ddrg/super_eurlex huggingface dataset:
(iii)

Agreements with various companies (known as “Redeemers”) under which the Redeemers agree, among other things, to provide goods and/or services to Collectors at a price which is less than would otherwise be payable or for no cash payment when the Collector redeems the Points and in return the Promoter pays a “Service Charge” which is calculated according to the number of Points redeemed with that Redeemer during the relevant period. 1. How are Articles 14, 24 and 73 of Council Directive 2006/112/EC of 28 November 2006 (1) (formerly Articles 5, 6 and 11(A)(1)(a) of Council Directive 77/388/EEC of 17 May 1977 (2)) to be interpreted where payments are made by the Promoter to the Redeemers? 2. In particular, are those provisions to be interpreted such that the payments of the kind made by the Promoter to Redeemers are to be characterised as: (a) consideration solely for the supply of services by the Redeemers to the Promoter; or (b) consideration solely for the supply of goods and/or services by the-Redeemers to the Collectors; or (c) consideration in part for the supply of services by the Redeemers to the Promoter and in part for the supply of goods and/or services by the Redeemers to the Collectors? 3. If the answer to question 2 is (c), so that the Service Charge is consideration for two supplies by the Redeemers, one to the Promoter and the other to the Collectors, what are the criteria laid down by Community law to determine how a charge such as the Service Charge is to be apportioned between those two supplies?
1.

In circumstances where a Member State accepts that services are carried out by an establishment falling to be treated as a duly recognised establishment of a similar nature to a hospital or a centre for medical treatment or diagnosis within Article 132.1(b) of the Principal VAT Directive (1), is the expression ‘hospital and medical care’ in Article 132.1(b) to be interpreted as including the aggregate of or, alternatively, one or more of (and if so which) services of the following descriptions (as more fully described in the Agreed Statement of Facts): a) The provision to the parents of an unborn child of a kit of the necessary medical equipment to enable an independent medical professional attending the birth to collect blood from the umbilical cord of the child shortly after birth; b) The testing of the blood thereby collected at a purpose-built facility for the purpose of ensuring that it is not contaminated with any medical condition that could be transmitted via the blood or via an extract of stem cells from the blood in the event of the therapeutic use of the stem cells (with similar testing occurring again after 6 months) c) The processing of the said blood by and under the supervision of suitably-qualified medical professionals to extract a sample of stem cells suitable for therapeutic medical use; d) The storing of the blood and stem cells in scientifically controlled conditions designed to maintain and preserve the blood and stem cells in perfect condition; and/or e) The releasing of the blood on request of the parents (until the child is 18 years old) for use in medical treatment?
EN Official Journal of the European Union C 102/11

Action brought on 2 February 2009 — Commission of the European Communities v Republic of Poland

(Case C-49/09)

2009/C 102/15

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: D. Triantafyllou and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by applying a reduced VAT rate of 7 % to supplies, the import and the intra-Community acquisition of clothing and clothing accessories for babies and of children’s footwear on the basis of Article 41(2) of the Law on Goods and Services Tax (ustawa o podatku od towarów i usług) of 11 March 2004, in conjunction with items 45 and 47 of Annex III to that Law, the Republic of Poland has failed to fulfil its obligations under Article 98 of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) in conjunction with Annex III thereto;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

In the applicant’s view, the Republic of Poland’s application of a reduced VAT rate of 7% to supplies, the import and the intra-Community acquisition of clothing and clothing accessories for babies and of children’s footwear on the basis of Article 41(2) of the Law on Goods and Services Tax of 11 March 2004, in conjunction with items 45 and 47 of Annex III to that Law, is contrary to the explicit provisions of Article 98 of Directive 2006/112/EC. Application of that reduced rate to the abovementioned goods is not covered by any derogation accorded to the Republic of Poland in point 1(a) and (b) of Chapter 9 (‘Taxation’) of Annex XII to the Act concerning the conditions of accession of the Republic of Poland to the European Union or in Article 128 of Directive 2006/112/EC.

(1) OJ No L 347, 11.12.2006, p. 1.
EN Official Journal of the European Union C 129/4

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 March 2009 — Eis.de GmbH v BBY Vertriebsgesellschaft mbH

(Case C-91/09)

2009/C 129/06

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Eis.de GmbH

Defendant: BBY Vertriebsgesellschaft mbH

Question referred

Is there use for the purposes of Article 5(1)(a) of Directive 89/104/EEC (1) where a third party provides as a keyword to a search engine operator a sign which is identical with a trade mark, without the consent of the proprietor of that trade mark, so that, on inputting the sign identical with the trade mark as a search term into the search engine, an electronic promotional link to the third party’s website advertising identical goods or services appears in an advertising block set apart from the list of search results, that link is marked as a sponsored link and the advertisement itself does not comprise the sign nor contain any reference to the trade mark proprietor or to the products it is offering for sale?

(1) First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40 of 11.2.1989, p. 1).
EN Official Journal of the European Union C 113/19

Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 11 February 2009 — Leo-Libera GmbH v Finanzamt Buchholz in der Nordheide

(Case C-58/09)

2009/C 113/39

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Claimant: Leo-Libera GmbH

Defendant: Finanzamt Buchholz in der Nordheide

Question referred

Is Article 135(1)(i) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be interpreted as meaning that Member States are permitted to have a rule under which only specified forms of (race) betting and lotteries are exempt from tax, and all ‘other forms of gambling’ are excluded from the tax exemption?

(1) OJ 2006 L 347, p. 1.
—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/68/EC of the European Parliament and of the Council of 6 September 2006 amending Council Directive 77/91/EEC as regards the formation of public limited liability companies and the maintenance and alteration of their capital (1), or, as the case may be, by failing to inform the Commission of those provisions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;
6.

It is true, as the Italian authorities maintain, that consumers may make their application for action by the Fund as soon as they are aware of circumstances that threaten to prevent the performance of the contract. However, in order to avail themselves of that opportunity they must be aware of those circumstances. Excluding those cases in which the travel organiser’s insolvency is obvious, by reason of a declaration of insolvency, in most cases consumers do not know the exact financial situation of the operator. It is therefore reasonable that they should in the first place turn to the operator to obtain repayment of sums paid, sending it a letter, perhaps a reminder, and finally an order to pay. In that manner there is a risk that the period of three months fixed by Article 5 of Ministerial Decree No 349/1999 may already have long elapsed when the application is made for action by the Fund, with the result that consumers are deprived of the right to obtain the refund of the sums paid.
2.

In the case that Question 1 is not answered unreservedly in the affirmative: Does Article 10a of Directive 85/337/EEC as amended by Directive 2003/35/EC require that non-governmental organisations seeking access to the courts of a Member State in which administrative procedural law requires an applicant to maintain the impairment of a right may maintain the impairment of such environmental provisions relevant to the approval of a project which derive directly from Community law or transpose Community environmental legislation into domestic law, that is, also such provisions which are intended to serve the interests of the general public alone and not, at least in addition, to protect the legal interests of individuals? (a) In the case that Question 2 is answered, in principle, in the affirmative: Must provisions of Community environmental legislation satisfy specific material requirements to be capable of forming the basis for a challenge? (b) In the case that Question 2(a) is answered in the affirmative: What are the material requirements (for example, direct effect, protective purpose or objective) concerned?
EN Official Journal of the European Union C 167/4

Action brought on 4 May 2009 — Commission of the European Communities v Hellenic Republic

(Case C-155/09)

2009/C 167/07

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal, D. Triantafillou)

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

— declare that the Hellenic Republic is in breach of its obligations under Articles 18, 39 and 43 EC in the light of Article 12 EC (and under Articles 28, 31 and 4 of the EEA Treaty), inasmuch as it is impeding the exercise of fundamental freedoms deriving from those provisions: — by granting exemption from tax on the transfer of immovable property solely to persons already permanently resident in Greece but not to persons who intend to settle in Greece in the future; — by granting, subject to conditions, exemption from tax on the transfer of immovable property in Greece solely to Greek nationals on the purchase of a first home in Greece, expressly discriminating against foreign residents who are not Greek nationals;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Exemption from transfer tax benefits mainly Greek citizens. The fact that Community nationals who are not already resident in Greece are excluded from the exemption constitutes discriminatory treatment linked to nationality which thus renders more difficult and impedes the purchase of a first home in that country by citizens of other Member States. That discriminatory impediment is confirmed and reinforced by the express restriction of the exemption to Greek citizens abroad.

The measure is not an appropriate way to make it easier for residents of the country to acquire ownership of their homes, in the absence of corresponding obligations as regards use of the immovable property. Moreover, it appears excessive, since actual residence could be checked by way of a declaration on the part of the purchaser, accompanied by various entries in the Register, and checks.

As concerns the express restriction of the exemption to Greeks abroad, this cannot be justified by the objective of their repatriation, since that objective conflicts with the principle of free movement.
—

Declare that, by failure to adopt the laws, regulations and administrative provisions necessary to implement Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, (1) or by failing to notify the commission thereof, the Republic of Austria has failed to fulfil its obligations under that directive;
—

set aside the judgment of the Court of First Instance of the European Communities of 10 March 2009 in so far as the CFI (1) annulled Article 1 of the Contested Regulation in so far as the anti-dumping duty fixed for exports towards the European Community of the products manufactured by the Applicants exceeds that which would have been applicable had the export price not been adjusted for a commission when sales took place through the intermediary of the affiliated trader, Sepco SA (point 1 of the operative part of the Contested Judgment) and (2) ordered the Council to bear its own costs and one quarter of the costs incurred by the Applicants (point 3 of the operative part of the judgment under appeal),
6.

More particularly, if the granting of an environmental permit and/or other measures contributes to the national emission ceilings for SO2 and/or NOx in the NEC Directive being exceeded or the risk of their being exceeded, is an individual entitled, on the basis of Article 4 of that Directive: (a) to make a general claim that the Member State concerned should adopt a package of measures which, by 2010 at the latest, would limit the annual national emissions of SO2 and NOx to amounts not greater than the national emission ceilings in the NEC Directive, or, if that does not succeed, a package of measures which would limit the emissions to those amounts as soon as possible thereafter? (b) to make concrete claims that the Member State concerned should adopt specific measures in respect of an individual installation — for example, by refusing a permit or attaching further conditions or restrictions to the permit — which, by the year 2010 at the latest, would contribute to the annual national emissions of SO2 and NOx being limited to amounts not greater than the emission ceilings in the NEC Directive, or, if that does not succeed, specific measures which would contribute to the emissions being limited to those amounts as soon as possible thereafter? (c) In answering questions 6(a) and 6(b), is the extent to which the installation contributes to the emission ceilings being exceeded, or the risk of them being exceeded, of significance?
3.

Must Article 6 of Council Directive 77/249/EEC (1) of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services, in providing that ‘[a]ny Member State may exclude lawyers who are in the salaried employment of a public or private undertaking from pursuing activities relating to the representation of that undertaking in legal proceedings in so far as lawyers established in that State are not permitted to pursue those activities’, be interpreted as precluding national rules such as those in Articles 1 and 2 of Law No 339 of 25 November 2003 which reintroduce the incompatibility of the practice of law by part-time public employees and prohibit such employees from practising as lawyers, despite being qualified to do so, by laying down that such lawyers shall be struck off the register by the competent Bar Council unless the public employee opts to relinquish his salaried post, where those national rules are also applicable to lawyers in salaried employment practising law under the freedom to provide services?
4.

In the contrary case, may that court order such a coercive measure, similar to or different from that which it adopts pursuant to its national law, by application of the national laws of the States in which that prohibition would have effect?
EN Official Journal of the European Union C 220/17

Reference for a preliminary ruling from the Hof van beroep te Brussel (Belgium) lodged on 15 May 2009 — I. SGS Belgium NV v Belgisch Interventie- en Restitutiebureau, Firme Derwa NV and Centraal Beheer Achmea NV and II. Firme Derwa NV and Centraal Beheer Achmea NV v SGS Belgium NV and Belgisch Interventie- en Restitutiebureau

(Case C-218/09)

2009/C 220/31

Language of the case: Dutch

Referring court

Hof van beroep te Brussel

Parties to the main proceedings

I. SGS Belgium NV v Belgisch Interventie- en Restitutiebureau Firme Derwa NV Centraal Beheer Achmea NV

II. Firme Derwa NV Centraal Beheer Achmea NV v SGS Belgium NV Belgisch Interventie- en Restitutiebureau

Question referred

Must the term ‘force majeure’ in Article 5(3) of Commission Regulation (EEC) No 3665/87 (1) of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products be interpreted as meaning that damage to beef while being transported in the correct packaging and in a refrigerated container continuously maintained at the prescribed temperature, in principle constitutes force majeure?

(1) OJ 1987 L 351, p. 1.
EN Official Journal of the European Union C 220/23

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 10 July 2009 — Bianca Purrucker v Guillermo Vallés Pérez

(Case C-256/09)

2009/C 220/46

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Bianca Purrucker

Defendant: Guillermo Vallés Pérez

Question referred

Do the provisions of Article 21 et seq. of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (1) (the Brussels IIa Regulation) concerning the recognition and enforcement of decisions of other Member States, in accordance with Article 2(4) of that regulation, also apply to enforceable provisional measures, within the meaning of Article 20 of that regulation, concerning the right to child custody?

(1) OJ 2003 L 338, p. 1.
EN Official Journal of the European Union C 233/9

Reference for a preliminary ruling from the Corte d’appello di Roma (Italy) lodged on 24 July 2009 — Luigi Ricci v Istituto nazionale della previdenza sociale (INPS)

(Case C-286/09)

2009/C 233/14

Language of the case: Italian

Referring court

Corte d’appello di Roma

Parties to the main proceedings

Applicant: Luigi Ricci

Defendant: Istituto nazionale della previdenza sociale (INPS)

Question referred

The Court of Justice is asked to give a preliminary ruling under Article 234 EC as to whether Articles 17, 39 and 42 EC, and the relevant provisions of Regulation No 1408/71, must be interpreted as meaning that the principle that all insurance periods must be aggregated for the purposes of entitlement to the right to benefits, and of the acquisition and maintenance of that right — a principle implemented through the adoption, by the Council, of Regulation No 1408/71 — applies in all cases where the aggregation and pro rata mechanism must be used for the purposes of recognising the right to a given benefit, with the result that account must be taken to that end both of the insurance periods completed under the legislation of each Member State, and of those completed under the social insurance scheme applicable to employees of the Community institutions.
—

On the sole condition that there is between the harmful act and the territory of the first Member State a link which is sufficient, substantial or significant and, in that case, whether that link can be created by: — the number of hits on the page at issue made from the first Member State, as an absolute figure or as a proportion of all hits on that page, — the residence, or nationality, of the person who complains of the infringement of his personal rights or more generally of the persons concerned, — the language in which the information at issue is broadcast or any other factor which may demonstrate the site publisher’s intention to address specifically the public of the first Member State, — the place where the events described occurred and/or where the photographic images put on-line were taken, — other criteria?
—

Declare that, by failing to adopt, in full, the laws, regulations and administrative provisions necessary to implement Council Directive 2006/88/EC of 24 October 2006 on animal health requirements for aquaculture animals and products thereof, and on the prevention and control of certain diseases in aquatic animals (1) (as amended by Commission Directive 2008/53/EC of 30 April 2008 amending Annex IV to Council Directive 2006/88/EC as regards Spring viraemia of carp (SVC) (2)) or by failing to notify the Commission thereof, the Republic of Austria has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 233/5

Action brought on 7 July 2009 — Commission of the European Communities v Republic of Cyprus

(Case C-251/09)

2009/C 233/09

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: C. Zadra and I. Khatzigiannis)

Defendant: Republic of Cyprus

Form of order sought

— declare that the Republic of Cyprus has failed to fulfil its obligations under Articles 4(2) and 31(1) of Directive 93/38/EEC (1) and Article 1(1) of Directive 92/13/EEC; (2)

— order the Republic of Cyprus to pay the costs.

Pleas in law and main arguments

The Arkhi Ilektrikou Kiprou (Electricity Authority of Cyprus) is stated to have infringed Directives 93/38/EEC and 92/13/EEC in the course of the tendering procedure under reference number 40/2005 which related to a contract for the design, supply and construction of the fourth unit of the Vasilikos Power Station.

The Commission submits that the infringement of Articles 4(2) and 31(1) of Directive 93/38 is due to the grounds for rejection of the complainant’s tender and acceptance of that of the other tenderer on the basis of a criterion which was not referred to clearly in the call for tenders.

So far as concerns the infringement of Directive 92/13, a measure relating to procedure, the Commission submits (i) that, inasmuch as the contracting authority itself created by its conduct a state of uncertainty as to the interpretation to be given to the grounds which resulted in the rejection of the complainant’s tender, it infringed Directive 92/13 as interpreted in the light of the objective of effectiveness pursued by that directive, and (ii) that the contracting authority cannot give reasons for its decision by simply referring to the evaluation reports.

(1) Council Directive of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84).

(2) Council Directive of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14).