ddrg/super_eurlex huggingface dataset:
1.

Can Article 4(1)(14) and Articles 9 to 14 of Directive 2004/39/EC (1) be interpreted as applying both to the main trading market authorised by the CNVM (Comisia Națională a Valorilor Mobiliare [National Securities Commission]) and to the secondary trading market, which has been incorporated into the former since 2005 (omissis) but has continued to be regarded as separate from the regulated market, even though its legal status has not been clarified by way of legislation?
2.

If the answer to Question 1 is in the negative, must the effect of Article 20 TFEU be assessed differently if the third-country national who does not have a residence permit, his spouse, and the child who is cared for by the spouse and has Union citizenship live together?
4.

If the first to third questions are answered in the affirmative: Should legitimate expectations be protected with regard to the validity of the rule in Paragraph 13(2) of the Bundesurlaubsgesetz and the rules of the Bundesrahmentarifvertrag Bau, if periods prior to 1 December 2009, when the Treaty of Lisbon and the Charter of Fundamental Rights came into force, are affected? Should the parties to the Bundesrahmentarifvertrag Bau collective agreement be granted a period in which they may agree another rule themselves?
EN Official Journal of the European Union C 269/32

Reference for a preliminary ruling from the Cour d’appel de Lyon (France), lodged on 1 July 2011 — Receveur principal des douanes de Roissy Sud, Receveur principal de la recette des douanes de Lyon Aéroport, Direction régionale des douanes et droits indirects de Lyon, Administration des douanes et droits indirects v Société Rohm & Haas Electronic Materials CMP Europe GmbH, Rohm & Haas Europe s. à r.l., Société Rohm & Haas Europe Trading APS-UK Branch

(Case C-336/11)

2011/C 269/62

Language of the case: French

Referring court

Cour d’appel de Lyon

Parties to the main proceedings

Appellants: Receveur principal des douanes de Roissy Sud, Receveur principal de la recette des douanes de Lyon Aéroport, Direction régionale des douanes et droits indirects de Lyon, Administration des douanes et droits indirects

Respondents: Société Rohm & Haas Electronic Materials CMP Europe GmbH, Rohm & Haas Europe s. à r.l., Société Rohm & Haas Europe Trading APS-UK Branch

Question referred

Should the combined nomenclature [set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, (1) as amended by Commission Regulation (EC) No 1549/2006 of 17 October 2006 (2) and Commission Regulation (EC) No 1214/2007 of 20 September 2007 (3)] be interpreted as meaning that polishing pads, intended for a polishing machine for working semiconductor materials — as such coming under tariff heading 8460 — imported separately from the machine, in the form of discs perforated in the centre, made up of a hard polyurethane layer, a layer of polyurethane foam, an adhesive layer and a protective plastic film, which do not contain any metal part or any abrasive substance and are used to polish ‘wafers’, in association with an abrasive liquid, and must be replaced at a frequency determined by their level of wear, come under tariff heading 8466 […], as parts or accessories suitable for use solely or principally with the machines classified under headings 8456 to 8465, or, on the basis of their constituent material, under tariff heading [3919], as self-adhesive flat shapes made of plastic?

(1) OJ 1987 L 256, p. 1.

(2) OJ 2006 L 301, p. 1.

(3) OJ 2007 L 286, p. 1.
1.

Does Article 20 TFEU preclude a third-country national from being refused a residence permit because of lack of means of subsistence in a family situation in which his spouse is the carer of a child who is a citizen of the Union and the third-country national is not that child’s parent or carer and does not live with his spouse or with that child?
EN Official Journal of the European Union C 282/10

Reference for a preliminary ruling from the Tribunal de Pequena Instância Cível de Lisboa (Portugal) lodged on 8 July 2011 — João Nuno Esteves Coelho dos Santos v TAP Portugal

(Case C-365/11)

2011/C 282/18

Language of the case: Portuguese

Referring court

Tribunal de Pequena Instância Cível de Lisboa

Parties to the main proceedings

Applicant: João Nuno Esteves Coelho dos Santos

Defendant: TAP Portugal

Question referred

As a result of the judgment of the Court of Justice of 19 November 2009 in Joined Cases C-402/07 and C-432/07 (1), in which it was held that Articles 5, 6 and 7 of Regulation No 261/2004 (2) must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled where the time that they have lost due to the delayed flight is more than three hours, should the said articles be interpreted in the same way in the case of a flight that, having started on time at the place of departure, was delayed at the stop-over airport for three hours and fifty five minutes before taking off again because the airline, for operational reasons, decided to change equipment, where the equipment that replaced the previous equipment had already broken down prior to the stopover and needed a technical intervention, so that the flight arrived at the destination location with the said delay of three hours and fifty five minutes?

(1) OJ C 24, 30.1.2010, p. 4

(2) Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1)
EN Official Journal of the European Union C 282/3

Action brought on 22 June 2011 — European Commission v Kingdom of Denmark

(Case C-323/11)

2011/C 282/05

Language of the case: Danish

Parties

Applicant: European Commission (represented by: I. Hadjiyiannis and U. Nielsen, acting as Agents)

Defendant: Kingdom of Denmark

Form of order sought

— declare that, by failing to publish the final river basin management plans by 22 December 2009 and by failing to send the Commission copies thereof by 22 March 2010 and, in any event, by failing to inform the Commission thereof, the Kingdom of Denmark has failed to fulfil its obligations under Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy;

— order the Kingdom of Denmark to pay the costs.

Pleas in law and main arguments

Article 13(1), (2) and (6) of the Directive provides that the Member States were to adopt the laws and administrative provisions necessary to comply with the Directive by 22 December 2009 and to send the Commission copies thereof by 22 March 2010.

Since the Commission is not in possession of any information which enables it to establish that the necessary provisions have been adopted, the Commission must proceed on the assumption that Denmark has not yet adopted those provisions and has therefore failed to fulfil its obligations under the Directive.

(1) OJ 2000 L 327, p. 1, 22.12.2000.
EN Official Journal of the European Union C 282/7

Appeal brought on 6 July 2011 by Maurice Emram against the judgment of the General Court (Second Chamber) delivered on 10 May 2011 in Case T-187/10 Emram v OHIM

(Case C-354/11 P)

2011/C 282/13

Language of the case: French

Parties

Appellant: Maurice Emram (represented by: M. Benavï, avocat)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Guccio Gucci Spa

Form of order sought

— set aside the entire judgment of the General Court in that it dismissed the action for annulment of the decision of 11 February 2010 of the First Board of Appeal of OHIM;

— set aside the decision of the Board of Appeal under Article 61 of the Statute of the Court of Justice;

— order OHIM to pay the costs of the proceedings before the General Court and the Court of Justice, and order the company Gucci to pay the costs of the proceedings before OHIM and the General Court.

Pleas in law and main arguments

The appellant submits that there has been infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, (1) and also infringement of Article 17 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. (2)

The appellant submits in that regard, first, that the General Court found that there was a likelihood of confusion without taking into account all the relevant aspects of the present case, including the non-use of earlier marks on the market, the taking into account of the distinctive character of the earlier marks, the actual presence on the market of other products of the same type bearing different ‘G’ signs, and the level of importance accorded by the relevant public to that type of sign to identify a commercial mark. The appellant further submits that the General Court found that there had been an incorrect assessment of the similarity between the conflicting marks resulting, inter alia, from a distortion of the facts, an incorrect assessment of the distinctive and dominant character of the earlier marks and an incorrect assessment of the nature of the products at issue.

The appellant submits, second, that there was an incorrect application of the case-law by the General Court, in that it failed to take account of earlier national decisions, in disregard of Article 17 of Regulation No 207/2009.

Lastly, the appellant submits that there has been infringement of the principle of equal treatment by the General Court in that it conducted a partial assessment of the similarity between the signs, whilst ignoring the word content of the mark applied for and comparing the signs on the basis of excessively broad criteria.

(1) OJ 1994 L 11, p. 1.

(2) OJ 2009 L 78, p. 1.
3.

What is to be understood by the terms ‘modulation’ and ‘demodulation’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Communities for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if they are used in relation to the classification of goods under TARIC code 8528711300?
1.

Must the limit of 1 000 Special Drawing Rights per passenger, laid down in Article 22 of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air, concerning the liability of the carrier in the case of destruction, loss or damage of baggage, considered in conjunction with Article 3(3) of that convention, be interpreted as a maximum limit for each individual passenger where a number of passengers travelling check in their shared baggage together, regardless of whether there are fewer pieces of checked baggage than there are actual travellers?
(iii)

The General Court infringed Articles 230 EC and 253 EC and the principles of European Union law on the rights of the defence and the right to be heard before the courts of the European Union. Indeed, it incorrectly held that the Commission could not rely on arguments not referred to in the statement of objections or not repeated in the decision to address the appellant’s arguments intended to rebut the presumption of liability on the part of the controlling company. That applies in particular where, as in the present case, there are documents relied on by the applicant or of which it was aware and the applicant could not have been unaware of the risk that the Commission might take them into account as evidence against it, or where it could reasonably infer from the documents in question the conclusions which the Commission intended to draw from them.
EN Official Journal of the European Union C 311/15

Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 27 May 2011 — Dansk Funktionærforbund, Serviceforbundet, acting on behalf of Frank Frandsen v Cimber Air A/S

(Case C-266/11)

2011/C 311/24

Language of the case: Danish

Referring court

Vestre Landsret

Parties to the main proceedings

Applicant: Dansk Funktionærforbund, Serviceforbundet, acting on behalf of Frank Frandsen

Defendant: Cimber Air A/S

Question referred

Is Council Directive 2000/78/EC (1) to be interpreted as meaning that the prohibition on all forms of discrimination on grounds of age precludes national rules from upholding a collective agreement between an airline company and the trade organisation representing that company’s pilots which provides for compulsory retirement at 60 years of age, when that agreement provision, which applied also before the entry into force of the Council Directive and before the entry into force of the national implementing legislation, has as its purpose the protection of aviation safety on the basis of a general consideration of reduced performance ability with age, without a specific assessment of the individual pilot’s performance ability, but such that the individual pilot may apply to be allowed to continue in his employment for a year at a time following approval by a committee made up of employer and employee representatives?

(1) OJ 2000 L 303, p. 16.
EN Official Journal of the European Union C 340/9

Appeal brought on 2 September 2011 by Heineken Nederland BV and Heineken NV against the judgment delivered by the General Court (Sixth Chamber, Extended Composition) on 16 June 2011 in Case T-240/07 Heineken Nederland BV and Heineken NV v European Commission

(Case C-452/11 P)

2011/C 340/15

Language of the case: Dutch

Parties

Appellants: Heineken Nederland BV and Heineken NV (represented by: T.R. Ottervanger and M.A. de Jong, advocaten)

Other party to the proceedings: European Commission

Form of order sought

— Set aside in whole or in part the judgment under appeal in accordance with the pleas in law put forward by this appeal, in so far as the appellants’ action was dismissed;

— annul the decision at issue (1) in whole or in part in so far as it relates to the appellants;

— cancel or reduce the fine imposed on the appellants;

— in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice;

— order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.

Pleas in law and main arguments

In support of their appeal the appellants rely on six pleas in law:

By the first plea the appellants submit that the General Court erred in deciding that the Commission was not obliged to grant access to InBev’s reply to the objections.

By the second plea the appellants submit that the General Court erred in law in deciding that the Commission was correct in taking the view in relation to the off-trade segment that the conduct of the undertakings concerned could be characterised as a complex of agreements and/or concerted practices.

By the third plea the appellants submit that the General Court exceeded the limits of its jurisdiction and erred in law in the manner in which it determined the starting date of the infringement.

By the fourth plea the appellants submit that the General Court erred in law by failing to recognise that an unreasonably large fine was imposed on the appellants exclusively as a result of the excessive duration of the administrative procedure that was caused by the Commission itself.

By the fifth plea the appellants submit that, particularly by failing — or at least by failing sufficiently — to consider the comparison with the Belgian beer case Interbrew and Alken-Maes, the General Court erred in law in taking the view that the Commission had not acted contrary to the principle of equal treatment.

By the sixth plea the appellants submit that the 5 % reduction in the fine granted by the General Court on account of the excessive duration of the administrative procedure is insufficient in view of the particularly large fine imposed on the appellants and the fact that the Commission has no justification for exceeding a reasonable period of time.

(1) Commission Decision C(2007) 1697 of 18 April 2007 relating to a proceeding under Article 81 [EC] (Case COMP/B-2/37.766 — Dutch beer market)
3.

In the event that question 2 is answered in the affirmative, may the national court also examine the unfairness of a general contract term in proceedings at second instance if the proceedings at first instance did not examine this and new facts and evidence cannot generally be taken into consideration in appeal proceedings under national law?
EN Official Journal of the European Union C 347/15

Reference for a preliminary ruling from Tribunalul Argeș (Romania) lodged on 20 September 2011 — Mariana Budan v Romanian State — Ministerul Finanțelor Publice represented by the Direcția Generală a Finanțelor Publice Argeș

(Case C-484/11)

2011/C 347/22

Language of the case: Romanian

Referring court

Tribunalul Argeș

Parties to the main proceedings

Applicant: Mariana Budan

Defendant: Romanian State — Ministerul Finanțelor Publice (Ministry for Public Finance) represented by the Direcția Generală a Finanțelor Publice (Directorate General for Public Finance), Argeș

Intervener: Iulian-Nicolae Cujbescu

Question referred

In the interpretation given by the Court of Justice of the European Union of the fundamental principles laid down by the Charter of Fundamental Rights of the European Union and by the Treaties of the European Union — and in the absence of any domestic legislation (as result of the declaration that Article 5 of Law No 221/[2009] is unconstitutional) — are the applicant, Mariana Budan, … and the intervener, Iulian-Nicolae Cujbescu … entitled to compensation for non-material damage as victims of the Communist regime and now citizens of the European Union?
1.

Are the procedures of a national court consistent with Article 7(1) of Directive 93/13/EEC (1) if, where a contract term is held to be unfair, and the parties did not submit a claim to that effect, the court informs them that it holds sentence 4 of clause 29 of the standard contract terms of the loan agreement between the parties to the proceedings to be invalid? That invalidity arises from breach of the legislation, namely Paragraph 1(1)(c) and (2)(j) of Government Decree 18/1999 on Unfair Contract Terms.
Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 24 October 2011 — Woningstichting Maasdriel, other party: Staatssecretaris van Financiën

(Case C-543/11)

(2012/C 25/56)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Woningstichting Maasdriel

Other party: Staatssecretaris van Financiën

Question referred

Must Article 135(1)(k) of the VAT Directive 2006, (1) in conjunction with Article 12(1) and (3) of that directive, be interpreted as precluding in all cases the exemption from VAT of the supply of land which has not been built on which has come into existence by the demolition of existing buildings thereon, demolition which was carried out with a view to the construction of new buildings?

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
3.

If question 1 is answered in the negative: Can the expression ‘occupational social security schemes’ in Article 6(2) include a scheme such as the ‘rådighedsløn’ (availability pay) as referred to in section 32(1) of the Danish Law on Civil Servants (Tjenestemandslov), under which a civil servant may, as special protection in the event of redundancy due to the abolition of his post, retain his current salary for three years and continue to be credited for years of pensionable service, provided he remains available for assignment to another suitable post?
Reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 7 November 2011 — Danilo Debiasi v Agenzia delle Entrate — Ufficio di Parma

(Case C-560/11)

(2012/C 25/64)

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Parma

Parties to the main proceedings

Applicant: Danilo Debiasi

Defendant: Agenzia delle Entrate — Ufficio di Parma

Question referred

Is there a conflict between national legislation and Community law, in particular between, on the one hand, Articles 19(5) and 19a of Presidential Decree No 633/72 and, on the other, Article 17(2)(a) of Directive 77/388/EEC, (1) document COM (2001) 260 final of 23 May 2001 and document COM (2000) 348 final of 7 June 2000, and ‘unequal treatment’ as regards the VAT rules applied by the various Member States of the European Union, given that different rates of VAT are applied to the same healthcare services?

(1) OJ 1977 L 145, p. 1
EN Official Journal of the European Union C 32/16

Action brought on 30 November 2011 — European Commission v Italian Republic

(Case C-613/11)

2012/C 32/29

Language of the case: Italian

Parties

Applicant: European Commission (represented by: B. Stromsky and D. Grespan, Agents)

Defendant: Italian Republic

Form of order sought

The Commission claims that the Court should:

— declare that, by failing to take, within the prescribed period, all the measures necessary to recover the State aid considered unlawful and incompatible with the internal market by Commission Decision [2008/92/EC] of 10 July 2007 concerning an Italian State aid scheme to the Sardinian shipping sector (notified on 11 July 2007 and published in OJ 2008 L 29, p. 24), the Italian Republic has failed to fulfil its obligations under Articles 2 and 5 of that decision and under the Treaty on the Functioning of the European Union;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for implementing Decision 2008/92 expired on 11 September 2007.

To date, the Italian Republic has not yet undertaken the full recovery of the aid declared unlawful by the decision in question or informed the Commission that recovery has taken place. Moreover, the legal and practical difficulties relied on by Italy as justification for the delay in implementing that decision are not such as to make recovery absolutely impossible in accordance with the case-law of the Court nor has Italy at any stage in fact pleaded that such recovery was absolutely impossible.

In addition, the Commission complains that, in breach of the obligation under the decision in question to communicate information and of the duty of cooperation in good faith, Italy was late in informing it of the progress of the national procedures for implementing the decision.