ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 24/25

Action brought on 4 November 2009 — Commission of the European Communities v Republic of Austria

(Case C-433/09)

2010/C 24/45

Language of the case: German

Parties

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

Defendant: Republic of Austria

Form of order sought

— Declare that, by including the standard fuel consumption tax in the basis of assessment of the value added tax imposed in Austria on the delivery of a motor vehicle, the Republic of Austria did not comply with its obligations under Articles 78 and 79 of Directive 2006/112/EC (1);

— order Republic of Austria to pay the costs.

Pleas in law and main arguments

The Commission complains of the inclusion of the standard fuel consumption tax (SFCT) in the basis of assessment of the value added tax imposed by the Republic of Austria on the delivery of a motor vehicle in the Republic of Austria.

The standard fuel consumption tax essentially consists of a single registration tax, as its main feature is the registration of motor vehicles in the Republic of Austria. Consequently, the case-law of the Court of Justice in Case C-98/05 (2), according to which such a tax is not to be included in the basis of assessment of value added tax, is applicable to the present case.

(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) Case C-98/05 De Danske Bilimportører [2006] ECR I-4945.
—

declare that, by not bringing into force the laws, regulations and administrative provisions necessary to give effect to Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 concerning the management of bathing water quality and repealing Directive 76/160/EEC, (1) and in any event by not informing the Commission of those measures, the Republic of Poland has failed to fulfil its obligations under Article 18 of that directive;
2.

Is it relevant to the answer to the first question that: (a) there is no doubt that the transactions indicated on the VAT invoice are subject to VAT and that they have actually been carried out; (b) the invoice contained all the details required under Community legislation; (c) a restriction on the taxable person’s right to deduct input tax arising from an invoice issued by an unregistered person operated in national law prior to the date on which the Republic of Poland acceded to the Community?
EN Official Journal of the European Union C 24/29

Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven lodged on 16 November 2009 — 1. IMC Securities BV, 2. Stichting Autoriteit Financiële Markten

(Case C-445/09)

2010/C 24/53

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicants: 1. IMC Securities BV 2. Stichting Autoriteit Financiële Markten

Question referred

Must the second indent of Article 1(2)(a) of the Market Abuse Directive (1) be interpreted as meaning that the bringing about of price changes in a time span such as that at issue through the commission of a combination of acts with a financial instrument, namely transactions and orders to trade as described …, should be regarded as the ‘securing’ of such an instrument at an abnormal or artificial level?

(1) Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (OJ 2003 L 96, p. 16)
EN Official Journal of the European Union C 51/19

Reference for a preliminary ruling from the Collège d’autorisation et de contrôle du Conseil supérieur de l'audiovisuel (Belgium) lodged on 11 December 2009 — RTL Belgium SA (formerly TVI SA) v Conseil supérieur de l’audiovisuel

(Case C-517/09)

2010/C 51/30

Language of the case: French

Referring court

Collège d’autorisation et de contrôle du Conseil supérieur de l'audiovisuel

Parties to the main proceedings

Applicant: RTL Belgium SA (formerly TVI SA)

Defendant: Conseil supérieur de l’audiovisuel

Question referred

Can the notion of ‘effective control both over the selection of the programmes and over their organisation’ in Article 1(c) of the Directive of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (1) [as amended by Directive 2007/65/EC] (the Audiovisual Media Services Directive) be interpreted as meaning that a company established in a Member State and licensed by the government of that Member State to provide an audiovisual media service does in fact exercise such control, even though it delegates, with an option to further delegate, to a third company established in another Member State, against payment of an indeterminate sum equal to the total advertising revenue generated by the broadcasting of that service, the actual production of all the programmes specific to that service, the communication to the public of programme scheduling information and the provision of financial and legal services, human resources, the management of infrastructure and other personnel-related services, and even though it is apparent that it is at the head offices of that third company that decisions are taken and implemented concerning the putting together of programmes and any deletions from or changes to the programming schedule in response to current events?

(1) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298 p. 23)
EN Official Journal of the European Union C 51/22

Appeal brought on 18 December 2009 by Vladimir Ivanov against the order of the Court of First Instance (Third Chamber) delivered on 30 September 2009 in Case T-166/08 Ivanov v Commission

(Case C-532/09 P)

2010/C 51/36

Language of the case: French

Parties

Appellant: Vladimir Ivanov (represented by: R. Rollinger, avocat)

Other party to the proceedings: European Commission

Form of order sought

— declare the appeal admissible;

— declare the appeal well founded;

— annul the order of the Court of First Instance of 30 September 2009;

— decide the case in accordance with the application initiating the proceedings;

— order the opposing party to pay the costs of both instances.

Pleas in law and main arguments

The appellant relies on three grounds in support of his appeal:

By his first ground, which is made up of two parts, the appellant claims that the Court of First Instance should not have used abuse of process to justify the inadmissibility of his action for non-contractual liability, since the very limited scope of abuse of process extends only to exceptional cases in which the object of the action for damages is payment of a sum identical to that which the appellant would have obtained if he had succeeded in an action for annulment. In the present case, the action for damages brought by the appellant is entirely independent, the appellant wishing to render the Commission non-contractually liable for the conduct adopted in his regard, rather than to achieve a financial situation identical to that which he would have had in the event of the annulment of the Commission decisions.

In that context, the appellant claims, moreover, that the Court was not entitled to raise abuse of process of its own motion, since the burden of proof for abuse of process rests on the defendant.

By his second ground, the appellant claims that the Court erred in law by requiring a finding of unlawful conduct on the part of the Commission as a precondition for it to be rendered non-contractually liable, although unlawful conduct of the Community institution is no longer one of the grounds in the most recent case-law of the Court on which the institutions can be rendered liable.

By his third ground, the appellant claims, lastly, that, in ruling that an action for annulment was more appropriate than an action for damages, the contested order adversely affected his right to an effective remedy, as recognised by the Charter of Fundamental Rights of the European Union.
EN Official Journal of the European Union C 63/24

Appeal brought on 7 December 2009 by the Portuguese Republic against the judgment of the Court of First Instance of the European Communities (Seventh Chamber) delivered on 23 September 2009 in Case T-385/05: Transnáutica — Transportes e Navegação SA v Commission

(Case C-506/09 P)

2010/C 63/39

Language of the case: English

Parties

Appellant: Portuguese Republic (represented by: L. Fernandes, C. Guerra Santos, J. Gomes, P. Rocha, Agents)

Other parties to the proceedings: Transnáutica — Transportes e Navegação, SA, European Commission

Form of order sought

The appellant claims that the Court should:

— grant the appeal brought by the Portuguese authorities by staying the determination of this case pending delivery of judgment by the General Court, inasmuch as in the third-party proceedings it is necessary to argue not only the law but also the facts of the case;

— set aside the judgment given on 23 September in Case T-385/05 Transnáutica — Transportes e Navegação SA v Commission by the Court of First Instance of the European Communities by which that court annulled Commission Decision REM 05/2004 of 6 July 2005 refusing Transnáutica's application for repayment and remission of customs debts;

— order Transnáutica — Transportes e Navegação SA to pay the costs.

Pleas in law and main arguments

The appellant submits that the Court of First Instance erred when it concluded that the Portuguese customs authorities were at fault in the setting and monitoring of the comprehensive guarantee used in the transit operations at issue.

The appellant also submits that it is impossible to establish any causal link between the errors allegedly committed by the Portuguese authorities and the later removal of the goods from customs supervision and maintains that, by concluding otherwise, the Court of First Instance has contravened European Union law.
EN Official Journal of the European Union C 134/14

Reference for a preliminary ruling from the Município de Barcelos (Portugal) lodged on 23 October 2009 — Município de Barcelos v Portuguese State

(Case C-408/09)

2010/C 134/22

Language of the case: Portuguese

Referring court

Município de Barcelos

Parties to the main proceedings

Applicant: Município de Barcelos

Defendant: Portuguese State

By order of 12 February 2010, the Court of Justice (Seventh Chamber) held that it clearly has no jurisdiction to answer the question referred by the Município de Barcelos.
EN Official Journal of the European Union C 80/11

Appeal brought on 24 December 2009 by Ferrero SpA against the judgment of the Court of First Instance (Second Chamber) delivered on 14 October 2009 in Case T-140/08: Ferrero SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Tirol Milch reg.Gen.mbH Innsbruck

(Case C-552/09 P)

2010/C 80/19

Language of the case: English

Parties

Appellant: Ferrero SpA (represented by: F. Jacobacci, avvocato, C. Gielen and H.M.H. Speyart, advocaten)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Tirol Milch reg.Gen.mbH Innsbruck

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal;

— uphold Ferrero's application for annulment of the contested decision or, alternatively, refer the case back to the General Court for reconsideration; and

— order OHIM to bear its own costs and to pay those of Ferrero, both in first instance and on appeal.

Pleas in law and main arguments

The appellant maintains that the contested judgment should be set aside on the following grounds:

— the Court of First Instance of the European Communities (‘CFI’) violated the system of Article 8 of Regulation No 40/94 (1) in carrying out a single factual assessment of similarity with implications both under Article 8(1)(b) and Article 8(5), even though both provisions have entirely distinct sets of tests;

— the CFI erred in law in finding that it need not take into account the reputation of the earlier trade marks in finding that the conditions for the applicability of Article 8(1)(b) and (5) were not met;

— the CFI erred in law or distorted the facts submitted to it in applying erroneous, unfounded and unreasoned rules of evidence in assessing similarity;

— the CFI erred in law in failing to take into proper account that the earlier trade marks contain verbal trade marks and that the challenged trade mark is figurative; and

— the CFI erred in law in failing to take into proper account the existence of a family of trade marks.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1
EN Official Journal of the European Union C 51/27

Action brought on 25 January 2010 — European Commission v Council of the European Union

(Case C-40/10)

2010/C 51/43

Language of the case: French

Parties

Applicant(s): European Commission (represented by: J. Currall, G. Berscheid and J.-P. Keppenne, acting as Agents)

Defendant(s): Council of the European Union

Form of order sought

— annul Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009 adjusting with effect from 1 July 2009 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto (1) apart from Articles 1 and 3 thereof, while maintaining its effects until the adoption by the Council of a new regulation correctly applying Articles 64 and 65 of the Staff Regulations and Annex XI thereto;

— order Council of the European Union to pay the costs.

Pleas in law and main arguments

The Commission seeks the annulment in part of Regulation (EU) No 1296/2009 in so far as the Council, for reasons of political expediency, has replaced in that regulation the amounts of the remuneration and pensions proposed by the Commission on the basis of a rate of adjustment of 3,7 % — which is the result of the mechanical application of Article 65 of the Staff Regulations and Annex XI thereto — by amounts corresponding to a coefficient of 1,85 %, which is incorrect. In the view of the Council, that replacement is justified by the economic and financial crisis and by the economic and social policy of the Union.

As regards Articles 2 and 4 to 17 of the contested regulation, the Commission puts forward a single plea, alleging breach of Article 65 of the Staff Regulations and Articles 1 and 3 of Annex XI to the Staff Regulations. The Council has circumscribed powers in this area, more so under the current version of the Staff Regulations — in which the details of the method of adjusting remuneration and pensions are set out in Annex XI thereto — than in the past, when the Court, on the basis of Article 65 of the Staff Regulations alone, concluded that the Council’s discretion was limited. The Commission also relies on a breach of legitimate expectations and of the principle of ‘patere legem quam ipse fecisti’.

Article 18 of the contested regulation, for its part, breaches Articles 3 to 7 of Annex XI to the Staff Regulations in creating the possibility of making an intermediate adjustment of remuneration, beyond the deadline laid down in Article 65 of the Staff Regulations and outside the framework of the conditions laid down in Articles 4 to 7 of Annex XI to the Staff Regulations.

(1) OJ 2009 L 348, p. 10.
EN Official Journal of the European Union C 80/14

Reference for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 12 January 2010 — Agrargenossenschaft Münchehofe e.G. v BVVG Bodenverwertungs- und -verwaltungs GmbH

(Case C-18/10)

2010/C 80/26

Language of the case: German

Referring court

Landgericht Berlin

Parties to the main proceedings

Applicant: Agrargenossenschaft Münchehofe e.G.

Defendant: BVVG Bodenverwertungs- und -verwaltungs GmbH

Question referred

Do the provisions of Paragraph 5(1)(ii) and (iii) of the Flächenerwerbsverordnung (Land Purchase Regulations), implementing Paragraph 4(3)(i) of the Ausgleichsleistungsgesetz (Compensation Act), in the version in force until 11 July 2009, infringe Article 87 EC?
EN Official Journal of the European Union C 100/23

Action brought on 28 January 2010 — European Commission v Portuguese Republic

(Case C-44/10)

2010/C 100/33

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

— Declare that, by failing to take the measures necessary to ensure, by granting permits in accordance with Articles 6 and 8 of Directive 2008/1/EC (1) and reconsidering and, where necessary, updating permits for existing installations, that those existing installations operated from 30 October 2007 in accordance with Articles 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (IPPC Directive), the Portuguese Republic has failed to fulfil its obligations under Article 5(1) of that directive.

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

It follows from Article 4 of the IPPC Directive, read in conjunction with Article 5(1) thereof, that the Member States had to ensure that permits for new and existing installations were granted in accordance with the requirements of Articles 6 and 8 of the Directive. They also had to reconsider and, where necessary, update the conditions of permits for existing installations by 31 October 2007.

According to information supplied by the Portuguese authorities in 2008, the relevant authorisation was not applied for in respect of a number of installations. In addition, 280 out of a total of 632 installations operated without the relevant permit being granted.

According to updated information, 481 out of a total of 577 installations have permits, with 17 authorisation procedures pending.

(1) OJ 2008 L 24, p. 8.
2.

Is the Framework Decision, taking into account firstly the principle stated in Article 1(2) of that decision and secondly the provisions of Article 6(1) of the Treaty on European Union and the provisions of the Charter of Fundamental Rights of the European Union, to be interpreted in such a way that, taking into account recitals 12 and 13 of the Framework Decision, in addition to the grounds for refusal set out in Articles 3 and 4 of the Framework Decision, surrender can be refused also on other grounds based on the factors set out in the recitals? a) If the Framework Decision is to be interpreted in this way, on what grounds may or on what grounds must the executing Member State then rely? Can a Member State in this case rely on the principles of interpretation in relation to the European Convention on Human Rights adopted in the case-law of the European Court of Human Rights regarding extradition on the basis of an offence? Can a Member State also rely on grounds that broaden the grounds for refusal in comparison to the principles of interpretation adopted in the case-law of the European Court of Human Rights? b) If the Framework Decision is to be interpreted in such a way that execution of the arrest warrant can also be refused on grounds other than those set out in Articles 3 and 4, does it furthermore follow from this that the Framework Decision also permits a Member State to refuse to execute an arrest warrant that was issued for the purposes of execution of a sentence, on the basis of factors relating to the content or grounds of the judgment delivered in the State which issued the arrest warrant or the appropriateness of the court proceedings which resulted in the judgment, and requiring an investigation of these claims in the Member State which was asked to execute the arrest warrant? On what more precise conditions or grounds can such an investigation (“revision au fond”) become pertinent? c) Is the Framework Decision to be interpreted in such a way that, inter alia, it permits a Member State to refuse surrender on the basis of an arrest warrant issued for the purposes of execution of a sentence if there are reasonable grounds to suspect that the trial in which the sentence was passed was not fair because the person convicted was subjected to persecution by the authorities of the country of the sentencing court, in the form of discriminatory prosecution?
1.

What is meant by the term ‘human embryos’ in Article 6(2)(c) of Directive 98/44/EC? (1) a) Does it include all stages of the development of human life, beginning with the fertilisation of the ovum, or must further requirements, such as the attainment of a certain stage of development, be satisfied? b) Are the following organisms also included: 1. unfertilised human ova into which a cell nucleus from a mature human cell has been transplanted; 2. unfertilised human ova whose division and further development have been stimulated by parthenogenesis? c) Are stem cells obtained from human embryos at the blastocyst stage also included?