ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 343/35

Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Lithuania) lodged on 12 July 2016 — Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos v Nidera B.V. and Vilniaus apskrities valstybinė mokesčių inspekcija

(Case C-387/16)

(2016/C 343/48)

Language of the case: Lithuanian

Referring court

Lietuvos vyriausiasis administracinis teismas

Parties to the main proceedings

Appellant: Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

Other parties: Nidera B.V., Vilniaus apskrities valstybinė mokesčių inspekcija

Question referred

Must Article 183 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, read in conjunction with the principle of fiscal neutrality, be interpreted as precluding a reduction in the interest that is normally payable under national law on a VAT overpayment (excess) which was not refunded (set off) in due time, which reduction takes into account circumstances other than those resulting from the actions of the taxable person himself, such as the relationship between the interest and the amount of the overpayment not refunded in due time, the period of time during which the overpayment was not refunded and the underlying reasons for this, as well as the losses actually incurred by the taxable person?

(1) OJ 2006 L 347, p. 1.
1.

Infringement of Article 76 (2) CTMR Both oppositions brought by KENZO S.A. are based on Article 8 (5) CTMR (1). In both cases, the Board of Appeal took into account evidence in support of the reputation claim which was filed by the Opponent before the Opposition Division in order to establish genuine use of the mark. It is undisputed that the documents concerned were filed after the expiry of the time limits for submitting evidence of the existence, validity and scope of protection of the earlier right pursuant to Rule 19 (1) CTMIR (2). It follows from Rule 19 (1), (2) and 20 (1) CTMIR that an opposition based on Article 8 (5) must be rejected if the opponent fails to prove the reputation of the earlier trademark within the period specified by the Office. Nevertheless, the General Court comes to the conclusion that the Board of Appeal had discretion as to whether the evidence concerned should be taken into account in support of the reputation claim, that the Board recognized and did exercise its discretion and provided proper reasons for taking that evidence into account. The appellant, on the other hand, is of the opinion that the finding of the General Court awarding discretion to the Board of Appeal is flawed by an error in law and amounts to misapplication of Rules 19 (1), (2) and 20 (1) CTMIR. The appellant is aware that the other parties to the proceedings claim that the admissibility of the consideration of documents filed in support of genuine use in support of the reputation claim is to be guided not by Rule 20 (1) CTMIR, but by Rule 50 paragraph 1, alinea 3, of Regulation No 2868/95 as a special procedural Rule before the Board of Appeal. Even if the discretion of the Board of Appeal were to be construed in line with Rule 50 (1) (iii) CTMIR, that discretion was exercised incorrectly by the Board of Appeal and the General Court misapplied Article 76 (2) by approving the Board of Appeal's considerations on the indissociable link between proof of use and proof of reputation as proper exercising of its discretion. In fact, the Board of Appeal did not even determine the scope of its discretion, i.e. by determining whether the discretion in the subject case must be exercised restrictively or not. If the Board of Appeal had exercised its discretion correctly, it should have recognized that the discretion must, in conformity with the Rintisch judgment (Case C-120/12 P, Bernhard Rintisch v. OHIM) be exercised restrictively. In the circumstances, the only way of correctly exercising discretion would have been not to take into consideration the documents supporting the reputation claim. The General Court overlooked the fact that the Board of Appeal failed to correctly determine the scope of its discretion and to apply its discretion within that scope and, by so doing, infringed Article 76 (2) CTMR.
2.

Is a procedure of a Member State of the European Union, specifically that provided for in Paragraphs 46 to 48 of Hungarian Law No XXXVIII of 1996 ‘for recognition of the validity’ in Hungary [of foreign convictions], relating to criminal proceedings brought in another Member State and culminating there in a final decision (in relation to the same person and to the same acts), compatible with the principle of ‘non bis in idem’ laid down in Article 50 of the Charter of Fundamental Rights of the European Union and Article 54 of the Convention implementing the Schengen Agreement (in the light of Council Framework Decision 2008/675/JHA (1) of 24 July 2008), even if in reality that procedure has the purpose not of enforcing such a decision, but of establishing a basis for that decision to be taken into account in criminal proceedings to be brought in the future?
EN Official Journal of the European Union C 383/6

Reference for a preliminary ruling from the Supreme Court of the United Kingdom (United Kingdom) made on 12 August 2016 — MB v Secretary of State for Work and Pensions

(Case C-451/16)

(2016/C 383/08)

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Applicant: MB

Defendant: Secretary of State for Work and Pensions

Question referred

The question referred is whether Council Directive 79/7/EEC (1) precludes the imposition in national law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognizing a change of gender, a person who has changed gender must also be unmarried in order to qualify for a state retirement pension.

(1) Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security OJ 1979 L 6, p. 24
1.

Must Articles 43 EC and 48 EC (now Articles 49 TFEU and 54 TFEU) be interpreted as precluding national legislation on the basis of which a parent company established in a Member State cannot take into account a currency loss in connection with the amount which it has invested in a subsidiary established in another Member State, whereas it would be able to do so if that subsidiary were to be included in a single tax entity — with characteristics such as those of the Netherlands single tax entity — with that parent company established in the first-mentioned Member State, as a result of consolidation within the single tax entity?
1.

In the light of Article 5 of Directive 93/104/EC (1) of 23 November 1993, and Directive 2003/88/EC (2) of the European Parliament and of the Council of 4 November 2003, as well as Article 31 of the Charter of Fundamental Rights of the European Union, in the case of workers engaged in shift work with rotating rest periods, in an establishment open every day of the week but which does not have continuous 24-hour productive periods, must the compulsory rest day that a worker is entitled to be granted in each period of seven days, that is, at the latest on the seventh day following six consecutive working days?
3.

In the event that the formal invoicing requirements laid down in Article 226 of the VAT Directive are not met, must the taxable person automatically be allowed to deduct input tax where no tax evasion has been committed or the taxable person did not know, and could not have known, of the connection with fraud or, in that event, does the principle of the protection of legitimate expectations presuppose that the taxable person has done everything that could reasonably be required of him in order to verify the accuracy of the content of the invoice?
EN Official Journal of the European Union C 410/5

Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 8 August 2016 — Immo Chiaradia SPRL v The Belgian State

(Case C-444/16)

(2016/C 410/05)

Language of the case: French

Referring court

Cour d’appel de Mons

Parties to the main proceedings

Applicant: Immo Chiaradia SPRL

Defendant: The Belgian State

Question referred

‘Is the fact that a company issuing a share option may record as income the purchase price of that option in the course of the financial year in which that option is taken up or at the end of its period of validity, in order to take into account the risk borne by the option issuer which results from the commitment he makes, [rather than] in the course of the tax year in which the option is purchased and its final price set — the risk borne by the issuer being valued separately by the recording of a provision — compatible with the accounting rules concerning balance sheets laid down by the Fourth Council Directive 78/660/EEC of 25 July 1978 on the annual accounts of certain types of companies (OJ L 222, 14.08.1978, p. 11), according to which:

— the annual accounts are to give a true and fair view of the company's assets, liabilities, financial position and profit or loss (Article 2(3) of the Directive);

— provisions for liabilities and charges are intended to cover losses or debts the nature of which is clearly defined and which at the date of the balance sheet are either likely to be incurred, or certain to be incurred but uncertain as to amount or as to the date on which they will arise (Article 20(1) of the Directive);

— the principle of prudence must in all circumstances be observed, and in particular: — only profits made at the balance sheet date may be included; — account must be taken of all foreseeable liabilities and potential losses arising in the course of the financial year concerned or of a previous one, even if such liabilities or losses become apparent only between the date of the balance sheet and the date on which it is drawn up (Article 31(1) (c), (aa) and (bb) of the Directive);

— account must be taken of income and charges relating to the financial year, irrespective of the date of receipt or payment of such income or charges (Article 31(1)(d) of the Directive);

— the components of asset and liability items are to be valued separately (Article 31(1)(e) of the Directive);

…?’
1.

Is EU law as it currently stands, in particular the general principle in EU law of equal treatment, the general principle of the prohibition of discrimination on grounds of age within the meaning of Article 6(3) TEU and Article 21 of the Charter of Fundamental Rights, the prohibition of discrimination in connection with freedom of movement for workers under Article 45 TFEU and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, (1) to be interpreted as precluding a national rule, such as that at issue in the main proceedings, which for the removal of discrimination on grounds of age identified by the Court of Justice of the European Union in the judgment in Gotthard Starjakob (2) (namely the failure to take into account previous periods of service completed before the age of 18 for ÖBB (Austrian Federal Railways) employees) takes into account a small number of ÖBB employees discriminated against under the old rules with a period of service completed before the age of 18 (but only those employees who actually worked for the ÖBB or for similar public railway infrastructure undertakings or railway undertakings in the EU, in the EEA and in those countries connected with the EU by association or free movement arrangements), but does not take into account, for the vast majority of ÖBB employees originally discriminated against, all other periods of service occurring before the age of 18, in particular including those not taken into account which enabled the ÖBB employees concerned better to perform their duties, such as, for example, previous periods of service with private and other public transport companies or infrastructure companies by which the infrastructure used by the employer (rolling stock, rail construction, line construction, electrical and electronic equipment, signal boxes, station construction and the like) is produced, distributed or maintained, or similar undertakings, and therefore in reality ultimately maintains a difference in treatment based on age for the vast majority of the ÖBB employees discriminated against under the old rules?
1.

Must Article 17(2) of Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products (1) be interpreted as meaning that ‘the date of the first authorization to place the product on the market in the Community’ is incorrect in an application for a supplementary protection certificate, within the meaning of that regulation and of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products, (2) where that date was determined without taking account of the Court of Justice’s interpretation of the law in the judgment in Seattle Genetics (Case C-471/14), with the result that it is appropriate to rectify the date of expiry of the supplementary protection certificate even if the decision to grant that certificate was made prior to that judgment and the time limit for appealing against that decision has already expired?
—

The Commission submits that Article 8(2) of Regulation (EC) No 1072/2009 regulates exhaustively how hauliers may to carry out cabotage operations on the terms laid down in that article. The provision does not provide for a maximum number of loading and/or unloading sites within the same cabotage operation. The limit of a maximum of three cabotage operations does not mean that a cabotage operation must include a set number of loading and/or unloading sites.
1.

Are Article 1(3), Article 5 and Article 6(1) of Council Framework Decision 2002/584/JHA (1) of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States to be interpreted as meaning that the executing Member State, when taking a decision on extradition for the purposes of prosecution, must eliminate any real risk of inhuman or degrading treatment of the person sought, within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, attributable to the conditions of his detention only in the first prison in which that person will be imprisoned following his surrender to the issuing Member State?
3.

Are Articles 167 and 178(a) of the VAT Directive, in the light of the principle of fiscal neutrality, to be interpreted to the effect that, in circumstances such as those of the present case, and assuming that the other substantive law and procedural law conditions required to claim a right to a tax deduction are satisfied, they preclude an approach by the tax authorities which refuses the taxable person the right, claimed within the time-limit under Directive 2008/9, to be refunded VAT which was charged to it by the supplier on the invoice and removed by the supplier before the expiry of the limitation period for relying upon the right under national law?
EN Official Journal of the European Union C 14/24

Action brought on 18 October 2016 — European Commission v Republic of Poland

(Case C-530/16)

(2017/C 014/30)

Language of the case: Polish

Parties

Applicant: European Commission (represented by: W. Mölls and J. Hottiaux, acting as Agents)

Defendant: Republic of Poland

Form of order sought

The Commission claims that the Court should:

— declare that: — by failing to adopt the measures necessary to ensure that the safety authority is independent of railway undertakings, rail infrastructure operators, applicants and procurement entities, and — by failing to adopt the measures necessary to ensure that the investigating body is independent of railway undertakings and rail infrastructure operators, (1) the Republic of Poland has failed to fulfil its obligations under Articles 16(1) and 21(1) of Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community’s railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Commission criticises the Republic of Poland on the ground that it has failed correctly to transpose within the Polish legal system the principle that the investigating body (that is to say, the Państwowa Komisja Badania Wypadków Kolejowych (National Commission for the investigation of railway accidents) (PKBWK)) must be independent in its organisation, legal structure and decision-making, as required by Article 21(1) of Directive 2004/49/EC. The status conferred on the PKBWK does not guarantee its independence. The Commission criticises the fact that the PKBWK is an integral part of the ministry of transport and that there is no safeguard whatsoever to ensure that it is independent of the ministry and the rail infrastructure operator. Furthermore, the PKBWK does not act in its own name: the minister for transport appoints and dismisses the director of the PKBWK and his deputy, as well as the secretary and the permanent and ad hoc members of the PKBWK. In addition, the minister for transport has not, by way of an appropriate arrangement, made available to the PKBWK the financial means necessary to enable it to carry out its tasks.

The Commission also criticises the Republic of Poland for failing correctly to implement Article 16(1) of Directive 2004/49/EC on the ground that the safety authority (that is to say, the Prezes Urzędu Transportu Kolejowego (board of the rail authority) is not independent in its organisation, legal structure and decision-making vis-à-vis railway undertakings, rail infrastructure operators, applicants and procurement entities.

(1) OJ 2004 L 164, p. 44.
1.

May the power conferred by Article 64(1)(c) of Regulation No 883/2004, (1) having regard to Article 63 and Article 7 of Regulation No 883/2004, the objective and scope of Regulation No 883/2004 and the free movement of persons and workers, be applied in such a way that a request for the extension of the export of an unemployment benefit can in principle be refused unless, in the view of the Uwv [Uitvoeringsinstituut werknemersverzekeringen: Management Board of the Employee Insurance Agency], given the particular circumstances of the case, for example, where there is a concrete and demonstrable prospect of work, it would be unreasonable to refuse the extension of the export? If not,
1.

Is the interpretation of the rules relating to the application of the discretionary clause under Article 17(1) of the Dublin III Regulation, having regard to the nature of that provision, ultimately a matter for the courts and tribunals of the Member State, and do those rules release the courts and tribunals against whose decisions there is no judicial remedy from the obligation to refer the case to the Court of Justice under the third paragraph of Article 267 of the Treaty on the Functioning of the European Union? In the alternative, if the answer to the above question is in the negative:
1.

The Appellant’s first ground of appeal is that the General Court erred in law by finding that the patent settlement agreements (‘PSAs’), concluded between Generics (UK) (‘GUK’) and Lundbeck, were restrictions by object under Article 101(1) TFEU: i. By its first plea, the Appellant argues that the General Court misdirected itself as to the applicable legal standard and the correct approach to determining whether the PSAs could be characterised as restrictions by object, in particular in the light of the legal principles upheld in Case C-67/13 P Cartes Bancaires. ii. By its second plea, the Appellant argues that the General Court erred by failing to analyse whether the wording of the PSAs revealed a sufficient degree of harm. iii. By its third plea, the Appellant argues that the General Court erred by holding that the PSAs revealed a sufficient degree of harm on the basis that they were equivalent to market exclusion agreements. iv. By its fourth plea, the Appellant argues that the General Court erred by holding that the PSAs revealed a sufficient degree of harm by avoiding litigation whose outcome was uncertain. v. By its fifth plea, the Appellant argues that the General Court erred by treating the payment to GUK under the PSAs as one of the principal elements of a restriction by object. vi. By its sixth plea, the Appellant argues that the General Court erred by relying on factual considerations extraneous to the wording of the PSAs to support its finding of a restriction by object. vii. By its seventh plea, the Appellant argues that the General Court erred by finding that the PSA relating to the EEA exceeded the scope of Lundbeck's patents.
EN Official Journal of the European Union C 38/15

Action brought on 29 November 2016 — European Commission v Federal Republic of Germany

(Case C-620/16)

(2017/C 038/20)

Language of the case: Germany

Parties

Applicant: European Commission (represented by: W. Mölls, L. Havas and J. Hottiaux, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

— declare that the Federal Republic of Germany infringed Council Decision 2014/699/EU (1) and Article 4(3) TEU, in so far as, at the 25th meeting of the OTIF Revision Committee, it voted against the common position laid down in that decision and expressed open opposition both to that common position and to the exercise of voting rights by the EU provided for therein.

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on the following pleas in law:

The Intergovernmental Organisation for International Carriage by Rail (OTIF), of which the EU alongside 26 Member States is a member, administers the Convention concerning International Carriage by Rail (COTIF).

At the 25th meeting of the OTIF Revision Committee a vote was held with respect to certain changes to the convention and its annexes. The Council laid down the EU common position with regard to several of those points in Decision 2014/699/EU.

At the meeting, the Federal Republic of Germany voted in two points against the common position laid down in that decision, expressed open opposition to that common position and in one case also to exercise of voting rights by the EU provided for in the decision.

That conduct is incompatible with Decision 2014/699/EU and with Article 4(3) TEU.

(1) Council Decision 2014/699/EU of 24 June 2014 establishing the position to be adopted on behalf of the European Union at the 25th session of the OTIF Revision Committee as regards certain amendments to the Convention concerning International Carriage by Rail (COTIF) and to the Appendices thereto (OJ L 293, p. 26).
1.

Is Article 50 of the Charter of Fundamental Rights of the European Union to be interpreted as meaning that, where a court has delivered a final judgment finding a defendant not to have committed the criminal offence alleged, it precludes the initiation or prosecution of further proceedings based on the same facts with a view to the imposition of penalties which, on account of their nature and severity, may be regarded as criminal penalties, without it being necessary for the national court to make any further assessment?