ddrg/super_eurlex huggingface dataset:
6.

More particularly, if the granting of an environmental permit and/or other measures contributes to the national emission ceilings for SO2 and/or NOx in the NEC Directive being exceeded or the risk of their being exceeded, is an individual entitled, on the basis of Article 4 of that Directive: (a) to make a general claim that the Member State concerned should adopt a package of measures which, by 2010 at the latest, would limit the annual national emissions of SO2 and NOx to amounts not greater than the national emission ceilings in the NEC Directive, or, if that does not succeed, a package of measures which would limit the emissions to those amounts as soon as possible thereafter? (b) to make concrete claims that the Member State concerned should adopt specific measures in respect of an individual installation — for example, by refusing a permit or attaching further conditions or restrictions to the permit — which, by the year 2010 at the latest, would contribute to the annual national emissions of SO2 and NOx being limited to amounts not greater than the emission ceilings in the NEC Directive, or, if that does not succeed, specific measures which would contribute to the emissions being limited to those amounts as soon as possible thereafter? (c) In answering questions 6(a) and 6(b), is the extent to which the installation contributes to the emission ceiling being exceeded, or the risk of it being exceeded, of significance?
4.

With regard to Article 10(1) of Framework Decision 2001/220/JHA, do the words ‘[e]ach Member State shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure’ mean that the option of mediation in criminal proceedings must be generally available, provided that all the prerequisite legal conditions are satisfied, and that there is no room for discretion?. That is to say, if the reply to the question is in the affirmative, is the existence of a condition worded as follows: ‘[where] having regard to the nature of the offence, the form of responsibility and the person of the suspect, the legal proceedings may be omitted or there are grounds for believing that the court will take into account active repentance at the time of sentencing’ compatible with the provisions (requirements) of Article 10?
1.

Is the national legislation enacted by Legislative Decree No 81 of 9 April 2008, in particular the rule in Article 90(11) thereof, in breach of the rules laid down in Article 3 of Directive 92/57/EEC, (1) in so far as it derogates, for private works not subject to planning permission, from the requirement imposed on the client or the project supervisor in Article 90(3) of the decree to appoint a coordinator for the preparation stage for a construction site on which more than one contractor is present and fails to give any consideration to the nature of the works or to whether there are particular risks of the kind listed in Annex II to the directive?
1.

Do the provisions of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation preclude the application of a national Law which does not permit the conclusion of employment contracts of indefinite duration with professors who have reached the age of 65? In this context and, more precisely, taking Article 6(1) of the directive into consideration, are the measures in Article 7(1)(6) of the Law on Protection against Discrimination, which introduce age-limits for employment in specific posts, objectively and reasonably, justified by a legitimate aim and proportionate, bearing in mind that the directive has been fully transposed into Bulgarian law?
—

Declare that, by authorising, in the Walloon Region, the functioning of existing installations which do not comply with the requirements provided for in Articles 3, 7, 9, 10, 13, 14(a) and (b) and 15(2), and that despite the expiry of the 30 October 2007 time-limit, as is provided for in Article 5(1) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (1), the Kingdom of Belgium has failed to fulfil its obligations under that directive;
1.

Under Article 14 of the Spanish Law on personal income tax and partially amending the laws on the taxation of corporations, non-residents’ income and wealth, revenue is subject to tax in the year in which it is received. Nevertheless, Article 14(2) contains special rules which make it possible to impute certain types of income to different tax periods. In cases in which a taxpayer transfers his residence abroad, however, Article 14(3) provides that all income not yet charged to tax is to be included in the tax base for the last tax year in which the taxpayer concerned was considered to be resident.
—

Declare that the Kingdom of Spain has failed to fulfil its obligations under Article 4(2), (3), (4) and (5) of Council Directive 1999/22/EC of 29 March 1999 relating to the keeping of wild animals in zoos, (1) in respect of certain zoos in the Autonomous Communities of Aragon, Asturias, the Balearic Islands, the Canary Islands, Cantabria, Castile and Leon, Valencia, Extremadura and Galicia: — by failing to ensure that, by the date laid down in the Directive, all the zoos in its territory were licensed in accordance with paragraphs 2, 3 and, in the cases of Aragon, Asturias, the Canary Islands, Cantabria and Castile and Leon, 4 of Article 4 of the Directive; and — by failing to order the closure of zoos, in accordance with Article 4(5) of the Directive, where they were not licensed;
—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC (1) of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC, or in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;
—

Declare that, by failing to take, within the prescribed time-limits, all the measures necessary to withdraw the aid scheme considered unlawful and incompatible with the common market by Commission Decision 2005/315/EC of 20 October 2004 on the prolongation of the ‘Tremonti-bis’ law in favour of municipalities seriously affected by natural disaters in 2002 (notified on 22 October 2004 under document No C(2004) 3893) (OJ 2005 L 100, p. 46) and to recover from the beneficiaries the aid granted under that scheme, the Italian Republic has failed to fulfil its obligations under Articles 2, 5 and 6 of that decision and the EC Treaty.
2.

If the first question is answered in the affirmative, should a person who is employed under a contract of employment by an employer in the public sector and who is subject, under the national scheme, to the social security scheme for employed persons in respect of some of the branches of social security referred to in Article 4(1) of the Regulation and to a special scheme for civil servants in respect of the branches of social security referred to in Article 4(1)(e) of the Regulation be regarded as a person treated as a civil servant within the meaning of Article 13(2)(d) of Regulation No 1408/71?
1.

When separate development consents are required for, on the one hand, the infrastructure works for an airport with a basic runway length of 2 100 m or more and, on the other hand, for the operation of that airport, and the latter development consent — the environmental permit — is only granted for a fixed period, should the term ‘construction’, referred to in paragraph 7(a) of Annex I to Council Directive 85/337/EEC (1) of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, be interpreted as meaning that an environmental impact report should be compiled not only for the execution of the infrastructure works but also for the operation of the airport?
EN Official Journal of the European Union C 282/30

Appeal brought on 25 September 2009 by Melli Bank plc against the judgment of the Court of First Instance (Second Chamber) delivered on 9 July 2009 in Joined Cases T-246/08 and T-332/08: Melli Bank plc v Council of the European Union, supported by French Republic, United Kingdom of Great Britain and Northern Ireland, Commission of the European Communities

(Case C-380/09 P)

2009/C 282/52

Language of the case: English

Parties

Appellant: Melli Bank plc (represented by: S. Gadhia, Solicitor, T. Din, Solicitor, D. Anderson QC, R. Blakeley, Barrister)

Other parties to the proceedings: Council of the European Union, French Republic, United Kingdom of Great Britain and Northern Ireland, Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

— Set aside the contested judgment;

— Allow the applications in Cases T-246/08 and T-332/08;

— Annul paragraph 4 of Table B of the Annex to Council Decision 2008/475/EC (1) concerning restrictive measures against Iran, in so far as it relates to Melli Bank plc;

— If the Court finds that Article 7(2)(d) of the Regulation is mandatory in effect, to declare Article 7(2)(d) of Council Regulation 423/2007/EC (2) inapplicable; and

— Order the Council to pay the costs of the appeal and of the proceedings before the Court of First Instance.

Pleas in law and main arguments

The Appellant submits that in the Contested Judgment the CFI erred in law in a number of respects and in so doing acted in breach of Community law in four principal respects:

1) The CFI erred in law in incorrectly interpreting Article 7(2)(d) of the Regulation as being a mandatory provision;

2) The CFI erred in law in holding that Article 7(2)(d) of the Regulation was consistent with the Community law principle of proportionality;

3) The CFI erred in law in the formulation and application of the test for determining whether the Appellant was owned and controlled by the Parent; and

4) The CFI erred in law in concluding that the Council had satisfied its obligation to give reasons for its decision to list the Appellant.

Consequently, the Appellant requests that the Court of Justice:

1) Set aside the Contested Judgment;

2) Allow the applications in Cases T-246/08 and T-332/08;

3) Annul paragraph 4 of Table B of the Annex to Council Decision 2008/475/EC concerning restrictive measures against Iran, in so far as it relates to Melli Bank plc;

4) If the Court finds that Article 7(2)(d) of the Regulation purports to be mandatory in effect, declare Article 7(2)(d) of Council Regulation 423/2007/EC inapplicable; and

5) Order the Council to pay the costs of the appeal and of the proceedings before the Court of First Instance.

(1) Council Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, OJ L 163, p. 29

(2) Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran,

OJ L 103, p. 1

OJ L 335M, p. 969 (MT)
1.

By its first ground of appeal, A2A SpA alleges that the Court of First Instance infringed Article 87(1) EC and failed to state adequate reasons, in so far as the judgment classifies the three-year income tax exemption as State aid. In particular, according to the appellant, the Commission failed to demonstrate in the Decision that, in the circumstances of the case, two of the conditions laid down in Article 87(1) EC, namely the distortion of competition and the effect on trade between Member States, are satisfied. Moreover, the Court of First Instance failed properly to verify the assumptions on which the Commission based its conclusion that the measure in question was to be classified as ‘aid’, which it was, in fact, required to do in accordance with its duty to carry out a ‘comprehensive’ review imposed by Community case-law.
2.

Can an international control and supervisory agency approved by the Member State in which the export declaration was accepted — in this case, Belgium — which has submitted a false certificate of unloading within the meaning of Article 18(2)(c) of Regulation (EEC) No 3665/87 (2) be deemed to be an economic operator within the meaning of Article 1 of Regulation No 2988/95, or a person who has taken part in the irregularity or is under a duty to take responsibility for the irregularity or to ensure that it is not committed, within the meaning of Article 7 of Regulation No 2988/95?
—

that by failing to grant non-discriminatory access to its transmission system the Slovak Republic has failed to fulfil its obligations under Articles 20(1) and 9(e) of European Parliament and Council Directive 2003/54/EC of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (1)
1.

Can Council Directive 89/48/EEC (1) and Directive 98/5/EC (2) of the Parliament and of the Council be interpreted as meaning that the applicant, a German citizen licensed to practise law in Germany where he is a member of the Bar Association, but who has a permit to live and work in Hungary, has the right to use, in legal and administrative proceedings, the title ‘ügyvéd’ (lawyer), which is the official title in the host Member State (Hungary), in addition to the German title ‘Rechtsanwalt’ (lawyer) and the Hungarian title ‘európaiközösségi jogász’ (Community lawyer), in spite of the fact that he is not admitted to the Bar Association in Hungary and has not obtained any form of authorisation?
If so, is Article 1(10) of Directive 2003/49 to be interpreted as meaning that a Member State has the option of not applying the directive even where the conditions set out in Article 3(b) in relation to the existence of an associated company have not yet been maintained for an uninterrupted period of at least two years at the time of payment of the interest?

Can the Member States rely, in respect of the paying company, directly on Article 1(10) of the directive in those circumstances?
1.

Is it compatible with Community law that the Italian State may, in relation to the period preceding the adoption of the first national legislation implementing Directive 82/76/EEC, (1) lawfully rely on five-year limitation or ten-year ordinary limitation, in respect of a right arising under that directive? — without thereby definitively preventing that right, relating to pay/essential needs, from being exercised, or, failing which, an action for compensation/damages from being brought?
(c)

it was acquired during the lawful pursuit of the professional activity, that is to say, under the terms and conditions of the relevant legislation of the Member State in which it was acquired, thereby excluding experience acquired in the profession concerned in the host Member State before the application was accepted, because the profession concerned cannot be lawfully pursued in the host Member State before the application is accepted (subject of course to Article 5 of the Directive, which allows the applicant, subject to conditions, in order to undergo professional education and training not undergone in the Member State of origin, to pursue the profession in the host Member State with the assistance of a qualified member of the profession)?
EN Official Journal of the European Union C 24/26

Reference for a preliminary ruling from the Bundes verwaltungsgericht (Germany) lodged on 9 November 2009 — Attila Belkiran v Lord Mayor of Krefeld — Other party to the proceedings: The representative for federal interests at the Bundesverwaltungsgericht

(Case C-436/09)

2010/C 24/47

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Attila Belkiran

Defendant: Lord Mayor of Krefeld

Other party to the proceedings: The representative for federal interests at the Bundesverwaltungsgericht

Question referred

Is the protection against expulsion provided for in Article 14(1) of Decision No 1/80 (of the EEC-Turkey Association Council) and enjoyed by a Turkish national, whose legal status derives from Article 7 of Decision No 1/80 and who has resided for the previous ten years in the Member State in respect of which this legal status applies, to be determined in accordance with Article 28(3)(a) of Directive 2004/38/EC (1), with the result that expulsion is permitted only on imperative grounds of public security, as defined by Member States?

(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)
EN Official Journal of the European Union C 37/20

Reference for a preliminary ruling from the Tribunal da Relação do Porto lodged on 30 November 2009 — Manuel Carvalho Ferreira Santos v Companhia Europeia de Seguros, S.A.

(Case C-484/09)

2010/C 37/21

Language of the case: Portuguese

Referring court

Tribunal da Relação do Porto

Parties to the main proceedings

Appellant: Manuel Carvalho Ferreira Santos

Respondent: Companhia Europeia de Seguros S.A.

Question referred

In a motor vehicle collision in which none of the drivers is liable for the accident on the basis of fault, and which has caused personal injury and material loss to one of the drivers (the injured party claiming compensation), is it contrary to Community law, in particular Article 3(1) of the First Directive (Directive 72/166/EEC), (1) Article 2(1) of the Second Directive (84/5/EEC) (2) and Article 1 of the Third Directive (90/232/EEC), (3) as those provisions have been interpreted by the Court of Justice of the European Communities, for it to be possible to apportion liability for risk (Article 506(1) and (2) of the Portuguese Civil Code) with a direct impact on the amount of compensation to be awarded to the injured party for the material and non-material loss resulting from the personal injuries suffered (since that apportionment of liability for risk will entail a commensurate reduction in the amount of compensation)?

(1) Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ, English Special Edition 1972 (II), p. 360).

(2) Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17).

(3) Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33).
EN Official Journal of the European Union C 37/22

Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 2 December 2009 — Nokia Corporation v Her Majesty's Commissioners of Revenue and Customs

(Case C-495/09)

2010/C 37/26

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicant: Nokia Corporation

Defendant: Her Majesty's Commissioners of Revenue and Customs

Question referred

Are non-Community goods bearing a Community trade mark which are subject to customs supervision in a Member State and in transit from a non-Member State to another non-Member State capable of constituting ‘counterfeit goods’ within the meaning of Article 2(1)(a) of Regulation 1383/2003/EC (1) if there is no evidence to suggest that those goods will be put ton the market in the EC, either in conformity with a customs procedure or by means of an illicit diversion.

(1) Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights

OJ L 196, p. 7
2.

In situations in which the breach of Directive 91/628/EEC has not resulted in the death of the animals, are courts generally under an obligation to examine whether the competent authority of the Member State applied Article 5(3) of Commission Regulation (EC) No 615/98 of 18 March 1998 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport (3) in a manner consistent with the principle of proportionality?
—

Declare that, by permitting the discharge of industrial waste water from the industrial unit ‘Estação de Serviço Sobritos’, situated in the Matosinhos area, without adequate authorisation, the Portuguese Republic has failed to fulfil its obligations under Article 11(1) and (2) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment. (1)
EN Official Journal of the European Union C 51/26

Appeal brought on 23 December 2009 by BCS SpA against the judgment of the Court of First Instance (Eighth Chamber) delivered on 28 October 2009 in Case T-137/08: BCS SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-553/09 P)

2010/C 51/42

Language of the case: English

Parties

Appellant: BCS SpA (represented by: M. Franzosi, V. Jandoli, F. Santonocito, avvocati)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Deere & Company

Form of order sought

The appellant claims that the Court should:

— annul the contested decisions;

— declare the nullity of CTM ‘289;

— order the counterpart to pay the costs.

Pleas in law and main arguments

The appellant submits that the contested judgment is vitiated by following errors in law:

I. the Court of First Instance wrongfully interpreted Article 7 (1) (b) and 7 (3) CTMR (1), by claiming that the acquisition of distinctive character in a sign does not depend on its past and present exclusive use (moreover, said use has not been proven; rather, in the same decision, it is held to be denied in some countries);

II. the CFI wrongfully applied the criteria set forth in the Community case-law for ascertaining the acquisition of distinctiveness, in violation of Article 7 (3) CTMR.

Under I. the lack of exclusive use in other parts of the Community is proven by the statements made by third-parties in Denmark and Ireland. Indeed the lack of a univocal association between the green and yellow color combination and Deere is incompatible with the acknowledgement of distinctiveness acquired by the sign in these countries.

Under II. BCS challenge the legal criteria applied by the CFI in relation to the evidence of secondary meaning, because they clash with the principles set forth in the longstanding case law of the Court of Justice. Indeed, the duration of use of the Deere trade mark, the market shares and the volume of sales cannot be regarded as elements sufficient — when taken individually — to prove the acquired secondary meaning. And in particular they cannot compensate for the lack of an opinion poll (or a contradictory result from third party declarations), as these are evidentiary parameters of a different nature.

There the CFI erred in disregarding the direct proof of the absence of a distinctive character of CTM ‘289 in Ireland and Denmark.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, p. 1), replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version)

OJ L 78, p. 1
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC, (1) or in any event by failing to inform the Commission thereof, the Republic of Estonia has failed to fulfil its obligations under the directive;