ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 191/9

Appeal brought on 26 February 2016 by British Airways plc against the judgment of the General Court (First Chamber) delivered on 16 December 2015 in Case T-48/11: British Airways plc v European Commission

(Case C-122/16 P)

(2016/C 191/11)

Language of the case: English

Parties

Appellant: British Airways plc (represented by: J. Turner QC, R. O'Donoghue, Barristers, A. Lyle-Smythe, Solicitor)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the General Court’s judgment in so far as it limits the scope of the annulment of the contested European Commission Decision to the form of order sought by British Airways in its original application for annulment;

— set aside paragraph 1 of the operative part of the General Court’s judgment;

— annul the contested European Commission Decision in full; and

— award British Airways the costs of the appeal.

Pleas in law and main arguments

By the present application British Airways plc is seeking to have partially set aside the decision of the General Court rendered on 16 December 2015 in Case T-48/11, British Airways plc v European Commission. The Judgment partly annulled the Commission Decision C(2010) 7694 final of 9 November 2010 in Case COMP/39258 — Airfreight, in so far as it concerns British Airways.

In support of the action, the applicant relies on two pleas in law.

1. First plea in law, that the General Court erred in law by applying the concept of ultra petita to constrain its actions even when the General Court had of its own motion found there to be fundamental public policy defects which vitiated the European Commission’s Decision entirely. By raising a public policy issue of its own motion, and by deciding the case before it on that basis, the General Court did not rule ultra petita; the General Court therefore erred in law in considering itself restricted by ultra petita when it came to deciding on the consequences of its ruling in the operative part of its judgment.
1.

Must the term ‘employment conditions’ in Clause 4 of the framework agreement on fixed-term work [concluded by ETUC, UNICE and CEEP] annexed to Council Directive 1999/70/EC (1) of 28 June 1999 … be interpreted as including a legal situation in which a fixed-term worker who has been elected to political office as a member of Parliament may, in the same way as a permanent member of staff, apply for and be granted a break in the service relationship with the employer so as to be reinstated in the same post once the relevant parliamentary term of office has expired?
2.

If the first question is to be answered in the negative and, with regard to the air pollution it is not necessary to remedy the environmental damage, may a fine aimed at protecting air quality be imposed on the basis of legislation of the Member State which is more stringent than Article 16 of Directive 2004/35/EC and Article 193 TFEU, or can that more stringent legislation not, at any rate, result in the imposition of a fine which is solely punitive in nature on the owner of the property, which is not responsible for the pollution caused?
1.

Are the provisions of Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC (1) and the provisions of the Framework Agreement on parental leave published in the annex to that directive to be interpreted as precluding rules of national law under which the probationary period, during which an executive post has been assigned to a person with the status of a civil servant on probation, ends by operation of law and with no possibility of extension even in the case where the male or female civil servant has been and still is on parental leave for most of that probationary period?
Request for a preliminary ruling from the Sąd Rejonowy dla Wrocławia-Śródmieścia we Wrocławiu (Poland) lodged on 14 March 2016 — Halina Socha, Dorota Olejnik, Anna Skomra v Szpital Specjalistyczny im. A. Falkiewicza we Wrocławiu

(Case C-149/16)

(2016/C 222/03)

Language of the case: Polish

Referring court

Sąd Rejonowy dla Wrocławia-Śródmieścia we Wrocławiu

Parties to the main proceedings

Applicant: Halina Socha, Dorota Olejnik, Anna Skomra

Defendant: Szpital Specjalistyczny im. A. Falkiewicza we Wrocławiu

Question referred

Must Articles 1(1) and 2 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (1) in conjunction with the principle of the effectiveness of [EU] law, be interpreted as meaning that an employer who on account of a difficult financial situation issues notices of amendment of pay and working conditions (notice of amendment) in relation to employment contracts only governing conditions of remuneration is required to apply the procedure arising from that directive, and also to consult on those notices with company trade union organisations, even though national law — Articles 1, 2, 3, 4, 5 and 6 of the Law laying down special rules on terminating employment relationships with employees for reasons unrelated to the employees (Ustawa o szczególnych zasadach rozwiązywania z pracownikami stosunków pracy z przyczyn niedotyczących pracowników) of 13 March 2003 (Dziennik Ustaw of 2003, No 90, item 844, as amended) — contains no rules on notices of amendment of employment contract conditions?

(1) OJ 1998 L 225, p. 16.
EN Official Journal of the European Union C 251/7

Request for a preliminary ruling from the Commissione Tributaria Provinciale di Torino (Italy) lodged on 15 April 2016 — Bimotor SpA v Agenzia delle Entrate — Direzione Provinciale II di Torino

(Case C-211/16)

(2016/C 251/10)

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Torino

Parties to the main proceedings

Appellant: Bimotor SpA

Respondent: Agenzia delle Entrate — Direzione Provinciale II di Torino

Question referred

Does the Community legislation on VAT (Sixth Council Directive 77/388/EEC (1) of 17 May 1977, as amended by Directive 2002/38/EC (2) and Directive 2006/112/EC (3)) preclude legislation of a Member State — such as Article 34(1) of Law No 388 of 23 December 2000 — under which VAT claims may be repaid or used to offset tax owed, for a given tax year, not in their entirety but only up to a predetermined maximum limit?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

(2) Council Directive 2002/38/EC of 7 May 2002 amending and amending temporarily Directive 77/388/EEC as regards the value added tax arrangements applicable to radio and television broadcasting services and certain electronically supplied services (OJ 2002 L 128, p. 41).

(3) 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 243/21

Request for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 20 April 2016 — MIP-TS OOD v Nachalnik na Mitnitsa Varna

(Case C-222/16)

(2016/C 243/22)

Language of the case: Bulgarian

Referring court

Administrativen sad Varna

Parties to the main proceedings

Appellant on a point of law: MIP-TS OOD

Respondent in the appeal on a point of law: Nachalnik na Mitnitsa Varna

Question referred

Does the scope of Article 1(1) of Council Implementing Regulation (EU) No 791/2011 of 3 August 2011 include the importation of fibreglass open mesh fabrics, of a cell size of more than 1,8 mm both in length and in width and weighing more than 35 g/m2, excluding fibreglass discs, currently classified under CN codes ex 7019 51 00 and ex 7019 59 00 (TARIC codes 7019 51 00 10 and 7019 59 00 10), in respect of which those goods were declared under the procedure ‘release for free circulation and end use’ on 10 April 2012 as originating in Thailand and shipped from that country, whereas in fact they originated in the People’s Republic of China, as established within the framework of OLAF’s investigation procedure and report carried out under Regulation (EC) No 1073/1999 of the European Parliament and of the Council?
1.

First ground of appeal: error in law. Incorrect assessment of the relevant facts. Inadequate and erroneous reasoning in relation to paragraphs 12 to 22 of the order under appeal The order under appeal is based on the erroneous premise that the appellants requested the annulment of Commission Implementing Decision (EU) 2015/789 of 18 May 2015 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.) (OJ 2015 L 125, p. 36) in its entirety, rather than, as was in fact the case, the annulment only of the specific parts described in greater detail in the application initiating the proceedings and in the reply to the objection of inadmissibility.
—

paragraphs 48 to 52, inasmuch as Article 36 and point 1 of Annex VII to the Act of Accession of the RC to the EU came into force on 9 December 2011 when the Judicial Reform Strategy of the Republic of Croatia for the period 2011-2015 and the Revised Action Plan of the Government of the Republic of Croatia for Judicial Reform were in force and applicable from 15 December 2010 and 20 May 2010, respectively, and, consequently, after the repeal of those legal acts by the RC — which acts had been previously expressly authorised by the Commission in section 3 of the Comprehensive Monitoring Report on the RC of 10 October 2012 in which the RC was urged to adopt new legislation on enforcement — and contrary to the general principles of law on the protection of legitimate expectations and legal certainty, since with regard to the appellant the repeal of the legal acts referred to had an obvious retroactive effect in that after 9 December 2012 the RC did not adopt any new judicial reform strategy but merely a Strategy for the Development of the Judicial System for the period 2013-2018, and, therefore, the last Judicial Reform Strategy in fact adopted by the Republic of Croatia was that in force on 9 December 2011 (see judgment of the Court of Justice of 30 January 1974 in Louwage v Commission, 148/73, paragraphs 12 and 28; judgment of the General Court of 17 December 1998 in Embassy Limousines & Services v Parliament, T-203/96, paragraphs 74 to 88; and judgment of the Court of Justice of 14 May 1975 in CNTA v Commission, 74/74, paragraphs 41 to 44), it being noted that the General Court recognises, in paragraph 53 of the judgment under appeal, in stating that ‘it may not be inferred that the Croatian authorities … were entirely free to amend the Judicial Reform Strategy 2011-2015 and the Action Plan 2010. Having regard to the provisions of the Act of Accession and, in particular, Article 36 thereof and Annex VII thereto, those authorities were obliged to comply not only with Commitment No 1, but also with all the other commitments set out in that annex’, the pertinence of the claim for damages that is set out in the application;
EN Official Journal of the European Union C 270/17

Appeal brought on 11 February 2016 by Hewlett Packard Development Company LP against the judgment of the General Court (Sixth Chamber) delivered on 3 December 2015 in Case T-628/14: Hewlett Packard Development Company v EUIPO

(Case C-77/16 P)

(2016/C 270/27)

Language of the case: English

Parties

Appellant: Hewlett Packard Development Company LP (represented by: T. Raab, Rechtsanwalt, H. Lauf, Rechtsanwalt)

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

By order of 26 May 2016 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.
1.

Must Article 49 TFEU and Article 54 TFEU be interpreted as precluding a regional tax levied on the operation of large retail establishments with a public display and sales area equal to or exceeding 4 000 m2 on account of their impact on the territory, environment and urban trading area of that region, but which applies regardless of whether the retail establishments are actually situated inside or outside the consolidated urban area and is borne in most cases by undertakings of other Member States, bearing in mind that the tax (i) does not affect traders who own several retail establishments, whether of an individual or collective nature, with a public display and sales area of less than 4 000 m2 irrespective of the total public display and sales area of all their establishments; and (ii) is not levied on large retail establishments of an individual nature, with a public display and sales area not exceeding 10 000 m2, which solely and exclusively pursue the business of a garden centre or of selling vehicles, construction materials, machinery or industrial supplies?
2.

If were to be concluded that Regulation No 800/2008 concerns all collective proceedings, then, with specific reference to the instrument of an arrangement with creditors as a going concern under Article 186a of Royal Decree No 267/1942, must Article 1(7)(c) of Regulation No 800/2008 be interpreted as meaning that the mere fact that the requirements for opening collective proceedings exist in relation to an operator who applies for assistance from the structural funds prevents such financing being granted, or requires the administering national authority to withdraw the financing already granted or, on the contrary, that the situation of difficulty must be appraised in the specific case, bearing in mind, for instance, the timing of the procedure, the economic operator’s honouring of the undertakings given and any other relevant factor?
EN Official Journal of the European Union C 296/21

Request for a preliminary ruling from the Sąd Rejonowy dla Łodzi — Śródmieścia w Łodzi (Poland) lodged on 25 May 2016 — Criminal proceedings against J.Z.

(Case C-294/16)

(2016/C 296/27)

Language of the case: Polish

Referring court

Sąd Rejonowy dla Łodzi — Śródmieścia

Party/parties to the main proceedings

J.Z.

Question referred

Must Article 26(1) of Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (1) (2002/584/JHA), in conjunction with Article 6(1) and (3) of the Treaty on European Union and Article 49(3) of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the term ‘detention’ also covers measures applied by the executing State, in connection with a curfew, consisting in the electronic monitoring of the place of residence of the person to whom the arrest warrant applies?

(1) OJ 2002, L 190, p. 1.
3.

Having regard to the foregoing and given that the DPP’s decisions are only reviewable by a court if demonstrated that the DPP reached a decision mala fides or influenced by an improper motive or improper policy, as the present state of Irish law permits, is this consistent and compatible with the CFR having regard to the facts of this case?
1.

May the concept ‘use of vehicles’, as an insurance risk for civil liability in respect of the use of motor vehicles, to which the Community legislation (inter alia, Article 3 of Directive 2009/103/EC (1) of the European Parliament and of the Council of 16 September 2009) refers, be determined by the national legislation of a Member State differently from how it is determined by the Community legislation?
EN Official Journal of the European Union C 326/17

Appeal brought on 7 July 2016 by Inclusion Alliance for Europe GEIE against the order of the General Court (Ninth Chamber) of 21 April 2016 in Case T-539/13, Inclusion Alliance for Europe v Commission

(Case C-378/16 P)

(2016/C 326/29)

Language of the case: Italian

Parties

Appellant: Inclusion Alliance for Europe GEIE (represented by: S. Famiani, avvocato)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the order under appeal;

— order the Commission to pay the costs.

Pleas in law and main arguments

By decision of 17 July 2013, the European Commission requested payment from Inclusion Alliance for Europe of a total amount of EUR 212 411,89 in respect of Projects No 224 482 (MARE), No 216 820 (SENIOR), and No 225 010 (ECRN). Inclusion Alliance for Europe brought an action seeking annulment of that decision before the General Court, which gave a decision by reasoned order pursuant to Article 126 of the Rules of Procedure of the General Court.

Inclusion Alliance for Europe claims that the order under appeal should be set aside in its entirety, for the reasons outlined below.

The order under appeal failed to take into account or to apply the general principles of EU law in the assessment of the action brought against the Commission’s decision.

The General Court erroneously regarded the arguments put forward in the reply as pleas in law which had been submitted for the first time, whereas they are, on the contrary, clarifications of the pleas in law and arguments already set out in the original application, with the result that there is no infringement of Article 44(1) of the Rules of Procedure of the General Court of 2 May 1991.

Regarding the submissions made concerning the principles of EU law applicable to the audit procedure, the General Court provided an inadequate, or even no, statement of reasons, incorrectly continuing to bring the case back to the issue of interpretation/breach of contract rather than taking the infringement of the general principles of EU law into account.

The order under appeal fails to take into account or to apply the general principles of EU law with regard to the claim of unjust enrichment and the claim for compensation brought against the European Commission.
EN Official Journal of the European Union C 326/9

Request for a preliminary ruling from the Supremo Tribunal de Justiça (Portugal) lodged on 23 May 2016 — Fidelidade-Companhia de Seguros SA v Caisse Suisse de Compensation and Others

(Case C-287/16)

(2016/C 326/17)

Language of the case: Portuguese

Referring court

Supremo Tribunal de Justiça

Parties to the main proceedings

Appellant: Fidelidade-Companhia de Seguros SA

Respondents: Caisse Suisse de Compensation, Fundo de Garantia Automóvel, Sandra Cristina Chrystello Pinto Moreira Pereira, Sandra Manuela Teixeira Gomes Seemann, Catarina Ferreira Seemann, José Batista Pereira

Question referred

Do Article 3(1) of Directive 72/166/EEC, (1) Article 2(1) of Directive 84/5/EEC, (2) and Article 1 of Directive 90/232/EEC, (3) on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, preclude national legislation which provides that an insurance contract shall be null and void in the event of false statements concerning the owner of the motor vehicle and the identity of its usual driver, where the contract was concluded by a person who has no economic interest in the use of the vehicle and where there is an underlying fraudulent intent on the part of the interested parties (policy holder, owner of the vehicle and the usual driver) to obtain cover for risks in respect of the use of motor vehicles by means of: (i) concluding a contract that the insurer would not have entered if it had known the identity of the policyholder and (ii) paying a premium lower than would be payable having regard to the age of the usual driver?

(1) Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ 1972 L 103, p. 1).

(2) Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17).

(3) Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33).
1.

Is Directive 2014/59/EU (1) of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council, in particular Article 1(1) and Article 2(1)(2) thereof, applicable ratione temporis and ratione materiae to the case of a resolution company like that in the main proceedings whose resolution had already been started, through mechanisms provided for at national level, before the expiry of the period for transposition of the directive and continues to be carried out in the period after the expiry of the period for transposition on the basis of the national rules transposing the abovementioned directive?
d.

In addition to the relief sought under (b) or (c), damages pursuant to Article 340(2) TFEU as a result of the breaches of EU law set out above: (i) As a result of the breaches of EU law relating to the period when the Commission did not release or reduce the bank guarantee amount following the General Court’s judgment in case T-40/06, for the expenses incurred in providing security, to an amount of EUR 22 783,90, or part thereof.
1.

Is the third sentence of Article 23(1) of Regulation (EC) No 1008/2008 (1) to be interpreted as meaning that air carriers must specify the actual amount of taxes, airport charges and other charges, surcharges or fees listed in points (b), (c) and (d) when publishing their air fares and therefore may not partially include them in their air fares in accordance with point (a) of that provision?
3.

Must Article 5 and Article 7 of Regulation No 817/2010, read in conjunction with Article 4 of that regulation, be interpreted as meaning that the export refunds must be recovered if the exporter is unable to prove compliance with the provisions of Regulation No 1/2005, in a situation where the veterinarian, in the context of the checks which he is required to carry out in the third country pursuant to Article 3(1) of Regulation No 817/2010, is unable to verify whether or not the route plan data (the journey log) are satisfactory, that is to say, whether or not they are in compliance with the provisions of Regulation No 1/2005 (and is consequently also unable to declare that the outcome of those checks is satisfactory), inasmuch as the transporter has given the journey log to the official veterinarian at the exit point?