ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 326/16

Request for a preliminary ruling from the Audiencia Provincial de Navarra (Spain) lodged on 27 June 2016 — Instituto de Religiosas Oblatas del Santísimo Redentor v Joaquín Taberna Carvajal

(Case C-352/16)

(2016/C 326/27)

Language of the case: Spanish

Referring court

Audiencia Provincial de Navarra

Parties to the main proceedings

Appellant: Instituto de Religiosas Oblatas del Santísimo Redentor

Respondent: Joaquín Taberna Carvajal

Question referred

Is Royal Decree 1373/2003 compatible with Article 4(3) [TEU] and Article 101 TFEU, given that, even though that legal provision was enacted by the State, the courts may not review whether, in the light of the circumstances of the case, the amount of the tariff is excessive, this being a limitation of judicial review which, regardless of the importance and quality of the services, might constitute a restriction of free competition?
EN Official Journal of the European Union C 314/14

Action brought on 8 July 2016 — European Commission v Federal Republic of Germany

(Case C-380/16)

(2016/C 314/20)

Language of the case: German

Parties

Applicant: European Commission (represented by: M. Owsiany-Hornung and M. Wasmeier, Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

— declare that, pursuant to the first paragraph of Article 258 of the Treaty on the Functioning of the European Union, the Federal Republic of Germany has failed to fulfil its obligations under Article 73 and Articles 306 to 310 of the VAT Directive (Directive 2006/112/EC) by excluding travel services used by taxable persons for their business from the special scheme for travel agents and allowing travel agents, in so far as the special scheme is applicable to them, to determine on a flat-rate basis the tax assessment base for groups of services and for each taxable period;

— order the Federal Republic of Germany to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant submits that the scheme laid down in Germany for the calculation of value added tax on travel services is not consistent with Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax. (1) That directive provides, in Articles 306 to 310, a special scheme under which the travel services provided by a travel agent to a customer are to be treated as a single service. German law unlawfully departs from that scheme.

First, it is not permitted to exclude taxable persons who use travel services for their business from the application of the special scheme. The Court has already ruled in its judgment of 26 September 2013 in Case C-189/11, (2) Commission v Spain, that the special scheme must be applied not only to services provided to private final consumers but also to services provided to taxable traders. It is not open to the Member States to restrict the application of that scheme solely to the former category.

Second, the method of calculation provided for under the German law on turnover tax is incompatible with Directive 2006/112/EC. Pursuant to Article 73 and Articles 306 to 310 of that directive, the taxable amount must be determined separately for each journey. German law, by contrast, permits a flat-rate calculation of the profit margin for ‘groups of services’ or for all journeys within a specified period of time. The Court also held in the abovementioned judgment that a flat-rate calculation of that kind is not consistent with the common system of value added tax.

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

(2) EU:C:2013:587.
EN Official Journal of the European Union C 335/38

Request for a preliminary ruling from the Hof van Cassatie (Belgium) lodged on 24 June 2016 — Ömer Altun and Others, Absa NV and Others v Openbaar Ministerie

(Case C-359/16)

(2016/C 335/52)

Language of the case: Dutch

Referring court

Hof van Cassatie

Parties to the main proceedings

Appellants: Ömer Altun, Abubekir Altun, Sedrettin Maksutogullari, Yunus Altun, Absa NV, M. Sedat BVBA, Alnur BVBA

Respondent: Openbaar Ministerie

Question referred

Can an E101 certificate issued under Article 11(1) of Regulation (EEC) No 574/72 (1) of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as applicable before its repeal by Article 96(1) of Regulation (EC) No 987/2009 (2) laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, be annulled or disregarded by a court other than that of the sending Member State if the facts which are submitted to its scrutiny support the conclusion that the certificate was obtained or invoked fraudulently?

(1) (OJ 1972 L 74, p. 1).

(2) 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 (OJ 2009 L 284, p. 1).
EN Official Journal of the European Union C 335/30

Request for a preliminary ruling from the Sąd Okręgowy w Gorzowie Wielkopolskim (Poland) lodged on 19 April 2016 — Aleksandra Kubicka

(Case C-218/16)

(2016/C 335/39)

Language of the case: Polish

Referring court

Sąd Okręgowy w Gorzowie Wielkopolskim

Applicant in the main proceedings

Aleksandra Kubicka

Question referred

Must Article 1(2)(k), Article 1(2)(1) and Article 31 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (1) be interpreted as permitting refusal to recognise the material effects of a legacy by vindication (legatum per vindicationem), as provided for by [Polish] succession law, if that legacy concerns the right of ownership of immovable property located in a Member State the law of which does not provide for legacies having direct material effect?

(1) OJ 2012 L 201, p. 107.
2.

In the alternative, in the event that the Court answers the question on the interpretation of Article 267(3) TFEU to the effect that reference for a preliminary ruling is compulsory: do the provisions and principles set out in Article 26 TFEU (The internal market), Article 49 TFEU (Right of establishment), Article 56 TFEU (Freedom to provide services), Article 63 TFEU (Free movement of capital) and Article 16 of the Charter of Fundamental Rights of the European Union (Freedom to conduct a business) and the general principle of the protection of legitimate expectations (which ‘is among the fundamental principles of the European Union’, as stated by the Court of Justice in the judgment of 14 March 2013 in Agrargenossenschaft Neuzelle, C-545/11) preclude the adoption and application of national regulations (Article 1(78)(b), subsections 4, 8, 9, 17, 23 and 25, of Law No 220/2010) which lay down new requirements and obligations for concession holders in the sector of the online operation of legal gaming, including existing concession holders, by means of an addendum to the existing agreement (and without any period for gradual compliance)?
EN Official Journal of the European Union C 335/30

Appeal brought on 12 February 2016 by European Dynamics Luxembourg SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Fourth Chamber) delivered on 2 December 2015 in Case T-553/13: European Dynamics Luxembourg and Evropaïki Dynamiki v Fusion for Energy

(Case C-88/16 P)

(2016/C 335/38)

Language of the case: English

Parties

Appellants: European Dynamics Luxembourg SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: M. Sfyri, C.-N. Dede, D. Papadopoulou, dikigoroi)

Other party to the proceedings: European Joint Undertaking for ITER and the Development of Fusion Energy (Fusion for Energy)

By order of 7 July 2016 the Court of Justice (Ninth Chamber) held that the appeal was inadmissible.
Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 5 August 2016 — Criminal proceedings against Emil Milev

(Case C-439/16)

(2016/C 364/07)

Language of the case: Bulgarian

Referring court

Spetsializiran nakazatelen sad

Party to the main proceedings

Emil Milev

Question referred

Is a domestic precedent — in particular a binding Opinion of the Varhoven Sad [(Bulgarian Supreme Court of Cassation; ‘the Supreme Court’)] (delivered after the adoption of Directive 2016/343 (1) of 9 March 2016 but before the time limit for its transposition has passed), pursuant to which the Varhoven Sad [(Supreme Court)], after having established that there is a conflict between Article 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms [(‘the ECHR’)], read in conjunction with Article 5(1)(c) thereof, and national legislation (Article 270(2) of the [Bulgarian] Criminal Procedure Code (Nakazatelno-protsesualen kodeks)) relating to the issue of whether to take into consideration the reasonable grounds for assuming that an offence was committed (within the context of a procedure for reviewing the extension of a coercive measure of ‘remand in custody’ during the litigation stage of criminal proceedings), grants to the courts dealing with the substance of the case the power to decide whether to comply with the [ECHR] — consistent with Article 3 of Directive 2016/343 of 9 March 2016 and Article 6 thereof (relating to the presumption of innocence and the burden of proof within the context of criminal proceedings)?

(1) Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).
EN Official Journal of the European Union C 343/33

Request for a preliminary ruling from the Raad voor Vreemdelingenbetwistingen (Belgium) lodged on 5 July 2016 — H. F. v Belgische Staat

(Case C-366/16)

(2016/C 343/44)

Language of the case: Dutch

Referring court

Raad voor Vreemdelingenbetwistingen

Parties to the main proceedings

Applicant: H. F.

Defendant: Belgische Staat

Question referred

Should Union law, in particular Article 27(2) of the Citizenship Directive (1), whether or not in conjunction with Article 7 of the Charter, be interpreted as meaning that a residence application, lodged by a third-country family member in the context of family reunification with a Union citizen, who in turn has used his right of free movement and residence, can be refused in a Member State because of a threat resulting from the mere presence in society of that family member, who in another Member State was excluded from refugee status pursuant to Article 1F of the Refugee Convention and Article 12(2) of the Qualification Directive (2) because of his involvement in events within a certain socio-historical context in his country of origin, where the genuineness and the reality of the threat posed by the conduct of that family member in the Member State of residence is based solely on a reference to the exclusion decision in the absence of an assessment of the risk of recidivism in the Member State of residence?

(1) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).

(2) Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9).
1.

Does Article 1, and in particular paragraph (b) thereof, of Council Directive 2001/23/EC (1) of 12 March 2001 apply to a situation such as that of the present case, in which a municipal undertaking (whose sole shareholder is the municipality) is dissolved (by decision of the municipality’s executive body), and the activities carried on by it are allocated in part to the municipality and in part to another municipal undertaking (whose objects were altered to that end — and which is also wholly owned by the municipality), that is, in those circumstances may it be considered that there has been a transfer of a business within the meaning of the abovementioned directive?
2.

In particular, the Bank has identified three grounds of appeal concerning errors of law in the General Court’s assessment of the substance of the Bank’s application: (1) The General Court erred in law in the interpretation and application of the requirement of ‘necessity’ in Article 215 of the Treaty on the Functioning of the European Union (‘TFEU’) (1st Ground). (2) The General Court erred in finding that the Financial Embargo was proportionate, entailing a number of further specific errors of law (2nd Ground). (3) The General Court erred in holding that the Financial Embargo was compliant with other general principles of EU law (3rd Ground).
1.

First ground, alleging infringement of Article 47 of the Charter and Article 92(1) of the Rules of Procedure of the General Court, especially with regard to the failure to fulfil the obligation to provide information regarding the burden of proof, in so far as, in the opinion of the appellants, before delivering its judgment, the General Court did not inform the parties to the proceedings that it considered the questions whether the implementation of the policy of cohesion of the European Union, both by the EU and by the Member States, may threaten the specific characteristics of regions with a national minority and whether the specific ethnic, cultural, religious or linguistic characteristics of regions with a national minority may be considered a severe and permanent handicap within the meaning of the third paragraph of Article 174 TFEU to be questions of fact which must be examined in the proceedings.
2.

The General Court erred in law by applying an incorrect legal standard and erred in law in the assessment of the evidence, and in any event, breached its duties as regards judicial review by considering that the appellant had merely adduced ‘statements of its managing directors’ (actually sworn statements of TQ’s managing directors) with a view to demonstrating that the executive and control powers of GSW, as sole administrator, were delegated to the respective managing directors of TQ, and that TQ operated independently in the market. Moreover, the General Court failed to state reasons since it did not explain why the sworn statements of TQ’s managing directors relied on by that party were insufficient evidence.
2.

In the event of an objective individual dismissal for economic, technical, organisational or productive reasons, is there a requirement, in order to decide whether exceptional cases exist that justify the dismissal of pregnant workers and workers who have recently given birth or are breastfeeding, in accordance with Article 10(1) of Directive 92/85/EEC, that the worker affected cannot be reassigned to another work post, or that there are no other workers in similar posts who may be affected, or is it sufficient that proof should be given of economic, technical and productive reasons that affect her work post?
II.

Second Ground of Appeal: Infringement of Article 7(1)(b) of Regulation No. 207/2009 Non-application of the Principle of Speciality 4. The General Court qualified the relevant goods in an overly broad sense as inexpensive, everyday consumer goods, the purchase of which is not preceded by a lengthy period of reflection. This led to the General Court’s wrong conclusion that the relevant public would have a low level of attention particularly with respect to the features on the packaging. 5. The General Court should rather have analysed with respect to the very specific products (i.e., confectionary, chocolate, chocolate products, pastries and ice-creams) what level of attention the consumers do apply and what role the very specific packaging as covered by the mark applied for thereby plays. The General Court missed to look at the very typical purchase situation with respect to those products. 6. By not taking into account the specifics of the relevant goods the General Court did not apply the principle of speciality. Had the General Court done it correctly, it would have taken into account that consumers of the relevant goods are used to give a high level of attention to the colours, the shape and the design of the packaging. The consumers of the relevant goods would have no problems at all to identify the source of the products on the mere basis of the combination of lines, colours and shapes as it is covered by the mark applied for.
2.

If the first question is answered in the negative: In a case such as the present, is it necessary to disapply a provision of national law — such as, in the present case, the first alternative of Paragraph 9(1) of the AGG (Allgemeines Gleichbehandlungsgesetz, General Law on equal treatment) — which provides that a difference of treatment on the ground of religion in the context of employment with religious bodies and the organisations adhering to them is also lawful where adherence to a specific religion, in accordance with the self-conception of the religious body, having regard to its right of self-determination, constitutes a justified occupational requirement?
1.

Must Article 107(1) TFEU be interpreted as meaning that the obligation to purchase the electricity generated by plants which use solar radiation energy at a price higher than the market price, that is financed by all final consumers of electricity, as it results from the Ministerial Orders of 10 July 2006 (JORF No 171 of 26 July 2006, p. 11133) and 12 January 2010 (JORF No 0011 of 14 January 2010, p. 727) fixing the conditions for purchasing that electricity, read in conjunction with Law No 2000-108 of 10 February 2000 on the modernisation and development of the public electricity service, Decree No 2000-1196 of 6 December 2000 and Decree No 2001-410 of 10 May 2001, constitutes State aid?
—

declare that in not adopting by 1 June 2015 the laws, regulations and administrative provisions necessary to comply with Directive 2014/27/EU of the European Parliament and of the Council of 26 February 2014 amending Council Directives 92/58/EEC, 92/85/EEC, 94/33/EC, 98/24/EC and Directive 2004/37/EC of the European Parliament and of the Council, in order to align them to Regulation 1272/2008 on classification, labelling and packaging of substances and mixtures, or at least in not informing the Commission of those measures, the Grand Duchy of Luxembourg failed to comply with its obligations under Article 6(1) of Directive 2014/27/EU;
EN Official Journal of the European Union C 14/25

Request for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 26 October 2016 — Länsförsäkringar Sak Försäkringsaktiebolag and Others v Dödsboet efter Ingvar Mattsson, Länsförsäkringar Sak Försäkringsaktiebolag

(Case C-542/16)

(2017/C 014/31)

Language of the case: Swedish

Referring court

Högsta domstolen

Parties to the main proceedings

Applicants: Länsförsäkringar Sak Försäkringsaktiebolag, Jan-Herik Strobel, Mona Strobel, Margareta Nilsson, Per Nilsson, Kent Danås, Dödsboet efter Tommy Jönsson, Stefan Pramryd, Stefan Ingemansson, Lars Persson, Magnus Persson, Anne-Charlotte Wickström, Peter Nilsson, Ingela Landau, Thomas Landau, Britt-Inger Ruth Romare, Gertrud Andersson, Eva Andersson, Rolf Andersson, Lisa Bergström, Bo Sörensson, Christina Sörensson, Kaj Wirenkook, Lena Bergquist Johansson, Agneta Danås, Hans Eriksson, Christina Forsberg, Christina Danielsson, Per-Olof Danielsson, Ann-Christin Jönsson, Åke Jönsson, Stefan Lindgren, Daniel Röme, Ulla Nilsson, Dödsboet efter Leif Göran Erik Nilsson

Defendants: Dödsboet efter Ingvar Mattsson, Länsförsäkringar Sak Försäkringsaktiebolag

Questions referred

1 (a) Does Directive 2002/92 (1) cover activity where an insurance intermediary had no intention of concluding an actual insurance contract? Is it relevant whether such an intention was absent before the activity was commenced or came into being only subsequently? (b) In the situation envisaged in question 1(a), is it relevant if the intermediary has also carried out proper insurance mediation activity alongside the fictive activity? (c) Also in the situation envisaged in question 1(a), is it relevant that the activity appeared, prima facie, to the client to be work preparatory to the conclusion of an insurance contract? Is the client’s understanding, be it well founded or unfounded, of whether insurance mediation was involved of any relevance?

2 (a) Does Directive 2002/92 govern advice, economic or other, given in connection with insurance mediation but which as such does not concern the actual signing or continuation of an insurance contract? In that regard, what does apply, in particular, as regards advice concerning the placing of capital in the context of capital assurance? (b) Is advice such as that referred to in question 2(a), where, by definition, it constitutes investment advice under Directive 2004/39, (2) also or instead covered by the provisions of that directive? If such advice is also covered by Directive 2004/39, does one set of rules take precedence over the other?

(1) Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation (OJ 2003 L 9, p. 3).

(2) Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1).
(a)

where a tenderer (the applicant) has become aware of the rejection of the lowest-priced tender submitted by one of two related tenderers in a public tendering procedure (tenderer A) and of the fact that the other tenderer (tenderer B) has been declared the successful tenderer, and also having regard to other circumstances connected with those tenderers and their participation in the tendering procedure (the fact that tenderers A and B have the same board of directors; the fact that they have the same parent company, which did not take part in the tendering procedure; the fact that tenderers A and B did not disclose their links to the contracting authority and did not separately provide additional clarifications as to those links, inter alia because no inquiries had been made of them; the fact that tenderer A provided, in its tender, inconsistent information on the compliance by the proposed means of transport (refuse lorries) with the EURO V condition of the call for tenders; the fact that that tenderer, which submitted the lowest-priced tender, which was rejected because of deficiencies identified in it, first, did not challenge the contracting authority’s decision and, second, lodged an appeal against the judgment of the court of first instance, in which appeal, inter alia, it [challenged] the lawfulness of the rejection of its tender; etc.), and where, in respect of all of those circumstances, the contracting authority did not take any action, is that information alone sufficient to found a claim addressed to the review body that it should regard as unlawful the actions of the contracting authority in failing to ensure procedural transparency and objectivity, and, in addition, in not requiring the applicant to provide concrete evidence that tenderers A and B were acting unfairly?