ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 319/10

Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 10 August 2011 — Jutta Leth v Republic of Austria, Land Niederösterreich

(Case C-420/11)

2011/C 319/17

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Jutta Leth

Defendants: Republic of Austria, Land Niederösterreich

Question referred

Is Article 3 of Council Directive 85/337/EEC of 27 June 1985, (1) in the version of Council Directive 97/11/EC of 3 March 1997, (2) and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 (3) (‘EIA Directive’) to be interpreted as meaning that

1. the term ‘material assets’ covers only their substance or also their value;

2. the environmental impact assessment serves also to protect an individual against pecuniary damage as a result of a decrease in the value of his property?

(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, 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 — Statement by the Commission, OJ 2003 L 156, p. 17.
EN Official Journal of the European Union C 331/11

Appeal brought on 26 August 2011 by the European Commission against the judgment delivered by the General Court (Eighth Chamber) on 16 June 2011 in Case T-210/08 Verhuizingen Coppens NV v European Commission

(Case C-441/11 P)

2011/C 331/18

Language of the case: Dutch

Parties

Appellant: European Commission (represented by: A. Bouquet, S. Noë and F. Ronkes Agerbeek, Agents)

Other party to the proceedings: Verhuizingen Coppens NV

Form of order sought

— Set aside the judgment of the General Court of the European Union of 16 June 2011 in Case T-210/08 Verhuizingen Coppens v Commission;

— dismiss the application for annulment or annul only Article 1(i) of Decision C(2008) 926 final relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services) in so far as it holds Verhuizingen Coppens NV liable for the agreement on commissions;

— set the level of the fine at such amount as the Court of Justice considers appropriate;

— order Verhuizingen Coppens NV to pay the costs of the appeal and such proportion of the costs of the proceedings before the General Court as the Court of Justice considers appropriate.

Pleas in law and main arguments

The Commission takes the view that the General Court infringed the law, in particular Articles 263 TFEU and 264 TFEU and the principle of proportionality, by annulling in its entirety the Commission’s decision holding Coppens liable for a single continuous infringement consisting, during the relevant period, of an agreement on commissions and an agreement on cover quotes, on the grounds that it had not been proved that Coppens was or must have been aware of the agreements on commissions. Moreover, in the interests of the proper administration of justice and the effective enforcement of the European Union’s competition rules the General Court could have annulled the decision at issue only in so far as Coppens was held liable for the agreement on commissions, since annulment of the whole decision means that Coppens’ participation in the agreement on cover quotes remains unpunished, unless the Commission adopts a further decision relating to that part of the original infringement. That could, however, lead to an undesirable duplication of administrative and judicial proceedings and might even contravene the principle ne bis in idem.
1.

Where, as in the present case, an employee has a contractual right as against the transferor to the benefit of terms and conditions which are negotiated and agreed by a third party collective bargaining body from time to time, and such right is recognised under national law as dynamic rather than static in nature as between the employee and the transferor employer, does article 3 of Council Directive 2001/23/EC (1) of 12 March 2001 read with Werhof v Freeway Traffic Systems GmbH & Co KG [2006] ECR 1-2397- (a) require that such right be protected and enforceable against the transferee in the event of a relevant transfer to which the Directive applies; or (b) entitle national courts to hold that such right is protected and enforceable against the transferee in the event of a relevant transfer to which the Directive applies; or (c) prohibit national courts from holding that such right is protected and enforceable against the transferee in the event of a relevant transfer to which that Directive applies?
2.

If the answer to the preceding question is that the assignment of claims against a consumer to an entity in bankruptcy for recovery purposes is contrary to EU law, in that case: A. Can Article 47 of the Charter of Fundamental Rights of the EU be interpreted in such a way that it is not contravened by a court procedure whereby the court, in order to protect consumers, does not apply the statutory fee concession of the trustee in bankruptcy, and that, in such a case, the court does not infringe the right of the trustee in bankruptcy to judicial protection if it discontinues the proceedings if the fee for the application is not paid? B. Do Articles 6(1) and 7(1) of Council Directive 93/13/EEC on unfair terms in consumer contracts (2) preclude the application of provisions of national law exempting a trustee in bankruptcy from court fees if, in the absence of the unfair commercial practice, the applicant would not be exempt from court fees and the discontinuance of proceedings would prevent the judicial proceedings concerning fulfilment of the unfair term?
EN Official Journal of the European Union C 347/25

Reference for a preliminary ruling from the Työtuomioistuin (Finland) lodged on 3 October 2011 — Ylemmät Toimihenkilöt YTN ry v Teknologiateollisuus ry, Nokia Siemens Networks Oy

(Case C-513/11)

2011/C 347/36

Language of the case: Finnish

Referring court

Työtuomioistuin

Parties to the main proceedings

Applicant: Ylemmät Toimihenkilöt YTN ry

Defendants: Teknologiateollisuus ry, Nokia Siemens Networks Oy

Question referred

Do Directive 2006/54/EC (1) of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation and Council Directive 92/85/EEC (2) of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding preclude a national collective agreement from being interpreted as meaning that an employee moving from unpaid child-care leave to maternity leave is not paid remuneration during maternity leave in accordance with the collective agreement?

(1) OJ 2006 L 204, p. 23.

(2) OJ 1992 L 348, p. 1.
EN Official Journal of the European Union C 347/13

Action brought on 16 September 2011 — European Commission v Kingdom of the Netherlands

(Case C-473/11)

2011/C 347/19

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: L. Lozano Palacios and W. Roels, acting as Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

— Declare that, by applying a special VAT scheme for travel agents as provided for in resolution No B71/2260 of March 1971, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 43, 96, 98 and 306 to 310 of the VAT Directive (1);

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

Pleas in law and main arguments

The Commission takes the view that the Netherlands has failed to implement the special VAT scheme for travel agents. This is apparent from Decision No B71/2260 of 22 March 1971, as last amended, which clearly conflicts with the special scheme for travel agents provided for in Articles 306 to 310 of the VAT Directive.

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
EN Official Journal of the European Union C 355/11

Appeal brought on 27 September 2011 by The Dow Chemical Company, Dow Deutschland Inc., Dow Deutschland Anlagengesellschaft mbH, Dow Europe GmbH against the judgment of the General Court (First Chamber) delivered on 13 July 2011 in Case T-42/07: The Dow Chemical Company and others v European Commission

(Case C-499/11 P)

2011/C 355/18

Language of the case: English

Parties

Appellants: The Dow Chemical Company, Dow Deutschland Inc., Dow Deutschland Anlagengesellschaft mbH, Dow Europe GmbH (represented by: D. Schroeder, Rechtsanwalt, T. Kuhn, Rechtsanwalt, T. Graf, Advocat)

Other party to the proceedings: European Commission

Form of order sought

— The Dow Chemical Company respectfully requests the Court of Justice to set aside the General Court's judgment in Case T-42/07 in so far as it dismisses its request to annul the Commission's decision of 29 November 2006 in Case COMP/F/38.638 insofar as it relates to it;

— The Dow Chemical Company respectfully requests the Court of Justice to annul the Commission's decision of 29 November 2006 in Case COMP/F/38.638 insofar as it relates to it;

— All Appellants respectfully request the Court of Justice to set aside the General Court's judgment in Case T-42/07 in so far as it dismisses their request to substantially reduce their fines;

— All Appellants respectfully request the Court of Justice to substantially reduce their fines;

— All Appellants respectfully request the Court of Justice — to order the Commission to pay the Appellants’ legal and other costs and expenses in relation to this matter; and — take any other measures that this Court considers appropriate.

Pleas in law and main arguments

The appeal contains four pleas. According to the first plea, the General Court erred in law by assuming that the Commission does not have to exercise its discretion properly and by not exercising the full scope of judicial review with regard to the exercise of the Commission's discretion in holding The Dow Chemical Company liable. According to the second plea, the General Court erred in law with respect to the differential treatment applied to the starting amounts of the fine. According to the third plea, the General Court erred in law by confirming that the Commission was entitled to take The Dow Chemical Company's turnover into account. According to the fourth plea, the General Court erred in law by confirming that the Commission's application of the deterrence multiplier is not discriminatory.
1.

Must European Union law on the freedom of establishment and the freedom to provide services be interpreted as meaning that a provision of national law (in the present case, Article 1 of Law No 12/2004 of the Autonomous Region of Sicily) under which the establishment of opticians’ practices in the territory of a Member State (in the present case, in a part of that territory) is subject to restrictions based on population density and the distance between practices — restrictions which, in theory, constitute an infringement of those fundamental freedoms — reflects an overriding reason relating to the public interest, linked to the need to protect human health?
EN Official Journal of the European Union C 13/5

Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 20 October 2011 — Novartis Pharma GmbH v Apozyt GmbH

(Case C-535/11)

2012/C 13/10

Language of the case: German

Referring court

Landgericht Hamburg

Parties to the main proceedings

Claimant: Novartis Pharma GmbH

Defendant: Apozyt GmbH

Question referred

Does the term ‘developed’ in the introductory sentence of the Annex to Regulation (EC) No 726/2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (1) extend to processes in which portions only of a medicinal product which has been developed and produced on a ready-to-use basis in accordance with the above procedures are drawn off into another container, after being prescribed and ordered at the time concerned by a doctor, if as a result of the process the composition of the medicinal product is not modified, and therefore in particular to the production of pre-filled syringes which have been filled with a medicinal product which is authorised under the regulation?

(1) OJ 2004 L 136, p. 1.
EN Official Journal of the European Union C 13/2

Appeal lodged on 31 May 2011 by Mariyus Noko Ngele against the order of the General Court (First Chamber) delivered on 25 March 2011 in Case T-15/10 European Commission v AT, AU, AW, AW

(Case C-272/11 P)

2012/C 13/03

Language of the case: French

Parties

Appellant: Mariyus Noko Ngele (represented by: F. Sabakunzi, avocat)

Other parties to the proceedings: European Commission, AT, AU, AV, AW

By order of 4 October 2011, the Court (Eighth Chamber) dismisses the appeal and orders Mr Noko Ngele to bear his own costs.
Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 18 October 2011 — IVD GmbH & Co. KG v Ärztekammer Westfalen-Lippe

(Case C-526/11)

(2012/C 25/48)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant and appellant: IVD GmbH & Co. KG

Defendant and respondent: Ärztekammer Westfalen-Lippe

Other party to the proceedings: WWF Druck + Medien GmbH

Question referred

Is a body governed by public law (here: professional association) within the meaning of the second paragraph of Article 1(9)(c) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1)‘financed, for the most part, by the State …’ or is it subject to ‘management supervision’ by the State, if:

— the body has the right by law to raise contributions from its members but does not set the amount of those contributions or the extent of the services to be financed thereby;

— the fees regulations, however, require approval by the State?

(1) OJ 2010 L 134, p. 114.
2.

If the answer to the first question in question 1 above is in the affirmative: Is Article 13(B)(b) of the Sixth Council Directive 77/388/EEC of 17 May 1977 to be interpreted as meaning that the term ‘vehicles’ which, according to the judgment in Case C-428/02 Fonden Marselisborg Lystbådehavn, includes boats, is not applicable to a leased houseboat which has no means of self-propulsion (engine) and which has been let for exclusive long-term use at the locality in question and not for the purpose of locomotion? Does the letting of the houseboat and the landing stage, including the areas of land and water on which they are situated, constitute a single tax-free service or is it necessary to differentiate for VAT purposes between the letting of the houseboat and that of the landing stage?
Appeal brought on 25 November 2011 against the Order of the General Court (Sixth Chamber) delivered on 20 September 2011 in Case T-267/10 Land Wien v European Commission

(Case C-608/11 P)

(2012/C 25/80)

Language of the case: German

Parties

Appellant: Land Wien (represented by: W.-G. Schärf, Rechtsanwalt)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

— revise the order of the General Court of the European Union (Sixth Chamber) of 20 September 2011 in Case T-267/10 so as to take full account of the substance of its claim;

— order the European Commission to pay the costs of the proceedings at first instance and on appeal.

Grounds of appeal and main arguments

The appeal has been brought against the order to the General Court of 20 September 2011, by which that court dismissed the appellant's action seeking, essentially, the annulment of the Commission's decision of 25 March 2010 to discontinue the procedure relating to the appellant's complaint concerning a plan to expand units 3 an 4 of the Mochovce nuclear power plant in the Slovak Republic, and a declaration that the Commission has failed to act, within the meaning of Article 265 TFEU, since it failed to communicate all of the documents requested in that regard in infringement of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. (1)

The General Court infringed the Euratom Treaty in failing to interpret it in the light of the TFEU. The General Court failed to recognise that the TFEU declares as a legally enforceable right the right of access to documents laid down in Article 42 of the Charter of Fundamental Rights, on which the appellant may rely directly to obtain from the Commission all the information which it retained in relation to the expansion of the nuclear power station in Mochovce.

Contrary to what the General Court found, the Commission's letter in response to the question put by the appellant constitutes a challengeable decision for the purposes of Article 263 TFEU. This results from the settled case-law of the Court of Justice and in particular from its judgment of 11 November 1981 in Case 60/81 (IBM).

(1) OJ 2001 L 145, p. 43.
Appeal brought on 23 November 2011 by Dow AgroSciences Ltd, Dow AgroSciences LLC, Dow AgroSciences, Dow AgroSciences Export, Dow Agrosciences BV, Dow AgroSciences Hungary kft, Dow AgroSciences Italia Srl, Dow AgroSciences Polska sp. z o.o., Dow AgroSciences Iberica, SA, Dow AgroSciences s.r.o., Dow AgroSciences Danmark A/S, Dow AgroSciences GmbH against the judgment of the General Court (Third Chamber) delivered on 9 September 2011 in Case T-475/07: Dow AgroSciences Ltd and Others v Commission

(Case C-584/11 P)

(2012/C 25/74)

Language of the case: English

Parties

Appellants: Dow AgroSciences Ltd, Dow AgroSciences LLC, Dow AgroSciences, Dow AgroSciences Export, Dow Agrosciences BV, Dow AgroSciences Hungary kft, Dow AgroSciences Italia Srl, Dow AgroSciences Polska sp. z o.o., Dow AgroSciences Iberica, SA, Dow AgroSciences s.r.o., Dow AgroSciences Danmark A/S, Dow AgroSciences GmbH (represented by: C. Mereu, avocat, K. Van Maldegem, avocat)

Other party to the proceedings: European Commission

Form of order sought

The Appellants claim that the Court should:

— Set aside the judgment of the General Court in Case T-475/07; and

— Annul Commission Decision 2007/629/EC of 20 September 2007 (1) concerning the non-inclusion of trifluralin in Annex I to Directive 91/414 (2) and the withdrawal of authorisations for plant protection products containing that substance; or

— alternatively, refer the case back to the General Court; and

— Order the Respondent to pay all the costs of these proceedings (including the costs before the General Court).

Pleas in law and main arguments

The Appellants submit that, in dismissing their application for annulment in respect of Commission Decision 2007/629/EC of 20 September 2007 concerning the non-inclusion of trifluralin in Annex I to Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance, the General Court breached Community law. In particular, the Appellants contend that the General Court committed a number of errors in its interpretation of the facts and of the legal framework as applicable to the Appellants' situation. That resulted in it making a number of errors in law, in particular:

— in failing to find that the Appellants were requested by the Rapporteur Member State and EFSA to submit further data to clarify the dossier, in accordance with Article 8(5) of Regulation 451/2000 (3);

— in failing to find that the Commission did not follow the proper course of the regulatory procedure as prescribed in the Council Decision 1999/468 (4) and in holding that the Commission did not breach Article 5 of Council Decision 1999/468; and

— in failing to find that the Commission assessed trifluralin against criteria outside the scope of Directive 91/414, for which there is no basis in the relevant legal framework, and therefore acted ultra vires.

For these reasons the Appellants claim that the judgment of the General Court in Case T-475/07 should be set aside and the Commission Decision 2007/629/EC should be annulled.

(1) OJ L 255, p. 42

(2) OJ L 230, p. 1

(3) OJ L 55, p. 25

(4) OJ L 184 p. 23
EN Official Journal of the European Union C 39/12

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 14 December 2011 — E.ON Generación, S.L., Iberdrola, S.A., and Spanish State

(Case C-640/11)

2012/C 39/23

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Appellants: E.ON Generación, S.L., Iberdrola, S.A., and Spanish State

Question referred

May Article 10 of Directive 2003/87/EC (1) of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC be interpreted as not preventing application of national legislative measures of the kind under review in these proceedings, the purpose and effect of which are to reduce remuneration for the activity of electricity production by an amount equivalent to the value of the greenhouse gas emission allowances allocated free of charge during the relevant period?

(1) OJ 2003 L 275, p. 32.
EN Official Journal of the European Union C 39/10

Reference for a preliminary ruling from the Juridiction de Proximité de Chartres (France) lodged on 25 November 2011 — Hervé Fontaine v Mutuelle Générale de l’Education Nationale

(Case C-603/11)

2012/C 39/19

Language of the case: French

Referring court

Juridiction de Proximité de Chartres

Parties to the main proceedings

Applicant: Hervé Fontaine

Defendant: Mutuelle Générale de l’Education Nationale

Question referred

Do Articles 101 and 102 of the Treaty on the Functioning of the European Union — signed at Lisbon on 13 December 2007 and which entered into force in France on 1 December 2009 — preclude national legislation such as that arising from Article L 112-1 of the French Code de la Mutualité (the Code governing mutual companies), in so far as the interpretation of that legislation would prohibit mutual companies providing supplementary health insurance from varying their benefits according to the conditions for issuing certificates and the services provided, whereas such a restriction is not imposed on other companies also providing supplementary health insurance whether governed by the Code des Assurances (the Insurance Code) or the Code de la Sécurité Sociale (the Social Security Code)?