of naturally occurring birds in the wild state in the European Territory of the Member States to which the Treaty applies. It establishes measures for the protection, management and control of these species and lays down the rules for their exploitation. Since accession to European Union on 1 May 2004, the Maltese authorities have exercised the right to apply the derogation in Article 9(1) of the directive for the hunting of Quails and Turtle Doves during the spring migration period when they return to their rearing ground in a number of countries north of the Mediterranean Sea. The question raised in the present proceedings is whether the Maltese authorities fall within the scope of the derogation in Article 9(1) which would permit the hunting of the species in question in Malta during the spring migration on the basis that there is no other satisfactory solution.

(1) OJ L 103, p. 1.
2.

Must the terms ‘employee’ and ‘employer’ in Article 14(3) of Regulation No 6/2002 be interpreted broadly so as to include situations other than employment relationships, such as a relationship where, in accordance with a civil/commercial contract (and therefore one which does not provide that an individual habitually works under the direction and in the employ of another), an individual (designer) undertakes to execute a design for another individual for a settled price and, as a result, it is understood that the design belongs to the person who commissioned it, unless the contract stipulates otherwise?
2.

Is transposition of Article 4(6) of Council Framework Decision 2002/584/JHA in such a way that the extradition of a State's own nationals against their will for the purpose of execution of sentence is always impermissible, whereas extradition of nationals of other Member States against their will can be authorised at the discretion of the authorities, compatible with Union law, in particular with the principles of non-discrimination and Union citizenship under Article 6(1) of the Treaty on European Union (EU) in conjunction with Articles 12 and 17 et seq. of the EC Treaty (EC) and, if so, are those principles at least to be taken into account in the exercise of that discretion?
EN Official Journal of the European Union C 128/19

Action brought on 12 February 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-51/08)

(2008/C 128/32)

Language of the case: French

Parties

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

Defendant: Grand Duchy of Luxembourg

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 and by failing to transpose Council Directive 89/48/EEC (1) in respect of the occupation of notary, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the EC Treaty, in particular Articles 43 and 45 EC, and Directive 89/48/EEC on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration;

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

By its action, the Commission first of all alleges that the defendant, by laying down a nationality requirement for access to the profession of notary and its practice, disproportionately restricts freedom of establishment as 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 Luxemburgish 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. Those tasks, in fact, do not confer on notaries a power of coercion and 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.

By its second complaint, the Commission further alleges that the defendant failed to fulfil its obligations by failing to transpose Directive 89/48/EEC in respect of the profession of notary. As it is a regulated profession, the directive is fully applicable to that profession and the high level of qualification required of notaries could easily be guaranteed by an aptitude test or an adaptation period.

(1) Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years duration (OJ 1989 L 19, p. 16).
5.

Given that: — Article 6(2) and (5) OLW (2) lays down rules affording persons who do not have Netherlands nationality, but are in possession of a permanent Netherlands residence permit, equal treatment with Netherlands nationals and — those rules require refusal to surrender such classes of persons if the EAW concerns the enforcement of an irreversible custodial sentence, does Article 6(2) and (5) OLW result in discrimination prohibited by Article 12 EC, in that the aforementioned equal treatment does not apply equally to nationals of other Member States with a right of residence under Article 18(1) EC who will not forfeit that right of residence as a result of the imposition on them of an irreversible custodial sentence, but who are not in possession of a permanent Netherlands residence permit?
EN Official Journal of the European Union C 142/12

Reference for a preliminary ruling from the Pest Megyei Bíróság (Magyar Köztársaság) lodged on 3 March 2008 — CIBA Speciality Chemicals Central and Eastern Europe Szolgáltátó, Tanácsadó és Keresdedelmi Kft. v Adó- és Pénzügyi Ellenőrzési Hivatal Hatósági Főosztály

(Case C-96/08)

(2008/C 142/18)

Language of the case: Hungarian

Referring court

Pest Megyei Bíróság

Parties to the main proceedings

Applicants: CIBA Speciality Chemicals Central and Eastern Europe Szolgáltátó, Tanácsadó és Keresdedelmi Kft.

Defendant: Adó- és Pénzügyi Ellenőrzési Hivatal Hatósági Főosztály

Question referred

Can the principle of freedom of establishment under Articles 43 and 48 EC be interpreted as precluding a legal rule under which a trading company established in Hungary must pay a vocational training levy if it employs workers in a branch abroad and meets its tax and social security obligations with regard to such workers in the State where the branch is situated?
EN Official Journal of the European Union C 128/21

Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 27 February 2008 — David Hütter v Technische Universität Graz

(Case C-88/08)

(2008/C 128/36)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: David Hütter

Defendant: Technische Universität Graz

Question referred

Are Articles 1, 2 and 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation to be understood as precluding national legislation (1) (here: Paragraphs 3(3) and 26(1) of the Austrian Vertragsbedienstetengesetz 1948 (1948 Law on contractual employees)) which excludes accreditable previous service from being taken into account in the determination of the reference date for salary increments in so far as such service was completed before the person concerned reached the age of 18 years?

(1) OJ 2000 L 303, p. 16.
—

declare that the Republic of Austria, by not adopting the laws, regulations and administrative provisions necessary to transpose Directive 2003/18/EC of the European Parliament and of the Council of 27 March 2003 amending Council Directive 83/477/EEC on the protection of workers from the risks related to exposure to asbestos at work (1) or by not communicating those provisions to the Commission, has failed to fulfil its obligations under Article 2(1) of that directive.
1.

May the Member States ‘treat’ activities of States, regional and local government authorities and other bodies governed by public law which are exempt from tax under Article 13 of the Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (77/388/EEC) as activities in which they engage as public authorities within the meaning of the fourth subparagraph of Article 4(5) of the Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (Directive 77/388/EEC) (1) only where the Member States make express legal provision to that effect?
EN Official Journal of the European Union C 171/16

Reference for a preliminary ruling from the Tribunal Superior de Justicia de Madrid (Spain) lodged on 15 April 2008 — Real Sociedad de Fútbol SAD and Nihat Kahveci v Consejo Superior de Deportes and Real Federación Española de Fútbol

(Case C-152/08)

(2008/C 171/28)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Madrid

Parties to the main proceedings

Applicants: Real Sociedad de Fútbol SAD and Nihat Kahveci

Defendants: Consejo Superior de Deportes and Real Federación Española de Fútbol

Question referred

Does Article 37 of the EEC-Turkey Association Agreement (1), signed in Ankara on 12 September 1963 and approved by Council Decision 64/732/EEC, and its Additional Protocol of 23 November 1970 (2), preclude a sporting federation from applying a rule to a professional sportsman of Turkish nationality, lawfully employed by a Spanish football club, as in the main proceedings, under which clubs may use only a limited number of players from non-member States not belonging to the European Economic Area in national competitions?

(1) Agreement establishing an Association between the European Economic Community and Turkey, signed on 12 September 1963 in Ankara, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1964 217, p. 3685).

(2) Additional Protocol, signed on 23 November 1970 in Brussels and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ L 293, p. 1).
3.

If Question 2.1 or Question 2.2 is answered in the negative: In relation to a person who has a formed a civil partnership with a person of the same sex and who is not permanently separated from the latter, does Paragraph 10(6) of the First RGG, under which the pension entitlements of married, not permanently separated, pensioners are calculated on the basis of the notional application of tax category III/0 (more favourable to a taxable person) but the pension entitlements of all other pensioners are calculated on the basis of the notional application of tax category I (less favourable to a taxable person), constitute an infringement of Article 1 in conjunction with Article 2 and with Article 3(1)(c) of the Directive?
EN Official Journal of the European Union C 183/11

Reference for a preliminary ruling from the Amtsgericht Büdingen (Germany) lodged on 18 April 2008 — Criminal proceedings against Guido Weber

(Case C-166/08)

(2008/C 183/21)

Language of the case: German

Referring court

Amtsgericht Büdingen

Parties to the main proceedings

Prosecutor: Staatsanwaltschaft b.d. LG Gießen

Defendant: Guido Weber

Question referred

Is the second sentence of Article 7(1) of Council Directive 89/397/EEC of 14 June 1989 on the official control of foodstuffs (1) to be interpreted, with regard to the expression ‘those subject to inspection’, as applying not only to the manufacturer of the foodstuff but also to the person marketing it, to the extent that the latter is to be held responsible by the prosecuting authorities for the condition and labelling of the foodstuff in proceedings relating to the imposition of criminal penalties or administrative fines?

(1) OJ 1989 L 186, p. 23.
—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/83/EC (1) of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, the Portuguese Republic has failed to fulfil its obligations under Article 38(1) of Directive 2004/83/EC;
1.

Does the consumer protection guaranteed by Council Directive 93/13/EEC of 5 April 1993 (1) on unfair terms in consumer contracts require that — irrespective of the type of proceedings and whether they are inter partes or not — in the context of the review of their own competences, the national courts are to assess, of their own motion, the unfair nature of a contractual term before them even if not specifically requested to do so?
2.

When the level of cover of hospital costs applicable under the rules of another Member State is less favourable than that provided under Spanish legislation, the refusal of the Spanish authorities to reimburse the difference may dissuade persons entitled under the Sistema Nacional de Salud to move to that Member State in order to receive non-medical services (for example, educational or tourist services) or, in the case of persons entitled who have already moved, induce them to return sooner in order to receive free hospital treatment in Spain. The Spanish provision at issue may therefore restrict both the provision of those various medical services which initially motivate the temporary move of a person entitled to another Member State, and the subsequent provision of medical services in that Member State in accordance with Article 22(1)(a)(i) of Regulation 1408/71.
EN Official Journal of the European Union C 197/13

Reference for a preliminary ruling from the Tribunale Ordinario di Milano (Italy) lodged on 22 May 2008 — Rita Mariano v Istituto nazionale per l'assicurazione contro gli infortuni sul lavoro (INAIL)

(Case C-217/08)

(2008/C 197/22)

Language of the case: Italian

Referring court

Tribunale Ordinario di Milano

Parties to the main proceedings

Applicant: Rita Mariano

Defendant: Istituto nazionale per l'assicurazione contro gli infortuni sul lavoro (INAIL)

Question referred

Whether Articles 12 and 13 of the EC Treaty preclude the application of Article 85 of DPR No 1124/1965 in so far as it provides that, in the event of death as a result of an accident, only a spouse is entitled to an INAIL annuity at the rate of 50 % and a child [of a non-spouse] is entitled only to an annuity at the rate of 20 %.
2.

Does it follow from general legal principles of Community law, in particular from the principles of a right to a fair trial, sound administration and the rule of law, that service of the instrument permitting enforcement (enforcement order) on the debtor in a language other than one he understands, which, moreover, is not an official language of the State in which it is served on the debtor, constitutes a defect which makes it possible to refuse to enforce on the basis of such an instrument permitting enforcement (enforcement order)?
EN Official Journal of the European Union C 209/24

Action brought on 21 May 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-222/08)

(2008/C 209/35)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: H. van Vliet and A. Nijenhuis, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

— Declare that, by virtue of the transposition into national law of the provisions on the costing and financing of universal service obligations, the Kingdom of Belgium has failed to fulfil its obligations under Articles 12(1), 13(1), and Annex IV, part A, of Directive 2002/22/EC;

— order Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The objective of Directive 2002/22 is, inter alia, to define the situations in which the market does not satisfactorily meet the needs of end-users and the directive contains provisions regarding the availability of the universal service. Article 12(1) of the directive provides that where national regulatory authorities consider that the provision of universal service may represent an unfair burden on undertakings designated to provide universal service, they are to calculate the net costs of its provision in the manner set out in that article. Annex IV, part A, contains provisions concerning the calculation of the net costs. Article 13(1) provides that where, on the basis of the net cost calculation referred to in Article 12, national regulatory authorities find that an undertaking is subject to an unfair burden, the Member States are, upon request from a designated undertaking, to decide to introduce a compensation mechanism.

According to the Commission, Belgium has not correctly transposed the provisions of Article 12(1), Article 13(1) and Annex IV, part A, of the directive. The Belgian legislation provides for no assessment of the question whether the provision of social tariffs in the course of performing the universal service represents an unfair burden for the undertakings concerned. Furthermore the Belgian legislation does not satisfy the requirement concerning the costing of net costs set out more particularly in the last section of Annex IV, part A, to the directive.
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/29/EC (1) 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’), or in any event by failing to notify the Commission thereof, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;
—

Declare that the Republic of Hungary has failed to fulfil its obligations under 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 (1), by failing to adopt the laws, regulations and administrative provisions necessary to comply with that directive and, in any event, by failing to communicate them to the Commission;