ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 298/16

Action brought on 5 August 2011 — European Commission v Grand Duchy of Luxembourg

(Case C-412/11)

2011/C 298/29

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-P. Keppenne and H. Støvlbæk, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

— Declare that, because the measures adopted by it to implement the first railway package are insufficient, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 6(3) of and Annex II to amended Directive 91/440/EEC (1) and Article 14(2) of Directive 2001/14/EC, (2)

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The Commission complains of the national provisions in case since they provide that, in the event of disruption to traffic, allocation of train paths is made by the Société nationale des chemins de fer luxembourgeois (CFL; Luxembourg National Railway Company) and not by an independent body. CFL thus participates in the exercise of essential functions, which does not ensure fair and non-discriminatory access to the infrastructure for other operators.

In reply to the objections raised by the Luxembourg authorities, the Commission points out, firstly, that the statement of the Luxembourg authorities that there is no reallocation of train paths in the event of disruption to traffic is incorrect. When the timetable can no longer be followed, CFL lets late trains pass, which constitutes a reallocation of train paths. Secondly, the Commission contests the argument that Article 29 of Directive 2001/14/EC constitutes a lex specialis derogating from the general rule and enabling justification of the allocation of train paths by CFL in the event of disruptions.

(1) Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community’s railways (OJ 2001 L 75, p. 1).

(2) Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29).
EN Official Journal of the European Union C 319/9

Appeal brought on 3 March 2011 by Ignacio Ruipérez Aguirre and ATC Petition against the judgment of the General Court (Fourth Chamber) delivered on 20 January 2011 in Case T-487/10 Ignacio Ruipérez Aguirre and ATC Petition v European Commission

(Case C-111/11 P)

2011/C 319/15

Language of the case: Spanish

Parties

Appellants: Ignacio Ruipérez Aguirre and ATC Petition (represented by: M.J. Sánchez González, abogada)

Other party to the proceedings: European Commission

By order of 14 July 2011, the Court of Justice (Sixth Chamber) dismissed the appeal.
3.

If the relevant function (main function) of the set-top box is the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet, is the type of modulation and demodulation which the modem brings about or the type of modem used relevant to the tariff classification, or does it suffice that access to the internet is provided by means of the modem?
If the authorisation to designate the recipient of the supply as the person liable for tax also extends to supplies of goods:

Is the authorised Member State entitled to exercise the authorisation merely partially in respect of certain subcategories, such as particular types of construction work, and in respect of supplies to certain recipients?
EN Official Journal of the European Union C 311/17

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 8 July 2011 — Alexandra Schulz v Technische Werke Schussental GmbH und Co.KG

(Case C-359/11)

2011/C 311/26

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Alexandra Schulz

Defendant: Technische Werke Schussental GmbH und Co.KG

Question referred

Is Article 3(3) of, in conjunction with point (b) and/or (c) of Annex A to, Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (1) to be interpreted as meaning that a provision of national law on price variations in natural gas delivery contracts with domestic customers, who are supplied gas within the framework of the general duty to supply (standard-rate customers), satisfies the transparency requirements if, in that provision, the grounds, preconditions and scope of the price variation are not stipulated but customers are assured that gas suppliers will give them sufficient advance notice of any price increases and they have the right to terminate the contract if they are unwilling to accept the amended contractual terms and conditions as communicated?

(1) OJ 1998 L 176, p. 57.
EN Official Journal of the European Union C 331/10

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 26 August 2011 — Sandra Schüsslbauer, Martin Schüsslbauer, Maximilian Schüsslbauer v Iberia Lineas Aéreas de España SA

(Case C-436/11)

2011/C 331/15

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicants: Sandra Schüsslbauer, Martin Schüsslbauer, Maximilian Schüsslbauer

Defendant: Iberia Lineas Aéreas de España SA

Question referred

Does a passenger have a right to compensation under Article 7 of Regulation No 261/2004 (1) in the case where departure was delayed for a period of time less than the limits specified in Article 6(1) of that regulation, but arrival at the final destination was at least three hours later than the scheduled arrival time?

(1) Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).
EN Official Journal of the European Union C 347/17

Appeal brought on 23 September 2011 by United Technologies Corp. against the judgment of the General Court (Eighth Chamber) delivered on 13 July 2011 in Case T-141/07: United Technologies Corp. v European Commission

(Case C-493/11 P)

2011/C 347/26

Language of the case: English

Parties

Appellant: United Technologies Corp. (represented by: A. Winckler, avocat, J. Temple Lang, solicitor, C.J. Cook, advocate, D. Gerard, avocat)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the Judgment,

— based on the elements available to it, partially annul the Decision and reduce the amount of the fines set forth therein or, as it finds it appropriate, set aside the Judgment and remand the case to the General Court for reconsideration of the relevant elements of facts;

— order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.

Pleas in law and main arguments

By its first plea, the Appellant disputes the General Court's conclusion that the Commission was entitled to impute liability to UTC for the conduct of GTO and the Otis subsidiaries. The plea is dived into three limbs. First, the General Court committed an error of substantive law by failing to comply with the legal test provided for the rebuttal of the presumption of imputability arising from 100 % ownership of subsidiaries by a parent company. Second, the General Court's interpretation of the legal test for the rebuttal of the presumption of imputability violates the Charter of Fundamental Rights of the European Union. Third, the General Court failed to provide adequate reasoning in addressing the specific rebuttals of the presumption of imputability raised by UTC.

By its second plea, the Appellant claims that the General Court failed to provide adequate reasoning and committed an error of law by omitting to address UTC's claim of breach of equal treatment with MEC.
2.

Second plea: misinterpretation of the general principle of proportionality and failure to state adequate reasons in relation to the ‘Northern Crete Trunk Road’ project, in so far as the Commission applied a correction of 25 % to that project merely by reference to the prior audit by the Greek authorities in relation to part of that project.
EN Official Journal of the European Union C 355/12

Appeal brought on 7 October 2011 by ThyssenKrupp Liften Ascenseurs NV against the judgment delivered by the General Court (Eighth Chamber) on 13 July 2011 in Joined Cases T-144/07, T-147/07, T-148/07, T-149/07, T-150/07 and T-154/07 ThyssenKrupp Liften Ascenseurs and Others v European Commission

(Case C-516/11 P)

2011/C 355/19

Language of the case: Dutch

Parties

Appellant: ThyssenKrupp Liften Ascenseurs NV (represented by: O.W. Brouwer and J. Blockx, advocaten)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

— set aside the judgment under appeal of the General Court of 13 July 2011 in so far as the General Court rejected the pleas put forward by the appellant at first instance;

— give judgment in this case and annul Commission Decision C(2007) 512 final (1) of 21 February 2007 in Case COMP/E-1/38.823 — Elevators and Escalators on the basis of the relevant pleas put forward at first instance and/or reduce the fine imposed on ThyssenKrupp Liften Ascenseurs NV;

— in the alternative, reduce the fine imposed on the appellant;

— in the further alternative, refer the case back to the General Court;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The appellant puts forward four grounds in support of its appeal.

1. Infringement of Article 81(1) (now Article 101(1)) EC since the infringements are not capable of appreciably affecting trade between Member States and the Commission unlawfully initiated the investigation procedure.

2. Breach of the ne bis in idem principle.

3. Infringement of Article 23 of Regulation 1/2003, (2) Articles 48(1) and 49(1) and (3) of the Charter of Fundamental Rights of the European Union and of the principle that penalties must fit the offence on account of the confirmation of the appellant’s joint and several liable for the entire amount of the fine calculated on the basis of the group turnover.

4. Error of assessment and unlawful omission by the General Court, in so far as it failed to make any use of its unlimited jurisdiction in the area of fines, inter alia as regards the extent of the market concerned, the multiplier for deterrence and the cooperation in and outside the context of the 2002 Leniency Notice.

(1) Summary in OJ 2008 C 75, p. 19.

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
—

where legal proceedings brought after the rejection of a settlement proposal are concluded by a judgment in precisely the same terms as those of the rejected proposal, the court must disallow recovery of the costs sustained by a successful party who rejected the settlement proposal in respect of the period following the making of the proposal and must order that party to pay the costs of the unsuccessful party in respect of the same period and to make a further payment to the state treasury in the same amount as that already paid in respect of fees (contributo unificato) (lump sum payment in respect of court fees relating to the case payable on instituting proceedings);
EN Official Journal of the European Union C 370/19

Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 17 September 2011 — Olaitan Ajoke Alarape, Olukayode Azeez Tijani v Secretary of State for the Home Department

(Case C-529/11)

2011/C 370/31

Language of the case: English

Referring court

Upper Tribunal (Immigration and Asylum Chamber) London

Parties to the main proceedings

Applicants: Olaitan Ajoke Alarape, Olukayode Azeez Tijani

Defendant: Secretary of State for the Home Department

Questions referred

1. For a parent to qualify as a ‘primary carer’ so as to derive a right of residence from a child, over 21 exercising a right of access to education under Article 12 Regulation No 1612/68 [see now Article 10 Regulation (EU) No 492/2011 (1)], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent's household; and (iii) receiving emotional support from that parent?

2. If in order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain?

3. In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)?

4. In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child?

5. Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring aright of permanent residence under Chapter IV of Directive 2004/38/EC (2) (the Citizens Directive) on ‘Right of Permanent Residence’) and being issued with a residence card under Article 19 of the same Directive?

(1) Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union

OJ L 141, p. 1

(2) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC

OJ L 158, p. 77
—

by not having taken all the required steps to avoid the deterioration of the natural habitats and the habitats of species for which the special area of conservation (SAC) 1220009 was designated, and more particularly, by not taking all the steps required to carry out the measures related to the cessation of illegal drilling, irrigation, the disposal of industrial waste and the plan for management and integrated monitoring programme relating to the National Park of Koronia-Volvi and Macedonika Tempi Lakes, failed to fulfil its obligations under Article 6(2) of Directive 92/43/ΕEC on the conservation of natural habitats and of wild fauna and flora, in conjunction with Article 7 of that directive;
2.

Does the fact that Article 6 of the Directive must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy, mean that, in a dispute between individuals, the national transposition measures with regard to unfair contractual terms are a matter of public policy, so that the national court is competent and obliged, both in first-instance proceedings and in appeal proceedings, of its own motion (and thus also outside the ambit of the grounds of complaint), to assess a contractual term against the national transposition measures and to find that term to be void if it comes to the conclusion that the term is unfair?
—

The primacy of Article 263 of the Treaty on the Functioning of the European Union. Article 102 of the Rules of Procedure of the General Court would render inoperable any obligation of notification as provided for in the Treaty on the Functioning of the European Union which provides that the period for lodging an appeal starts to run with effect from the publication or notification to the plaintiff of the measure or the day on which it came to his knowledge. Article 102 of the Rules of Procedure avoids the obligation of notification and does not take into account the day on which the application effectively became aware of the measure, thus restricting the letter and the spirit of Article 263 TFEU. Accordingly, Article 102 calls into question the rights laid down and protected by the Treaty, which is of higher legal standing and which is mandatory for the institutions comprising the European Union. Consequently, since the contested measures were not notified to the appellant, in breach of Article 263(5) of the Treaty on the Functioning of the European Union, the period for lodging an appeal can start only from when he became aware of the measures adopted against him.
1.

Is Article 7(1) of Council Regulation (EC) No 73/2009 of 19 January 2009 (1) establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers to be regarded as valid to the extent that for the years 2009 to 2012 it provides for a reduction in direct payments in excess of 5 %?
Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 16 November 2011 — Εleftherios-Themistoklis Nasiopoulos v Ipourgos Igias kai Pronias

(Case C-575/11)

(2012/C 25/70)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicant: Εleftherios-Themistoklis Nasiopoulos

Defendant: Ipourgos Igias kai Pronias (Minister for Health and Social Welfare)

Question referred

For the purposes of Article 43 of the Treaty establishing the European Community, is the aim of safeguarding the provision of a high level of health services sufficient, taking account also of the principle of proportionality, to justify a restriction on the freedom of establishment, which arises in the system of provisions that are in force in a certain Member State (the host Member State) and that: (a) allow only persons who have a right to engage, in that Member State, in the regulated profession of physiotherapist to carry out certain professional activities, (b) preclude the possibility of partial access to that profession and (c) therefore mean that a national of the host Member State who has acquired in another Member State (the Member State of origin) a qualification which permits him to engage in a profession regulated in the latter Member State that is connected with the provision of health services (but does not permit him, because the requirements of Council Directive 92/51/EEC on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25) are not fulfilled, to engage in the profession of physiotherapist in the host Member State) is entirely unable to carry out in the host Member State, by way of partial access to the profession of physiotherapist, just some of the activities coming under the latter profession, that is to say, those which the person concerned has the right to carry out in the Member State of origin?
Reference for a preliminary ruling from the Administrativen Sad — Veliko Tarnovo lodged on 11 November 2011 — Menidzharski biznes reshenia OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’, gr. Veliko Tarnovo, pri Tsentralno Upravlenie na Natsionalna Agentsia po Prihodite

(Case C-572/11)

(2012/C 25/69)

Language of the case: Bulgarian

Referring court

Administrativen Sad — Veliko Tarnovo

Parties to the main proceedings

Applicant: Menidzharski biznes reshenia OOD

Defendants: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’, gr. Veliko Tarnovo, pri Tsentralno Upravlenie na Natsionalna Agentsia po Prihodite

Question referred

Is Article 203 in conjunction with Article 168(a) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be interpreted, in cases like the main proceedings and having regard to the principles of fiscal neutrality and protection of legitimate expectations, to the effect that a deduction of VAT may be refused, despite the elimination of the risk of any loss in tax revenues, if that risk was eliminated only with respect to the accounting of the VAT shown in a supplier’s invoice with the State Treasury, without the elimination of the risk of loss in tax revenues affecting the actions or intentions of the supplier which resulted in the fraudulent content of an invoice in which the VAT was shown as payable by the supplier

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
Action brought on 19 October 2011 — European Commission v Kingdom of Belgium

(Case C-533/11)

(2012/C 25/51)

Language of the case: French

Parties

Applicant: European Commission (represented by: S. Pardo Quintillán and A. Marghelis, Agents)

Defendant: Kingdom of Belgium

Form of order sought

— Declare that the Kingdom of Belgium has failed to fulfil its obligations under Article 260(1) of the Treaty on the Functioning of the European Union, since it has failed to take all the measures necessary to comply with the judgment of the Court of Justice of 8 July 2004 in Case C-27/03;

— order the Kingdom of Belgium to pay to the Commission the proposed penalty payment of EUR 55 836 for each day of delay in complying with the judgment in Case C-27/03, from delivery of the judgment in the present case until the date on which the judgment in Case C-27/03 has been complied with;

— order the Kingdom of Belgium to pay to the Commission the daily lump sum of EUR 6 204, from 8 July 2004, the date on which the judgment in Case C-27/03 was delivered, until delivery of the judgment in the present case or until the date on which the judgment in Case C-27/03 has been complied with, if earlier;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

In support of its action, the Commission submits that, in the case of the Bruxelles-Capitale (Brussels-Capital) agglomeration and six agglomerations with a with a p.e. (population equivalent) of more than 10 000 in the Walloon Region, the collecting systems for urban waste water still fail to comply with the requirements of Article 3(1) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment. (1)

In addition, in the case of the Bruxelles-Capitale agglomeration, one agglomeration of more than 10 000 p.e. in the Flemish Region and 19 agglomerations of more than 10 000 p.e. in the Walloon Region, the systems for treating the urban waste water discharged into sensitive areas still fail to comply with the requirements laid down in Article 5(2) and (3) of Directive 91/271/EEC.

The Commission thereby concludes that Belgium has not yet taken the measures necessary to comply fully with the judgment of the Court of 8 July 2004.

(1) OJ 1991 L 135, p. 40.