ddrg/super_eurlex huggingface dataset:
Keywords

Summary



Keywords

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1 . PROCEDURE - THIRD PARTY PROCEEDINGS - CONDITIONS OF ADMISSIBILITY - NON-PARTICIPATION OF THIRD PARTY IN ORIGINAL CASE - RULES OF PROCEDURE, ARTICLE 97 ( 1 ) ( C ) - SCOPE OF THIS PROVISION

( PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE ECSC TREATY, ARTICLE 36 )

2 . PROCEDURE - THIRD PARTY PROCEEDINGS - CONDITIONS OF ADMISSIBILITY - PREJUDICE TO RIGHTS OF THIRD PARTY - RULES OF PROCEDURE, ARTICLE 97 ( 1 ) ( B ) - SCOPE OF THIS PROVISION

3 . PROCEDURE - INTERVENTION - CONDITIONS OF ADMISSIBILITY - DETERMINATION OF INTEREST JUSTIFYING INTERVENTION

( PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE ECSC TREATY, ARTICLE 34; RULES OF PROCEDURE, ARTICLE 93 )

4 . PROCEDURE - NATIONAL REGULATIONS - LEGAL EFFECTS OF THESE REGULATIONS ON THE COMMON MARKET - APPRAISAL BY THE COURT CONTAINED IN THE GROUNDS OF A JUDGMENT - ABSENCE OF ANY INJURY TO THE SOVEREIGNTY OF A STATE .

1 . CF . PARAGRAPH N . 1 OF THE SUMMARY OF THE JUDGMENT IN JOINED CASES 42 AND 49/59 - THIRD PARTY PROCEEDINGS .

Summary

ARTICLE 97 OF THE RULES OF PROCEDURE IS NOT INCOMPATIBLE WITH THE PROVISIONS OF ARTICLE 36 OF THE PROTOCOL ON THE STATUTE OF THE COURT . BY STIPULATING THAT THE THIRD PARTY MUST INDICATE IN HIS APPLICATION THE REASONS WHY HE 'WAS UNABLE TO TAKE PART IN THE ORIGINAL CASE', ARTICLE 97 ( 1 ) ( C ) IMPLIES THAT ANY PARTY WHO COULD HAVE BEEN OR WHO COULD HAVE TAKEN PART IN THE ORIGINAL CASE IS UNABLE TO INSTITUTE THIRD PARTY PROCEEDINGS . THIS PROVISION THEREFORE MAKES THIS PROCEDURE AVAILABLE IN THE FIRST PLACE TO A THIRD PARTY WHO, THOUGH CALLED UPON TO TAKE PART IN THE ORIGINAL CASE, WAS UNABLE TO DO SO FOR GOOD AND SUFFICIENT REASONS, AND SECONDLY TO ANY PARTY WHO WAS NOT IN A POSITION TO INTERVENE IN THE ORIGINAL CASE UNDER ARTICLE 34 OF THE PROTOCOL ON THE STATUTE OF THE COURT AND ARTICLE 93 OF THE RULES OF PROCEDURE .

*/ 659J0042 /*.

2 . ARTICLE 97 ( 1 ) ( B ) OF THE RULES OF PROCEDURE PROVIDES THAT THE APPLICATION ORIGINATING THIRD PARTY PROCEEDINGS SHALL STATE HOW THE CONTESTED JUDGMENT IS PREJUDICIAL TO THE RIGHTS OF THE THIRD PARTY . THIS REQUIREMENT IMPLIES THAT ONLY PERSONS WHOSE RIGHTS HAVE BEEN PREJUDICED BY THE CONTESTED JUDGMENT ARE ENTITLED TO BRING THIRD PARTY PROCEEDINGS .

3 . AN INTEREST IN INTERVENING IN PROCEEDINGS PENDING BEFORE THE COURT IS TO BE JUSTIFIED AS MUCH BY REFERENCE TO THE NATURE OF THE PROCEEDINGS IN WHICH THE INTERVENER ASKS TO BE ALLOWED TO TAKE PART AS BY REFERENCE TO THE CONCLUSIONS OF ONE OF THE PARTIES WHICH THE INTERVENER MUST SUPPORT OR REJECT .

4 . A JUDGMENT OF THE COURT WHICH DOES NO MORE THAN STATE IN ITS GROUNDS THE LEGAL EFFECTS OF NATIONAL REGULATIONS DOES NOT ADVERSELY AFFECT THE SOVEREIGNTY OF THE STATE WHICH LAWFULLY ISSUED THOSE REGULATIONS .
Keywords

Summary



Keywords

1. AMENDMENT OF THE TREATY WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 95 OF THE ECSC TREATY - AMENDMENT OF THE CONDITIONS FOR THE HIGH AUTHORITY'S EXERCISE OF ITS POWERS - NEW CONDITIONS.

2. AMENDMENT OF THE TREATY WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 95 OF THE ECSC TREATY - PROHIBITION ON INTERFERING WITH THE GENERAL STRUCTURE OF THE TREATY AND WITH THE RELATIONSHIP BETWEEN THE POWERS OF THE COMMUNITY AND THE MEMBER STATES

Summary

1. THE INTRODUCTION OF NEW CONDITIONS PERMITTING THE EXERCISE OF A POWER OF THE HIGH AUTHORITY IN CIRCUMSTANCES OTHER THAN THOSE REFERRED TO IN THE TREATY DOES NOT CONSTITUTE THE GRANT OF A NEW POWER, BUT ONLY AN ADAPTATION OF THE RULES FOR THE EXERCISE OF A POWER ALREADY CONFERRED UPON THE HIGH AUTHORITY.

2. CF. OPINION OF 17 DECEMBER 1959 (REC ., VOL. V (1959)).

IT FOLLOWS FROM THE PROVISIONS OF THE THIRD PARAGRAPH OF ARTICLE 95 TAKEN AS A WHOLE THAT DEROGATION FROM THE PROCEDURE FOR AMENDMENT OF THE TREATY REFERRED TO IN ARTICLE 95 THEREOF IS PERMISSIBLE ONLY WHERE IT DOES NOT INTERFERE WITH THE GENERAL STRUCTURE OF THE TREATY OR THE RELATIONSHIP BETWEEN THE COMMUNITY AND THE MEMBER STATES, PARTICULARLY THE RELATIONSHIP BETWEEN THE POWERS TRANSFERRED TO THE COMMUNITY AND THE POWERS RESERVED TO THE MEMBER STATES
Case C‑542/18 RX

Erik Simpson

v

Council of the European Union

Review

Summary — Decision of the Court (Reviewing Chamber), 17 September 2018

Review — Subject of the review — Appointment of a judge — Possibility to form the subject of a review of indirect legality — Conditions

(Art. 256(2) TFEU; Statute of the Court of Justice, Art. 62; Rules of Procedure of the Court of Justice, Art. 193(4))

The review shall concern the question whether, having regard, in particular, to the general principle of legal certainty, the judgment of the General Court of the European Union of 19 July 2018, Simpson v Council (T‑646/16 P, not published, EU:T:2018:493), affects the unity or consistency of EU law in that the General Court, as the court hearing the appeal, held that the composition of the panel of judges of the European Union Civil Service Tribunal which had delivered the order of 24 June 2016, Simpson v Council (F‑142/11 RENV, EU:F:2016:136), had been irregular, on the basis of an irregularity affecting the procedure for the appointment of one of the members of that panel of judges, leading to infringement of the principle of the lawful judge, laid down in the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union.

The review shall involve, in particular, the question whether, like the acts covered by Article 277 TFEU, the appointment of a judge may form the subject matter of a review of indirect legality or whether such a review of indirect legality is — by principle or after the passage of a certain period of time — excluded or limited to certain types of irregularity in order to ensure legal certainty and the force of res judicata.

(see operative part. 2)
EN Official Journal of the European Union C 22/27

Appeal brought on 16 November 2007 by Philip Morris Products SA against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-140/06 Philip Morris Products v OHIM

(Case C-497/07 P)

(2008/C 22/52)

Language of the case: French

Parties

Appellant: Philip Morris Products SA (represented by: T. van Innis and C. S. Moreau, lawyers)

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

Form of order sought

— Set aside the judgment under appeal;

— Order the Office to pay the costs.

Pleas in law and main arguments

By its appeal, the appellant claims that the Court of First Instance infringed Articles 4 and 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1). In this respect, it complains, first, that the Court of First Instance based its assessment on a bias against the category of marks in which the mark applied for falls. In finding that consumers are not in the habit of making assumptions about the origin of goods on the basis of their shape or of the shape of their packaging, the Court of First Instance made a factual finding which has no scientific foundation whatsoever and misconstrues the human perception of signs in general, and of shapes in particular.

Second, the appellant complains that the Court of First Instance carried out an incorrect legal analysis of the relevant public's perception of the mark. That error arises, on the one hand, from the fact that the Court envisaged use of the mark only through its incorporation into a packet of cigarettes, although the shape of packaging for a given product can be perceived by the public in a multitude of other forms, such as graphic or three-dimensional representations of the mark in advertising material. The error of assessment arises, on the other hand, from the fact that the Court of First Instance reduced the concept of a mark to its part which is perceptible by a prospective purchaser at the moment immediately prior to his purchase, whilst the public concerned by a mark is composed of all those who may be faced with it in the course of normal use of the mark, which occurs both during the advertising of the product before it has been purchased and during use or consumption of the product after it has been purchased.

The appellant claims, thirdly and lastly, that the grounds of the judgment under appeal are contradictory.

(1) OJ 1994 L 11, p. 1.
EN Official Journal of the European Union C 22/33

Action brought on 21 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-511/07)

(2008/C 22/59)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and U. Wölker, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

The applicant claims that the Court should:

— declare that, by failing to communicate the information required under Article 3(1)(f) of Decision No 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol (1), in conjunction with Articles 2 and 4(1)(b) and (d) of Commission Decision No 2005/166/EC of 10 February 2005 laying down rules implementing Decision No 280/2004/EC (2), the Grand Duchy of Luxembourg has failed to fulfil its obligations under those provisions;

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

Pleas in law and main arguments

By its action, the Commission accuses the defendant of not fully implementing the obligations contained in Decision No 280/2004/EC, read in conjunction with Decision No 2005/166/EC. First, the defendant has failed to provide in its annual report the information relating to the methods and to the types of activity data and emissions factors used in the Community's principal sources. Second, the Grand Duchy of Luxembourg has not communicated to the Commission a general uncertainty assessment affecting the elements of the Luxembourg national inventory report.

(1) OJ 2004 L 49, p. 1.

(2) OJ 2005 L 55, p. 57.
2.

If Question 1 is answered in the affirmative: 2.1. Is the service provided at each place in a Member State where use of the right is allowed under the contract and also actually occurs? 2.2. Or is the service provided where the licensor is domiciled or, as the case may be, at the place of the licensor's central administration? 2.3. If Question 2.1 or Question 2.2 is answered in the affirmative, does the court which thereby has jurisdiction also have the power to rule on royalties which result from use of the right in another Member State or in a third country?
1.

Must Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (1), in particular Article 4(1) thereof, be construed as precluding a situation in which a Member State applies the exemption relating to distributed profits which are received by a company of that State from its subsidiary in another Member State, except when the subsidiary is liquidated, by first including in full the distributed profits in the taxable basis and then deducting 95 % of those profits from the taxable basis but limiting the deduction to the amount of profits made in the taxable period in which the distribution of profits took place (after certain statutorily defined deductions) (Article 205(2) WIB 1992 in conjunction with Article 77 KB/WIB 1992), with the result that, if the profits made in the relevant taxable period are smaller than the amount of the aforementioned distributed profits, this does not give rise to a transferable loss?
EN Official Journal of the European Union C 37/19

Appeal brought on 8 December 2007 by Akzo Nobel Chemicals Ltd, Akcros Chemicals Ltd against the judgment of the Court of First Instance (First Chamber) delivered on 17 September 2007 in Case T-253/03: Akzo Nobel Chemicals Ld and Akcros Chemicals Ltd v the Commission of the European Communities

(Case C-550/07 P)

(2008/C 37/28)

Language of the case: English

Parties

Appellants: Akzo Nobel Chemicals Ltd, Akcros Chemicals Ltd (represented by: C. Swaak, advocaat, M. Mollica and M. van der Woude, avocats)

Other parties to the proceedings: Commission of the European Communities, Council of the Bars and Law Societies of the European Union, Algemene Raad van de Nederlandse Orde van Advocaten, Association européenne des juristes d'entreprise (AEJE), American Corporate Counsel Association (ACCA) — European Chapter, International Bar Association

Form of order sought

The appellants claim that the Court should:

— set aside the judgment of the Court of First Instance (CFI) of 17 September 2007 in Case T-253/03, insofar as it rejected the claim of LPP for communications with Akzo Nobel's in-house lawyer;

— annul the Rejection Decision of 8 May 2003 of the Commission, in as far as it refused to return the e-mail correspondence with Akzo Nobel's in-house lawyer (part of Set B documents);

— order the Commission to pay costs of this appeal and of the proceedings before the CFI in as far as they concern the plea raised in the present appeal.

Pleas in law and main arguments

The Appellants submit that by rejecting this claim, the CFI violated Community Law. In particular, the Appellants contend that by strictly following a partial and literal interpretation of a few paragraphs of AM&S Europe v Commission (1), the CFI:

1. gave incorrect interpretation of the principle of LPP as it is explained in AM&S, thereby violating the principle of equality (section B)

2. in the alternative, by refusing to reinterpret the principle of LPP in view of the significant developments in the legal landscape, violated the general principles of protection of the rights of defence and of legal certainty (section C); and

3. in the further alternative, violated Article 5 EC (principle of attribution of competence) and the principle of national procedural autonomy (section D).

(1) Case 155/79, (1982) p. 1575.
2.

In particular, does the expression ‘rights acquired or in the process of being acquired’ in Clause 2(6) of the framework agreement on parental leave … include only rights related to working conditions and affect only the contractual relationship with the employer or, on the contrary, does it also affect the maintenance of rights acquired or in the process of being acquired in matters of social security, and is the requirement for ‘continuity of the entitlements to social security cover under the different schemes’ in Clause 2(8) of the framework agreement on parental leave … satisfied by the formulation under consideration and applied by the national authorities and, if applicable, is the right to continuity of entitlements to social security cover sufficiently certain and precise to be relied upon before the public authorities of a Member State?
2.

Must Articles 3(1) and 13(3) of Regulation (EC) No 2081/92 (now Articles 3(1) and 13(2) of Regulation (EC) No 510/06) in relation to Article 2 of Legislative Decree 109/92 (Article 2 of Directive 2000/13/EC) be interpreted as meaning that the name of a food product which is evocative of a place not registered as a PDO or PGI within the meaning of those regulations may be legitimately used in the European market by producers who have used it in good faith and uninterruptedly for a considerable period before the entry into force of Regulation (EEC) No 2081/92 (now Regulation (EC) No 510/06) and in the period following the entry into force of that provision?
EN Official Journal of the European Union C 183/7

Action brought on 10 August 2007 — Hervé Raulin v French Republic

(Case C-454/07)

(2008/C 183/12)

Language of the case: French

Parties

Applicant: Hervé Raulin (represented by: C. Vaucois, avocat)

Defendant: French Republic

By order of 16 May 2008, the Court (Fifth Chamber) declared that it clearly had no jurisdiction to decide the action and ordered the applicant to bear his own costs.
EN Official Journal of the European Union C 64/22

Action brought on 19 December 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-562/07)

(2008/C 64/33)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and I. Martinez del Peral Cagigal, agents)

Defendant: Kingdom of Spain

Form of order sought

— Declare that by treating differently capital gains obtained in Spain by non-residents from those obtained by residents until 31 December 2006, the Kingdom of Spain failed to fulfil its obligations under Articles 39 and 56 EC and Articles 28 and 40 of the EEA Agreement;

— Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Under the Spanish legislation in force until 31 December 2006, the taxation of capital gains of non-residents was subject to a proportional rate of 35 %, while that of residents was subject to a progressive schedule if the capital assets remained their property for a period of less than one year, and to a proportional rate of 15 % if the period of ownership exceeded one year. Consequently, the tax burden borne by non-residents if they sold their assets after the lapse of one year following acquisition was always greater. In the event of disposal of assets within the year following acquisition, non-residents also bore a greater tax burden, except when the average rate applied to resident taxpayers exceeded 35 % (which would imply very considerable capital gains).

The Commission considers that there is no objective difference between the situations of those two categories of taxpayers, so that the higher tax burden on non-residents is discrimination which unlawfully restricts freedom of movement for workers and the free movement of capital provided for in Articles 39 and 56 EC and Articles 28 and 40 of the EEA Agreement.
EN Official Journal of the European Union C 79/14

Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 2 January 2008 — Amministrazione dell'Economia e delle Finanze Agenzia delle Entrate v Olimpiclub Srl

(Case C-2/08)

(2008/C 79/26)

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Appellants: Amministrazione dell'Economia e delle Finanze, Agenzia delle Entrate

Respondent: Fallimento Olimpiclub Srl

Question referred

‘Does Community law preclude the application of a provision of national law, such as Article 2909 of the [Italian] Civil Code, laying down the principle of res judicata, where the application of that provision would lead to a result incompatible with Community law, thereby thwarting its application, even in areas other than State aid (in relation to which, see Case C-119/05 Lucchini SpA [2007] ECR I-0000) and, in particular, in matters relating to VAT and with respect to the misuse of rights in order to obtain undue tax savings, in particular in the light also of the rules of national law — as interpreted in the case-law of this Court — according to which, in tax disputes, where a giudicato esterno [a final judgment drawn up by another court in a case on the same subject] contains a finding on a fundamental issue common to other cases, it has binding authority as regards that issue, even if it was drawn up in relation to a different tax period?’
EN Official Journal of the European Union C 64/30

Reference for a preliminary ruling from the Kammarrätten i Stockholm (Sweden) lodged on 21 January 2008 — Migrationsverket v Edgar Petrosian, Nelli Petrosian, Svetlana Petrosian, David Petrosian, Maxime Petrosian

(Case C-19/08)

(2008/C 64/43)

Language of the case: Swedish

Referring court

Kammarrätten i Stockholm

Parties to the main proceedings

Applicant: Migrationsverket

Defendants: Edgar Petrosian, Nelli Petrosian, Svetlana Petrosian, David Petrosian, Maxime Petrosian

Question referred

Are Article 20(1)(d) and Article 20(2) of Council Regulation (EC) No 343/2003 (the Dublin Regulation) (1) to be interpreted as meaning that responsibility for the examination of an application for asylum passes to the Member State where the application was lodged if the transfer is not carried out within six months after a temporary decision has been made to suspend the transfer and irrespective of when the final decision is made on whether the transfer is to be carried out?

(1) OJ L 50, 25.2.2003, p. 1.
—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with 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 (1), most recently amended by Directive 2006/31/EC of the European Parliament and of the Council of 5 April 2006 amending Directive 2004/39/EC on markets in financial instruments, as regards certain deadlines (2), or in any event, by failing to inform the Commission thereof, the Czech Republic has failed to fulfil its obligations under Article 70 of that directive;
In the context of the services supplied by the Appellant for:

— the enrolment fee;

— the subscription fee; and

— the exchange fee

paid by members of the Appellant's Weeks Scheme, what are the factors to be considered when determining whether the services are ‘connected with’ immovable property within the meaning of Article 9(2)(a) of the Sixth VAT Directive (1) (now Article 45 of the Recast VAT Directive (2))?
If the answer to the second question is negative, must it then be assumed that the application of Article 2 of the Market Abuse Directive presupposes that a deliberate decision has been taken to use inside information?

If such a decision may also be unwritten, is it then required that the decision to use inside information is evident from circumstances susceptible to no other interpretation, or is it sufficient that those circumstances could be so interpreted?
EN Official Journal of the European Union C 92/12

Reference for a preliminary ruling from the Bundesgerichtshof lodged on 14 January 2008 — Agricultural matter involving Erich Stamm, Anneliese Hauser and Regierungspräsidium Freiburg

(Case C-13/08)

(2008/C 92/20)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Erich Stamm, Anneliese Hauser and Regierungspräsidium Freiburg

Question referred

Must Article 15(1) of Annex I to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (1) be interpreted as meaning that, as regards access to a self-employed activity and the pursuit thereof, only self-employed persons within the meaning of Article 12(1) of Annex I to the agreement are to be afforded no less favourable treatment in the host country than that accorded to its own nationals, or does this also apply to self-employed frontier workers within the meaning of Article 13(1) of Annex I to the agreement.

(1) OJ 2002 L 114, p. 6.