ddrg/super_eurlex huggingface dataset:
2.

In finding that there was material ‘potential competition’ in existence between the Appellants and Lundbeck at the time of the Agreement, the General Court manifestly distorted the evidence in the Court’s file. The Commission was required to demonstrate objectively that the Appellants had a real concrete possibility of entering the market in an economically viable manner. The evidence demonstrated that (a) such entry was not a real or concrete possibility, either objectively or in terms of economic viability, prior to the expiry of the Agreement; and (b) in the negotiations leading to the Agreement, the Appellants had no incentive to be truthful regarding their readiness to enter the market and tricked Lundbeck into agreeing both to supply its own product to the Appellants at a discounted price and making a payment to the Appellants. This in fact allowed the Appellants to enter the market immediately which crucially they could not otherwise have done. The General Court failed to take account of the key distinction between the Appellants and the other generic manufacturers who entered into agreements with Lundbeck, which is the Appellants had no realistic and concrete possibility of obtaining an marketing authorization within the timeframe of the Agreement.
4.

Does it follow from the provisions of Article 46(3) of Directive 2013/32, concerning the right to an effective remedy incorporating the requirement of a ‘full and ex nunc examination of both facts and points of law’, interpreted in conjunction with Articles 33, 34 and the second paragraph of Article 35 of that directive and Article 21(1) of Directive 2011/95, in conjunction with Articles 18, 19 and 47 of the Charter of Fundamental Rights of the European Union, that, in an appeal before a court or tribunal against a decision refusing international protection which was adopted in accordance with Article 10(2) of Directive 2013/32, they allow the court or tribunal of first instance: A) to decide for the first time on the admissibility of the application for international protection and on the refoulement of the stateless person to the country in which he was resident before making the application for international protection, after requiring the asylum authority to produce the evidence necessary for that purpose and giving the person in question the opportunity to present his views on the admissibility of the application; or B) to annul the decision for breach of an essential procedural requirement and to require the asylum authority, taking into account the instructions on the interpretation and application of the law, to reconsider the application for international protection, inter alia by conducting the admissibility interview provided for in Article 34 of Directive 2013/32 and deciding whether it is possible to return the stateless person to the country in which he was resident before making the application for international protection; C) to assess the security status of the country in which the person was resident at the time of the hearing or, if the situation has been the subject of fundamental changes which must be taken into account in the person’s favour in the decision to be taken, at the time when the judgment is given?
EN Official Journal of the European Union C 38/14

Reference for a preliminary ruling from Upper Tribunal (United Kingdom) made on 29 November 2016 — Rafal Prefeta v Secretary of State for Work and Pensions

(Case C-618/16)

(2017/C 038/18)

Language of the case: English

Referring court

Upper Tribunal

Parties to the main proceedings

Applicant: Rafal Prefeta

Defendant: Secretary of State for Work and Pensions

Questions referred

1. Did Annex XII of the Treaty of Accession permit Member States to exclude Polish nationals from the benefits of Article 7(2) of the Workers Regulation (1) and Article 7(3) of the Citizenship Directive (2) where the worker, though he had belatedly complied with the national requirement that his employment be registered, had not yet worked for an uninterrupted registered twelve month period?

2. If the answer to the first question is ‘no,’ may a Polish national worker in the circumstances in question 1 rely on Article 7(3) of the Citizenship Directive which concerns retention of worker status?

(1) Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (Text with EEA relevance)

OJ 2011 L 141, p. 1

(2) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance)

OJ 2004 L 158, p. 77
EN Official Journal of the European Union C 63/15

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 28 November 2016 — Presidenza del Consiglio dei Ministri and Others v Nello Grassi and Others

(Case C-616/16)

(2017/C 063/22)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellants: Presidenza del Consiglio dei Ministri, Gianni Pantuso, Angelo Tralongo, Maria Michela D’Alessandro

Respondents and cross-appellants: Nello Grassi, Carmela Amato, Università degli Studi di Palermo, Presidenza del Consiglio dei Ministri, Ministero della Salute, Ministero dell’Istruzione, dell’Università e della Ricerca

Questions referred

1. Is Directive 82/76, (1) which amended Directives 75/362 (2) and 75/363, (3) to be interpreted as including within its scope full-time and part-time courses for trainee medical specialists which had already begun by 31 December 1982 and continued after that date, that being the date by which the Member States were to have adopted the necessary measures to comply with the directive, in accordance with Article 16 thereof? If Question 1 is answered in the affirmative,

2. Is the annex which was appended to the ‘coordination’ directive (Directive 75/363) by Article 13 of Directive 82/76, which amended Directives 75/362 and 75/363, to be interpreted as meaning that, with respect to specialist training courses which had already begun by 31 December 1982, the obligation to provide trainee specialists with adequate remuneration is dependent on fulfilment of the obligation to reorganise courses or on compliance with the requirements of the abovementioned directives?

3. With respect to specialist doctors who pursued specialist training courses which began before 1 January 1983 but had not ended by that date, was there any obligation to pay them adequate remuneration for the entire duration of the course or for the period after 31 December 1982 alone and, if so, to what conditions, if any, was that obligation subject?

(1) Council Directive 82/76/EEC of 26 January 1982 amending Directive 75/362/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate effective exercise of the right of establishment and freedom to provide services and Directive 75/363/EEC concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1982 L 43, p. 21).

(2) Council Directive 75/362/EEC of 16 June 1975 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1975 L 167, p. 1).

(3) Council Directive 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1975 L 167, p. 14).
EN Official Journal of the European Union C 53/21

Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 10 November 2016 — Stadt Wuppertal v Maria Elisabeth Bauer

(Case C-569/16)

(2017/C 053/27)

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: Stadt Wuppertal

Defendant: Maria Elisabeth Bauer

Question referred

Do Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (1) or Article 31(2) of the Charter of Fundamental Rights of the European Union allow the heir of a worker who died while in an employment relationship to be entitled to financial compensation in respect of the worker’s entitlement to minimum annual leave prior to his death, which is precluded by Paragraph 7(4) of the Bundesurlaubsgesetz (Federal Law on Paid Leave), read in conjunction with Paragraph 1922(1) of the Bürgerliches Gesetzbuch (the Civil Code)?

(1) OJ 2003 L 299, p. 9.
1.

Does the Czech legislation under which judges are not entitled to remuneration for on-call duty, even though other employees (in the public and private sectors) are entitled to that remuneration on the basis of the Zákoník práce (Labour Code) or other provisions of law, constitute unequal treatment in the field of pay, prohibited by Council Directive 2000/78/EC? (1)
1.

Is a time-limit applicable to an application for payment of outstanding wage claims by the guarantee institution more favourable to employees, within the meaning of Article 11 of Directive 2008/94/EC (1) of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer, when the payment of such claims is only guaranteed where the application for payment is brought before the guarantee institution no later than one year from the day following that on which the contract of employment was terminated or where the time-limit is calculated from the date on which insolvency proceedings are brought, bearing in mind that the guarantee institution only guarantees the payment of the employee’s claims which have fallen due in the six months prior to those proceedings being brought?
EN Official Journal of the European Union C 86/10

Request for a preliminary ruling from the Commissione Tributaria Provinciale di Reggio Calabria (Italy) lodged on 16 December 2016 — Fortunata Silvia Fontana v Agenzia delle Entrate -Direzione provinciale di Reggio Calabria

(Case C-648/16)

(2017/C 086/12)

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Reggio Calabria

Parties to the main proceedings

Applicant: Fortunata Silvia Fontana

Defendant: Agenzia delle Entrate -Direzione provinciale di Reggio Calabria

Question referred

Do Articles 113 and 114 TFEU and Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax preclude the Italian domestic legislation in Articles 62 sexies (3) and 62 bis of Legislative Decree 331/1993 [converted into law by] Law No 427 of 29 October 1993, which allows the application of VAT to the overall turnover established by extrapolation, in the light of the principle of deduction and the obligation to recover the tax and, more generally, the principle of the neutrality and the passing-on of the tax?

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
2.

(a) If a defence is raised against a claim for the production of exhibits contending that the intellectual-property right on the basis of which the exhibits are sought is void (or no longer exists), should the merits of that defence be assessed on the basis of the same criterion as that which applies to the question of the plausibility of the alleged infringement (assuming that the intellectual-property right invoked actually exists)? (b) If the answer to that question is in the negative, in what respect do the criteria differ? (c) In answering Questions 2(a) and 2(b), should a distinction be made according to whether the intellectual-property right concerned was granted after its validity had been investigated (as in the case of a European patent), or whether it arose by operation of law (as in the case of copyright)?
EN Official Journal of the European Union C 104/26

Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 7 December 2016 — CX

(Case C-629/16)

(2017/C 104/38)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Appellant on a point of law: CX

Other party: Bezirkshauptmannschaft Schärding

Question referred

Does EU law, and in particular the Agreement establishing an Association between the European Economic Community and Turkey (64/733/EEC), Journal Officiel 1964, 217, p. 3687/64, the Additional Protocol to the Association Agreement, Journal Officiel 1972, L 293, p. 3, and Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union (96/142/EC), OJ 1996 L 35, p. 1, preclude national legislation under which goods transport undertakings established in the Republic of Turkey may engage in cross-border commercial carriage of goods to or through the territory of the Republic of Austria only if they have, in respect of the motor vehicles concerned, passes issued as part of a quota established between Austria and Turkey pursuant to a bilateral agreement, or if they are granted authorisation for the individual carriage of goods, in which case there must be a significant public interest in the individual carriage of goods and the applicant must demonstrate that the journey cannot be avoided by organisational measures or by the choice of a different means of transport?
EN Official Journal of the European Union C 95/2

Appeal brought on 17 June 2016 by Novomatic AG against the judgment of the General Court (First Chamber) delivered on 19 April 2016 in Case T-326/14: Novomatic v EUIPO — Granini France (HOT JOKER)

(Case C-342/16 P)

(2017/C 095/02)

Language of the case: English

Parties

Appellant: Novomatic AG (represented by: W. Mosing, Rechtsanwalt)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Granini France

By order of 6 December 2016 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.
EN Official Journal of the European Union C 161/6

Appeal brought on 28 December 2016 by Meissen Keramik GmbH against the judgment of the General Court (Second Chamber) delivered on 18 October 2016 in Case T-776/15 Meissen Keramik GmbH v European Union Intellectual Property Office (EUIPO)

(Case C-686/16 P)

(2017/C 161/07)

Language of the case: German

Parties

Appellant: Meissen Keramik GmbH (represented by: M. Vohwinkel and Dr M. Bagh, Rechtsanwälte)

Other party to the proceedings: European Union Intellectual Property Office (EUIPO)

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of the European Union of 18 October 2016 (T-776/15);

— annul the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 October 2015 (Case R 0531/2015-1);

— annul the decision of the European Union Intellectual Property Office (EUIPO) of 13 January 2015;

— order the European Union Intellectual Property Office (EUIPO) to pay the costs of all the proceedings.

Grounds of appeal and main arguments

The appeal is based on a misinterpretation of Article 7(1)(c) of Regulation No 207/2009 (1) in conjunction with an infringement of Article 135(4) of the Rules of Procedure of the General Court.

The basis for the claim that the Rules of Procedure were infringed is that the General Court did not base its judgment on the understanding of the word element of the trade mark which had been established in the Board of Appeal’s decision, but applied its own understanding of that word element and thus changed the subject-matter of the proceedings.

The basis for the claim that Article 7(1)(c) of Regulation No 207/2009 was misinterpreted is that the General Court regards an indication of the geographical origin of a specific type of product that is designated by means of its main constituent material (Meissen Keramik) as descriptive even in relation to goods which contain components — no matter how insignificant — consisting of that material or goods which can be associated with goods of the type designated.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 121/9

Appeal brought on 18 November 2016 by Skylotec GmbH against the judgment of the General Court (Second Chamber) of 13 September 2016 in Case T-146/15, hyphen GmbH v European Union Intellectual Property Office (EUIPO)

(Case C-587/16 P)

(2017/C 121/12)

Language of the case: German

Parties

Appellant: Skylotec GmbH (represented by: M. De Zorti, Rechtsanwalt)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), hyphen GmbH

By order of 28 February 2017, the Court of Justice of the European Union (Eighth Chamber) dismissed the appeal and ordered the appellant to bear its own costs.
2.

Do the provisions of Article 10(2) of the Regulation authorise a Member State to determine the disciplines that may be regarded as ‘similar’ to medicine, pharmacy or toxicology, within the meaning of the Regulation, and the levels of qualification that satisfy the requirements of the Regulation?
EN Official Journal of the European Union C 63/20

Appeal brought on 5 January 2017 by ANKO AE Antiprosopeion, Emporiou kai Viomichanias against the judgment of the General Court (Third Chamber) delivered on 27 April 2016 in Case T-154/14 ANKO v European Commission

(Case C-6/17 P)

(2017/C 063/28)

Language of the case: Greek

Parties

Appellant: ANKO AE Antiprosopeion, Emporiou kai Viomichanias (represented by: Stavroula Paliou, lawyer)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of 27 April 2016 in Case T-154/14 and refer the case back to the General Court to give a ruling on the substance.

— order the Commission to pay the costs.

Grounds of appeal and main arguments

The appellant maintains that the judgment of the General Court of 27 April 2016 in Case T-154/14 makes findings of law which are contrary to principles of EU law and challenges those findings by means of this appeal.

The appellant considers that the judgment under appeal should be set aside:

i. First , with respect to the provisions of substantive law to be applied, on grounds that relate to an error in law and procedural irregularities which vitiate the reasoning in that judgment.

ii. Second , on grounds that relate to an error in law, with regard to the rules that govern, in relation to the claim, the matters to be proved and the burden of proof and, in relation to the counterclaim, the allocation of the burden of proof.

Within that framework, the grounds of appeal are the following:

I. In connection with the error in law and procedural irregularities: 1) First ground of appeal: Wholly deficient statement of reasons. 2) Second ground of appeal: Error in law and contradictory reasoning.
EN Official Journal of the European Union C 112/19

Request for a preliminary ruling from the Nejvyšší soud České republiky (Czech Republic) lodged on 18 January 2017 — Catlin Europe SE v O.K. Trans Praha spol. s.r.o.

(Case C-21/17)

(2017/C 112/28)

Language of the case: Czech

Referring court

Nejvyšší soud České republiky

Parties to the main proceedings

Appellant: Catlin Europe SE

Applicant in the original proceedings: O.K. Trans Praha spol. s.r.o.

Question referred

Is Article 20(2) of Regulation (EC) No 1896/2006 (1) of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure to be interpreted to the effect that a failure to notify the addressee of the possibility of refusing to accept the documents to be served, as provided for under Article 8(1) of Regulation (EC) No 1393/2007 (2) of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (3) (‘the Service of documents Regulation’), gives grounds for a right on the part of the defendant (the addressee) to apply for review of the European order for payment under Article 20(2) of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (‘the European order for payment Regulation’)?

(1) OJ 2006 L 399, p. 1.

(2) OJ 2007 L 324, p. 79.

(3) OJ 2000 L 160, p. 37.
EN Official Journal of the European Union C 121/16

Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) lodged on 3 February 2017 — Eva Soraya Checa Honrado v Fondo de Garantía Salarial

(Case C-57/17)

(2017/C 121/22)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Valenciana

Parties to the main proceedings

Appellant: Eva Soraya Checa Honrado

Respondent: Fondo de Garantía Salarial

Question referred

May statutory severance pay payable by a company to a worker, on termination of the employment relationship as a consequence of a change to a fundamental element of the contract of employment, such as geographic mobility obliging the worker to change residence, be understood to constitute ‘severance pay on termination of employment relationships’, as referred to in the first paragraph of Article 3 of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer? (1)

(1) OJ 2008 L 283, p. 36.
5)

If the national court declares that the contractual term which places the exchange rate risk on the consumer is unfair, is it required, when determining the legal effects in accordance with the rules of national law, also to take into account of its own motion, while respecting the right of the parties to present argument in inter partes proceedings, the unfairness of other contractual terms which have not been relied on by the applicants in their action? Does the principle that the court should act of its own motion in accordance with the case-law of the Court of Justice also apply if the applicant is a consumer or, having regard to the position occupied by the principle of the autonomy of the parties in the whole proceedings and to the particular features of the proceedings, does the principle that the parties have the right to delimit the subject matter of an action, in that case, preclude examination by the court of its own motion?
2.

Does Council VAT Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (in particular, Articles 213, 214 and 273) preclude, in circumstances such as those of the main proceedings, national legislation or a tax practice under which a taxpayer does not have the right to deduct VAT claimed in several returns after the reactivation of the taxpayer’s VAT identification number, on the basis that, although the VAT in question relates to invoices issued after the reactivation of the taxpayer’s VAT identification number, it concerns purchases made during a period in which the VAT identification number was inoperative?