ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 128/24

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 18 March 2008 — Transportes Urbanos y Servicios Generales, SAL v Administración del Estado

(Case C-118/08)

(2008/C 128/44)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Transportes Urbanos y Servicios Generales, SAL

Defendant: Administración del Estado

Question referred

Is it contrary to the principles of equivalence and effectiveness to apply differing case-law of the Tribunal Supremo of the Kingdom of Spain in the judgments of 29 January 2004 and 24 May 2005 to actions for financial liability against the State qua legislature in respect of administrative acts adopted pursuant to a law which has been declared unconstitutional and to such actions in respect of administrative acts adopted pursuant to a measure which has been held to be contrary to Community law?
EN Official Journal of the European Union C 128/21

Reference for a preliminary ruling from the Augstākās tiesas Senāta (Republic of Lativa) lodged on 28 February 2008 — Schenker SIA v Valsts ieņēmumu dienests

(Case C-93/08)

(2008/C 128/37)

Language of the case: Latvian

Referring court

Augstākās tiesas Senāts

Parties to the main proceedings

Applicant: Schenker SIA

Defendant: Valsts ieņēmumu dienests

Question referred

Must Article 11 of Regulation No 1383/2003 (1) be interpreted as precluding the possibility of imposing a penalty on the declarant or owner of goods under the national law, where the intellectual property right-holder (the right-holder) reaches an agreement, with the declarant or the owner of those goods, to abandon them for their destruction, or engages in discussions in respect of the possibility of the goods being abandoned for their destruction, and in the course of that procedure, the customs authorities receive information that the goods are counterfeit?

(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 2003 L 196, p. 7).
EN Official Journal of the European Union C 158/8

Appeal brought on 7 March 2008 by Portela & Companhia SA against the judgment delivered by the Court of First Instance (Fifth Chamber) on 11 December 2007 in Case T-10/06, Portela & Companhia SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-108/08 P)

(2008/C 158/12)

Language of the case: Portuguese

Parties

Appellant: Portela & Companhia (represented by J. Conceição Pimenta, advogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Juan Torrens Cuadrado and Josep Gilbert Sanz

By order of 22 April 2008 the President of the Court of Justice ordered the removal of the case from the Court's register.
1.

‘Must Article 56 of the EC Treaty be interpreted as meaning that it prohibits a restriction, arising from the France-Belgium Convention seeking to avoid double taxation and to establish mutual administrative and legal rules of assistance in the field of income tax, which allows partial double taxation of dividends from shares of companies established in France to subsist and which renders the taxation of those dividends more onerous than Belgian withholding tax alone applied to dividends distributed by a Belgian company to a Belgian resident shareholder?’
EN Official Journal of the European Union C 171/28

Action brought on 15 May 2008 — Commission of the European Communities v French Republic

(Case C-200/08)

(2008/C 171/43)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: A. Bordes and H. Støvlbæk, agents)

Defendant: French Republic

Form of order sought

— Declare that by refusing to permit German and British snowboard instructors to teach that sport alone in France and by not referring in the amended decree of 4 May 1995 to snowboard instructor qualifications acquired in other Member States, the French Republic has failed to fulfil its obligations under Articles 39, 43 and 49 EC and under Article 6 of Directive 92/51/EEC (1);

— order the French Republic to pay the costs.

Pleas in law and main arguments

While in several Member States ski-ing and snowboarding can be taught by members of professions who have separate instructor qualifications, snowboarding can be taught in France only by ski instructors.

The applicant considers that the refusal to permit access to the profession of snowboard instructor alone cannot be justified having regard to the fundamental principles of free movement of persons, freedom to provide services and the right of establishment. The Commission considers, in addition, that the four cumulative derogating conditions established by the Court's case-law to justify any restriction on those principles — that measures must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must respect the principle of proportionality — are not satisfied.

(1) Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ L 209, p. 25).
—

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, or in any event by not communicating such measures to the Commission, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;
1.

Is Article 49 of the Treaty to be interpreted as precluding the application of a rule, such as that laid down in Article 4 of Law No 4 of the Region of Sardinia of 11 May 2006 (Miscellaneous provisions on revenue, reclassification of costs, social policy and development), as amended by Article 3(3) of Law No 2 of the Region of Sardinia of 29 May 2007 (Provisions for the preparation of the annual and long-term budget of the Region — 2007 Finance Law), under which the regional tax on aircraft making stopovers for tourist purposes is levied only on undertakings, operating aircraft which they themselves use for the transport of persons in the course of ‘general business aviation’ activities, which have tax domicile outside the territory of the Region of Sardinia?
If the first question is answered in the negative:

What are the requirements for the existence of a ‘mass tort’ which, in accordance with (or as a complement to) Directive 87/344/EEC, confers on the insurer instead of the insured person the right to select the legal representative?
EN Official Journal of the European Union C 183/14

Action brought on 14 May 2008 — Commission of the European Communities v French Republic

(Case C-197/08)

(2008/C 183/27)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: W. Mölls, acting as Agent)

Defendant: French Republic

Form of order sought

— Declare that, by adopting and maintaining in force a system of minimum prices for cigarettes sold in France, despite a prohibition on the sale of tobacco products ‘at a promotional price contrary to the aims of public health’, the French Republic has failed to fulfil its obligations under Article 9(1) of Directive 95/59/EC (1);

— order the French Republic to pay the costs.

Pleas in law and main arguments

The applicant submits that Article 9(1) of Directive 95/59/EC, as interpreted by the Court, clearly prohibits the intervention of the Member States in imposing, in a discretionary manner, minimum prices for the retail sale of manufactured tobacco products. Since they prevent manufacturers and importers from other countries from freely determining the maximum retail selling price of each of their products, such minimum prices restrict price competition and harm the internal market.

Furthermore, with regard to the need alleged by the defendant to derogate from the above provision in order to protect public health, the Commission does not dispute that, in certain circumstances, it may be necessary to derogate from the provisions of the EC Treaty concerning free movement of goods in order to achieve that objective. However, in the present case, as the Court has already held, the objective of protecting public health can adequately be pursued by way of increased taxation on manufactured tobacco products, which preserves the principle of free determination of prices.

(1) Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ L 291, p. 40).
—

declare that, by failing to adopt all 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 or, in any event, by failing to notify those provisions to it, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive;
2.

Is it appropriate, in order to determine whether national legislation such as that in force in France, which has established a system whereby off-course horserace betting is managed exclusively by a single, non-profit-making operator, is contrary to Articles 49 and 50 of the Treaty establishing the European Community, to assess the impairment of freedom to provide services solely from the point of view of the restrictions placed on offering on-line horserace betting, or is it appropriate to take into consideration the entire horserace betting sector in whatever form it is offered and is accessible to bettors?
1.

Is Article 265 of the Criminal Code of the Republic of Lithuania, in so far as it imposes criminal liability unconditionally for the cultivation of any type of hemp without exception, irrespective of the amount of active substance in it, contrary to provisions of the European Union and, specifically, which ones?
3.

In the event that such use does not constitute a use which may be prevented by the trade mark proprietor under the directive or [Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark] (2), may the provider of the paid referencing service be regarded as providing an information society service consisting of the storage of information provided by the recipient of the service, within the meaning of Article 14 of Directive 2000/31 of 8 June 2000 (3), so that that provider cannot incur liability before it has been informed by the trade mark proprietor of the unlawful use of the sign by the advertiser?
EN Official Journal of the European Union C 209/29

Action brought on 3 June 2008 — Commission of the European Communities v Republic of Finland

(Case C-246/08)

(2008/C 209/43)

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (represented by P. Aalto and D. Triantafyllou, acting as Agents)

Defendant: Republic of Finland

Form of order sought

— declare that, by failing to charge value added tax on legal advice services provided in return for part payment in accordance with the legal aid provisions by State legal aid offices (by public legal advisers acting as their employees), while the corresponding services provided by private advisers are subject to value added tax, the Republic of Finland has failed to fulfil its obligations under Articles 2(1) and 4(1), (2) and (5) of the Sixth VAT Directive 77/388/EEC (1);

— order the Republic of Finland to pay the costs.

Pleas in law and main arguments

In Finland a recipient of legal aid may choose a public legal adviser or a private adviser to represent him in legal proceedings. In that situation the services provided by a public legal adviser in return for part payment are not subject to value added tax, whereas value added tax is charged on the services provided by a private adviser in return for part payment. The Commission considers that this is a case of different value added tax treatment of the same services, with effects on the Community's own resources.

The Commission argues that the services provided by State legal aid offices in legal proceedings do not fall within the scope of the first subparagraph of Article 4(5) of the Sixth VAT Directive. Those services are clearly free from value added tax where they are provided without charge. If, on the other hand, the recipient of legal aid pays a fee for the service, services provided by a State legal aid office cannot be regarded as free from value added tax.

The second subparagraph of Article 4(5) of the VAT Directive provides that bodies governed by public law are to be regarded as taxable persons in respect of the activities in which they engage as public authorities if treating them differently would lead to significant distortions of competition. Even if the State legal aid offices were regarded as acting as public authorities in this respect, the Commission considers that excluding them from liability to tax in the above cases would lead to significant distortions of competition. For that reason they should be regarded as taxable persons with respect to value added tax.

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).
1.

Must the fifth indent of Article 9(2)(e) and Article 13B(a) and the second and third subparagraphs of Article 13B(d) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes be interpreted as meaning where in consideration for payment of the sales price by the purchaser a transfer (1) of a life reinsurance contract is effected, on the basis of which, with the consent of the policyholder, the contract's purchaser takes over the exempted reinsurance activities of the previous insurer and in place of the previous insurer supplies to the policyholder tax-exempt reinsurance services, that such transfer must be regarded (a) as an insurance or banking transaction within the meaning of the fifth indent of Article 9(2)(e) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes, or (b) as a reinsurance transaction in accordance with Article 13B(a) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes, or (c) as a transaction which in substance consists of the tax-exempt assumption of an obligation and an exempt transaction concerning debts in accordance with Article 13B(d)(2) and (3) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes?
EN Official Journal of the European Union C 236/10

Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Filomena Califano v Wind SpA

(Case C-318/08)

(2008/C 236/16)

Language of the case: Italian

Referring court

Giudice di Pace di Ischia

Parties to the main proceedings

Applicant: Filomena Califano

Defendant: Wind SpA

Question referred

Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

(1) OJ L 108, p. 51.

(2) OJ L 171, p. 12.

(3) Commission Recommendation.

(4) Commission Recommendation.
6.

In any event, is it for the national courts to identify, where the national law is silent on the point, the ‘overriding reasons of public interest’ which — in the case of proceedings pending and in derogation from the principle of equality of arms — could justify the adoption of a retroactive rule capable of reversing the outcome of the proceedings, or must the national courts confine themselves to assessing the compatibility with Community law of the reasons expressly invoked by the legislature of the State as a basis for its choices?
EN Official Journal of the European Union C 260/11

Reference for a preliminary ruling from the Tribunal de Première Instance d'Arlon (Belgium) lodged on 7 August 2008 — Marc Vandermeir v État Belge — SPF Finances

(Case C-364/08)

(2008/C 260/20)

Language of the case: French

Referring court

Tribunal de Première Instance d'Arlon

Parties to the main proceedings

Applicant: Marc Vandermeir

Defendant: État Belge — SPF Finances

Question referred

Do Articles 43 and/or 49 EC preclude national legislation of one Member State, such as the legislation in question, which requires a self-employed person residing in that Member State to register his vehicle there, although he carries on business almost exclusively in a second Member State from a fixed establishment that he owns there, and the vehicle is neither intended to be substantially used in the first Member State on a permanent basis, nor is in fact so used?
1.

Must Article 43(1) and (2) EC be construed as precluding the provisions of Polish national law in Article 26(1)(2) of the ustawa o podatku dochodowym od osób fizychznych (Law on income tax payable by natural persons) of 26 July 1991 …, under which the right to a reduction of the basis of assessment for income tax by the amount of compulsory social insurance contributions is restricted to contributions paid on the basis of provisions of national law, and in Article 27b(1) of the Law of 26 July 1991 on income tax payable by natural persons, under which the right to a reduction of income tax by the amount of compulsory health insurance contributions is restricted to contributions paid on the basis of provisions of national law, in the case where a Polish national, subject to unlimited liability to tax in Poland on income taxed there, also pays in another Member State compulsory social and health insurance contributions in respect of an economic activity carried on in that other State, and those contributions have not been deducted from income or from tax there?
EN Official Journal of the European Union C 272/10

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 21 July 2008 — X Holding BV v Staatssecretaris van Financiën

(Case C-337/08)

(2008/C 272/15)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: X Holding BV

Respondent: Staatssecretaris van Financiën

Question referred

Must Article 43 EC, in conjunction with Article 48 EC, be interpreted as precluding national rules of a Member State, … which allow a parent company and its subsidiary to opt to have the tax for which they are liable levied on the parent company established in that Member State as if they were a single taxpayer, but which reserve that option to companies which, for the taxation of their profits, are subject to the fiscal jurisdiction of the Member State concerned?
—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/22/EC (1) of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC, or in any event by failing to notify those provisions to the Commission, the United Kingdom has failed to fulfil its obligations under Article 16 of that Directive;
EN Official Journal of the European Union C 285/16

Action brought on 18 July 2008 — Commission of the European Communities v French Republic

(Case C-333/08)

(2008/C 285/27)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: B. Stromsky, Agent)

Defendant: French Republic

Form of order sought

— declare that, by providing, in respect of technological adjuvants and foodstuffs in the preparation of which were used technological adjuvants originating from other Member States where they were lawfully manufactured and/or placed on the market, for a scheme of prior authorisation which does not comply with the principle of proportionality, the French Republic has failed to fulfil its obligations under Article 28 EC;

— order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission complains of the restrictions on trade resulting from the French legislation relating to technological adjuvants. By introducing a system of prior authorisation for those products and for foodstuffs in the preparation of which were used technological adjuvants originating from other Member States where they were lawfully manufactured and/or placed on the market, that legislation makes the marketing of those foodstuffs and adjuvants more onerous and costly, thereby hindering intra-Community trade.

According to the Commission, a scheme of prior authorisation may, in certain circumstances, be justified on grounds of public health, but such a scheme would, in any event, have to satisfy the criterion of proportionality and comply with the conditions laid down in the case-law, including those set out in Case C-24/00 Commission v France [2004] ECR I-1277. In the present case, a number of those conditions are not satisfied, as the procedures provided for by that legislation are not easily accessible, expeditious and susceptible to challenge by way of legal proceedings in the event of authorisation being refused.