ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 102/13

Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Alessandria (Italy) lodged on 20 February 2009 — Agra Srl v Agenzia Dogane Ufficio delle Dogane di Alessandria

(Case C-75/09)

2009/C 102/20

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Alessandria

Parties to the main proceedings

Applicant: Agra Srl

Defendant: Agenzia Dogane Ufficio delle Dogane di Alessandria

Question referred

In the light of Article 11 of Legislative Decree No 374/[1990], read in conjunction with Article 221(3) of Regulation (EC) No 2913/1992 and Article 221(4) thereof, regard being had to Article 84(3) of the Consolidated laws on customs matters (Presidential Decree No 43/1973), is the right of the Customs Authority to revise the assessment [of the customs debt] time-barred, and/or has it lapsed, on the expiry of the three-year period from the date of the customs declaration, or can those time-limits be interrupted and/or suspended pending the outcome of criminal proceedings for infringement of the customs rules in relation to the assessment?
1.

Must Clause 8 of the Framework Agreement put into effect by Directive 1990/70/EEC (1) be interpreted as precluding domestic rules (such as those laid down by Articles 11 and 1 of Legislative Decree No 368/2001) which, in implementation of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, repealed Article 1(2)(b) of Law 230/1962, according to which it was ‘permitted to impose a time-limit on the duration of the contract … when the recruitment’ took ‘place in order to replace absent workers’ who ‘retained the right to their post, provided that in the fixed-term contract’‘an indication was given of the name of the replaced worker and the reasons for his replacement’, substituting for it a provision which no longer imposes that obligation to give details?
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Declare that by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2006/68/EC (1) of the European Parliament and of the Council of 6 September 2006 amending Council Directive 77/91/EEC (2) as regards the formation of public limited liability companies and the maintenance and alteration of their capital, or in any event, by not communicating them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive.
EN Official Journal of the European Union C 141/28

Reference for a preliminary ruling from the Conseil d’État (France) lodged on 1 April 2009 — Société fiduciaire nationale d’expertise comptable v Ministre du budget, des comptes publics et de la fonction publique

(Case C-119/09)

2009/C 141/49

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Société fiduciaire nationale d’expertise comptable

Defendant: Ministre du budget, des comptes publics et de la fonction publique

Question referred

Was Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (1) intended to proscribe, in respect of the regulated professions falling within its scope, any general prohibition [on commercial communications], whatever the form of commercial practice concerned, or does it leave the Member States the option of maintaining general prohibitions in respect of certain commercial practices, such as canvassing?

(1) OJ L 376, p. 36.
1.

Does it constitute a serious non-political crime or an act contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(b) and (c) of Council Directive 2004/83/EC of 29 April 2004 if the appellant was a member of an organisation which is included in the list of persons, groups and entities (1) annexed to the Council Common Position on the application of specific measures to combat terrorism and employs terrorist methods, and the appellant has actively supported that organisation’s armed struggle?
EN Official Journal of the European Union C 167/3

Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras (Spain) lodged on 28 April 2009 — Federación de Servicios Públicos de la UGT (UGT-FSP) v Ayuntamiento de la Línea de la Concepción, María del Rosario Vecino Uribe and Others, and the Ministerio Fiscal

(Case C-151/09)

2009/C 167/05

Language of the case: Spanish

Referring court

Juzgado de lo Social Único de Algeciras

Parties to the main proceedings

Applicant: Federación de Servicios Públicos de la UGT (UGT-FSP)

Defendants: Ayuntamiento de la Línea de la Concepción, María del Rosario Vecino Uribe and Others,

the Ministerio Fiscal

Question referred

Is the requirement that autonomy be preserved — referred to in Article 6(1) of Directive 2001/23/EC (1) of 12 March 2001 — met in a factual situation (such as that in the main proceedings) in which, following the recovery of various outsourced public services by a municipal authority, the employees who were part of the staff of the actual undertakings which until then had provided the outsourced municipal services are taken on by that municipal administration and integrated into its staff, but it is those same employees (without exception) who continue to hold the same posts and carry out the same duties as before, in the same places of work and under the instruction of the same immediate superiors (hierarchical superiors), without significant changes in the working conditions, the sole difference being that now their overall managers (above the previous superiors) are the relevant publicly elected officials (councillors or mayor)?

(1) On the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16).
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declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of ‘politically exposed person’ and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis (1), or in any event by failing to communicate those provisions to the Commission, the French Republic has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 180/25

Action brought on 7 May 2009 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-157/09)

2009/C 180/44

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and W. Roels, Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

— declare that, by approving and maintaining in force Article 6(1) of the Law of 3 April 1999 on the statutory regulation of the notary profession, the Kingdom of the Netherlands has failed to fulfil its obligations under the Treaty establishing the European Community, in particular Articles 43 EC and 45 EC;

— order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The Commission objects, first, to the fact that the nationality requirement for access to, and practice of, the profession of notary represents a disproportionate impediment to the freedom of establishment of notaries who are nationals of another Member State that is enshrined in Article 43 EC. Although Article 45 EC provides for an exemption from the rules concerning the freedom of establishment, it does so only in respect of activities which are directly and specifically connected with the exercise of official authority. The Commission takes the view that the duties carried out by notaries under Netherlands law represent the exercise of official authority to only a very limited extent, and therefore that factor cannot serve to justify the impediment in the light of settled case-law relating to Article 45 EC.

Second, the Commission submits that the nationality requirement is in any event inappropriate, in the light of Article 43 EC, for safeguarding a certain level of professional qualification that will ensure that consumers are protected. There is in fact another method — one that is far less of a hindrance to free movement — of guaranteeing the high level of qualification required for the work of a notary: the possibility of the host Member State demanding one of the compensatory measures provided for in Article 4 of Regulation 89/48/EEC. (1)

(1) Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16).
2.

If such national legislation is consistent with the Directive: Does Article 18(a) of the Directive preclude the application by analogy of the national legislation concerning the exclusion of the indemnity claim to a case where a serious ground for the immediate termination of the contract because of the agent’s default arose only after contractual notice of termination was given and the principal became aware of that ground only after the contract ended, so that he was no longer able to give a further notice of immediate termination of the contract based on the agent’s default?
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declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/24/EC (1) of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, or in any event by failing to communicate those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;
(1)

Must Articles 17 and 19 of Directive 98/71/EC (1) be interpreted as meaning that — in implementing a national law of a Member State adjusting the domestic legal order to the abovementioned Directive — the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which — albeit meeting the requirements for protection laid down in copyright law — fell to be regarded as having entered into the public domain before the date on which the national implementing legislation entered into force, in so far as they had never been registered as designs or in so far as the relevant registration had already expired by that date?
(b)

or should it be concluded that such services, being services relating to scientific activities pursuant to the first indent of Article 9(2)(c) of the Sixth Directive (now corresponding to Article 52(a) of Directive 2006/112), must be taxed at the place where they are physically carried out — on the basis that those services take the form of work that encompasses the investigation and measurement of emissions under legislation on environmental protection, including the conduct of investigations in connection with carbon dioxide (CO2) emissions and trading in CO2 emissions, the preparation and checking of documentation relating to that work and the analysis of potential sources of pollution, and that is carried out with the objective of acquiring new knowledge and new technological know-how directed at the production of new substances, products and systems and the application of new technological procedures within the production process?
2.

If the reply to the first question is in the negative, are Article 4(6) and Article 5(6) of the Framework Decision to be interpreted as not permitting the Member States to make the surrender to the judicial authorities of the issuing State of a person residing on their territory who is the subject, in the circumstances described in the first question, of an arrest warrant for the purposes of the execution of a custodial sentence or detention order, subject to a condition that that person be returned to the executing State in order to serve there the custodial sentence or detention order imposed by a final judgment against that person in the issuing State?
EN Official Journal of the European Union C 256/16

Action brought on 3 September 2009 — Commission of the European Communities v Ireland

(Case C-355/09)

2009/C 256/30

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: P. Oliver, A.-A. Gilly, Agents)

Defendant: Ireland

The applicant claims that the Court should:

— Declare that, by failing to adopt national measures necessary to implement Articles 10 and 12 of Regulation (EC) No 273/2004 (1), by failing to communicate those measures pursuant to Article 16 of that Regulation and by failing to adopt the national measures necessary to implement Articles 26(3) and 31 of Regulation (EC) No 111/2005 (2), Ireland has failed to fulfil its obligations under Regulation (EC) No 273/2004 on drug precursors and Regulation (EC) No 111/2005 laying down the rules for the monitoring of trade between the Community and third countries in drug precursors;

— order Ireland to pay the costs.

Pleas in law and main arguments

Member States are required to adopt the measures necessary to comply with the provisions of Regulations, within the time limits laid down in those Regulations, and to notify those measures forthwith to the Commission. The Government of Ireland has failed to adopt and communicate the measures required to implement Articles 10, 12 and 16 of Regulation (EC) no 273/2004 on drug precursors. The Government of Ireland has also failed to adopt measures in accordance with articles 26(3) and 31 of regulation (EC) no 111/2005 laying down the rules for the monitoring of trade between the Community and third countries in drug precursors.

(1) Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11 February 2004 on drug precursors

OJ L 47, p. 1

(2) Council Regulation (EC) No 111/2005 of 22 December 2004 laying down rules for the monitoring of trade between the Community and third countries in drug precursors

OJ L 22, p. 1
EN Official Journal of the European Union C 233/10

Reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 27 July 2009 — Isabella Calestani v Agenzia delle Entrate Ufficio di Parma

(Case C-292/09)

2009/C 233/17

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Parma

Parties to the main proceedings

Applicant: Isabella Calestani

Defendant: Agenzia delle Entrate Ufficio di Parma

Question referred

Is Article 19(5) of Presidential Decree No 633/72 at variance with Community law and with the principle of the neutrality of VAT, and in particular has Sixth Directive 77/388/EEC of 17 May 1977 been incorrectly transposed in so far as domestic legislation does not provide that VAT is deductible on purchases made by taxable persons whose transactions are exempt?
EN Official Journal of the European Union C 267/43

Appeal brought on 26 August 2009 by Victor Guedes — Indústria e Comércio, SA against the judgment of the Court of First Instance (Eighth Chamber) delivered on 11 June 2009 in Case T-151/08: Guedes — Indústria e Comércio v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consorci de l'Espai Rural de Gallecs

(Case C-342/09 P)

2009/C 267/75

Language of the case: English

Parties

Appellant: Victor Guedes — Indústria e Comércio, SA (represented by: B. Braga da Cruz, advogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consorci de l'Espai Rural de Gallecs

Form of order sought

The appellant claims that the Court should:

— Annul the decision of 11th of June 2009 of the Court of First Instance in case T-151/08 (Related matters: decision of 16th January 2008 given in case R 986/2007-2 by the Second Board of Appeal of the Office for Harmonization in the Internal Market; decision of 27th April 2007 of the Trade Mars Department of the Office for Harmonization in the Internal Market relating to Opposition Proceedings No. B 828634), also in accordance with the applicable provisions of Community law;

— Refuse the grant of the registration of Community trademark no. 3 710 597 in respect of the goods in classes 29 and 31;

— Order the respondent to bear the costs of the proceedings

Pleas in law and main arguments

The decision given by the Trade Marks Department of the OHIM considered that some of the products in question are identical or display clear affinity among them, but deemed the conflicting trademarks to be distinct, without ascertaining the reputation of the earlier trademark ‘GALLO’.

The Second Board of Appeal followed this finding, mentioning that, even though the reputation of the earlier trademark ‘GALLO’ was duly proved, the trademarks in question are distinct.

The Court of First Instance of the European Communities agreed with the finding of the Board of Appeal as regards the fact that the trademarks in question display differences from a phonetic, graphic and conceptual point of view.

The Appellant does not agree with this finding, for he considers that the trademarks GALLO and GALLECS designate products which are identical or display clear affinity and are similar.

In fact, there are several decisions from Community instances which consider that trademarks which share the same initial elements are confusingly similar and thus cannot coexist in the market.

Moreover, it was considered and recognised that the trademark GALLO has a reputation, which confers enhanced distinctiveness on the earlier mark in Portugal.

Thus, there is a real possibility that the respondent would take unfair advantage of the reputation of the earlier Portuguese trademark ‘GALLO’ of the Appellant.

The appellant submits, therefore, that the contested judgment violates the provisions of Article 8 (l)(b) and (5) of the Community Trademark Regulation (CTMR).
EN Official Journal of the European Union C 267/51

Action brought on 22 September 2009 — Commission of the European Communities v Republic of Malta

(Case C-376/09)

2009/C 267/85

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: A. Alcover San Pedro, E. Depasquale, Agents)

Defendant: Republic of Malta

The applicant claims that the Court should:

— declare that, by not decommissioning non-critical uses of halons in fire protection systems and fire extinguishers on ships and by not recovering these halons, the Republic of Malta has failed to fulfil its obligations under Articles 4(4)(v) and 16 of Regulation (EC) No 2037/2000 (1) of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer;

— order Republic of Malta to pay the costs.

Pleas in law and main arguments

It follows from the provisions of Articles 4(4)(v) and 16 of the Regulation, read in conjunction with the provisions of Article 2 of the Act of Accession, that the Republic of Malta was required to decommission fire protection systems and fire extinguishers containing halons before 1 May 2004, with the exception of the critical uses listed in Annex VII to the regulation, and to recover these halons by appropriate technologies.

In the absence of any information to the effect that that the Republic of Malta has decommissioned non-critical uses of halons in fire protection systems and file extinguishers on all the ships listed in the form attached to its reply to the letter of formal notice and has recovered these halons, the Commission concludes that the Republic of Malta has failed to fulfil its obligations under Articles 4(4)(v) and 16 of the regulation.

(1) OJ L 244, p. 1
EN Official Journal of the European Union C 282/25

Reference for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 24 August 2009 — Skoma-Lux sro v Celní ředitelství Olomouc

(Case C-339/09)

2009/C 282/43

Language of the case: Czech

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Applicant: Skoma-Lux sro

Defendant: Celní ředitelství Olomouc

Question referred

Must goods labelled as ‘red dessert wine Kagor VK’, contained in 0.75 litre bottles with an alcohol content of 15.8 % — 16.1 % by volume, to which beet sugar and corn alcohol have been added during their manufacture, those substances not originating from fresh grapes, be classified under heading 2204 or heading 2206 of the combined nomenclature of the customs tariff?
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declare that, by failing to adopt all the necessary laws, regulations and administrative provisions for fully transposing Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, (1) or in any event by failing to notify the Commission of the adoption of the necessary provisions for fully transposing the directive, the Republic of Estonia has failed to fulfil its obligations under Article 17 of the directive;
1.

Where, in the framework of a transfer of an undertaking within the meaning of Article 1(1) of Directive 2001/23, (1) it appears that the entity transferred, namely the staff restaurant of a Community institution, used a significant number of temporary agency workers under a framework contract concluded with various temporary employment agencies, must the temporary employment agency, or failing that the institution under whose control and direction the temporary workers worked, be regarded as an employer-transferor within the meaning of Article 2(1)(a) of that directive? Where neither the temporary employment agency nor the undertaking using the worker can be recognised as having the status of employer-transferor, must the temporary agency workers be considered not to be entitled to the safeguards offered by Directive 2001/2003?
EN Official Journal of the European Union C 312/15

Action brought on 23 September 2009 — Commission of the European Communities v Czech Republic

(Case C-378/09)

2009/C 312/24

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by: M. Šimerdová and J.-B, Laignelot, acting as Agents)

Defendant: Czech Republic

Form of order sought

— declare that, by failing to implement correctly in its national legislation the provisions of the first, second and third paragraphs of Article 10a of the Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC), (1) as amended by Council Directive 97/11/EC (2) and Directive 2003/35/EC of the European Parliament and of the Council, (3) the Czech Republic has failed to fulfil its obligations under the first, second and third paragraphs of Article 10a of that directive;

— order Czech Republic to pay the costs.

Pleas in law and main arguments

The period of implementing the directive into the domestic legal order expired on 25 June 2005.

(1) OJ 1985 L 175, p. 40.

(2) Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment; OJ 1997 L 73, p. 5.

(3) Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC; OJ 2003 L 156, p. 17.